FEDERAL COURT OF AUSTRALIA

Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed by the respondents on 3 August 2017 be dismissed.

2.    The respondents pay the applicant’s costs of and associated with the interlocutory application.

3.    The parties provide consent orders to the Associate to Justice Wigney for the further conduct of the proceeding within 14 days, failing which the proceeding will be listed for a further case management hearing on a date to be fixed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    The applicant, Mr Damien Goodfellow, is a senior police officer employed by the NSW Police Force. The respondents, Fairfax Media Publications Pty Ltd and Mr Eamon Duff, are, respectively, the proprietor of, among other publications, the Sun Herald and the Sydney Morning Herald, in its print and digital editions, and a journalist employed by Fairfax. On 6 November 2016, Fairfax published a “special investigation” and “exclusive” article penned by Mr Duff. The article concerned certain past actions of Mr Goodfellow. It appeared on pages 4 and 5 of the print edition of the Sun Herald under the headline “Assault, drink-driving: the murky past of a cop, and the criminal who went on to kill”. The article was also adverted to in a banner headline on the front page which read: “The Cop and the Freed Crim Assault, drink-driving: the murky past of the cop who played a role in releasing a violent criminal”. A version of the article also appeared in the online edition of the Sydney Morning Herald under the headline: “Murky past of NSW cop Damien Goodfellow, and the criminal who went on to kill”.

2    Mr Goodfellow alleges that the print and online versions of the article defamed him. He seeks, amongst other relief, damages from Fairfax and Mr Duff for the hurt and embarrassment that he has and will continue to suffer.

3    The interlocutory application the subject of this judgment concerned the way that Mr Goodfellow has particularised the defamatory meanings or imputations that he contends were conveyed by the article. Fairfax and Mr Duff contended that a number of the defamatory imputations particularised in Mr Goodfellow’s statement of claim are “bad in form”. They also contended that the article did not have the capacity to give rise to a number of the particularised imputations. Fairfax and Mr Duff sought an order that those questions be heard separately pursuant to r 30.01 of the Federal Court Rules 2011 (Cth), or in the alternative an order that the impugned imputations be struck out pursuant to r 16.21 of the Rules.

4    Not surprisingly, Mr Goodfellow opposed the making of any such orders.

The article and the particularised imputations

5    The content of the hardcopy article and the online article was relevantly the same. The parties agreed that, at least for the purposes of this interlocutory application, the two “matters”, to use the language of s 8 of the Defamation Act 2005 (NSW), and the imputations alleged to be carried by them, should be treated as one.

6    In broad terms, the article addressed three topics.

7    The first topic concerned two past personal transgressions by Mr Goodfellow. Those transgressions appeared to constitute the “murky past” referred to in the headline. The first transgression concerned “an assault conviction for the drunken bashing of an off-duty colleague at a cricket international”. The second concerned an incident in which Mr Goodfellow was “arrested at gunpoint for fleeing a breath test and crashing a police car”. Mr Goodfellow’s statement of claim includes the following two particulars of “defamatory meanings” that relate to the parts of the article that concern this topic (particulars (c) and (d)):

(c)    Mr Goodfellow was arrested at gunpoint after fleeing a breath test and crashing a police car.

(d)    Mr Goodfellow, a police officer, repeatedly punched another police officer.

8    The interlocutory application did not challenge those two particulars. It is unnecessary to give any further consideration to them.

9    The second and third topics dealt with in the article both related to Mr Goodfellow’s connection with two police investigations. The article placed Mr Goodfellow “at the heart of” those two investigations.

10    The first investigation was said to be a “botched drug bust that saw a criminal set free”. That drug case was said to have been “handled” by Mr Goodfellow. The article stated, amongst other things, that “[a]s acting crime manager at Kings Cross local area command in 2011, Detective Inspector Goodfellow filed a report to the agency’s Professional Standards Command that later resulted in a string of drug charges being inexplicably dropped against a violent criminal named Wayne Edward Jones”. The report filed by Mr Goodfellow was also said to have resulted in the police officer who had arrested Mr Jones, Senior Constable Glen Roberts, being charged with having “fabricated evidence”. That charge was subsequently dismissed by a Magistrate. The Magistrate was said to have “tongue-lashed” the police in relation to the charge. One of the Magistrate’s criticisms was said to relate to “the prosecution’s ‘failure to obtain’ any form of statement or evidence from Inspector Goodfellow”.

11    Mr Duff’s article also noted that a year after the charges against Mr Jones were dropped and he was released from jail, Mr Jones violently murdered a woman. The article noted, in that context, that “Senior Constable Roberts is no longer in the force and is haunted by ‘what might have been’ had Jones’ charges not been ‘wrongly withdrawn’.” A caption next to a photograph of the murdered woman referred to the fact that Mr Goodfellow “filed a report that resulted in drug charges being dropped against violent criminal Wayne Jones”.

12    Mr Goodfellow’s statement of claim includes the following particulars of defamatory meanings that relate to this aspect of the article (particulars (a), (b), (f), (g) and (h)):

(a)    Mr Goodfellow, a senior NSW police officer, mishandled the drug investigation of violent criminal Wayne Edward Jones.

(b)    Mr Goodfellow, as Crime Manager at Kings Cross Local Area Command, improperly caused a number of drug charges to be dropped against violent criminal Wayne Edward Jones.

(f)    Mr Goodfellow, a police officer, deliberately failed to give relevant evidence in the prosecution of Glen Roberts.

(g)    Mr Goodfellow, an Inspector of police, caused Glen Roberts to be wrongfully charged with fabricating evidence.

