RAYNEY -v- PAN MACMILLAN AUSTRALIA PTY LTD [2014] WASC 129 (10 April 2014)

Last Updated: 24 February 2015

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : RAYNEY -v- PAN MACMILLAN AUSTRALIA PTY LTD [2014] WASC 129

CORAM : EDELMAN J

HEARD : 8 APRIL 2014

DELIVERED : 10 APRIL 2014

FILE NO/S : CIV 1587 of 2010

BETWEEN : LLOYD PATRICK RAYNEY

Plaintiff

AND

PAN MACMILLAN AUSTRALIA PTY LTD

First Defendant

MALCOLM CRAIG BROWN

Second Defendant

ESTELLE BLACKBURN

Third Defendant

Catchwords:

Practice and procedure - Strike out application - Defamation - Difference between inferences, implications, and imputations - Drawing of inferences upon inferences - Whether book chapter in book of essays needs to be read together with book introduction

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: A

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Mr R Anderson

Second Defendant : Mr R Anderson

Third Defendant : Mr R Anderson

Solicitors:

Plaintiff : Bennett & Co

First Defendant : Ms C Galati

Second Defendant : Ms C Galati

Third Defendant : Ms C Galati

Cases referred to in judgment(s):

Texts cited:

Mullis A and Parkes R, Gatley on Libel and Slander (12th ed, 2013)

Wigmore J, Evidence in Trials at Common Law (Tillers P rev 1983)

Table of Contents

EDELMAN J:

Introduction

1 In August 2007, Mrs Corryn Rayney was murdered.

2 This litigation concerns a book which was published around May 2009 entitled Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia. The defendants are the publisher, the editor, and the author, of a chapter in that book. The chapter is entitled 'The Bootscooter who did not make it home: The Murder of Corryn Rayney'.

3 In his pleading, Mr Rayney says that the chapter, in its ordinary and natural meaning, was defamatory. He says that it 'was understood to mean' that

(i) Mr Rayney murdered Corryn Rayney,

(ii) Mr Rayney procured a person or persons to murder Corryn Rayney,

alternatively

(iii) Mr Rayney so conducted himself so as to give rise to a reasonable suspicion that he murdered his wife.

4 The defendants deny that the chapter is capable of bearing any of those meanings. They have not yet filed any defence. Before filing their defence they have brought this application to strike out this allegation in Mr Rayney's pleading. They say that the pleaded meanings are so clearly untenable that they cannot possibly succeed. Counsel submitted that although the author of the chapter invited suspicion, her words, when read as a whole, were so carefully chosen that an inference of guilt was untenable.[1]

5 In the course of his submissions counsel for the defendants raised a number of controversial issues of defamation law. In particular these were:

(i) the use of inferences upon inferences; and

(ii) whether a chapter in a book of separate essays is a selfcontained publication or whether it must be read together with the introduction to the book and the structure of the book.

6 These reasons are divided as follows:

(i) The paragraphs which the defendants wish to strike out: [8] [11];

(ii) Principles on strike out applications in defamation cases: [12] [18];

(iii) The operation of inferences, implications, and imputations: [19] [24];

(iv) Whether it is possible to rely on an inference upon an inference: [29] [35];

(v) Whether the chapter needs to be read with the book as a whole: [36] [42]; and

(vi) Reasons why none of the pleaded meanings should be struck out: [43] [70].

7 For the reasons below, the application must be refused. At the outset I emphasise that my consideration in these reasons of the matters discussed in the book is not concerned with the truth of any of them. This applies whether those matters are alleged statements of fact, or inferences, or implications.

The paragraphs that the defendants wish to strike out

8 The defendants have applied to strike out pars 7.1, 7.2 and 7.3 of the statement of claim under O 20 r 19(1)(a) or O 20 r 19(1)(c) of the Rules of the Supreme Court 1971 (WA).

9 The basis of the application under each rule, respectively, is that those subparagraphs

(i) fail to disclose a reasonable cause of action against the defendants,[2] or

(ii) will prejudice embarrass or delay the fair trial of the action.[3]

10 Paragraphs 7.1 to 7.3 of the statement of claim are as follows:

The Defendants’ Chapter complained of was defamatory in its natural and ordinary meaning and was understood to mean that:

7.1 the Plaintiff murdered Corryn Rayney;

7.2 the Plaintiff procured a person or persons to murder Corryn Rayney;

7.3 alternatively, the Plaintiff so conducted himself so as to give rise to a reasonable suspicion that he murdered his wife.

11 Essentially, the defendants' argument is that these paragraphs plead meanings as to guilt (pars 7.1 and 7.2) and meanings as to reasonable suspicion of guilt (par 7.3) which cannot be sustained.

Principles on strike out applications General strike out principles

12 The principles to be applied in this jurisdiction to an application to strike out were summarised by Master Staples in Kimberley Downs Pty Ltd v Western Australia,[4] in a passage which has been quoted with approval on numerous occasions:[5]

(1) The rule is intended to apply only to cases which are really not arguable and not to cases where under the previous practice demurrer would have been the proper course: Packard v Transport Trading and Agency Co Ltd [1912] WALawRp 44; (1912) 14 WALR 191 per Burside J at 195.

