Allen v Lloyd-Jones

[2009] NSWDC 168

CITATION:	Allen v Lloyd-Jones [2009] NSWDC 168
HEARING DATE(S):	3 July 2009
JUDGMENT DATE:	3 July 2009
EX TEMPORE JUDGMENT DATE:	3 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Imputations (f) and (h) struck out. (2) Defendant's application to strike out imputations otherwise dismissed. (3) Defendant pay plaintiff's costs. (4) Amended Statement of Claim filed and served in 7 days. (5) Matter stood over for further directions to Friday 17 July 2009 at 9:00am.
CATCHWORDS:	TORT – defamation – imputations – form and capacity
LEGISLATION CITED:	Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2
CASES CITED:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Buckley v Newcastle Newspapers Pty Ltd (No 2) [2008] NSWDC 102 Cavasinni v Camenzuli [2009] NSWDC 159 Edward Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Hepburn v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Hunt J, 8 October 1982, unreported) James v Faddoul [2008] NSWSC 176 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915 Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273
PARTIES:	Plaintiff: Anthony James Allen Defendant: Laurel Lloyd-Jones
FILE NUMBER(S):	1549 of 2009
COUNSEL:	Plaintiff: Ms S Chrysanthou Defendant: Mr R Rasmussen
SOLICITORS:	Plaintiff: Andrew Warren & Associates Defendant: Levitt Robinson Solicitors

Judgment

[1] By way of Statement of Claim filed on 14 April 2009, the plaintiff brings proceedings for defamation concerning an email (“the matter complained of”) sent to various persons, including Sarah Curnow, the Four Corners and “News Desk” program, as well as to other unknown recipients. The plaintiff further claims that the matter complained of was subsequently republished by the “News Desk” to two others, namely Daniel Lewis and Joel Gibson. The matter complained of is set out in a schedule to this judgment.

[2] The application is for the court to determine these issues as separate questions of law pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) and to strike out the imputations pursuant to r 14.28(1) Uniform Civil Procedure Rules 2005. The relevant Act is the Defamation Act 2005 (NSW).

[3] The plaintiff pleads the following imputations arise from the matter complained of:

(a) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he bullied a woman.
(b) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he attended a woman’s home against her express wishes.
(c) The plaintiff intimidated a woman by acting in a bullying and overpowering manner over the phone.
(d) The plaintiff was aggressive towards a woman in her home.
(e) The plaintiff intimidated a woman for the purposes of forcing her to rescind a complaint she had made about him.
(f) The plaintiff blackmailed a woman by threatening legal action against her if she reported a complaint about him.
(g) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he intimidated woman for the purposes of forcing her to rescind a complaint she had made about him.
(h) The plaintiff, the Mayor of Bega Valley Shire, conducted himself inappropriately as Mayor in that he blackmailed a woman by threatening legal action against her if she reported a complaint about him.

[4] I have heard oral argument in the 9 a.m. Defamation List this morning. Since I have a part-heard trial starting at 10 a.m. the parties have kindly agreed that I may provide them with a judgment by email after court rises today.

[5] The matter complained of is a letter to the New South Wales Premier, Mr Rees. The context, form and structure are important when considering the imputations pleaded.

[6] The structure is as follows:

(a) The opening paragraphs refer to “a very important matter” that “needs rigorous investigation” concerning “prevailing police culture” in regional centres throughout Australia, referring specifically to the Bermagui/Narooma area.

(b) The next paragraph sets out “an in-depth commentary” concerning the problems of an indigenous family. This includes attacks during the night by carloads of drunk whites which terrified the family, including small children. The police were slow to arrive and when they did they made no arrests, nor was the matter reported to appropriate authorities.

(c) Later that day teenage members of the indigenous family were asked to attend the police station and, without the benefits of adults or lawyers, questioned about the incident and charged with offences. This resulted in complaints to a number of politicians and the Ombudsman.

(d) The defendant then relates how, in her capacity as a social worker, she was called to this family’s home after they were told the mayor was coming to see them about the Ombudsman complaint. She then describes the plaintiff’s conduct during this interview with the family, including demands that they withdraw their complaints.

(e) The defendant next relates how the local area police commander came to the indigenous family’s home and interviewed them in the defendant’s presence. This police officer then reports that the family had expressed their acceptance of the police conduct, which the defendant says is not the case.

(f) The defendant then sets out the history of the assault charges against the teenage members of the indigenous family and refers to articles in the Sydney Morning Herald about the case.