(h)    Mr Goodfellow, a police officer, caused the death of Michelle Reynolds by bungling the investigation of her killer Wayne Edward Jones such that he was free to kidnap and kill Ms Reynolds.

13    The interlocutory application challenged particulars (a), (b), (g) and (h) on the basis that they are “bad in form”. It challenged particulars (a), (b), (f) and (h) on the “capacity” ground.

14    The second investigation was referred to in the article as “[t]he drug sting and the gay officers”. The article stated that “[a]s the current crime manager at Newtown, Inspector Goodfellow was one of three senior police from the station who, based on ‘strong supposition’, recommended a ‘covert investigation’ be launched against the only openly gay male officers within the command, targeting illicit drug use.” The investigation ultimately did not uncover any evidence of wrong-doing. The article quoted the then Assistant Commissioner of the NSW Police saying that he was satisfied that the investigation was appropriate in the circumstances, but then said that the initial response from the Anti-Discrimination Board of NSW “suggests otherwise” because the Board had “accepted for investigation” complaints of “homosexuality discrimination” made by the four officers who were the subject of the investigation.

15    Mr Goodfellow’s statement of claim includes the following particular of a defamatory meaning that relates to this aspect of the article (particular (e)):

(e)    Mr Goodfellow, as Crime Manager at Newtown Police Station, discriminated against gay police officers under his command by wrongly targeting them to be investigated as users of illicit drugs.

16    The interlocutory application challenged this particular on both the “form” and “capacity” grounds.

procedural issues

17    Brief mention should be made of some procedural issues that arose in relation to the interlocutory application.

18    The first procedural issue concerned the timing of the interlocutory application. Mr Goodfellow drew attention to the fact that the interlocutory application had been filed before Fairfax and Mr Duff had filed a defence. He noted that Fairfax and Mr Duff had not applied for r 16.32 of the Rules to be dispensed with. Rule 16.32 requires a defence to be filed within 28 days after service of a statement of claim.

19    In Murphy v Nationwide News Pty Limited [2017] FCA 603, White J declined to dispense with r 16.32 in a defamation case where the respondent raised similar pleading challenges to those made in this case. His Honour noted that the apparent practice of such pleading challenges in defamation cases had developed in State courts where defamation cases are heard before a judge and jury, whereas civil trials in this Court are almost invariably tried by a judge alone. His Honour expressed the view that practices that had developed in jurisdictions where defamation cases are tried by judge and jury should not be inflexibly applied in this Court. White J also considered that the course proposed by the respondent had the potential to be productive of delay and was therefore contrary to the overarching purpose of efficient and expeditious resolution of litigation reflected in s 37M of the Federal Court of Australia Act 1976 (Cth).

20    Many of the observations made by White J in Murphy are apposite to this case. Nevertheless, two points should be noted. First, Mr Goodfellow did not object to the interlocutory application being determined prior to Fairfax and Mr Duff being required to file their defence. Indeed, he consented to the orders that brought the interlocutory application on for hearing at an early stage. Second, it is tolerably clear that White J was not intending to lay down an invariable rule that such applications in defamation matters in this Court should not be made and determined before the respondent is required to file a defence. The question whether an interlocutory application concerning the pleadings in a defamation case can or should be considered before a defence is filed must be considered on the facts of each case.

21    The more significant point raised by Mr Goodfellow in this context was that the fact that Fairfax and Mr Duff had filed the interlocutory application before they had filed their defence created a hurdle for them. That hurdle was said to be that, to the extent that their objections to the particularised imputations relied on the contention that the form of the imputations was likely to cause prejudice or embarrassment at the pleading stage, that contention could not be made out until they filed their defence. In Mr Goodfellow’s submission, the form of the particularised imputations is only significant if Fairfax and Mr Duff plead a defence of justification under s 25 of the Defamation Act, or a defence of contextual truth under s 26 of the Defamation Act. That submission is considered later in the context of the challenge to the form of the particularised imputations.

22    The second procedural issue concerned the part of the interlocutory application that sought a separate trial of the form and capacity questions pursuant to r 30.01 of the Rules. It is, it must be said, most unusual, at least in this Court, for challenges to pleadings, particularly challenges concerning the form of the pleadings, to be the subject of an order for a separate trial under r 30.01. Such challenges are ordinarily made under r 16.21 of the Rules.

23    In Murphy v Nationwide News Pty Limited (No 2) [2017] FCA 781, White J drew attention, again in circumstances analogous to this case, to the fact that the procedures under r 30.01 and r 16.21 are conceptually distinct. Most significantly, the determination of whether there should be a separate trial of a question arising in a proceeding under r 30.01 is an interlocutory decision. There is considerable jurisprudence concerning the circumstances where it is, and is not, appropriate to order a separate or preliminary trial of a question in a proceeding. If, however, the Court orders a separate trial of a question under r 30.01, that issue is then determined on a final basis. Thus, if the Court determines a question concerning a pleading as a separate question under r 30.01, that is a final, not an interlocutory decision. There is no question of the Court granting leave to re-plead. The determination of an application under r 16.21, on the other hand, is unquestionably an interlocutory decision. Where a pleading, or part of a pleading, is struck out under r 16.21, the Court can, and ordinarily does, give consideration to whether leave to re-plead should be granted.

