Gradations of meaning and variant imputations in ABC v Wing

Australian Broadcasting Corporation & Ors v Chau Chak Wing [2019] FCAFC 125 

Defamation plaintiffs are advantaged by the ability to choose the imputations upon which they rely. These imputations will generally confine the questions of meaning for determination and delimit the field of enquiry at trial.[1] However,  a plaintiff may also succeed on variants that are comprehended by, not substantially different to, or are no less injurious than, or are a mere shade or nuance of, those pleaded.[2] For that reason, and in the interests of fairness and practical justice, at least in Victoria[3] and in proceedings before the Federal Court,[4] a defendant is permitted to plead and seek to justify an alternative or ‘variant’ meaning where the applicant would be entitled to judgment in respect of it.[5]

However, what constitutes a permissible variant can be the source of consternation in practice. Particular difficulty has arisen when seeking to distinguish (or conflate) three categories of meaning known in the English cases as ‘level 1’ imputations (guilt), ‘level 2’ imputations (reasonable grounds for belief in guilt) and ‘level 3’ imputations (grounds for suspicion, or grounds for investigation).[6] For example, in Gutnick v Dow Junes & Co Inc (No 4)[7] (Gutnick No 4), Bongiorno J struck out proposed variant imputations alleging the plaintiff was ‘reasonably suspected’ of money laundering, and there was ‘reason to investigate’ same. A few years later, in Hore-Lacy v Cleary & Anor[8] (Cleary), it was held that the defendants’ meaning – that there was a ‘serious question to be investigated’ – did not meet the sting of the libel alleged by the plaintiff, and was therefore impermissible. However, in West Australian Newspapers v Elliott[9] (Elliott), the Western Australian Court of Appeal reached the opposite result, deeming a so-called ‘level 2’ meaning a permissible variant of a ‘level 1’ meaning.

Earlier this month, in Australian Broadcasting Corporation & Ors v Chau Chak Wing[10], the Australian Broadcasting Corporation (ABC), Fairfax Media Publications Pty Ltd (Fairfax) and journalist Nick McKenzie (together, the respondents[11]) sought to overturn interlocutory orders by Rares J refusing, amongst other things, leave to plead (and justify) certain ‘level 2’ variant imputations in a second defamation proceeding brought by Chinese-born Australian billionaire political donor, Dr Chau Chak Wing. The Full Court of the Federal Court comprising Besanko, Bromwich and Wheelahan JJ dismissed the appeal. In doing so, their Honours clarified the correct approach to gradations of meaning, and shifted the weight of authority against Elliott.

Background

In 2018, Dr Chau commenced defamation proceedings claiming damages in respect of two publications, each made initially on 5 June 2017: (i) a Four Corners episode published by ABC, and (ii) an internet article on the ABC’s website, including video of the Four Corners episode. Dr Chau alleges the publications were made as part of a joint investigation with Fairfax, although that entity denies publication.

Dr Chau alleges the publications, in their natural and ordinary meaning, conveyed the following six imputations:

  • Dr Chau betrayed his country, Australia, in order to serve the interests of a foreign power, China, and the Chinese Communist Party (CCP) by engaging in espionage on their behalf;
  • Dr Chau is a member of the CCP and of an advisory group to that party, the People’s Political Consultative Conference, and, as such, caries out the work of a secret lobbying arm of the CCP, the United Front Work Department (United Front);
  • Dr Chau donated enormous sums of money to Australian political parties as bribes intended to influence politicians to make decisions to advance the interests of the Republic of China, the Chinese government and the CCP;
  • Dr Chau paid Sheri Yan, whom he knew to be a corrupt espionage agent of the Chinese government, in order to assist him in infiltrating the Australian government on behalf of the CCP;
  • Dr Chau paid a $200,000 bribe to the President of the General Assembly of the United Nations, John Ashe;
  • Dr Chau was knowingly involved in a corrupt scheme to bribe the President of the General Assembly of the United Nations.

Dr Chau further alleges the conveyance of a true innuendo to the effect that he broke his pledge of loyalty to Australia as an Australian citizen.

In their defence, the respondents alleged that each of the above imputations was substantially true. Further, the respondents sought to allege substantial truth in respect of variants of the applicant’s imputations. Each variant imputation corresponded to those set out above but was prefaced by the words ‘There are reasonable grounds to believe that…’.

At first instance

In striking out the justification defences and refusing leave to file an amended defence, Rares J held that there was a substantive distinction between suspicion and fact, rendering each of the respondents’ variant imputations impermissible variants of Chau’s pleaded imputations.

