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

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:

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

“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”.

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”.

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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWSC 1744
Decision Date: 08 December 2017

CaseChat Overview and Summary

The plaintiffs commenced proceedings against the defendant for defamation, asserting that the defendant published statements that were defamatory of them in their professional capacity. The dispute involved the interpretation and meaning of the allegedly defamatory statements, and whether these statements conveyed the imputations specified by the plaintiffs. The case was heard in the Federal Court of Australia, where the plaintiffs sought to determine, before the trial, the capacity of the matter complained of to convey the imputations.

The legal issue before the court was whether it was appropriate to decide, in advance of the trial, the capacity of the matter complained of to convey the imputations specified by the plaintiffs. The court was asked to consider the nature of defamation claims, and whether the meaning of the allegedly defamatory statements could be sufficiently assessed without the benefit of the defendant's non-verbal cues, such as facial expression, tone, and demeanour, which might inform the defamatory meaning of the statements. The court needed to balance the need for procedural efficiency against the risk of error in making such a determination before the trial.

The court found that it was not appropriate to determine, in advance of the trial, the capacity of the matter complained of to convey the imputations specified by the plaintiffs. The court emphasised that the defamatory meaning of the matter complained of was likely to be informed by acts and subtle visual cues such as facial expression, tone, and demeanour. These non-verbal cues could not be adequately assessed in the absence of the defendant's presence and performance at the trial. The court held that it was preferable to allow the trial to proceed, with the defendant present to provide the necessary context through their non-verbal communication, before making a final determination on the defamatory meaning of the statements.

The court's decision meant that the plaintiffs' application to determine the capacity of the matter complained of to convey the imputations specified by them, in advance of the trial, was dismissed. The case was to proceed to trial, with the defendant present to provide context through their non-verbal cues. The court's ruling highlighted the importance of considering the full context of allegedly defamatory statements, including non-verbal communication, in defamation claims.

Orders