24    It is to be noted that in Murphy (No 2), the respondents ultimately only pressed the application under r 16.21.

25    Fairfax and Mr Duff pointed out that the practice of applying for a separate trial of questions concerning the form of pleaded imputations in defamation cases, and in particular questions concerning whether the relevant publication was capable of conveying the pleaded imputations, developed in the Supreme Court of New South Wales in the 1970s and 1980s. The practice arose because it was perceived that it was harder to strike out a defective pleaded imputation on an interlocutory basis, having regard to the test that was to be applied to such applications, than it was to determine the issue separately on a final basis. It seems that the preferred approach was to determine questions concerning the imputations on a final basis as a separate and preliminary question.

26    It is worth noting, in this context, that s 8 of the Defamation Act provides that a person has a single cause of action for defamation in relation to the publication of defamatory matter, even if more than one defamatory imputation about the person is carried by the matter. Thus, the cause of action is based on the publication, not the individual imputations carried by it. By way of contrast, under the former Defamation Act 1974 (NSW) (the 1974 Act), a plaintiff had a cause of action for each defamatory imputation. It appears to be well recognised that defamation actions under the 1974 Act in New South Wales were unfortunately bedevilled by meretricious pleading debates: cf. Adeang v The Australian Broadcasting Corporation [2016] FCA 1200 at [22].

27    Whatever may have been the origins of the practice or procedure of applying for the separate and preliminary trial of challenges to pleaded imputations in the New South Wales Supreme Court, or indeed any State court, it is difficult to see how it could be said to be an appropriate procedure for resolving pleading disputes in defamation actions in this Court. The rather technical, pedantic and pettifogging approach to pleadings that appears to have been displayed in some of the cases decided under the 1974 Act in the New South Wales Supreme Court should not be encouraged under the current Defamation Act, particularly in this Court. Such an approach is plainly inconsistent with contemporary case management in this Court in light of the overarching purpose of the civil practice and procedure rules identified in s 37M of the Federal Court Act. The fact that defamation actions in this Court are likely to be tried by judge alone provides an even greater reason why a practical and common-sense approach should be taken to issues concerning the pleadings in such cases.

28    Defamation actions in this Court should be approached like all other civil actions. The same principles should apply to interlocutory disputes concerning pleadings. A party who alleges that all or part of a pleading in a defamation case is defective or deficient in some material way should ordinarily apply for the pleading, or part of it, to be struck out pursuant to r 16.21 of the Rules. That is so whether the complaint is as to the form of the pleading, or a more substantive complaint, including, in the defamation context, that the imputation is not reasonably capable of being conveyed by the matter complained of. One of the reasons why the procedure under r 16.21, as opposed to the procedure under r 30.01, should be invoked is that if a pleading or part of it is found to be defective, consideration can then be given to whether the applicant should be granted leave to re-plead. The procedure under r 16.21 is also likely to be more efficient and less expensive than the procedure under r 30.01, which might require an interlocutory hearing to determine if a separate trial should be ordered, and then a separate hearing of the question if such an order is made.

29    That is not to say that a separate trial under r 30.01 of a question arising from a defamation pleading will never be ordered. There may be some cases where a final determination of a separate question arising from a defamation pleading may be appropriate. If there is such a case, however, it would have to satisfy the principles that generally apply to applications for separate trials under r 30.01, including that ordering such a separate trial would be just and convenient and would provide the most efficient and inexpensive approach to resolving the proceeding: see generally Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 240 FCR 276; Olbers Co Ltd v Commonwealth of Australia (No 3) [2003] FCA 651; University of Sydney v ResMed Ltd (No 5) [2012] FCA 232. It has been suggested that ordering the separate trial of a question under r 30.01 is a “procedure that should be approached with caution and can be fraught with difficulties”: Save the Ridge Inc v Commonwealth (2005) 147 FCR 97 at [15]. It may be expected, therefore, that defamation cases where it is appropriate to deal with pleading issues separately and on a final basis will be rare.

30    Beyond referring to the origins of the practice in the New South Wales Supreme Court, Fairfax and Mr Duff did not advance any substantive submission as to why it would be just and convenient to determine the challenges to Mr Goodfellow’s pleading as a separate question under r 30.01. Indeed, it was fairly conceded that the original rationale for the practice had been eroded by subsequent decisions concerning the appropriate test to apply in determining the capacity question.

31    In all the circumstances, the application that there be a separate trial of the question concerning the form of the particularised imputations, and the question as to the capacity of the relevant publication to give rise to the particularised imputations (paragraph 1 of the interlocutory application) should be dismissed. No proper basis has been shown for why the complaints about the pleading should be heard separately and on a final basis under r 30.01.

32    The remaining question is whether the particularised imputations, or some of them, should be struck out pursuant to r 16.21, either because they are bad in form, or because they are not capable of being conveyed by the “matter complained of” – the article. While the submissions advanced by Fairfax and Mr Duff tended to address those two contentions together, they are best dealt with separately.

Are the imputations “bad in form”?

33    In relation to the contention that the particularised imputations (other than particulars (c), (d) and (f)) were bad in form, Fairfax and Mr Duff relied on r 16.21(1)(c) and (d) of the Rules. They contended that the impugned particulars were ambiguous or likely to cause prejudice, embarrassment or delay in the proceeding.

Relevant principles

34    Although trite, it is worth recalling that the basic purpose of a pleading is to clearly define the issues to be tried, and to allow the other party an opportunity to know the case that they are required to meet: Dare v Pulham (1982) 148 CLR 658 at 664; Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356 at [49]-[52]. If that object is met, it is difficult to see why a pleading, or part of it, should be struck out, even if there may be some degree of infelicity in the language employed in the pleading, and even if it is possible to conceive of ways the pleading could perhaps be improved. Pleadings are, after all, a means to an end, not an end in themselves: Banque Commerciale SA (in liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 292-293.