(2) On the application, not only must all the facts alleged in the statement of claim be accepted as true, but it must be taken for granted that on all other points the pleading is unassailable: Niven v Grant [1904] VicLawRp 14; (1903) 29 VLR 102 per Holroyd J at 106.

(3) Great care must be exercised to ensure that the plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal: General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125 at 130.

(4) The rule should not be reserved for those cases where argument is unnecessary to show the futility of the plaintiff's claim. Argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed: General Steel Industries Inc v Commissioner for Railways NSW [1964] HCA 69; (1964) 112 CLR 125 at 130.

(5) As a general rule, a plaintiff is 'entitled... as of right to have his case heard, to have the facts found and then to argue the question of law as it arises before the trial judge upon the facts as found. It is only in cases in which it can be seen from the outset that, however the facts be found, there is no basis for the legal conclusion contended for by the plaintiff that the pleading should be struck out: Dalgety Australia Ltd v Rubin (Unreported, WASC Full Court, Lib No 5485, 24 August 1984, per Burt CJ).

(6) A court at first instance should be careful not to risk stifling the development of the law by summarily rejecting a claim where there is a reasonable possibility that, as the law develops, it will be found that a cause of action will lie: Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 per Master Allen.

13 In particular, when a strike out application is brought in the defamation context, the exercise of ascertaining the range of legitimate meanings that are possible is an exercise in generosity, not in parsimony.[6] In Jameel v Wall Street Journal Europe SPRL,[7] Simon Brown LJ (as his Lordship was then) said:

... every time a meaning is shut out (including any holding that the words complained of either are, or are not, capable of bearing a defamatory meaning) it must be remembered that the judge is taking it upon himself to rule in effect that any jury would be perverse to take a different view on the question. It is a high threshold of exclusion ... The judge’s function is no more and no less to pre-empt adversity.

Strike out applications of defamatory imputations

14 It is well established that an imputation will be struck out only if it is plainly incapable of being conveyed by the words complained of or, to use other words, if the imputation is so clearly untenable that it cannot possibly succeed.[8] The test for whether a publication has capacity to bear a defamatory meaning has been described as whether the meaning is 'strained, or forced, or utterly unreasonable'.[9]

15 In Favell v Queensland Newspapers Pty Ltd[10] a joint judgment of Gleeson CJ, McHugh, Gummow and Heydon JJ approved the following extract from the judgment of McPherson JA in the Queensland Court of Appeal:

Whether or not [the pleading] ought to and will be struck out [as disclosing no reasonable cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.

16 In that case, the respondent newspaper published an article which said that a multimilliondollar Brisbane home, which was the subject of a controversial development application by the owners for a five-storey block of units, had burned down. One of the most obvious features of the article, and a link which was at the centre of the appellants' case, was the connection that the article made between the destruction of the appellants' house and the alleged controversial plan to redevelop the site. The article was found to imply that the destruction of the house by fire facilitated the redevelopment, and thwarted local opposition to it.[11]

17 The appellants pleaded that defamatory imputations arose from the newspaper article including imputations that

(i) the appellants committed the crime of arson; and

(ii) the appellants were reasonably suspected by the police of committing the crime of arson.

18 The High Court held that the matter published was capable of conveying those imputations. The joint judgment quoted[12] from the famous remarks of Lord Devlin in Lewis v Daily Telegraph Ltd:[13]

It is not ... correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.

Principles of defamation law which were in dispute (1) Inferences, implications and imputations

19 In this case, as in many others, references to the meaning of a publication were made interchangeably with references to the publication's imputation (from imputare, 'to ascribe'). The editors of Gatley on Libel and Slander[14] explain, the concept of an imputation of a publication can be broader than its 'meaning' because imputations can involve conclusions which are implied as a result of extrinsic facts, and those implications might go beyond the meaning of the words in their ordinary sense. It is not necessary to descend into this debate in this case because the pleading relies upon the 'natural and ordinary meaning' of the publication.

20 In Amalgamated Television Services Pty Ltd v Marsden,[15] Hunt CJ at CL said that the 'ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it'.

21 In both written and oral submissions the defendants said that an important feature of the claim is that the pleaded meaning 'will not be understood as arising by mere implication'.[16] Counsel for the defendants say that Mr Rayney must therefore rely upon inference, not implication. This submission attempted to draw a sharp divide between the operation of implication and inference.

22 An implication is something that is included in and is part of that which is expressed by the publisher. It is a matter which the reasonable addressee of the statement would understand the publisher as having intended to say.[17]

23 When implications are taken into account for the purpose of assessing whether an imputation is defamatory, it is necessary to bear in mind the often quoted[18] remarks of Lord Devlin in Lewis v Daily Telegraph:[19]

[T]he layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.

24 In contrast with implication, an inference involves deriving a conclusion by a process of reasoning from something known or assumed.[20] It is a conclusion drawn by the reader that adds to what has been said, either expressly or by implication, by the publisher.[21]

25 Although the concepts of implications and inferences are separate, the process of drawing implications in a publication is not independent of inferences which exist in the publication. As counsel for the defendants accepted during oral submissions,[22] an inference might be based in part upon an implication. The process of drawing an inference derives a conclusion from known or assumed information including the expressed and implied content of the publication.