(g) The defendant then describes further police problems the indigenous family had, including being pulled over for traffic offences which turned out to be “non-existent” and how the family felt “under siege”. Meanwhile, the police officer who had arrested the teenagers received a bravery award. The judgment of the Supreme Court setting aside the magistrate’s findings is referred to.

(h) The rest of the letter is devoted to the circumstances in which the Campbell parents were attacked by two young white men and, in the case of Mr Campbell, injured to the point of requiring surgery. The defendant complains that although the identity of these young white men is known, no action has been taken by police, who say they are “too busy”. The letter concludes with a request for investigation of these concerns and for remedial measures to improve the situation.

[7] The objections raised by the defendant are:

(a) Imputations (f) and (h), which contain allegations of blackmail, are not supported by the matter complained of; all that is asserted is that there is a request to “rescind” a complaint. The threat of legal proceedings is not made to the Campbells but to the media if they report these events, and the matter complained of goes on to state that this is why there was no media publicity.

(b) Imputations (a), (b), (c), (d), (e) and (g) do not differ in substance. Mr Rasmussen submitted that these imputations are like “Russian dolls” in that they are just bigger or smaller variants of each other. Although this was put as an objection to form, Mr Rasmussen also formally submitted that none of the imputations pleaded (apart from a generic imputation of bullying) was capable of arising.

(c) The use of the words “conducted himself inappropriately” is a rhetorical flourish which adds nothing to the meaning of the underlying imputation: Hepburn v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Hunt J, 8 October 1982, unreported).

[8] The main issue between the parties is whether the matter complained of is capable of sustaining imputations of blackmail.

[9] The principles are set out by Hunt A-JA in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164 – 7. The relevant test is as set out by Beazley JA in Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915. Before imputations can be struck out, there must be a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way: John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 at [6] – [7], [29] and [106] – [109]. The Court should be slow to strike out imputations other than in clear circumstances: Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [6]. This is the approach taken by the Supreme Court: see Edward Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 at [11] per Nicholas J and James v Faddoul [2008] NSWSC 176 at [13].

[10] The plaintiff relies on the sentence in paragraph 20 in which there is a reference to the Mayor wanting the Campbells to rescind their complaints and ensuring that these complaints would not appear in the media. The question is who is referred to by “they” in the following sentence.

[11] In my view “they” clearly refers to the newspaper, and newspaper is the subject of the threat of litigation “should this incident be reported”.

[12] Both parties urged dictionary definitions of “blackmail” upon me. Whatever the definition of “blackmail” (whether in the dictionary, or in terms of the elements of the criminal offence), threatening to sue someone if they report a complaint is not blackmail.

[13] Imputations (f) and (h) are struck out.

[14] Mr Rasmussen submitted, although faintly, that the other imputations were not conveyed. However, on examination this argument turned out to be an objection that the imputations did not differ in substance, which is an objection to form rather than capacity.

[15] Miss Chrysanthou submits that form objections “have less utility under the 2005 Act” because under they are no longer the cause of action. This is correct. A plaintiff is only entitled to one cause of action and the plaintiff’s obligation to particularise defamatory meanings only arises because the tribunal of fact must decide whether a defendant has published a defamatory matter about the plaintiff (section 22), not whether the particular imputations are conveyed.

[16] Each of the imputations pleaded relates to a separate act which occurred at a different time to the other acts. The only two which are similar are imputations (e) and (g), but imputation (g) adds the extra sting that such conduct is not appropriate from the Mayor.

[17] There is no limitation on the number of imputations a plaintiff may plead, as long as each is a different act or condition. Each of these imputations satisfies this test. I am satisfied that each of these imputations differs in substance and that the plaintiff is entitled to plead them as relating to separate acts of which he is accused.

[18] A further form objection is that imputation (g) contains a rhetorical flourish. The reference to the plaintiff’s Mayoral office is a clause of description in that it refers to the inappropriateness of the community’s elected representative in engaging in such conduct. Further, for the reasons explained by Simpson J in Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273, this is an objection without merit.

[19] The plaintiff has enjoyed substantial success in this application, and I have indicated in other judgments that claims of imputations being rhetorical may result in costs penalties: Buckley v Newcastle Newspapers Pty Ltd (No 2) [2008] NSWDC 102; Cavasinni v Camenzuli [2009] NSWDC 159. Accordingly I propose to order that the defendant pay the plaintiff’s costs of this argument.

(1) Imputations (f) and (h) struck out.

(2) Defendant’s application to strike out imputations otherwise dismissed.

(3) Defendant pay plaintiff’s costs.

(4) Amended Statement of Claim filed and served in 7 days.

(5) Matter stood over for further directions to Friday 17 July 2009 at 9:00am.

Schedule

Matter complained of

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