35    As has already been noted, in relation to the form objections, Fairfax and Mr Duff relied primarily on r 16.21(1)(c) and (d) and contended that the impugned imputations particularised in Mr Goodfellow’s pleading are ambiguous or likely to cause prejudice, embarrassment or delay. As will be seen, that contention was based primarily on the fact that certain words used in the pleading were said to be ambiguous or capable of more than one meaning.

36    It may generally be accepted that a pleading that employs ambiguous language may be wholly or partly struck out if the result is that it fails to identify the material factual allegations to the extent that the other party is not given fair or adequate notice of the case that must be met. Likewise, a pleading is likely to cause prejudice or embarrassment if, by reason of the language employed or otherwise, it is ambiguous and susceptible to various meanings to the point where the other party may not fairly know the case alleged against them: Meckiff v Simpson [1968] VR 62 at 70; Fair Work Ombudsman v Eastern Colour Pty Ltd [2011] FCA 803 at [18]. If, however, the pleading as a whole, read fairly and in context, adequately reveals the case that the other party has to meet, it is hard to see why the pleading, or part of it, should be struck out merely because it employs a word or words that, read in isolation, might in some circumstances be said to be susceptible of more than one meaning. Modern case management and practice and procedure in this Court demands that a practical and common sense approach should be taken to pleading disputes.

37    The power to strike out pleadings or portions of pleadings is discretionary and should be employed sparingly and only in a clear case: Radisch v McDonald [2010] FCA 762 at [20] and the authorities there cited.

38    The principles just referred to apply to all civil actions in this Court, including defamation actions. There is no basis for applying different rules or principles, or for adopting a stricter or more rigorous approach in defamation cases.

39    As noted earlier, Mr Goodfellow submitted, in effect, that because s 8 of the Defamation Act provides that the cause of action is the publication (the “matter complained of”) itself, and not the imputations that are said to be conveyed by it, the particulars of the imputations are of little importance. They only assume importance if or when the respondent relies on the defences of justification or contextual truth in s 25 and s 26 of the Defamation Act.

40    It may generally be accepted that particulars of the imputations allegedly conveyed by the publication perhaps assume less significance under the Defamation Act than they did under the 1974 Act in New South Wales, where the imputations were the cause of action. That said, the respondent to a defamation action is still entitled to know the defamatory meanings or imputations that are alleged to have been conveyed by the publication. The pleaded or particularised meanings or imputations must be sufficiently clear or specific that the respondent knows the case that they have to meet. It has therefore been accepted that “the pleading of a defamation claim proceeds by way of imputations and challenges to individual imputations have remained part of the legal landscape” under the Defamation Act: Toben v Milne [2014] NSWCA 200 at [8].

41    The fact that the pleading or particularisation of the alleged imputations remains of some importance under the Defamation Act does not mean that an overly technical or pedantic approach should be taken to the pleading. Even under the 1974 Act, and the relevant rules of the Supreme Court of New South Wales that applied when that Act was in force, where a plaintiff was required to specify the act or condition that the matter complained of attributed to him or her, the specificity with which the imputation had to be pleaded was to be approached in a practical common sense way. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson CJ said (at 137):

The requirement that a plaintiff must “specify” the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology … Furthermore, whilst the principles relevant to the plaintiff’s obligation remain constant their practical application may depend on the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter.

42    Gleeson CJ went on (at 138) to approve the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155, where his Honour said:

The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.

43    This formulation of the relevant test has also been approved in the context of challenges to imputations pleaded or particularised in actions commenced under the Defamation Act: Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 at [22]-[24].

44    In Drummoyne, Priestley JA (at 155) expressed the issue as depending “on the long-established (and probably always self-evident) rule that a pleading must be sufficiently clear to the opposing party to enable that party to plead substantially in answer to it (if the party can) and to prepare for a trial in which the case proved by the evidence will not come as a surprise”. That formulation of the appropriate test also appears to have been approved in Alex.

45    Important also is the fact that the particularised meaning or imputation must be read in context, including in the context of the publication which is alleged to have conveyed the meaning or imputation: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 at [17]. In Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165, Mason P (with whom Wood CJ at CL agreed) said (at [21]-[22]):

These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1925) 35 CLR 449 at 455; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 634). Holmes J, in Towne v Eisner 245 US 418 (1918) at 425, reminds us that: “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used”.

Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true (see J G Fleming, The Law of Torts, 7th ed (1987) Sydney, Law Book Co Ltd, at 588).

46    It follows that, when complaint is made that a word used in a particularised imputation is ambiguous or susceptible of various meanings, the word and the particularised imputation must be read in the context of the relevant publication and the other particularised imputations. The issue should also not be approached in the abstract or as some form of linguistic contest. It should be approached in a practical and common-sense manner. Ultimately, the question is whether the pleading is sufficiently clear to enable the other party to plead substantially in answer to it, or if there is likely to be confusion either at the pleading stage or at the trial stage in relation to the meaning of the imputation advanced by the plaintiff or applicant.

Particular (a) – “mishandled”

47    Particular (a) is that “Mr Goodfellow, a senior NSW police officer, mishandled the drug investigation of violent criminal Wayne Edward Jones”.

48    Fairfax and Mr Duff contended that this particularised imputation was ambiguous, vague and imprecise by reason of the use of the word “mishandled”. In their submission, such a “concept” covers an impermissibly wide range of possible conduct and that nothing in the imputation gives the “notion” of mishandling any content.