His Honour also determined that the proposed particulars of truth in the schedule to the defence and the proposed amended defence did not provide a basis for the inferences alleged to arise therefrom, did not properly particularise allegations of knowledge, failed to comply with the rules of pleading,[12] and could not reasonably support the plea of truth to the applicant’s imputations. That finding was upheld on appeal, although it does not form the focus of this case note.

The respondents’ submissions as to gradations of meaning

The respondents had argued that an imputation of reasonable belief in guilt was a permissible variant of an imputation of guilt. To that end, they referred to the three ‘levels’ of meaning described above. The ‘level 2’ variant imputations that the respondents sought to plead and justify were said to be comprehended by the ‘level 1’ meanings alleged by the plaintiff in his statement of claim. Central to that proposition was the submission that the two ‘levels’ of meaning could not be distinguished by a bright line, as both are often simultaneously conveyed by a given publication.[13] Particular reliance was placed on the decision in Elliott.

Categorisation of meaning and rejection of the English approach

On appeal, the Court declined to embrace the rigid categorization of meaning espoused by the English cases and promulgated by the respondents. A lengthy but useful analysis of the High Court’s decision in Chakravarti v Advertiser Newspapers Ltd[14] (Chakravarti)demonstrated that that case could not be cited as authority for any general principle that a plaintiff who alleges a ‘level 1’ meaning will be entitled to succeed on lesser ‘level 2’ or ‘level 3’ meanings. To the extent that Elliott suggested that ‘reason to believe’ imputations are permissible variants of ‘guilt’ imputations for the purposes of the application of the pleading principles in David Syme & Co Ltd v Hore-Lacy[15], that suggestion was considered ‘plainly wrong’ and contrary to the better view found in Cleary and Gutnick (No.4).[16] In their Honours’ view, only a precise analysis of the words used and their context will reveal:

…whether a matter is capable of conveying imputations of both suspicion and guilt, or grades of meaning in-between, including whether the suspicion imputation is one of strong suspicion, reasonable suspicion or mere suspicion, or whether it is objective or subjective, active or passive… .[17]

In this regard, and to the extent that the respondents had sought to rely on the speech of Lord Devlin in Lewis v Daily Telegraph,[18] the Court noted that the case before the House of Lords on that occasion was one involving merely a bare statement that a police inquiry was being made.[19]

Similarly, their Honours did not accept that the simultaneous conveyance of both types of imputations necessarily undermined the distinction between them.[20]

It was accepted that a variant imputation is not necessarily rendered different in substance because it is less injurious than a pleaded imputation.[21] Ultimately however, the Court considered Dr Chau’s pleaded imputations, taken in context, were conceptually distinct from the variant imputations advanced by the respondents. Dr Chau had ‘nailed his colours to the mast’, and did not seek to vindicate his reputation on imputations that there were ‘reasonable grounds to believe’ that he had engaged in the conduct described by his pleaded meanings. Where there was ‘no prospect’[22] that Dr Chau would be permitted to rely on the respondents’ variant imputations, no unfairness to the respondents could follow. Therefore, permitting the variant imputations ‘would have the consequence that the respondents could hijack the applicant’s case by litigating false issues that do not meet the sting of the imputations relied on’.[23] As the Court noted, that response to the meanings pleaded or permissibly found by the court is necessary precisely because justification is a plea of confession and avoidance.[24] Although the Court acknowledged that a plaintiff’s discretion as to the pleading of imputations should not enable him to advance meanings contrived so as to avoid the proper pleading of permissible variants, this was not such a case.[25]

Pleas of justification going to mitigation of damage

Further to their submissions as to gradations of meaning, the respondents argued that the variant imputations should be permitted because their justification was relevant to the assessment of damages. Although the Court’s reasoning turned primarily on questions of conceptual distinction between competing meanings, it is worth noting that these submissions were rejected on two bases.

First, their Honours did not consider that, should an applicant succeed on a ‘level 1’ imputation, damages would necessarily be reduced if the respondent could justify a ‘level 2’ imputation. In their Honours’ view, and depending upon the issues and evidence at trial, it is ‘equally open to think that the maintenance of such a plea at trial by the respondents might support an increased award of damages on the ground that a higher award is necessary to vindicate the applicant’s reputation, the respondents having failed to justify the “guilt” imputation.’[26]

Second, the submissions invited departure from established principles limiting circumstances in which a respondent may rely upon facts in mitigation of damage,[27] (although those circumstances do include evidence of facts directly relevant to the contextual background of the publication[28]).

