Bruce v Channel Seven Sydney Pty Ltd

[2013] NSWSC 1091

Supreme Court

New South Wales

Medium Neutral Citation:	Bruce v Channel Seven Sydney Pty Ltd [2013] NSWSC 1091
Hearing dates:	5 August 2013
Decision date:	05 August 2013
Before:	McCallum J
Decision:	Imputations (b) & (l) ruled incapable of arising from matter complained of; imputation (m) struck out with leave to replead; leave to amend to plead proposed imputation (o) refused
Catchwords:	DEFAMATION - imputations - objection as to capacity and form
Cases Cited:	Drummoyne v ABC (1990) 21 NSWLR 135
Category:	Interlocutory applications
Parties:	Donna Bruce (plaintiff) Channel Seven (Sydney) Pty Ltd (first defendant) Prime Television (Northern) Pty Ltd (second defendant) David Eccleston (third defendant)
Representation:	Counsel: R Rasmussen (plaintiff) M Richardson (first and third defendants) N Buck (second defendant) Solicitors: Friend & Co Lawyers (plaintiff) Johnson Winter & Slattery (defendants)
File Number(s):	2013/80429
Publication restriction:	None

JUDGMENT - ex tempore

1. HER HONOUR: These are proceedings for defamation arising from the broadcast on the Today Tonight programme of a piece concerning the problem of Housing Commission ghettos, for want of a better word. That is not a word used in the matter complained of but it summarises the gist of the piece.

1. In broad summary, the programme explores the problems experienced when communities with intensive levels of Housing Commission residences suffer violent outbreaks. The programme also explores the proposal of relocating some members of those communities as a solution to the endemic violence experienced in a number of particular cases. The programme includes footage of the plaintiff.

1. The defendants raised objections to the imputations relied upon by the plaintiff which were considered and determined by Justice Nicholas on 3 June 2013. Following the determination of those objections the defendants have no further objection to imputations (d) and (e), as follows:

(d) the plaintiff misbehaves in such a serious way that the whole street feels afraid;

(e) the plaintiff abuses her neighbours.

1. Those imputations are alleged to arise from a short segment of the article which depicts a resident of one of the new streets to which Housing Commission tenants had supposedly been relocated stating,

The whole street is that uncomfortable now no-one comes out. No-one comes out the front any more. Well, you just get abused by them.

1. The footage of the resident saying those words is followed by footage of the plaintiff standing in front of a house with two small children behind her. There is an exchange with the journalist as follows:

Journalist: Is it true, have you caused dramas since you have here?

Plaintiff: No.

Journalist: Well, why is everybody saying that in the street?

Plaintiff: You tell me, we'll both know mate.

1. The imputations pleaded by the plaintiff in the amended statement of claim filed on 18 June 2013 in accordance with leave granted by Nicholas J include a number of imputations which are the subject of further objection by the defendants. The first is imputation (b):

The plaintiff contributed to the riotous anarchy at Gordon Estate.

1. The plaintiff submits that that imputation is conveyed because the first part of the article focuses on the criminal conduct of a number of people depicted in the footage, mainly young teenagers, engaging in a variety of violent and aggressive acts. Mr Rasmussen, who appeared for the plaintiff, submitted that the article, by implication, suggests that the plaintiff is one of the people involved in that behaviour. He relied in particular on the fact that, just before the passage quoted above, the article poses the suggestion of breaking up the community and putting tenants in privately owned suburbs, to which a resident responds:

They're just going to treat it the same. If they have no respect for housing commission now, why put them in a decent home?

1. A representative of the housing commission is then quoted as saying:

The responsibility that they think they should have isn't being replicated in their actions. It's disgraceful. Those parents should hang their head down in shame.

1. A similar argument was determined by Nicholas J in respect of former imputation (k), which was:

The plaintiff was one of the persons who engaged in criminal conduct in public housing estates.

1. His Honour rejected that imputation on the basis that it was "completely incapable" of arising from the matter complained of. His Honour was plainly of the view that there was no reasonable connection between the first part of the matter complained of and the part dealing with the plaintiff. I agree. In my view there is nothing in the matter complained of capable of conveying imputation (b). That imputation will not go to the jury.

1. The next imputation objected to is (l):

The plaintiff is reasonably suspected by David Eccleston of having engaged in criminal conduct in the Gordon Estate.

1. David Eccleston is the journalist. Mr Rasmussen submitted that imputation (l) is a lesser imputation than the former imputation (k) and that the impression of suspicion comes from the journalist in interrogating the plaintiff as to her conduct. I disagree. In my view the imputation is incapable of arising, for the reasons already outlined in respect of imputation (b) and for the additional reason that there is nothing further to suggest that the journalist holds any different suspicion from that which the ordinary reasonable reader would glean from the article.

1. The next objection is to imputation (m):

That the plaintiff's presence in a privately owned street has devalued home owners' homes.

1. The defendants noted that Nicholas J struck out a similar imputation (g), which was that "By moving into the street the plaintiff has devalued her neighbours' homes." The basis on which his Honour struck out that imputation was that it failed to identify any act or condition attributable to the plaintiff. The present imputation (m) in my view suffers from the same vice.

1. It emerged in argument that what was intended was to rely alternatively on the mere fact of the plaintiff's presence, together with her condition, if it be a condition, of being a housing commission tenant, and as a more serious imputation her conduct, although that is unspecified in the matter complained of. Mr Rasmussen proposed to bring in a further form of imputation reflecting that intention.

1. As submitted on behalf of the defendants, that should occur this week to obviate the risk of yet a third round of argument in respect of the imputations in the present pleading. I would propose to rule that imputation (m) in its present form be struck out but to grant leave to replead within, say, 48 hours with a view to resolving any further dispute before the end of this Defamation List week.

1. The last imputation objected to is a proposed new imputation (o):

That the plaintiff is a horror neighbour.

1. That imputation is said to be permissible because the matter complained of was broadcast under the heading "Horror Neighbour Relocation", the presenter being depicted at the outset of the broadcast with titles behind him stating "Housing Horrors", "Street Violence" and "Vandalism". Whilst there are occasions of the kind considered in Drummoyne v ABC (1990) 21 NSWLR 135 where the language of the matter complained of is itself so imprecise as to preclude the distillation of any more precise defamatory sting, I do not think this is such a case.

1. In response to my question to Mr Rasmussen as to what the imputation means, he was able to articulate the more precise meaning that the plaintiff is the type of person no-one would want to have as a neighbour. If that is the meaning of the imputation intended to be relied upon, that is what should be pleaded. I will consider any further formulation of that imputation, together with the imputations produced in response to the leave to replead imputation (m). However, the proposed imputation (o), "That the plaintiff is a horror neighbour", will not be allowed to be included in any amended pleading.

1. I order that the plaintiff pay the first and third defendants' costs of today.

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I certify that this and the 5 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice McCallum given on 9 August 2013 ex tempore and revised.

Dated: 9 August 2013.

Associate: N Sinclair

Decision last updated: 15 August 2013