49    It is doubtful that it could truly be said that the word “mishandled” is ambiguous, vague or imprecise. Most people would know what it means. It may well be that, considered in the abstract and in isolation, the word may cover a wide range of possible conduct. When read in the context of the relevant article, however, Mr Goodfellow’s case concerning this particularised imputation, and the meaning of “mishandled” specifically, is tolerably clear. The article states that Mr Goodfellow “handled” and “played a key role” in the case against Mr Jones. The only conduct or role in the case that the article imputes to Mr Goodfellow is that he forwarded a report to the Professional Standards Command concerning the arresting officer, Senior Constable Roberts. That report led to the dropping of the charges against Mr Jones. The article then goes on to note that the case against Senior Constable Roberts that flowed from Mr Goodfellow’s report was subsequently dismissed, with accompanying criticism, by a Magistrate. It is readily apparent that Mr Goodfellow’s case is that the article conveys that he “mishandled” the drug case because it suggests that the charges against Mr Jones were dropped because he submitted a baseless, or at least questionable, report about the arresting officer to the Professional Standards Command.

50    There is nothing to suggest that Mr Goodfellow can or will put his case at trial in relation to this particularised imputation in any materially different way to the way that has just been suggested. If he does, because this trial is to be heard by judge alone, that issue can be addressed at trial. Nor is there anything to suggest that Fairfax or Mr Duff are not relevantly aware of the case that they have to meet in relation to this imputation, or that they are likely to have any difficulty pleading to it. There is no indication that they intend to raise any s 25 or s 26 defence to it, or if they do, that they will have difficulty pleading either of those defences because of some confusion about the meaning of the imputation. When read in context, the meaning of “mishandled” is sufficiently clear. In the circumstances, it is unnecessary for the particular to specify the exact conduct that is said to constitute the mishandling.

51    The contention that particular (a) is ambiguous or likely to cause prejudice, embarrassment or delay is accordingly rejected.

Particular (b) – “improperly” and “caused”

52    Particular (b) is that “Mr Goodfellow, as Crime Manager at Kings Cross Local Area Command, improperly caused a number of drug charges to be dropped against violent criminal Wayne Edward Jones”.

53    Fairfax and Mr Duff contended that this alleged imputation is bad in form by reason of the use of the words “improperly” and “caused”. They relied on cases decided under the 1974 Act in support of that submission. In Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260, Hunt J described the word “improper” as a word of “very uncertain import” and one that can be productive of “trouble” when used in a pleaded imputation. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ at CL described the word “caused” as a “weasel word”, being a word of “convenient ambiguity” such that nobody will ever know the way in which it is being used or understood.

54    The answer to these complaints is essentially the same as the answer to the complaint in relation to the word “mishandled” in particular (a).

55    It is, with the greatest respect, difficult to see how a plain English word like “caused” could be described as a “weasel word”. That would depend entirely on the context in which the word is used. It could perhaps be accepted that in some circumstances, considered in isolation and in the abstract, the words “improperly” or “caused” might be of uncertain import. Read in isolation, they might in some circumstances prompt the questions: “how is it said that the conduct was improper” or “how is it said that the conduct caused something to occur”? When imputation (b) is read in the context of the article in question in this matter, however, any suggested ambiguity arising from the use of these words evaporates. Mr Goodfellow’s case concerning this alleged imputation is tolerably clear.

56    The only way in which it could realistically be said that the article conveys that Mr Goodfellow “caused” the charges to be dropped is that the article suggests that Mr Goodfellow’s conduct in submitting the report concerning Senior Constable Roberts to the Professional Standards Command led to the charges being dropped. Likewise, the only way it could realistically be suggested that the article conveys that Mr Goodfellow’s conduct in that regard was improper is that the article goes on to suggest that the report did not have a proper basis because the charges against Senior Constable Roberts that were apparently based on it were subsequently criticised and dismissed by a Magistrate.

57    There is nothing to suggest that Mr Goodfellow can or will put his case concerning this imputation – and the meaning of the words “caused” and “improperly” specifically - in any different way.

58    That is not to say that the parts of the article concerning Mr Goodfellow’s conduct in submitting the report to the Professional Standards Command, and the imputations that are said to flow from it, should or must be read in isolation. The allegation that the article conveyed impropriety on Mr Goodfellow’s part in causing the charges against Mr Jones to be dropped must also be considered in the context of the article as a whole and together with the other imputations that Mr Goodfellow alleges were conveyed by it. It may be part of Mr Goodfellow’s case that further content is given to the meaning of “improperly” in this imputation by the fact that the article appears to link Mr Goodfellow’s connection with the case against Mr Jones with his “murky past” and his connection or role with the other investigation referred to in the article. If that be so, it does not follow that the meaning of “improperly”, when read in the context of this imputation and the article as a whole, is ambiguous or uncertain.

59    When read in context, the meaning and import of the words “improperly” and “caused” as used in the particularised imputation are not ambiguous or uncertain. When considered as a matter of practical justice, as opposed to philology, the particularised imputation is not bad in form. There is nothing to suggest that Fairfax or Mr Duff do not know the case they have to meet, or will have any difficulty in filing their defence. It is unknown whether they intend to plead defences under s 25 or s 26 of the Defamation Act. If it does turn out that there is some confusion concerning the meaning of this imputation at trial, the issue can be revisited then.

60    The contention that particular (b) should be struck out on the basis that it is ambiguous or likely to cause prejudice or embarrassment is accordingly rejected.

Particular (e) – “wrongly”

61    Particular (e) is that “Mr Goodfellow, as Crime Manager at Newtown Police Station, discriminated against gay police officers under his command by wrongly targeting them to be investigated as users of illicit drugs”.