26 In John Fairfax Publications Pty Ltd v Rivkin,[23] McHugh J referred to the capacity for implication and, quoting from Lord Devlin in Lewis v Daily Telegraph,[24] said that the natural and ordinary meaning of words contains 'all such insinuations and innuendoes as could reasonably be read into them by the ordinary man'. Lord Reid had also emphasised that 'more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning'.[25]

27 Not only is the operation of inference potentially associated with implication but in considering whether a publication is defamatory there are real difficulties in attempting to deconstruct a publication into intermediate implications and inferences as part of a rigid intellectual process towards the asserted conclusion. The meaning which is conveyed to an ordinary reader of a publication may simply be a matter of 'impression'.[26] As Mason and Jacobs JJ said in Mirror Newspapers Ltd v World Hosts Pty Ltd,[27] the consideration of the 'natural and ordinary meaning' of a publication to an ordinary person includes 'a certain amount of loose thinking' because

[t]he ordinary reader does not formulate reasons in his own mind: he gets a general impression and one can expect him to look again before coming to a conclusion and acting on it. But formulated reasons are very often an afterthought.

28 In summary, although there is a distinction between inferences and implications, the ultimate question is whether the pleaded meaning is capable of being conveyed from the matter about which complaint is made. And that question is determined by reference to the hypothesised ordinary reasonable reader. In answering that question, it is well established that the ordinary reader of a publication 'does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction.'[28] And,[29]

[h]ypothetical reasonable readers should not be treated as either naive or unduly suspicious [or avid for scandal]. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse the documents.

(2) Whether it is possible to rely upon an inference based upon an inference

29 The defendants say that if the 'reasonable suspicion' pleading in par 7.3 is reasonably capable of arising then the meanings in pars 7.1 and 7.2 should be struck out because the same words cannot give rise to an inference of both 'reasonable suspicion' and 'guilt'. The defendants say that the two inferences are not possible because the drawing of an inference of guilt, based upon an inference of reasonable suspicion, would involve the drawing of an inference based upon an inference. The defendants say that this is not permissible.

30 The defendants make a second, related submission which is not put as a general rule. They say that an inference of guilt cannot be based on another inference of reasonable suspicion. Hence, a report that a person has been arrested and charged with a criminal offence is capable of giving rise to the inference of reasonable suspicion of guilt but, by itself, it is not capable of giving rise to a further inference of guilt.

31 I accept the second submission. In Mirror Newspapers Ltd v Harrison[30] the High Court held that the express statement that a person has been arrested and charged with a criminal offence is not, by itself, capable of bearing the inference that the person is guilty or probably guilty of that offence. One reason given by Mason J (with whom the other judges agreed) in that case, was that that inference of guilt involved drawing an inference from an inference. His Honour referred[31] to the decisions of Lord Reid, Lord Hodson, and Lord Devlin in Lewis v Daily Telegraph.[32] Each of these passages quoted, as with the context of Mason J's remarks, was concerned with the drawing of an inference of guilt merely from an inference of suspicion.

32 On the other hand, there may be doubt as to whether Mirror Newspapers Ltd v Harrison[33] stands for any broader proposition, as counsel for the defendants submitted was the general rule (see [29]). In particular, the context of the remarks by Mason J concerning the drawing of inferences from inferences suggest that his Honour was not proposing any general principle that an inference can never be drawn from an inference for the purposes of a finding of a defamatory imputation.

33 There might be good reasons not to think that there is any general rule prohibiting the use of inferences upon inferences. In the criminal law it is permissible to draw inferences upon inferences, such as where an inference of guilt is sought to be drawn from an intermediate fact which itself might be found as a matter of inference.[34] Of course, juries will often be warned as to the manner in which that exercise can be undertaken. But the exercise is far from rare. And it does not necessarily mean that significant doubt will surround the ultimate inference. For instance, Wigmore gave the example of an accused who is seen holding a smoking gun over the body of the deceased bearing a bullet wound. From the smoking gun we can infer that the accused discharged the gun. And from the inference that he discharged the gun we can infer that it was his bullet that struck and killed the deceased.[35]

34 There is no reason why the civil law should be any different in this regard from the criminal law. In Gacic v John Fairfax Publications Pty Ltd,[36] Ipp J concluded that although there may be distrust about drawing inferences from inferences, there was no absolute rule that precludes an inference upon an inference having the capacity to convey a defamatory imputation.

35 On the other hand, counsel for the defendants referred to a decision of Hunt CJ at CL in the New South Wales Court of Appeal where his Honour (Mason P and Handley JA agreeing) held that a publisher is not responsible where a reader 'draws an inference which is available in the matter complained of and then uses that inference as a basis (at least in part) from which a further inference is drawn'.[37] In the absence of any substantial oral argument on this point, including whether the remarks of Hunt CJ at CL are binding upon me and whether they have been subsequently applied or distinguished, I will follow them in this application. Two qualifications must, however, be made. The first is that, as Hunt CJ later explained, a rule which prohibits the drawing of an inference from an inference does not prevent a plaintiff from relying upon the possibility of 'a reasonable degree of conjecture or speculation where the publisher has invited it'.[38] Further, there are dangers in any attempt to deconstruct the reasoning process of an ordinary reader in order to identify any precise, and prohibited, inference upon inference which is sought to be drawn. The ultimate question to be asked is whether the ordinary, reasonable person would treat the pleaded meaning as capable of being conveyed by the matter about which complaint is made.