Further, any suggestion that a party could plead justification of a lesser imputation for the sole purpose of adducing evidence in mitigation of damage was rejected as allowing ‘the maintenance of a plea that does not go to justification at all, but for a collateral purpose’.[29]

Conclusion

The decision follows Dr Chau’s win in separate defamation proceedings before Wigney J against Fairfax and its Asia-Pacific editor John Garnaut, in respect of an article published in October 2015 linking Chau to a bribery scandal.[30]

In the immediate sense, the effect of the Full Court’s decision has been to deny the respondents a defence of justification, without which they are left to argue that the imputations pleaded by Wing are not conveyed by the publications, and otherwise rely on a defence of qualified privilege.[31]  In the broader sense, the ruling confirms that rigid categories of meaning have not found favour in Australian courts. Rather, meaning will be assessed on a case-by-case basis, with reference to the terms and context of the publication in issue. That being said, with the weight of authority drawing a distinct conceptual line between imputations of guilt and suspicion, publishers will likely face an uphill battle pleading defences to variant imputations of the sort attempted in this case.

[1] See Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, [17]-[21] (Chakravarti); Advertiser-News Weekend Publishing Co Ltd v Manock (2005) SASR 206, [76] (Doyle CJ, with whom Vanstone and White JJ agreed).

[2] Australian Broadcasting Corporation & Ors v Chau Chak Wing [2019] FCAFC 125 (ABC v Wing), [18] citing Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 (Chakravarti), [21]-[22], [60], [139]. See also Advertiser-News Weekend Publishing Co Ltd v Manock (2005) SASR 206, [77].

[3] David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 (Hore-Lacy); affirmed in Setka v Abbott (2014) 44 VR 352 (but note [310]-[312] (Whelan JA) clarifying there is no separate ‘Hore-Lacy’ defence at common law). Compare Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154.

[4] See Federal Court Rules, rr 16.02, 16.08 and 16.41.

[5] ABC v Wing at [20]. See also Chakravarti, Hore-Lacy, Setka v Abbott. The broader approach adopted by the English cases of Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 and Polly Peck (Holdings) plc v Trelford [1986] QB 1000 has been rejected in Australia, and found strong criticism by Brennan CJ and McHugh J in Chakravarti, [8]-[13].

[6] Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11, [45]; Flood v Times Newspapers Ltd [2012] UKSC 11; 2 AC 273 [8].

[7] Gutnick v Dow Jones & Co Ltd (No 4) (2004) 9 VR 369.

[8] Hore-Lacy v Cleary & Anor [2007] VSCA 314 (Cleary)

[9] West Australian Newspapers v Elliott (2008) 37 WAR 387.

[10] Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125.

[11] To avoid confusion, and to reflect the terms of the judgment, this article refers to the parties by reference to their designation in the substantive proceeding, rather than in the appeal.

[12] See Federal Court Rules 2011 (Cth) rr 16.41 and 16.43.

[13] ABC v Wing, [25].

[15] n4.

[16] ABC v Wing, [98].

[17] Ibid [28], emphasis in original, citations omitted.

[18] Lewis v Daily Telegraph [1964] AC 234.

[19] ABC v Wing, [28].

[20] Ibid, [96].

[21] Ibid, [101].

[22] Ibid, [98]

[23] Ibid, [86].

[24] Ibid, [19].

[25] Ibid, [86].

[26] Ibid, [94].

[27] Ibid, [94], citations omitted.

[28] Fairfax Digital Australia & New Zealand Pty Ltd v Kazal (2018) 97 NSWLR 547, [179] (Gleeson JA); citing Burstein v Times Newspapers Ltd [2000] 1 WLR 579.

[29] ABC v Wing, [87].

[30] Chau Chak Wing v Fairfax Media Publications Pty Ltd & Garnaut [2019] FCA 185. That proceeding concerned imputations of bribery of John Ashe, conspiracy to bribe, misconduct warranting extradition to the United States on criminal charges, and illicit payments to government officials. The decision is currently on appeal.

[31] In the earlier proceeding, the statutory defence of qualified privilege failed on the basis that the respondents’ conduct in publication had not been reasonable. However, it should be noted that this finding was predicated on the specific facts in issue as well as the evidence of the respondent journalist and key witness, John Garnaut: see especially at [119], [120], [147], [149], [161], [166], [171], [178], [201], [215], [218], [231].

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