62    Fairfax and Mr Duff contended that this particular is bad in form by reason of the use of the word “wrongly”. The word “wrongful” was described as “inherently ambiguous” and a word the use of which in a pleaded imputation should be avoided in prior decisions concerning imputations pleaded under the 1974 Act: Ma Ching Kwan v John Fairfax Publications Pty Ltd [1998] NSWSC 321; McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 at 494-495.

63    The answer to that complaint is essentially the same as the answer given in the context of the complaints relating to particulars (a) and (b). When read in context, Mr Goodfellow’s case concerning this imputation is tolerably clear. The use of the word “wrongly”, when read in the context of the imputation and the article, is not ambiguous or unclear. Mr Goodfellow’s case would appear to be that the article conveyed that he “wrongly targeted” the officers because it stated, amongst other things, that the investigation targeted the only “openly gay male officers” within the command, that the lengthy and costly investigation revealed no wrongdoing on the part of the officers who were subjected to the investigation, and that the Anti-Discrimination Board had accepted for investigation the officers’ complaints that they had been targeted because of their sexual orientation. The implication was therefore that Mr Goodfellow targeted the gay officers because of their sexual orientation, which was a wrong reason. Thus, the sense in which the word “wrongly” is used in the particular is sufficiently clear.

64    The contention that particular (e) is bad in form because it is ambiguous is accordingly rejected.

Particular (g) – “caused” and “wrongfully”

65    Particular (g) is that “Mr Goodfellow, an Inspector of police, caused Glen Roberts to be wrongfully charged with fabricating evidence”.

66    Fairfax and Mr Duff complained that this particular is bad in form by reason of the use of the words “caused” and “wrongfully”. The flaw in that contention, once again, is that it suggests that the use of these words in the particularised imputation should be considered in isolation and in the abstract. It is, however, clear that they must be read in the context of the article in question.

67    When read in the context of the article as a whole, it is clear that Mr Goodfellow’s case is that the article conveyed that Mr Goodfellow “caused” Senior Constable Roberts to be charged because he sent a report to the Professional Standards Command concerning Senior Constable Roberts. The article stated that Senior Constable Roberts faced charges “relating to the professional standards report filed by Inspector Goodfellow”. Equally, Mr Goodfellow’s case would appear to be that the article conveyed that, in so acting, Mr Goodfellow acted “wrongfully’ because it referred to the charges against Senior Constable Roberts being dismissed, with accompanying criticism, by the Magistrate. It also referred to the fact that the prosecution did not obtain a statement or evidence from Mr Goodfellow in support of the prosecution. The implication would appear to be that Mr Goodfellow’s report was therefore baseless.

68    There is no suggestion that Mr Goodfellow can or will put his case in any materially different way, or that Fairfax and Mr Duff do not know the case they have to meet, or have any difficulty in pleading to the allegation. The contention that this imputation is bad in form is accordingly rejected.

Particular (h) – “caused”

69    Particular (h) is that “Mr Goodfellow, a police officer, caused the death of Michelle Reynolds by bungling the investigation of her killer Wayne Edward Jones such that he was free to kidnap and kill Ms Reynolds”.

70    Fairfax and Mr Duff contended that this particular is bad in form because it does not identify the sense in which the word “caused” is used.

71    That contention is rejected. The particular itself makes it sufficiently clear that Mr Goodfellow’s case is that the article conveyed that he caused Ms Reynold’s death because he “bungled” the investigation that otherwise would have seen Mr Jones behind bars and unable to kill Ms Reynolds or anyone else. That this is Mr Goodfellow’s case is also clear when the particular is read in the context of the article in question. It is difficult to see how else Mr Goodfellow could put his case in relation to this imputation.

72    It follows that the use of the word “caused” in this particular does not make the particular ambiguous. Nor is it likely to lead to prejudice or embarrassment, either at the pleading stage or at trial.

Conclusion in relation to form objections

73    None of the objections raised by Fairfax and Mr Duff concerning the form of the particularised imputations have any merit. As has already been noted, if it subsequently turns out that Fairfax and Mr Duff have been prejudiced or embarrassed in any material way in the pleading of their defence, or the conduct of their defence at trial, by any vagueness or ambiguity in any of the particulars, the issue can then be revisited and dealt with.

74    It should also be emphasised that none of what has been said concerning the clarity of the particularised imputations or Mr Goodfellow’s case concerning them should be construed as suggesting that the Court has formed any view or disposition concerning Mr Goodfellow’s case. The question whether the particularised imputations were in fact conveyed by the article and were defamatory of Mr Goodfellow are plainly matters for trial.

The capacity of the article to give rise to the imputations

75    Fairfax and Mr Duff contended that the imputations in particulars (a), (b), (e), (f) and (h) should be struck out because they are not capable of being conveyed by the relevant article. As such, they submitted that those particulars should be struck out pursuant to r 16.21(1)(e) because they fail “to disclose a reasonable cause of action … or other case appropriate to the nature of the pleading”.

Relevant principles – capacity

76    The applicable principles where a defendant or respondent in a defamation proceeding contends that the relevant publication did not have the capacity to convey the meanings or imputations alleged by the plaintiff or applicant are well-settled.

77    The question whether a publication is capable of conveying a defamatory meaning is a question of law: Favell at [9]-[11]. The question is to be determined from the perspective of the ordinary reasonable reader (or listener or viewer, depending on the nature of the matter complained of). It should be borne in mind, in that context, that ordinary readers draw implications much more freely than lawyers, especially when they are derogatory: Favell at [11], referring to the judgment of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 277.

