Defamation, context of words spoken: Perry v McIntosh & Ors [2010] VSC 85 (24 March 2010)

March 28, 2010 |

A busy sub set of defamation proceedings isactions involving members of association. In Perry v McIntosh & Ors Kaye J, Justice de jour on matters defamatory, considered an application regarding the adequacy of particulars and an attempt to strike out imputations.

FACTS

The plaintiff and all six defendants were members of the Mustang Owners Club. All bar one defendant were members of the committee with the plaintiff being the treasurer.  It is alleged that after presenting a report to approximately 70 members the President said:

“Does the report which I read out to the meeting from the minutes of the previous meeting make any sense?…I had difficulty following it and the committee had to put up with this treasurer’s rubbish every month.”(“The sixth defendant’s words”). (see [4])

It is also alleged that while the plaintiff was giving his report the defendants interjected with the words “you’re a liar” [5].

PLEADINGS

Regarding the “liar” allegations the Plaintiff alleges the ordinary and natural meaning of those words were that:

(1) The plaintiff was a liar; and

(2) The plaintiff was not a fit and proper person to hold office in the club as Treasurer or otherwise. (see [7])

Regarding the “rubbish” allegatons the Plaintiff alleges the ordinary and natural meaning of those words were that:

“a. The plaintiff was an incompetent treasurer of the club;

b. The plaintiff produced Treasurer’s reports which were inaccurate, worthless and nonsensical;

c. The plaintiff’s methodology for creating financial reports for the committee and the members were so lacking in form and substance that his reports were rubbish;

d. The plaintiff as treasurer prepared his reports for the Club in such manner that the committee and members could make no sense of the same.” (see [21])

THE ARGUMENT

The Liar issue

The Defendant argued that there were inadequate particulars.  The Defendants argued that they were entitled to a context in which it was alleged the Defendants called him a liar.  Not to do so would expose the Defendant to a danger of surprise at trial where the Defendants would need to amend their defence or add further defences.

The Court summarised, at [13], the relevant principles as:

  1. the Plaintiff is ordinarily only required to plead the particular words which he/she alleges were defamatory of him;
  2. the Plaintiff may be required to print other words where those other words might alter or qualify the complexion of the defamatory utterances.  It is necessary to establish a context which would have a bearing on the colour of the imputations (see [14])

    Because the Plaintiff was not only imputing the meaning as being beyond the allegation that the Plaintiff was a liar but that he was also not fit to be Treasurer the imputation related to an  “..allegation a particular characteristic, namely that the plaintiff lied about something relating to his role as Treasurer of the club.” [18].  The Court was satisfied that there was a real danger of suprise and amendment if the particulars were not provided.

    The Rubbish issue

    The Defendants argued that the imputations at (a) – (d) above were not capable of arising out of the defamatory statements.

    Kaye J succinctly stated, at [22], the role of the bench on a (often occurring) application of this nature:

    . my role is not to decide whether the words, alleged to have been spoken by the sixth defendant, did give rise to the particular imputations in question. That will be the function of the jury at the trial of the proceeding. Rather, my role is to determine whether a jury could reasonably conclude that the words bore the meanings pleaded by the plaintiff. In determining that question, the test is whether the words spoken by the sixth defendant were reasonably capable of conveying to the ordinary reasonable listener at the meeting the imputations pleaded by the plaintiff. The hypothetical “ordinary reasonable” recipient of a publication has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in light of his or her general knowledge and experience of worldly affairs. Such a listener is described by the law as someone who is not “avid for scandal” and who is neither “unusually suspicious nor unusually naïve”. Such a person does engage in a degree of loose thinking, and is understood to “read between the lines”. In particular, the ordinary reasonable listener is a lay person, not a lawyer, and his or her capacity for implication is much greater than that of a lawyer.

    The Defendants argued that words “rubbish” could only be related to the comprehendability of the report and its intelligibility rather than the competence of the Plaintiff.  Kaye J at [24] brought this rather ethereal  submission to ground with a thud when he stated :

    “..The word “rubbish” is a forceful and colourful use of the vernacular. In ordinary parlance, to describe a document as “rubbish” may mean more than to describe it as lacking in intelligibility. Such an allegation is reasonably capable of also conveying that the report is “worthless” and hence it is rubbish. Thus, in my view the description of the report as “rubbish” is capable of bearing on the quality (or otherwise) of the substance of the report, and not simply its form.

    This is a good example of avoiding submissions which seek to parse the meaning of words so narrowly as to avoid common sense and drag them away from the clear meaning. It is worth reading the consideration of each imputation. The Plaintiff successfully fended off the quite esoteric arguments of the Defendants.

    ISSUES

    Because the Plaintiff pleaded the imputation that the meaning of the word liar extended to him not being a fit and proper Treasurer the Defendants were able to argue that a proper context should be providedd.  It is tempting to plead multiple imputations to a defamatory utterance.  As a matter of practice it is often prudent to do so.  There is however the risk of being required to provide particulars one would not normally need to furnish had the imputation being confined to the obvious and most simple.

    In striking out imputations there is a risk in seeking to convince a court that a well known word, such as “rubbish” used for a well known purpose, to desparage somebody or something, should be seen in an entirely different light by dint of contextual gymastics.  The odds are that the real meaning of the English language will win out.

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