Federal Court of Australia

Laming v Nine Network Australia Pty Ltd [2022] FCA 63

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to file the proposed amended defence upon the following deletions being made and the necessary consequential changes to paragraph numbering and otherwise being made:

(a)    delete paragraph 14(a)(iii);

(b)    delete paragraphs 48 to 90, 97 to 104, and 130 to 139 of the particulars of truth.

2.    The interlocutory application dated 25 October 2021 otherwise be dismissed

3.    The costs of and incidental to the interlocutory application dated 25 October 2021 be costs in the cause.

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

REASONS FOR JUDGMENT

(Revised from transcript)

BROMWICH J:

1    Dr Andrew Laming is a member of the House of Representatives for an electorate in Queensland. He sues for defamation by way of an originating application and statement of claim in relation to a 27 March 2021 news segment concerning him that was published on the Channel 9 free-to-air network, and subsequently on the 9Now streaming service, the 9news website, and on a related Facebook page and Twitter account. The first respondent, Nine Network Australia Pty Ltd, is the producer of the Nine News television program.

2    By a defence, Nine Network admits that all of the 11 pleaded imputations are defamatory, and that three of them were conveyed. By reference to the Defamation Act 2005 (NSW) and the common law, Nine Network’s defence pleads substantial truth (s 25), substantial truth of pleaded contextual imputations (s 26), qualified privilege (s 30), common law qualified privilege (Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520), honest opinion (s 31) and also mitigation of damage.

3    Dr Laming took issue with aspects of the defence pleading and particulars provided. He brought an interlocutory application seeking a strike out of certain paragraphs and seeking further particulars. Most of the pleading and particulars dispute has since been addressed to his satisfaction by way of a proposed amended defence. A dispute remains as to parts of the existing defence raising a defence of contextual truth, which have either been changed in a limited way, or not changed at all, such that Dr Laming’s objections remain and are enlarged upon to an extent. The parts affected are paragraph 14 of the defence and particulars 47 to 139 of the particulars of the truth defence.

4    Counsel for Dr Laming and for Nine Network made detailed oral submissions in support of the part of their written submissions dealing with the issues in dispute. That included taking the Court to key authorities. The debate turned largely on questions of the interpretation and application of well-established principles. The debate was conducted by reference to playing a version of the news segment which may not be identical to the broadcast material but was not ultimately argued to have any material difference for present purposes; the transcript of the news segment annexed to the statement of claim; the pleaded imputations; and the proposed amended defence confined to paragraph 14 and particulars 48 to 139 to the defence of truth.

5    The terms of s 26 of the Defamation Act which were in force at the time of the publications and apply to this proceeding, since repealed, were as follows:

It is a defence to the publication of defamatory matter if the defendant proves that

(a)    the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true, and

(b)    the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

6    The imputations pleaded at [6] of the statement of claim are as follows:

(a)    Laming took a lewd photo of Crystal White without her knowledge or consent;

(b)    Laming is lecherous in that he took an indecent photo of Crystal White without her knowledge or consent;

(c)    Laming deliberately took an inappropriate photograph of Crystal White’s buttocks while her underwear was exposed under her skirt;

(d)    Laming is a pervert who took a photo of Crystal White’s buttocks with her underwear exposed for his own sexual gratification;

(e)    Laming is a pervert who took a photo of Crystal White’s buttocks with her underwear exposed in order to humiliate her;

(f)    Laming surreptitiously took a photo of Crystal White’s buttocks when she was bent over wearing a skirt and her underwear was exposed;

(g)    Laming disingenuously attempted to befriend Crystal White so that she would not complain about the lewd photograph he took of her buttocks;

(h)    Laming bullied two women online causing one of them to contemplate suicide;

(i)    Laming’s bullying of a woman online was so extreme that it caused her to contemplate suicide;

(j)    Laming had so conducted himself in deliberately taking a lewd photograph of Crystal White that he should be expelled from the LNP;

(k)    Laming had so conducted himself in deliberately taking a lewd photograph of Crystal White that the public needed to be warned about him for their own protection.