(3) Whether the chapter needs to be read with the structure of the book and editorial

36 Mr Rayney and the defendants disagree about what constitutes the publication in question. Mr Rayney says that it is the chapter which relates to him. He says that the other chapters relate to different cases and that the ordinary reasonable reader would purchase the book for a particular chapter.[39]

37 In contrast, the defendants say that the introduction (which refers to the chapter concerning Mr Rayney) and the other chapters in the book form part of the context in which the relevant chapter falls for consideration.[40] They say that their defence will make reference to those contextual matters.

38 Since I reach the conclusion below that the pleaded paragraphs should not be struck out, it is not necessary to determine this issue finally. Nor is it appropriate that I attempt to do so. This is particularly so at the level of a strike out application in circumstances in which (i) I was not referred to any authority, and cannot find any, where this issue has been considered, and (ii) a number of the issues related to this point are matters upon which I received no submissions or brief oral submissions. It suffices to indicate my preliminary view concerning why, for the purposes of this strike out application, I am content to accept the defendants' submission.

39 It is well established that, as Kenneth Martin J said in Maher v Nationwide News Pty Ltd,[41] the hypothesised ordinary reasonable reader of a newspaper publication is assumed to read an article in question from start to finish. It is hard to see why it is an assumption which should not be applied also to a book including a book of essays. How is it possible to know whether, as counsel for Mr Rayney asserted, the ordinary reasonable reader of the relevant chapter would have bought the book for that chapter alone? Is it necessary to consider extrinsic evidence concerning how the book was marketed? Or surveys of the purchasers of the book?

40 In Favell v Queensland Newspapers Pty Ltd,[42] Kirby J described the ordinary reasonable reader as a fiction. The attribute of this ordinary reasonable reader that he or she reads the whole of an article or a book from start to finish might be thought to lend support to this thesis. But there is a difference between a fiction which deems something to be true when it is known to be false and a legal construct. The ordinary reasonable person is a legal construct. He or she is not a fiction who is supposed to represent some judicial guess about the likely behaviour of the general public. Instead the reasonable ordinary reader is constructed to illustrate the boundaries of legal rights; in this case the boundary between the right to reputation and the freedom of speech. For instance, the attribute of the reasonable, ordinary reader that he or she is of fair, average intelligence,[43] and is not unduly suspicious, establishes that defamation will not occur even if reputation is impaired in the mind of some persons who are above average intelligence or very suspicious (attributes which are not necessarily independent).

41 The attribute of the ordinary, reasonable reader as a person who reads the whole of an article ensures that the boundaries of free speech are dependent upon a work being construed as a whole. As a matter of principle, therefore, my preliminary view is that the same boundaries should apply whether the book consists of a single, unitary work or whether it consists of an edited collection of chapters.

42 In light of the conclusion I reach on this application, it is sufficient to proceed on the basis of this preliminary view for the purposes of this strike out application. However, full argument on this issue may need to consider further matters which were not explored in argument. I have referred to some of those matters already. In relation to Ms Blackburn only, another question is whether one person's publication can provide the context for another's publication for the purposes of the law of defamation. In other words, if Ms Blackburn's chapter would otherwise be defamatory, could that conclusion be avoided because of the manner of the editor's placement of the chapter in the book as a whole? Or could it be avoided by comments by the editor in the introduction to the book? Would the conclusion be different if the other matter caused a publication which was not otherwise defamatory to become defamatory? And would the answer to this question be affected by whether Ms Blackburn had any control over the placement of her chapter, or the comments of the editor or any intention in relation to those aspects of publication?[44] In oral argument, counsel for the defendants drew an analogy with a newspaper journalist who writes an article where a sensational headline is inserted by a subeditor or editor. Counsel submitted that in Favell (in which he appeared as counsel) no distinction was drawn between the journalist and the editor even though the joint judgment in the High Court made reference to the heading. However, he accepted that the point was not taken in Favell.[45]

Paragraph 7 should not be struck out

43 As I have explained, my approach to the exercise of discretion to strike out a pleading considers the chapter within the book as a whole, including the introduction to the book and the other chapters. The discussion which follows cannot capture all the detail of the impressions, and broad nuances of the book considered as a whole from the perspective of the ordinary, reasonable reader. Such precision is impossible because impression includes matters such as the style of writing, the development of plot and tension in the chapter, and linguistic devices of emphasis which might not be easily capable of description. It would also be an error to attempt to deconstruct, with complete precision, an overall impression in circumstances in which the construct to apply to whether the pleaded meanings are so clearly untenable is that of an ordinary, reasonable reader, who may engage in 'a certain amount of loose thinking' and who may not formulate reasons in his or her own mind.

44 Nevertheless, reasons should be given to summarise aspects of my impression which would be conveyed to an ordinary, reasonable reader that leads me to the conclusion that the pleaded meanings are not clearly untenable. Although the summary which follows is necessarily an incomplete recording, it emphasises some of those key aspects.

