Junus v Fairfax Media Publications Pty Ltd;; Junus v Sing Tao Newspapers Pty Ltd

HER HONOUR: Harmonnia Junus is a professional violin player who has commenced two sets of proceedings for defamation arising out of the publication of articles principally concerning the financial dealings of her father. The proceedings came before me in the defamation list for first listing last Friday, at which time the defendant in each proceeding took objections to the form of the pleading. This judgment determines those objections.

It is convenient to begin with the proceedings against Sing Tao Newspapers Pty Limited, for whom Mr Richardson of counsel appears.

Mr Richardson conducted the principal argument in respect of the imputations which are in the same terms in each Statement of Claim. Ms Barnett, who appears for Fairfax Media Publications, adopted those objections in the Fairfax proceedings.

The article in the newspaper published by Sing Tao appeared under the subheading:

As already indicated, the principal focus of the article was the conduct of the plaintiff's father, who evidently goes by the English name Teddy Junus.

The article accused Mr Junus, in effect, of a species of fraud in the conduct of his immigration business. The article concluded with a photograph of Mr Junus standing on stage with the plaintiff "after a concert with a million dollar violin". The relevant portion of the article relied upon by the plaintiff is as follows:

The article that appeared in The Sydney Morning Herald published by Fairfax Media Publications had very similar content; however, the featured photograph was more prominent, appearing at the outset of the article and effectively illustrating it. That article opened with the following words:

Turning to the imputations specified in the pleading against Sing Tao Newspapers, imputation (a) is: “the plaintiff knew her father had paid for her violin and the orchestra with money gained from illegal activities.”

The objection is that the imputation is imprecise. It imputes the plaintiff with knowledge of a particular fact, and that is the only condition specified in the imputation. The imprecision, it was submitted, derives from the fact that the imputation does not specify when the plaintiff acquired that knowledge. That is an important element, in my view. If it is intended to allege that the plaintiff had that knowledge (that her father had paid for her violin and the orchestra that supported her in a performance at the Opera House from the proceeds of crime) prior to her performance, that would be a significantly more serious imputation than if it is merely suggested that she has since acquired that knowledge. If it is only alleged that the matter complained of attributes her with acquiring that knowledge since the performance at the concert (by which point she could do little about it), the precise attribution is less clear and arguably not capable of being defamatory.

It was submitted on behalf of the plaintiff that the imputation does not require any temporal grounding. I respectfully disagree, for the reason I have indicated. The range of potential attribution is broad and the imputation in its present form is liable, in my view, to cause embarrassment in the interlocutory stages and at the trial. Imputation (a) will be struck out.

Imputation (b) is: “the plaintiff knowingly colludes with an allegedly criminal person.”

The objection again is that the imputation is imprecise. In particular, Mr Richardson asks rhetorically, what does it mean to accuse a person with colluding with "an allegedly criminal person" when that person is in fact the plaintiff's father? Is the collusion merely spending time with a parent or is some more sinister meaning intended to be alleged?

For my own part I would add that the imputation is imprecise in that it does not identify what it is alleged the plaintiff and the other person colluded to do. The verb "to collude" on its own does not make plain for the benefit of the defendants how the imputation might be defended. That imputation will be struck out as being imprecise.

Imputations (c) and (d) may be considered together. Imputation (c) is: “the plaintiff's performance as a musician at the Opera House was not because of musical proficiency.” Imputation (d) is: “the plaintiff was only able to perform at a prestigious event because her father paid for it.”

One objection to those imputations is that they do not differ in substance, ultimately reducing to the same sting, namely, that the plaintiff was not able to perform at the Opera House due to any merit of her own but only because a wealthy father paid for those arrangements.

Separately, the defendant submitted that imputation (c) is bad in form because it is not clear how the plaintiffs "performance" could be other than because of her musical proficiency. I understand why the objection was taken but in my respectful opinion it is clear enough when the imputation is read in context that it refers to the fact of her performing a concert rather than her actual performance on stage.

The burden of the imputation is that she presents herself as a musician warranting stage time at the Opera House but in fact lacks the musical ability to live up to the standard that one would expect of such a performance, only managing to secure that opportunity because her father paid for it.

There was a suggestion on the part of the defendants that such an imputation could not be defamatory unless it was pleaded as a true innuendo. I do not accept that submission. In my view, the ordinary reasonable reader could think the less of a musician who secured prestigious performance opportunities not due to his or her merit but because of the capacity to pay for them.

The present form of the imputation probably does not capture the sting intended to be captured as clearly as it might. In any event, it will be necessary for the plaintiff to make some form of election about these imputations because I accept that they do not differ in substance.

However, for the purposes of any future pleading, I would indicate that I do not accept any reformulated imputation would have to be by way of true innuendo, and I do not accept that the sting I have outlined is incapable of being defamatory. Apart from anything else, the imputation might fall into the category of the kind of imputation that succeeded in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581. As that case demonstrates, it is accepted that an imputation that attributes no wrong-doing to the plaintiff may nonetheless cause the plaintiff to be ridiculed, shunned or avoided. I consider that the ordinary reasonable reader might think the less of a musician for the kind of reason sought to be captured in these imputations.

Imputations (e), (f) and (g) were objected to globally on the basis that they are incapable of being defamatory. Those imputations are (e), “that her violin playing lacks merit”; (f), “that her musicianship lacks authenticity”; and (g) “that she is not a professional musician”.

Ms Goodchild, who appears for the plaintiff, submitted that each of those allegations would be very serious when levelled against a professional musician. Indeed, Ms Goodchild submitted that imputation (g) is one of the most serious imputations one could make against a professional musician. She submitted that the article suggests that the plaintiff, as with imputation (c) and (d), only secures the opportunity to perform because she is a "daddy's girl" and is able to be benefit from his financial position. As submitted by Mr Richardson in reply, those submissions repeatedly included reference to concepts that are not captured in the present form of the imputations. In my view, those imputations as presently formulated are incapable of being defamatory.

I would add that imputation (f) is also, in my view, imprecise. I do not think the ordinary reasonable reader would understand what it means to say that a musician's musicianship "lacks authenticity". For those reasons, imputations (e), (f) and (g) are struck out.

I do not propose to strike out imputations (c) and (d), for the reasons I have indicated. However, the plaintiff may wish in exercising the liberty to re-plead to reformulate those imputations, and the leave would extend to doing so.

The proceedings against the publisher of The Sydney Morning Herald raised essentially the same issues. In addition to adopting Mr Richardson's submissions, Ms Barnett made an additional submission in respect of imputation (a) based on the capacity of the article to convey that imputation. She submitted that it be a leap too far for a reader to draw the conclusion that the plaintiff had any knowledge of the source of the funds with which her father had acquired her million dollar violin.

It is not appropriate to determine an objection as to capacity when the imputation is to be struck out on the grounds of form. I would simply indicate for the purposes of the re-pleading exercise that, as submitted by Ms Goodchild, the position of the plaintiff is broadly irrelevant to the very serious allegations made against the plaintiff's father. It may be that the article would be capable of conveying some kind of sinister participation on the part of the plaintiff based on the proposition acknowledged in the decision of the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [14], namely, that "an article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire."

Beyond that additional argument, I do not think there was any discrete point made in respect of The Herald article. My rulings in respect of the pleading in those proceedings would be the same as in the Sing Tao proceedings.

The order in each matter is that imputations (a), (b), (e), (f) and (g) be struck out with leave to re-plead.