7    The proposed contextual truth imputations with mark up to indicate the changes from the existing defence are as follows:

(i)    the Applicant deliberately used his mobile phone to take a picture of Crystal White’s bottom as she bent down and while her underwear was exposed;

(ii)     the Applicant is a creep, in that he is an unpleasant and repellent person;

(iii)    the Applicant is unfit to be a member of Parliament.

8    I will not reproduce the 10 pages of the particulars to the truth defence in dispute. Rather, the following short summary will suffice for present purposes:

(a)    paragraph 47 incorporates the preceding 46 paragraphs, which plead the facts, matters and circumstances, including background circumstances, pertaining to the matters that were the subject of the news segment;

(b)    paragraphs 48 to 57 plead an allegation of a limited instance of non-compliance with pandemic public health directions by Dr Laming;

(c)    paragraphs 58 to 96 plead allegations in relation to the use of social media by Dr Laming said to be inappropriate or improper;

(d)    paragraphs 97 to 104 plead allegations of irresponsible consumption of alcohol by Dr Laming on Australia Day in 2014 and 2021;

(e)    paragraphs 105 to 129 plead allegations of what is said to be inappropriate behaviour towards three different women by Dr Laming in 2015, 2019 and 2020;

(f)    paragraphs 130 to 132 plead the circumstances of Dr Laming not being endorsed to stand as a Liberal National Party candidate in his current electorate at the next election and inferences said to be drawn from that;

(g)    paragraphs 133 to 139 plead allegations of what is described as “fat shaming” in Dr Laming’s response on a radio program to a person who appeared on the television program A Current Affair and criticised his alcohol consumption as pleaded at paragraphs 97 to 103.

9    I do not propose summarise or reproduce in detail the competing arguments. That is because I consider that the issues in dispute can be resolved by reference to:

(a)    McLachlan v Browne (No 7) [2018] NSWSC 1914 per McCallum J in the part of that judgment summarising the principles as to pleading contextual truth imputations; and

(b)    Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384 per Wigney J in the part of that judgment summarising the principles to be applied in relation to the nexus between pleaded contextual truth imputations and the publication sued upon.

10    In McLachlan, McCallum J said:

[7]    The contextual imputations pleaded by the defendants are not confined to the specific allegations concerning the 2014 Rocky Horror Show reported in the matters complained of but instead plead attributions of bad character in general terms, as follows:

Contextual imputation (1) (Fairfax proceedings): “The plaintiff is calculated, manipulative and a sexual predator.”

Contextual imputation (1) (ABC proceedings): “The plaintiff is a sexual predator.”

Contextual imputation (2) (both proceedings): “The plaintiff, by indecently assaulting and assaulting several women, conducted himself in a manner that warrants the police conducting an investigation into his conduct.”

Contextual imputation (3) (both proceedings): “The plaintiff took advantage of situations in which women were vulnerable to prey on them sexually.”

[8]    If allowed to stand in that form, the contextual truth defence could permit the defendants to lead evidence of discreditable behaviour alleged to have been engaged in by Mr McLachlan outside the context of the 2014 Rocky Horror Show. That is not a theoretical concern; both the existing defences and proposed amended defences include a range of particulars of allegations having nothing to do with the 2014 Rocky Horror Show and ranging back over decades. Mr Richardson, who appears for the plaintiff, submitted that the particulars “underscore the manner in which the defence of contextual truth is being employed as a kind of roving inquiry into allegations that do not appear in the matter complained of.”

[9]    That explains the forensic tactics behind this contest but does not dictate its determination. The critical question is whether the contextual imputations pleaded by the defendants (set out above) are imprecise.