Paragraph 7.1

45 The following passages are matters which contribute to the impression that I consider would be held by an ordinary, reasonable reader that par 7.1 is not so clearly untenable that it cannot succeed. Each was specifically pleaded, in the proper way,[46] as a matter of significance. The context of those passages is that Mrs Rayney was murdered on the night of the 7 August 2007 or early morning on 8 August 2007.

46 First, the Rayneys' 'under-one-roof separation had been amiable for a time, but now there was talk of real separation and the couple were on the verge of living separately and dividing up their property and finances. Their talk about these things had become an argument and finally they had resorted to emails as a method of communication'.[47]

47 Secondly, in another (later) reference to emails in the chapter, the author says that friends of Mrs Rayney said that in the months before the murder Mrs Rayney had 'received threatening emails and that she had forwarded those emails to her friends with a request that they be passed on to the police should anything happen to her. They added that the night before her disappearance she had had a confrontation with "a man". The media knew who that man was meant to be but were not able to reveal it. But they did say that [Mrs Rayney] was "not leading a double life"'. [48]

48 Thirdly, the author wrote that 'friends who knew the family knew that things were reaching crisis point in the marriage and understood that after her line dancing, [Mrs Rayney] was going to go home to continue discussions'.[49]

49 Fourthly, Detective Senior Sergeant Lee had said that Mr Rayney was the police's 'prime suspect because our ongoing investigations and forensic evidence at this time have led us to believe Mrs Rayney was murdered at her ... home'.[50] Relevant context to this statement includes the following statements within the chapter:

(i) there is no concept of a 'prime suspect' in the law;[51]

(ii) when Detective Senior Sergeant Lee was asked if he thought it was a risk naming Mr Rayney as a 'prime suspect', he replied '[o]bviously' and then referred to the continuing forensic examination of the scene including a refusal to divulge 'the evidence we are trying to obtain' although describing the use of chemicals and the need for industrial cleaners afterwards.[52]

(iii) on 7 August 2007, Mrs Rayney had left one of her daughters in Mr Rayney's care while the other went to a Gwen Stefani (apparently a rock) concert.[53] There was no mention of the possibility or evidence concerning any intruder in the house.

(iv) Drag marks were said to have been found in the front garden of the Rayneys' house.[54]

(v) Detective Senior Sergeant Lee had said that Mr Rayney had refused entry to the house and police had to get in by force.[55]

(vi) that Police Commissioner Karl O'Callaghan 'gave his support to Jack Lee'[56] and issued a challenge to Mr Rayney including asking him to let his daughters be interviewed 'unless he's got something to hide' and saying 'We now also have forensic material. We want to ask some different questions of the kids than when she was a missing person ...'[57]

50 Fifthly, the author describes a name badge with Lloyd Rayney's name on it being found in a 'spot off Lovekin Drive' and handed to the police.[58] The chapter says that it was reported that the badge could have fallen out of Mrs Rayney's car. [59] The author described Lovekin Drive as a street near the bush where Mrs Rayney's body was found.[60]

51 There are, however, numerous statements in the chapter which provide further context to the matters above and would mitigate their emphasis to the ordinary, reasonable reader. For instance, the author describes the following: Mr Rayney's claims of innocence included in some detail, including his statement through his lawyers that it was wrong to say that the police were refused entry to the family home;[61] the support that Mr Rayney had from members of the legal community including various Queen's Counsel;[62] the description of the murderer in the key passages describing the manner in which the murder might have occurred without using any name but simply as 'the person', or 'the driver' or just 'he';[63] support that Mr Rayney had from a member of Mrs Rayney's family; and Mr Rayney's pleas for information;[64] and the speculation involving a number of other different theories including the possibility that the murder was for retribution against Mr Rayney.[65]

52 As I have explained, I also proceed for the purposes of this hearing on the basis that the divisions of chapters in the book and the editorial are relevant context to a consideration of the meanings which arise from the chapter in question.

53 The book is divided into four parts. The first three parts are entitled 'Murder for Gain', 'For the Sake of Killing', and 'Criminals Behind the Pace'. As counsel for the defendants explained, those chapters involved convicted murderers. The final part, chapters 10, 11 and 12, including the chapter in question (chapter 12), is entitled 'Lingering Uncertainties'. There are three chapters in that part. Apart from the chapter in question the other chapters involve, as the editor summarises, 'doubts about whether Arthur Boycott Greer really did do the murder for which he was convicted' and 'questions whether the DNA evidence used to convict Bradley Murdoch of the murder of Peter Falconio really did prove the case beyond reasonable doubt'.[66]

54 Nevertheless, there might be issues at trial concerning what a reasonable ordinary reader might consider is meant by the headings 'Lingering Uncertainties'. Uncertainty about what? Counsel for the defendants appeared to accept that in chapters 10 and 11 the uncertainty concerned the guilt of Mr Greer and Mr Murdoch.[67]

55 In the introduction to the book, the editor introduces this part with the words '[t]hen come the mysteries'.[68] In the discussion of the chapters in this section the editor says of the chapter in question:[69]

In another of Estelle's cases, much suspicion was cast on a high-profile lawyer, Lloyd Rayney, after his wife Corryn, was found dead. But there was no evidence and at that point the justice system must steel itself against community hysteria. And if people do from time to time get convicted for crimes they did not commit, they become extra victims.