78    Where the tribunal of fact is a jury, the question is whether the challenged defamatory meanings or imputations “could reasonably be found by a jury” to have been conveyed: Favell at [14]-[15]; Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [138]. The question whether the meaning or imputation was in fact conveyed to the ordinary reasonable reader (or listener or viewer) is a question for the tribunal of fact at the trial. Where the tribunal of fact is a jury, one can readily understand why it is important for the capacity issue to be considered and dealt with at an interlocutory stage before trial. The utility of that course is less obvious where the trial is conducted before a judge alone. As White J pointed out in Murphy (at [14]), where a defamation trial is to be heard by a judge alone, there is greater scope for issues such as the capacity of a publication to bear a defamatory meaning to be determined in the context of the trial itself, rather than in the context of a pre-trial interlocutory hearing.

79    In any event, whether or not a pleading, or part of it, should be struck out on the basis that the publication was not capable of giving rise to the defamatory imputations alleged is a matter for the discretion of the judge hearing the application. Such a step is not to be undertaken lightly, but only with great caution: the “fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion”: Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 at [2]; approved in Favell at [6]. The capacity determination is “an exercise in generosity not parsimony”: Corby at [134] citing Berezovsky v Forbes [2001] EWCA Civ 1251 at [16]. In Corby, McColl JA (with whom Gleeson JA agreed) said (at [136]):

One reason "great caution" is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that "no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be 'perverse' for any jury to do so'": Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 89 ("Jameel") (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing).

80    The caution that should be exercised in considering whether to strike out a pleading, or part of it, in a defamation case based on a capacity determination, is consistent with the principles that apply generally to the striking out of pleadings. As noted earlier, that power is exercised sparingly and only in clear cases. The Court is careful to ensure that it does not, in striking out a pleading, prevent a party from making a case that it is entitled to make: Trade Practices Commission v Pioneer Concrete (Qld) Pty Ltd (1994) 52 FCR 164 at 175; Murphy (No 2) at [20].

81    Fairfax and Mr Duff contended that if the article does not have the capacity to convey any of particulars (a), (b), (e), (f) and (h), the offending particular or particulars should be struck out under r 16.21(1)(e) on the basis that they fail to disclose a reasonable cause of action or other case appropriate to the nature of the proceeding.

82    Mr Goodfellow submitted that because Fairfax and Mr Duff had not sought to strike out all the particulars, none of the impugned particulars could be struck out under r 16.21(1)(e). That was said to be because, as noted earlier, the cause of action for defamation under the Defamation Act is the “matter” or publication, not the individual imputations. Therefore there was still a cause of action even if some of the particulars were incapable of being conveyed by the article.

83    That rather technical submission is rejected. If it is found that the article is not capable of conveying one of the impugned particulars of meanings, it would be open to dismiss that particular on the basis that it failed to disclose a case appropriate to the nature of the pleading. Alternatively, it could be struck out on the basis that it was likely to cause a delay in the proceeding.

84    The question remains, however, whether the article had the capacity to convey any of the impugned particulars of meaning. Needless to say that Mr Goodfellow maintained that the article had the capacity to convey all the particularised meanings.

Particular (a)

85    The “headline” submission advanced by Fairfax and Mr Duff in relation to the capacity of the article to convey this imputation, as well as a number of other imputations, was that the notion of “mishandling” depends on the proposition that the person accused of mishandling handled the relevant matter in the first place. Fairfax and Mr Duff contended that the article does not say that Mr Goodfellow handled the drug investigation of Mr Jones. The article says, rather, that Mr Goodfellow submitted a report to the Professional Standards Command concerning the arresting officer, Senior Constable Roberts.

86    That submission is rejected. The article is at least capable of conveying that Mr Goodfellow handled the drug investigation of Mr Jones. It stated, in terms, that Mr Goodfellow “played a key role” in the “drug case” and that a Fairfax “probe” had “placed him at the heart of” that and another investigation. Even more significantly, the article stated that the drug case was “handled by him [Mr Goodfellow]”. Those statements are clearly capable of conveying that Mr Goodfellow relevantly handled the investigation. Other statements in the article are capable of conveying that the part played by Mr Goodfellow in the investigation could be characterised as “mishandling”.

87    The question whether the article in fact conveyed to the ordinary reader the meaning in particular (a) is a matter for determination at trial.

Particular (b)

88    The capacity challenge to particular (b) was also based on the contention that the article is not capable of conveying that Mr Goodfellow was conducting the drugs case against Mr Jones. Fairfax and Mr Duff contended, therefore, that the article is not capable of conveying that Mr Goodfellow caused the drug charges to be dropped.

89    That submission is rejected for essentially the same reasons as given in the context of particular (a). It should perhaps be added that the caption to the photograph of the murder victim of Mr Jones included the words “Detective Inspector Goodfellow … filed a report that resulted in drug charges being dropped against violent criminal Wayne Jones”.

90    The article is capable of conveying the meaning in particular (b). The question whether the article in fact conveyed that meaning is a question for determination at trial.

Particular (e)

91    Fairfax and Mr Duff submitted that the article was not capable of conveying that Mr Goodfellow discriminated against gay police officers because, while the article raises the possibility that Mr Goodfellow discriminated against the gay officers, it does so at the level of suspicion rather than guilt. The article stated that the complaint against Mr Goodfellow that had been lodged by the gay officers had only been accepted for investigation. It had not been determined.

