Jones v TCN Channel Nine Pty Ltd (No 3)

HER HONOUR: This is an application to amend a statement of claim. The proceedings, as I had occasion to observe in an earlier judgment, have had a tortuous history. The argument today has been heard in a busy defamation list; since I am delivering my judgment ex tempore I do not propose to rehearse that history again.

In short, the purpose of the proposed amendment is to allow the plaintiff to appropriate contextual imputations pleaded in a defence filed on 12 February 2016. Notice of the application was given promptly after that date, although in the context of the interlocutory history of these proceedings, that probably does not tell the full story. The complete history to the application is set out in the affidavit of Mr Vasilios Kalantzis sworn 20 April 2016.

The plaintiff's desire to appropriate the contextual imputations is derived from a proposition stated by Macfarlan JA in Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90 at [23] as follows:

The relevant principles are not in dispute to this extent; it is common ground between the parties that the Court has a discretion to allow a plaintiff to amend his or her pleadings so as to adopt a contextual imputation. The relevant authorities were summarised in my judgment in Chel v Fairfax Media Publications Pty Ltd [2015] NSWSC 171 at [5]-[6] as follows:

The focus of the contest in argument today has been, rather, whether the Court should exercise that discretion. Mr Richardson submitted, by reference to a colourful analogy comparing a beautiful retail shop display with one in which the mannequins are bare, that the argument for allowing the amendment in this case is considerably less attractive than the application I rejected in Chel. A principal consideration in his submissions on that issue is the fact that the affidavit of Mr Kalantzis sworn in support of the application asserts that the plaintiffs are of the view that the contextual imputations are not carried by the matter complained of and are not carried in addition to the plaintiff's imputation.

In Chel, I said at [22] and [23]:

Mr Richardson submitted that the position is the same here (that the contextual imputations are imputations the plaintiff eschews) and that it would, in that circumstance, be unfair to the defendants to allow the plaintiff effectively to hedge his bets and prejudice the defendants (because it would deprive them of the contextual truth defence).

There are two important differences between this case and the circumstances in Chel. One is that what had been submitted in Chel by the plaintiff was that the imputations were incapable of arising, whereas in the present case it is acknowledged by the plaintiff that they are capable of arising; it is just that his counsel, Ms Chrysanthou, is of the view that those imputations are not in fact conveyed.

More importantly, however, with one exception, the contextual imputations sought to be appropriated here carry the same, or substantially the same, defamatory sting as the plaintiff's imputations. The difference rests in the fact that the plaintiff's imputations allege that the matter complained of attributed him with having done certain things in the capacity of an owner of a particular business, whereas the contextual imputations rest on an attribution that he did those things in the capacity of general manager of the business. The evidence of Mr Kalantzis as to his belief as to whether the imputations are conveyed must be assessed in that specific context, which entails a degree of subtlety or nuance that did not arise in Chel.

In all the circumstances, I am persuaded that it is appropriate to allow the plaintiff to take the course he seeks to take by the application. Accordingly, leave is granted as sought.