(emphasis added)

56 The middle of the book also contains photographs. Those photographs, and their descriptions, should be considered with the chapter in question if the context is to include the whole of the book. The photos include convicted killers as well as their victims. The final three photos reflect the matters in the final chapter of the book and are described as 'Lloyd Rayney, uncomfortable in the spotlight', 'Corryn Rayney, successful in law, unhappy in marriage, killer unknown' (emphasis added), and 'West Australian Police forensic team searching Corryn Rayney's house'.

57 In conclusion, as counsel for the defendants properly accepted, words must be carefully chosen to avoid an inference of guilt since loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded. At the level of a strike out application I do not accept that the words of the chapter, in all context of the book, were sufficiently carefully chosen so that the plaintiff's pleading in par 7.1 is a meaning that to the ordinary, reasonable reader is clearly untenable or is strained, forced or utterly unreasonable so as to be plainly incapable of being conveyed. I emphasise that this conclusion is only that Mr Rayney is entitled to have a trial of the issue of this defamatory meaning. It may be that at trial the meaning of the words will be found, by judge or jury, not to connote anything more than suspicion.

Paragraph 7.2

58 There are very few passages from the chapter upon which Mr Rayney specifically relies for his pleaded meaning that 'the Plaintiff procured a person or persons to murder Corryn Rayney'.

59 The primary passages, as pleaded,[70] are as follows:

60 First:[71]

In 2005, Rayney had switched to the defence side of the law, and had made a name for himself there as well, when he defended Johnny Montani. Montani, a former security guard, had been charged with the murder of bikie Kevin 'Mick' Woodhouse outside the Bayswater Waves Aquatic Centre in Perth in May 2004. There certainly seemed to be a case against Montani. Woodhouse, shout four times from a .375 Magnum revolver, had said in his dying breath that his killer was 'Jonny Montoyo', and an aquatic centre security guard had seen a man wearing dark clothes and a helmet speed away on a motorcycle. Police had caught up with Montani when he was taking a garbage bag to a waste dump. They said the garbage bag had contained four spent shell casings, a pair of black pants a black jacket.

...

61 Secondly:[72]

Police raided the homes of Johnny Montani, and another man who had been acquitted of a violence charge, but they had alibis for the night Corryn disappeared. On 20 September, they went again to Rayney's home. They came by the carload, tapped off the home and erected a blue tent over the front yard. In the house, they seized boxes full of documents. Lloyd Rayney was taken to Major Crime Squad headquarters for questioning. Sergeant Lee then made a stunning statement to a packed media conference: 'As a result of further investigations this morning, including the interview of Mr Rayney, he is now a suspect in the murder of his wife... He is our prime suspect because our ongoing investigations and forensic evidence at this time have led us to believe Mrs Rayney was murdered at her Monash Avenue home on Tuesday evening ... We believe she was murdered prior to being placed in the vehicle. We believe it is most likely that she was murdered at the house, it most likely occurred on that night and from the information we have, we believe the girls were at home for most of that night.

He said further that there was no other suspect. And he said that drag marks had been found in the front garden. Lee also said that Rayney had refused entry to the house and police had had to get in by force, and that Rayney had exercised his legal right to refuse to answer questions. They said he also refused to let police reinterview his children.

62 Counsel for Mr Rayney also relied on matters of context described above as well as references to how Mr Rayney, in the course of representing a police officer in the Corruption and Crime Commission the next morning, 'had an enormous amount to think about'[73] and one concern 'might have been that his wife had not come home the previous night' (emphasis added).[74] On the next page the author refers to Mr Rayney reporting his wife missing at 3:30 pm, after the morning and afternoon of evidence in the Corruption and Crime Commission.[75] The author then described how the following day after the hearing continued, two further witnesses were called, and '[i]t was then that Rayney told Commissioner Dunford about the situation of his missing wife'.[76]

63 Counsel for Mr Rayney also referred to the context for this alleged meaning as including other statements in the chapter such as speculation, amongst other matters of speculation, including 'whether the killer had acted alone, whether a bikie or other hitman was hired, perhaps one flown into and out of Australia, perhaps from India, just for the job'.[77] The reference to India appears odd. Counsel for Mr Rayney submitted that it invited an association for the ordinary, reasonable reader with the reference by the author earlier in the chapter to defamation proceedings brought by Mr Rayney concerning an alleged ethnic slur against him by Robert Hughes.[78] The same passage also includes a reference to speculation concerning the murderer as '[p]erhaps someone Rayney had succeeded in convicting, perhaps someone else he had been involved with in a case. He was, after all, dealing with criminals most of the time'.[79]

64 As with par 7.1, there are numerous matters in the chapter which militate against a conclusion that an inference can be drawn that 'the Plaintiff procured a person or persons to murder Corryn Rayney'. Many of those matters have already been mentioned in the discussion above of par 7.1 of the statement of claim at [51] [56]. Once again, it may turn out at trial to be difficult to establish that these pleaded facts rise above matters of suspicion, as in Mirror Newspapers Ltd v Harrison,[80] to amount to a meaning of guilt. But it is not necessary to speculate on this point because applying the test for a strike out application, I do not accept that Mr Rayney's pleaded meaning in par 7.2 is clearly untenable or is strained, forced or utterly unreasonable so as to be plainly incapable of being conveyed to the ordinary, reasonable reader.

