Copying the defendant’s imputations – Just not on: Waterhouse v The Age Company Ltd & Ors [2012] NSWSC 9

After the usual fight about imputations, the plaintiff’s amended statement of claim alleged that articles from The Age carried the following imputations about him:

(a)     the plaintiff procured the murder of George Brown; OR

(b)     the plaintiff was an accessory to the murder of George Brown.”

Robbie Waterhouse

The Age’s defence then pleaded contextual truth and that the articles had the following imputations:

(A)    the plaintiff feared arrest for the murder of George Brown, because he used Brown to fix horses and placed money in a suspicious betting plunge on a horse Brown trained, two days before he was murdered;

(B)    the plaintiff attempted to cheat bookmakers and the general public out of large amounts of money in the Fine Cotton ring-in;

(C)    the plaintiff was an accessory to a criminal conspiracy to cheat and defraud;

(D)    the plaintiff was sent to gaol for lying to the Racing Appeals Tribunal about his prior knowledge of a criminal substitution racket.

(E)    the plaintiff acted so dishonestly as a bookmaker that he was warned off race-tracks worldwide;

(F)    the plaintiff acted criminally as a bookmaker;

(G)    the plaintiff is a repeatedly dishonest bookmaker.

The plaintiff then tried to amend his statement of claim again, and include The Age’s imputations as his own. That way, The Age would not be allowed to run the contextual imputations defence because its imputations were no longer “in addition to” the plaintiff’s, as required by section 26 of the Defamation Act. A brilliant plan. The Age opposed  the plaintiff’s to amend.

Justice Nicholas referred to the conclusions of the Court of Appeal in Besser v Kermode that the defence of contextual truth had to defeat the whole defamatory matter. This must mean that the defendant’s imputations would necessarily have to have a worse effect on the plaintiff’s reputation, then the imputations that the plaintiff alleges. In this case, it is arguable that the defendant’s imputations are no worse than the plaintiff’s imputation that he “procured the murder of George Brown”. Nevertheless, the defence seemed to be addressed only to the second imputation and the question in this instance was about the plaintiff’s further amended statement of claim.

Nicholas J concluded that the amendments were not necessary and that if they were allowed, The Age would be deprived of a defence. This would be a grave injustice to it [29]. His Honour emphasized the need for a plaintiff to get the imputations right at the start (which virtually never happens). Anyhow, the defendant can run its contextual truth defence and the case will move on.

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