Pahuja v TCN Channel Nine Pty Limited

HER HONOUR: These proceedings are listed before the Court today for the second listing in accordance with the Defamation List practice note (SC CL 4). However, two issues have arisen which require the Court's determination before the second listing can proceed. The first is that, in their defence filed 25 September 2015, the defendants have pleaded a defence of contextual truth, specifying two contextual imputations. The plaintiff wishes to appropriate those imputations.

The principles according to which such an application is to be determined are considered in my judgments in Hall v TCN Channel Nine Pty Ltd [2014] NSWSC 1604 at [30] to [37], and Chel v Fairfax Media Publication Pty Ltd [2015] NSWSC 171 (whole judgment).

The defendants in the present case do not oppose the plaintiff having leave to amend the statement of claim so as to include the contextual imputations as imputations relied upon by the plaintiff. However, their position is that, in the event that it is proved at trial that the plaintiff's instructions to his solicitors that the contextual imputations are false were untrue, they should then have the entitlement to rely upon those untrue imputations as contextual imputations for the purpose of s 26 of the Defamation Act 2005 (NSW). That strikes me as being a sensible course.

The application to amend is supported by an affidavit sworn by the plaintiff's solicitor, Mr George Newhouse. The content of the affidavit persuades me that, in accordance with ordinary principles for amendment, it would be appropriate to allow the amendment, particularly since it is not opposed by the defendants in the circumstances I have indicated. Accordingly, the plaintiff should have leave to amend in accordance with the amended statement of claim annexed at p 23 of Mr Newhouse's affidavit, subject to the determination of the second application.

The second application this morning is that the defendants oppose imputation (e) specified by the plaintiff on the grounds of ambiguity. The imputation is in the following terms:

The imputation was not objected to at the first listing, as it ought to have been. Ms Chrysanthou, who appears for the plaintiff, accordingly submitted, as I apprehend the submission, that the defendants should be precluded on that account alone from challenging the imputation at this point. That procedural consideration does not overcome the clear principle that, where an imputation does entail ambiguity, it is the duty of the Court to determine the issue: Singleton v Ffrench (1986) 5 NSWLR 425; Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273.

The argument this morning has persuaded me that there is a potential ambiguity in the use of the word "slaves". In particular, it is capable of meaning a person who is literally a slave; that is, a person taken to the marketplace and sold to another person for a price. Alternatively, it is capable of meaning something perhaps less serious than that meaning but undoubtedly of considerable seriousness, perhaps emerging from the more modern use of the term to mean a form of indentured servitude where a person effectively has no option of leaving employment until a debt is discharged. There are potentially other shades of meaning but those are the two which emerged clearly in argument. Ms Chrysanthou, who appears for the plaintiff, made it plain that she does not resile from the prospect of contending that the matter complained of conveyed the first, more serious meaning.

In the circumstances, I am persuaded by the submissions of Mr Richardson, who appears for the defendants, that there is an ambiguity and that it is my duty to determine the matter as brought forward notwithstanding the fact that it ought to have been brought forward at the first listing. In fairness to the plaintiff, I think the fairest course in the circumstances is to grant leave to amend so as to replead that imputation, noting that Ms Chrysanthou has indicated she will probably specify two alternative imputations as arising from the same passages. Further, since the matter ought to have been raised at the first listing, I think the fair outcome would be to indicate that the Court will not entertain any further challenge to the new imputations in advance of the hearing; any objection as to the capacity of the matter complained of to convey the higher imputation will have to be determined by the trial judge.