Paragraph 7.3

65 As counsel for the defendants correctly submitted, the pleading in par 7.3, that Mr Rayney 'so conducted himself so as to give rise to a reasonable suspicion that he murdered his wife' is different from a pleading of reasonable suspicion, the possibility of which was considered by Mason J in the High Court of Australia in Mirror Newspapers Ltd v Harrison.[81]

66 In Mirror Newspapers Ltd v Harrison, Mason J said that a report that the plaintiff had been arrested and charged with an offence is capable of bearing the imputation that the police suspected him of having committed the offence and that they had reasonable cause for doing so.[82] Justice Wilson agreed with Mason J but Gibbs CJ and Brennan J declined to express an opinion on this point. The fifth member of the court, Aickin J, died before the delivery of judgment.

67 This obiter dicta from Mirror Newspapers v Harrison is of no assistance in this case. The chapter describes statements by Mr Percy QC and Mr McGinty that Mr Rayney had not been and might never be charged.[83] It was not submitted that anything in the chapter suggested that Mr Rayney had been charged. Further, the pleaded meaning in this case that Mr Rayney had 'so conducted himself so as to give rise to a reasonable suspicion that he murdered his wife' is different from a pleaded meaning that the police had reasonable cause for suspecting Mr Rayney of committing the offence. Persons can be reasonably suspected for reasons other than their conduct.

68 The specific passages of the chapter upon which counsel for Mr Rayney pleaded reliance for the pleaded meaning in par 7.3 included the matters below:

(i) The Police Commissioner's[84]

challenge to Lloyd Rayney to let detectives interview his daughters, asking why he did not, 'unless he's got something to hide'. He said Rayney had allowed contact with the girls when their mother was a missing person but 'not since she's been found murdered. If he's saying "I'm innocent", could we have access to the kids to ask them some questions?' he continued.

(ii) The statement by Detective Senior Sergeant Lee that 'Rayney had refused entry to the house and police had had to get in by force and that Rayney had exercised his legal right to refuse to answer questions'.[85]

69 In addition, counsel for Mr Rayney in oral submissions referred to the conduct of Mr Rayney in relation to the timing of his reporting of his wife as missing (referred to above at [62]).[86]

70 These matters must again be considered in the context of the whole chapter, as well as the introductory material in the book and the photographs. Again, there are numerous matters in the chapter including a number of significant matters to which I have referred above at [51] [56], which militate against a conclusion that an inference can be drawn as pleaded in par 7.3. But, considering the material as a whole, and without a line by line minute analysis, and applying the test for a strike out application, I do not accept that Mr Rayney's pleaded meaning in par 7.2 is clearly untenable or is strained, forced or utterly unreasonable so as to be plainly incapable of being conveyed to the ordinary, reasonable reader.

Conclusion

71 In the passage from McPherson JA (above [15]) which was quoted with approval in the joint judgment in Favell v Queensland Newspapers Pty Ltd,[87] his Honour described the exercise of striking out a pleading as 'ultimately a matter for the discretion of the judge who hears the application'. What this reference to discretion means is that even with the stringency of the test for striking out, there may be cases where the decision is not clear cut. This is particularly so because the decision at trial may be one of impression and the judge or jury hearing the trial must apply a construct of an ordinary, reasonable reader, who may engage in 'a certain amount of loose thinking'.

72 During the hearing, counsel for the parties drew my attention to a large number of passages. I have illustrated some of the passages which I consider to be those which an ordinary, reasonable reader might consider to be of some significance. But, although the ordinary reader is assumed to read a book with more care than a newspaper,[88] and although he or she has the opportunity to reread it at leisure,[89] the ordinary, reasonable reader does not conduct a line by line analysis. In applying the ordinary, reasonable reader construct, I do not accept that any of Mr Rayney's pleaded meanings in par 7 of his statement of claim are meanings that are clearly untenable or are meanings which are strained, forced or utterly unreasonable so as to be plainly incapable of being conveyed.

---

[1] ts 13.

[2] Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(a).

[3] Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(c).
[4] Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Lib No 6414, 25 August 1986) 6 - 7.
[5] At first instance: Joyce v Palassis [No 4] [2008] WASC 45 [33] (Le Miere J); Boase v Axis International Management Pty Ltd [2009] WASC 331 [3] (Beech J); Fairworld Holdings Pty Ltd v Burrup Fertilisers Pty Ltd [No 2] [2011] WASC 136 [21] - [22] (Allanson J); Aquital Holdings Pty Ltd v Marlin Group Pty Ltd [2012] WASC 198 [11] (Pritchard J). On appeal: Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233 (Wheeler J, Murray & Miller JJ agreeing); Talbot & Olivier (A Firm) v Witcombe [2006] WASCA 87; (2006) 32 WAR 179, 186 [22] (Steytler P, Pullin JA & Buss JA agreeing); Neilson v City of Swan [2006] WASCA 94 [18] (Buss JA, Wheeler & Pullin JJA agreeing);
[6] Mustard v Woodside Energy Ltd [2012] WASC 461 [60] (Le Miere J), quoting Berezovsky v Forbes Inc [2001] EWCA Civ 1251; [2001] EMLR 45 [16] (Sedley LJ).
[7] Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 6 [14]. See also Mustard v Woodside Energy Ltd [2012] WASC 461 [61] (Le Miere J).
[8] Buckeridge v Walter [2006] WASCA 22 [2] (Steytler P); Mustard v Woodside Energy Ltd [2012] WASC 461 [67] (Le Miere J).
[9] Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, 165 (Hunt CJ at CL; Mason P & Handley JA agreeing).
[10] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716, 1719 [6] (Gleeson CJ, McHugh, Gummow & Heydon JJ).
[11] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716, 1718 [2] (Gleeson CJ, McHugh, Gummow & Heydon JJ).

