Ale v Pauling

[2017] NSWSC 1744

Supreme Court

New South Wales

Medium Neutral Citation:	Ale v Pauling [2017] NSWSC 1744
Hearing dates:	8 December 2017
Decision date:	08 December 2017
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Application for separate determination of objections to imputations refused
Catchwords:	DEFAMATION – oral publication in disputed terms – whether appropriate to determine in advance of the trial the question of the capacity of the matter complained of to convey the imputations specified by the plaintiffs – where defamatory meaning of the matter complained of likely to be informed by acts and subtle visual cues such as facial expression, tone and demeanour
Legislation Cited:	Civil Procedure Act 2005 (NSW), Pt 6 Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Love v Mirror Newspapers [1980] 2 NSWLR 112
Category:	Procedural and other rulings
Parties:	Jason Ale (plaintiff) Heather Ale (second plaintiff) Jason Pauling (defendant)
Representation:	Counsel: T Molomby SC (plaintiffs) R White (defendant)   Solicitors: Roderick Storie Solicitors (plaintiffs) Peter Evans & Associates Solicitors (defendant)
File Number(s):	2017/271201
Publication restriction:	None

JUDGMENT – EX TEMPORE

1. McCALLUM J: These are proceedings for defamation between individuals arising out of an alleged conversation at a polling booth at an election held on 9 September 2016. In short, the plaintiffs allege that the defendant made certain remarks to a Ms Vaughan, who was handing out "How to Vote" cards at the polling booth to the following effect:

The Defendant asked Rachel Vaughan who she sees at Vanguard Accountants to which she replied “Jason Ale”. The Defendant said to Rachel Vaughan words to the following effect:

1. “Aaaaaagh no! Don’t say that! You need to change!”

2. “I had to fire Jason Ale because he and his wife had embezzled company money and when I asked him to leave the company, he stole the company name and the client files and made a business on [sic] his name under the same name – Vanguard Accountants”.

3. The Defendant showed Rachel Vaughan screenshots of a business bank account, with Mr Ale’s credit/bank card details on the screen, and said “Look, all the time this account appears is all the times he transferred tens of thousands of dollars at time [sic] into his wife’s account, pretending that she was an employee”.

2. The defendant has written to the plaintiffs identifying a number of objections to the imputations relied upon by the plaintiffs as arising from those remarks and has today, at the first listing of the proceedings, pressed a smaller number of those objections; almost all of them are objections that the matter complained of is not reasonably capable of conveying a pleaded imputation.

3. Mr Molomby SC, who appears for the plaintiffs, raised a threshold issue as to whether the Court should proceed to determine those objections today. He reminded me of the judgment of Hunt J in Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 where, at [49], his Honour remarked that the procedure which is now commonplace in this list of determining objections as to capacity as a separate question in the proceedings may be less appropriate where the alleged defamation is oral.

4. Having observed that the procedure provided under Pt 31 (the former source of the power now found in r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) to order the separate decision of any question) can only be used where the judge has before him or her the same material as would the trial judge in the ordinary defamation trial, his Honour said:

"These considerations would also seem to preclude resort to the    procedure in most cases of oral defamation where the meaning of the    matter complained of may be materially affected by gesture, tone of    voice or expression of countenance."

5. Ms White, who appears for the defendant, accepted the force of those remarks but submitted that, in the present case, some of the imputations are so obviously incapable of arising that it would be appropriate, in accordance with the requirements of Pt 6 of the Civil Procedure Act 2005 (NSW), for the Court to remove those issues from the proceedings now rather than put the defendant to the cost of preparing a defence to them.

6. By way of illustration, Ms White referred to imputation (viii), which is that each plaintiff "was a person who habitually committed crimes of dishonesty". The reliance upon that imputation, in my respectful opinion, illustrates the difficulty. As will be noted from the manner in which the matter complained of is pleaded (set out above), the plaintiffs will allege that, at the time of the alleged libel, the defendant showed Ms Vaughan screenshots of a business bank account. The content of those screen shots (in particular, the number of transactions shown) and other perhaps more subtle visual cues such as facial expression, tone and demeanour are likely to inform the question whether what was said and done conveyed the suggestion captured in imputation (viii).

7. In light of those considerations, it is clear that this is a case in which I am not in the same position as the trial judge would be to determine the question of capacity because the matter complained of is one in respect of which the meaning conveyed may be “materially affected by gesture, tone of voice or expression of countenance”, together with the content of the screenshots shown or allegedly shown by the defendant to Ms Vaughan.

8. In fairness to Ms White, it should be observed that the Practice Note contemplates that such objections will be brought forward at an early stage and her submission based on Pt 6 of the Civil Procedure Act was a proper one. However, having looked at the content of the points to be raised, I have reached the conclusion that it would not be appropriate at this stage of the proceedings to determine the objections to capacity taken by the defendant, and for that reason, I decline to determine those objections separately, in advance of the trial.

9. It is my view - unless Mr Molomby wishes to be heard otherwise - that in the circumstances, the costs of today should be each party's costs in the cause.

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Decision last updated: 13 December 2017