Hoffman v Challis

HER HONOUR: These are proceedings for defamation which are before the Court today for the first listing in accordance with practice note SC CL 4. The parties have this morning argued the defendant's objections to the imputations pleaded by the plaintiff. This judgment determines those objections. In accordance with the usual practice in this list, those determinations, insofar as objection was taken as to the capacity of the matter complained of to convey an imputation, are to be regarded as the determination of a separate question in the proceedings.

The statement of claim complains of four defamatory publications. As to the first matter complained of, the defendant takes two objections to the imputations specified by the plaintiff. The first is an objection as to form in respect of imputation 11(d) as follows:

One can well understand the pleader's desire to include in the statement of claim an imputation endeavouring to distil the defamatory sting arising from the treatment of the made-up term, "Hoffmanitis". The matter complained of prominently features a photograph (which I assume is of the plaintiff) with the following words in larger font than the balance of the publication:

There are in other places in the matters complained of frequent references to or uses of the term “Hoffmanitis”.

I have concluded, however, that the imputation brought forward in this version of the statement of claim is bad in form. The imputation is directed to the degree of notoriety of the plaintiff's practice of making false claims. That is not in itself an attribution capable of sustaining a defamatory imputation. In my view the rhetorical focus on the extent of notoriety of the practice (being such as to give rise to the word coined by the author) is embarrassing in that it is apt to distract the attention of the tribunal of fact from the true attribution made by the matter complained of. It may be that the pleader could, in a further attempt, distil the defamatory sting of that and related passages of the matter complained of, but the present imputation in my view is embarrassing for the reasons I have explained and is liable to be struck out on that account.

The second objection in respect of the first matter complained of is that imputations (a) and (e) do not differ in substance. Imputation 11(a) is “that the plaintiff is an habitual liar”. Imputation (e) is “that the plaintiff has an utter disregard for the truth”. In my view those imputations do differ in substance, for the reasons offered by Mr White of Senior Counsel in his oral submissions. In particular I would accept, as he submitted, that a person can display an utter disregard for the truth without in fact articulating any specific lie. Those imputations will each stand.

There were no objections to the imputations pleaded in respect of the second matter complained of.

The imputations specified in respect of the third matter complained of are:

The first objection to those imputations was that none of them differs in substance from the others. In my respectful opinion, imputations (a) and (b) convey a different sting but could properly only be relied upon as alternatives since, in my view, they pose a true dichotomy. Read in the context of the matter complained of, the jury could conclude that it conveys the imputation that the plaintiff caused DHR to engage in the unlawful practice referred to. Alternatively, the jury could conclude that the matter complained of does not make that attribution, but conveys the lesser meaning that the plaintiff condones that practice. The plaintiff should in my view be permitted to rely upon each of those imputations only as alternatives.

I am satisfied that the remaining imputations each differ from each other. In particular I accept, as submitted by Mr White, that imputation 15(c) is an attribution as to the existence of a general practice, whereas imputation 15(d) focuses on that which is to be attributed to the plaintiff by reason of a specific act. Further, those two imputations are different from (a) and (b), which focus on the plaintiff's conduct of the company or participation in its governance whereas imputations (c) and (d) focus on his treatment of employees.

The second objection to all of those imputations was that they are not reasonably capable of arising from the third matter complained of. The matter complained of recounts the experience of a particular person formerly employed by DHR international who is referred to in the matter complained of as “the principal”. The matter reports that the principal has sued DHR International and gives a summary of her pleadings. The particular passages relied upon are as follows,

The article proceeds to report that the principal was about to receive a yearly bonus before being fired. At the conclusion of the article it states:

With great respect to Mr Sibtain, who appears for the defendant, the submission that the matter complained of is not reasonably capable of attributing the plaintiff, Mr David Hoffman, with a measure of responsibility for the conduct attributed to DHR is an ambitious one. Applying the well-known principles which govern applications for rulings that a defamatory article is not reasonably capable of conveying an imputation pleaded by a plaintiff, the imputations must in my view be allowed to go to the tribunal of fact.

The last objection was to imputation 17(a) alleged to arise from the fourth matter complained of. That imputation is "that the plaintiff operates a nepotistic boys club at DHR." The imputation appropriates the precise words of an extract of the fourth matter complained of, as follows:

There is a deal of authority addressing the circumstances in which it is permissible or appropriate to take the precise words of the matter complained of. In short, there is no prohibition on doing so, provided those words adequately distil the defamatory sting of the matter complained of.

In my view the meaning of the phrase, "nepotistic boys club", which must for this purpose be considered in the context of the content of the matter alleged to convey it, is tolerably clear. It is possible that some members of the public may not know the meaning of the word “nepotism” but I think the sense of that term is clear from the content of the matter complained of. In my view the imputation should be allowed to stand.

I make orders 1 to 10 in the short minutes of order handed up by Mr White.