[10]    It is well-established that a defendant’s contextual imputation must be pleaded with precision, just as that is a requirement of a plaintiff’s imputation: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32]-[34] per Hodgson JA, McColl JA and McClellan AJA agreeing at [42] and [43]; Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 at [41]-[43].

[11]    The law concerning defamation pleadings is sometimes criticised for requiring excessive refinement in this respect. It is important to recall in that context that, where truth defences are pleaded, the imputation or contextual imputation identifies the charge or allegation sought to be proved true. It must at least be specified with enough precision to enable the parties and the court to identify its composite elements. That is what I would understand to be the reasoning reflected in the well-recognised proposition that the judgment as to the degree of particularity or generality that is appropriate and as to what constitutes the necessary specificity will normally be found in considerations of “practical justice”: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138; King at [24]. The requirement for precision is ultimately a matter of procedural fairness.

11    In Domican, Wigney J said:

[43]    It is well established that a contextual imputation must be pleaded with specificity and precision: Australian Broadcasting Corporation v Hodgkinson [2005] NSWCA 190 at [32]-[34] (Hodgson JA, McColl JA and McClellan AJA agreeing); Fairfax Media Publications Pty Ltd v King [2015] NSWCA 172 at [22]-[25] (Emmett JA, McColl and Leeming JJA agreeing). The question whether a pleaded imputation meets that requirement is to be resolved by considerations of practical justice in the circumstances of the particular case, rather than by philology or considerations of the possibility of linguistic refinement: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 (per Gleeson CJ); King at [24]. The issue that is to be decided 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 applicant or plaintiff contends: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155; Drummoyne at 138.

[44]    It is also necessary for a contextual imputation to be “formulated so that facts, matters and circumstances that can be relied on to establish its truth bear a reasonable relationship both to the contextual imputation itself and to the published material relied on by the plaintiff”: Hodgkinson at [34]; King at [42]; McLachlan v Browne (No 7) [2018] NSWSC 1914 at [31]. The particular difficulty that may arise if the contextual imputation is not so formulated is that the respondent can then rely on particulars of truth that may have nothing whatsoever to do with the published material.

12    In Domican, Wigney J disallowed particular contextual truth imputations because they bore no reasonable relationship to the published material.

Contextual imputation (i)

13    Dr Laming argues that this imputation is not different in substance to pleaded imputations (a) to (f) taken as a whole, and in particular is not different in substance to imputation (c). Nine Network is concerned that at trial it may succeed in its argument that imputations (b) to (f) are not conveyed, and then have no contextual truth answer to admitted imputation (a).

14    In my view, contextual imputation (i) is different in substance to imputation (c), albeit that that threshold is only just surmounted, because the Court sitting as the tribunal of fact, and with the benefit of all of the evidence and submissions, could (not necessarily would):

(a)    fail to be satisfied that imputation (c) was conveyed, but

(b)    be satisfied that contextual imputation (i) was conveyed.

15    That is because imputation (c) has the additional words and therefore concept “under her skirt” which does not appear in the news segment and may not be proven to be conveyed, and also the use of the word “inappropriate” which only appears at one place in the news segment. I am not otherwise of the view that contextual imputation (i) is lacking the necessary precision. I will therefore allow the amended defence to be filed to include contextual imputation (i).

Contextual imputation (ii)

16    Dr Laming submits that this contextual imputation is no more than slang of imprecise meaning, which therefore fails to meet the need for pleading precision. He submits that the words “unpleasant and repellent person” do not overcome the asserted vagueness of the word “creep” originally objected to, including upon the basis that it is not contained in the news segment, rhetorically asking: “Unpleasant in what sense? Repellent because of what characteristic or act?”, especially given the absence of any allegation in the news segment that he is of a particular character. The answer Nine Network suggests to those rhetorical questions, while not accepting that “creep” was imprecise, lies in the nature of the conduct that is the subject of the news segment. That is, the taking of the photograph of Ms White’s posterior when she was bending over, and the reported response to that taking place by her and by her manager.