92    That submission is rejected. The article is at least capable of conveying the meaning that Mr Goodfellow discriminated against the gay officers. The article, read as a whole, is capable of conveying more than just suspicion. In Lewis, Lord Devlin said (at 285), in a passage cited with approval in Favell at [11]:

It is not ... correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

93    Mr Goodfellow’s case is that the article referred to a good deal of “smoke” concerning him and his role in instigating the investigation concerning the gay officers at the station under his command. There is at least some force in the submission that, having referred at length to the “smoke”, the article did little, if anything, to exclude the suggestion that there was also a “fire”: that Mr Goodfellow had in fact discriminated against the gay officers by wrongly targeting them to be investigated.

94    It is true that the article did not say, in terms, that Mr Goodfellow did discriminate against the officers. It is equally true that the article referred only to the fact that the Anti-Discrimination Board had accepted the complaint by the gay officers “for investigation”. Nevertheless, it would be at least reasonably open to find that an ordinary reader of the entire article would “read between the lines” (cf. Lewis at 258) and draw the implication that Mr Goodfellow did in fact discriminate against the officers.

Particular (f)

95    Particular (f) is that “Mr Goodfellow, a police officer, deliberately failed to give relevant evidence in the prosecution of Glen Roberts”.

96    Fairfax and Mr Duff submitted that this imputation is incapable of arising. In their submission, the article conveyed no more than a criticism of the conduct of the prosecution in the case against Senior Constable Roberts in not obtaining a statement or evidence from Mr Goodfellow. That is not the same as saying that Mr Goodfellow deliberately failed to give evidence.

97    The relevant part of the article is in the following terms:

But in court, magistrate Graeme Curran tongue lashed police, labelling the conduct as “quite unacceptable” and “quite inexcusable”.

In dismissing the case against Senior Constable Roberts and awarding him costs, Mr Curran pointed to two “critical” pieces of evidence the agency had withheld from the Office of the Director of Public Prosecutions and the defence that would have proved the officer’s “truthfulness” from the start.

But equally as important, he cited the prosecution’s “failure to obtain” any form of statement or evidence from Inspector Goodfellow. “It could have been of assistance to the prosecution … it may easily have been of assistance to the defence,” he said.

98    Mr Goodfellow submitted that these passages of the article were capable of conveying the imputation in particular (f). He pointed to the reference to the fact that the Magistrate “tongue-lashed” police, and submitted that the only police officer referred to in the article was Mr Goodfellow. The suggestion appeared to be that the Magistrate must therefore have been tongue-lashing Mr Goodfellow. He also submitted that the fact that the words “failure to obtain” are in inverted commas put the proposition that the prosecution failed to obtain a statement from Mr Goodfellow in doubt.

99    The capacity of the article to convey the meaning in imputation (f) is rather borderline. There is some merit in the submissions advanced by Fairfax and Mr Duff. The interpretation of the relevant part of the article advanced by Mr Goodfellow, on the other hand, appears somewhat strained. It would, for example, be equally open to regard the inverted commas around the words “failure to obtain” as suggesting that this was a quote from the Magistrate. The suggestion that the article conveyed that the Magistrate tongue-lashed Mr Goodfellow because he was the only police officer referred to in the article is also somewhat questionable.

100    Nevertheless, given that the question must be approached from the perspective of the ordinary reader, and that the exercise is one that must be approached with caution and “generosity not parsimony”, on balance the particular should not be struck out on the basis of capacity. There could be little doubt that a lawyer familiar with the way prosecutions are conducted might appreciate that the statement that the prosecutor failed to obtain a statement or call evidence from a witness does not necessarily convey that the relevant witness deliberately failed to give evidence. The decision not to obtain the statement or call the evidence may well have been the decision of the prosecution, not the decision of the witness. Nevertheless, the question must be considered from the perspective of the ordinary reader, who may not necessarily be cognizant of such matters.

101    Perhaps more significantly, parts of the article dealing with this issue must be read in the context of the article as a whole. The statements in the article concerning Mr Goodfellow’s “murky past” and the investigation of the gay officers might lead an ordinary reader to read between the lines and infer that the prosecution’s failure to call evidence from Mr Goodfellow was the result of a deliberate decision by Mr Goodfellow not to give evidence.

102    On balance, the article is capable of conveying the meaning in particular (f). Whether that imputation was in fact conveyed is a matter for determination at trial.

Particular (h)

103    The challenge to the capacity of the article to convey the meaning in particular (h) was, like particulars (a) and (b), based on the proposition that the article does not convey that Mr Goodfellow conducted the investigation of Mr Jones. Fairfax and Mr Duff submitted, therefore, that the article could not convey that Mr Goodfellow “bungled” that investigation. That submission is rejected for the reasons given above in the context of particulars (a) and (b). The article is capable of conveying that Mr Goodfellow played a role or was involved in the investigation of Mr Jones by filing a report concerning the arresting officer with the Professional Standards Command and that that action resulted in the investigation being “bungled”.

Conclusion and disposition

104    Fairfax and Mr Duff have not demonstrated that any of the impugned particulars should be struck out under r 16.21(1)(c) and (d) on the basis that they are ambiguous or likely to cause prejudice, embarrassment or delay. Nor have they demonstrated that the relevant article was not capable of conveying the meanings or imputations in any of particulars (a), (b), (e), (f) or (h). There is accordingly no basis to strike those particulars out under r 16.21(1)(e) on the basis that they fail to disclose a reasonable cause of action or other case appropriate to the nature of the proceeding.

105    The interlocutory application filed by Fairfax and Mr Duff must accordingly be dismissed with costs. Orders will be made accordingly. The parties should prepare consent orders for the further conduct of the proceeding within 14 days of the judgment, failing which the matter will be listed for a further case management hearing.

Associate:

Dated:    29 September 2017