[12] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716, 1720 [11] (Gleeson CJ, McHugh, Gummow & Heydon JJ).
[13] Lewis v Daily Telegraph Ltd [1964] AC 234, 285 (Lord Devlin).
[14] Mullis A and Parkes R, Gatley on Libel and Slander (12th ed, 2013) 31 [2.1].
[15] Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, 165 (Hunt CJ at CL; Mason P & Handley JA agreeing).
[16] Defendants' written submissions, 3 May 2013 [5]; ts 16.
[17] Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, 167 (Hunt CJ at CL; Mason P & Handley JA agreeing).
[18] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657, 1661 [23] (McHugh J); Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716, 1720 [11] (Gleeson CJ; McHugh, Gummow & Heydon JJ); John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291, 331 - 332 [137] (Kirby J).
[19] Lewis v Daily Telegraph [1964] AC 234, 277 (Lord Devlin).
[20] Nationwide News Pty Ltd v Warton [2002] NSWCA 377 [44] (Heydon JA; Handley & Hodgson JJA agreeing).
[21] Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, 167 (Hunt CJ at CL; Mason P & Handley JA agreeing).
[22] ts 16 - 17.
[23] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657, 1661 [24] (McHugh J).
[24] Lewis v Daily Telegraph [1964] AC 234, 280 (Lord Devlin).
[25] Lewis v Daily Telegraph [1964] AC 234, 258 (Lord Reid).
[26] John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657, XX [18] (McHugh J).
[27] Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632, 641 (Mason & Jacobs JJ; Gibbs CJ & Stephen J agreeing) quoting Morgan v Odhams Press Ltd [1971] 1 WLR 1239, 1245 (Lord Reid).
[28] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716, 1720 [10] (Gleeson CJ, McHugh, Gummow & Heydon JJ) quoting Lewis v Daily Telegraph [1964] AC 234, 258 (Lord Reid).
[29] Maher v Nationwide News Pty Ltd [2013] WASC 254 [19] (Kenneth Martin J) quoting Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 [7] (Eady J).
[30] Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293.
[31] Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, 299 - 300 (Mason J).
[32] Lewis v Daily Telegraph [1964] AC 234, 260 (Lord Reid), 274 (Lord Hodson), 286 (Lord Devlin).
[33] Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293.
[34] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 579 (Dawson J with whom Mason CJ, Toohey & Gaudron JJ agreeing).
[35] Wigmore J, Evidence in Trials at Common Law (ed Tillers P rev 1983) vol 1A, §41, p 1111.
[36] Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 [129] - [130]; this point was not considered in the appeal to the High Court: John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291.
[37] Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, 167.
[38] Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, 171.
[39] ts 58 - 59.
[40] ts 19.
[41] Maher v Nationwide News Pty Ltd [2013] WASC 254 [26] (Kenneth Martin J).
[42] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716, 1722 - 1723 [23] - [26] (Kirby J).
[43] Slatyer v The Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1, 7 (Griffith CJ).
[44] See Pullman v Hill [1891] 1 QB 524, 527 (Lord Esher MR giving the example of a thief stealing a letter).
[45] ts 21 – 22.
[46] DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21, 26 (Lord Denning MR).
[47] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 276; Statement of claim [6.2].
[48] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 285 - 286; Statement of claim [6.10].
[49] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 277; Statement of claim [6.3].
[50] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 286; Statement of claim [6.11].

[51] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 288.

[52] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 287.

[53] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 277.

[54] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 286.

[55] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 286.

[56] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 288.
[57] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 288.
[58] Statement of claim [6.16]; Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 286.
[59] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 291.
[60] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 278, 282 283.
[61] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 288, 290 – 291.
[62] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 288.
[63] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 278 279.
[64] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 284.
[65] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 285.
[66] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) xiii.
[67] ts 26 - 27.
[68] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) xii.
[69] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) xiii.
[70] Statement of claim [6.1], [6.11].
[71] Statement of claim [6.1]; Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 275.
[72] Statement of claim [6.11]; Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 286.
[73] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 279.
[74] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 279.
[75] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 280.
[76] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 280.
[77] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 285.
[78] ts 53; Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 274 275.
[79] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 285.
[80] Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293.
[81] Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293.
[82] Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, 301.
[83] Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 290.

[84] Statement of claim [6.13]; Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 288.

[85] Statement of claim [6.11]; Brown M (ed) Mad, Bad and Mysterious: Murder, Rape and Pillage in Australia (2009) 286.
[86] ts 66.
[87] Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716, 1719 [6] (Gleeson CJ, McHugh, Gummow & Heydon JJ).
[88] Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, 165 (Hunt CJ at CL).
[89] Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158, 166 (Hunt CJ at CL).