17    I am unable to accept Dr Laming’s argument that slang can never form the basis for an imputation, let alone a term in such wide usage in the community. That is especially so when the word “creep” is accompanied by the additional definitional words “unpleasant and repellent person”, referable to the nature of the alleged conduct reported upon. I am of the view that the news segment is legally capable of conveying this imputation, and that the basis for that imputation is sufficiently clear to go to trial, noting of course that proof of the conveying of the contextual imputation may not succeed. It is sufficiently precise having regard to the limited scope of the news segment. I will therefore allow the amended defence to be filed to include contextual imputation (ii).

Contextual imputation (iii)

18    Dr Laming objects to this contextual imputation upon the basis that it is too imprecise and ambiguous and also upon the basis that it is not capable of arising from the content of the news segment. He points to the absence of any standard of fitness identified by Nine Network, let alone standards by which the substantial truth would be sought to be proved. He argues that this will radically expand the scope, duration and cost of the trial, allowing evidence to be adduced to try to prove allegations far removed from events reported in the news segment. Nine Network responds that the studio part at the end of the news segment would be understood by an ordinary reasonable viewer to convey that Dr Laming was unfit to continue his role as a Parliamentarian.

19    The questions raised as to Dr Laming’s political career after he attended the behaviour training course, and the comment made about the situation with him quickly becoming untenable are not necessarily too slender a basis to ground this imputation, given the low bar for capacity to convey an imputation. It is tenable to argue that such an imputation is conveyed, but only because of the speculative nature of the discussion upon which it depends. However, I am unable to accept Nine Network’s argument as to precision, necessarily invoking questions of procedural fairness. It opens a Pandora’s box on the question of fitness, especially as it arises in a political context. The practical and unacceptable consequence is that the contextual imputation would fall to be comprehended by reference to the news segment and the other evidence, rather than the other way round. The news segment and the evidence needs to be assessed against a pleaded contextual imputation which has a reasonably clear meaning.

20    I will therefore not allow the amended defence to be filed to include contextual imputation (iii).

Truth particulars

21    The particulars in dispute are expressed to refer to contextual imputations (ii) and (iii). To the extent that they rely upon contextual imputation (iii), they fall away by reason of that imputation not being allowed. They can otherwise only survive to the extent that they are fairly referable to contextual imputation (ii), limited to allegations that have a reasonable relationship to both that imputation itself and to the news segment. In my view, that can only be tenable in relation to paragraphs that allege conduct towards women that bears a reasonable degree of similarity to the nature of the allegations made in the news segment, namely paragraphs 91 to 96 and 105 to 129, but excluding references to Dr Laming being unfit to be a member of parliament.

Orders

22    The orders of the Court proposed, subject to the consideration of the parties and any other matters being raised are:

(1)    Leave be granted to file the proposed amended defence upon the following deletions being made and the necessary changes to paragraph numbering and otherwise being made:

(a)    delete paragraph 14(a)(iii);

(b)    delete paragraphs 48 to 90, 97 to 104, and 130 to 139 of the particulars of truth.

(2)    The interlocutory application dated 25 October 2021 otherwise be dismissed

23    At the conclusion of giving ex tempore reasons in substance as set out above, and advising of the orders above that I proposed to make, I indicated that I was minded to order that the costs of and incidental to the interlocutory application dated 25 October 2021 be costs in the cause. Nine Network supported that outcome. Dr Laming contended that as he had substantial success, including by amendments and other concessions and by having contextual imputation (iii) refused, Nine Network should be ordered to pay his costs, or at least costs should be ordered to be part of his costs of the proceeding. I have considered the history of the proceeding to date, including the correspondence, what was said at the case management hearing on 8 October 2021, and the written and oral submissions in this dispute. I remain of the view that the outcome was sufficiently mixed that the appropriate course is that the costs should be costs in the cause.

Associate:

Dated:    28 January 2022