Bryant v Nationwide News Pty Limited

[1999] NSWSC 360

CITATION:

Bryant & Ors v Nationwide News Pty Limited [1999] NSWSC 360

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20989 of 1997

HEARING DATE(S):

9 April 1999

JUDGMENT DATE:

21 April 1999

PARTIES :

LEE BRYANT & ORS
(Plaintiffs)

v

NATIONWIDE NEWS PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	W H Nicholas Q.C. T Blackburn (Defendant)
SOLICITORS:	Gilbert & Tobin (Plaintiffs) Blake Dawson Waldron (Defendant)
CATCHWORDS:	Imputations - capacity
DECISION:	See paragraph 19

DLJ : 2

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20989 of 1997

JUSTICE DAVID LEVINE

WEDNESDAY 21 APRIL 1999

LEE BRYANT & ORS
(Plaintiffs)

v

NATIONWIDE NEWS PTY LIMITED
(ACN 008 438 828)
(Defendant)
JUDGMENT (Imputations - capacity)

1 Consequent upon my judgment of 10 July 1998 ( DLJ: 1 ) there was an unsuccessful application by the defendant for leave to appeal to the Court of Appeal.
2 On 23 December 1998 the plaintiffs filed an Amended Statement of Claim.
3 With respect to the first matter complained of being the principal story in The Daily Telegraph of 8 January 1997, the plaintiffs pleaded the following imputations:
“ 5(a) they were so stupid, in the sense that they were lacking in intelligence, that they failed the HSC;
(b) they had limited their future careers to menial occupations not requiring ability or training because they had each failed the HSC;
(c) they were so lacking in application and academic self-discipline that each failed his or her HSC;
(d) they were failures”.
4 In respect of the second matter complained of (the editorial), the plaintiffs pleaded the following imputations:
“7(a) they were so stupid, in the sense that they were lacking in intelligence, that they failed their HSC;
(b) they were abject overwhelming failures in that they were incapable of successfully completing their HSC;
(c) they had limited their future careers to menial occupations not requiring ability or training because they had each failed the HSC;
(d) they were so lacking in application and academic self-discipline that each failed his or her HSC”.
5 In the course of argument on the application by the defendant in relation to the imputations in this Amended Statement of Claim, the plaintiffs abandoned imputations 5(b) and (d) and 7(c), there thus leaving for consideration imputations 5(c) and 7(d), the others remaining in place consequent upon the refusal of leave.
6 For the defendant it is contended with respect to the first publication and thus imputation 5(c), that any fair reading of the whole of that matter could not, on a reasonable basis, give rise to an imputation which attributes the outcome of the Higher School Certificate examinations solely to the conduct of the individual plaintiffs. It is argued that it is quite clear that the emphasis of the article sued upon is that the system/the department/society is “to blame ”. It is incumbent upon the pleader, it is submitted, to prevent an imputation arising reflecting solely on the individual as arising from the whole of the article.
7 Paragraphs 39 to 45 of the first matter complained of are as follows:
“Students from Mt Druitt High School’s class of ’96 blamed poor resources, a lack of discipline and their own tomfoolery for their disastrous HSC results.
Students David Deagan, Eid Haddad and Tim Jawabreh admitted classes had been ‘mad’ last year.
‘There was no commitment (among the students),’ Eid, 17 said ‘It was like a game’.
David Deagan said the school dux - who expected a mark above 60 - scored 44 out of 100.
‘We had to share textbooks,’ David said.
‘There was one book between two or three people and they wouldn’t let us take books home.
‘We would try to photocopy pages or write it out’”.
8 The presence of this part of the matter complained of is extremely problematical in the resolution of the capacity of the article as a whole to convey imputations attributing blame solely to the students. But upon further consideration it is to be noted here that even the references to tom-foolery and lack of discipline are encompassed by the students themselves additionally blaming “ poor resources ” for which, according to the tenor of the whole article, “ we ”, that is, society or the department, are to bear the blame.
9 The view to which I have now come is that from these last series of paragraphs there cannot be on any reasonable basis isolated as a “ sole ” cause the conduct of the students referred to. Accordingly, I am unable to find on any reasonable basis that the matter complained of is capable of conveying an imputation in the form pleaded in paragraph 5(c) and that imputation will not go to the jury.
10 Whether the plaintiffs propose further to seek to amend will be a matter for them and their advisers.
11 It was also argued on behalf of the defendant that the application of the principle relating to libel of a class as enunciated especially by Hunt J in McCormick v John Fairfax & Sons Limited & Anor (1989) 16 NSWLR 485 precludes, as a matter of capacity, any imputation of the kind (now disallowed) from being held to be capable of arising and thus, going to the jury.
12 In McCormick his Honour was concerned with the issue of whether a plaintiff may sue as a member of a class of three in relation to the allegation that only one of that class was responsible for perverting the course of justice (at 488D): the publication relevantly was “ The Mercury has been given exclusively a letter indicating one of the men was involved in fixing court cases …”, the “ men ” being a reference to the three members of the relevant private investigation firm.
13 The general principle as stated by his Honour which is indisputably correct is as follows:
“ A libel upon the whole of a class may be the subject of complaint by a member of that class who is not otherwise individually pointed to in what was published only if the matter complained of can fairly be read as defaming each member of that class. In determining whether the matter is capable of such an interpretation, the size of the class, the generality of the charge and the extravagance of the accusation may all be considered, although none is conclusive” (at 487G-488).
14 His Honour ultimately held that as the matter with which his Honour was concerned could not by its express wording be interpreted as asserting that each member of a class was guilty of the particular conduct and as there was nothing in the matter which pointed to the plaintiff as the one who was alleged to have been guilty of that conduct, it was incapable of conveying the relevant imputations (at 491C). In my earlier judgment (at pages 3-4) I dealt with the question of identification, being satisfied with the degree of particularisation in the relevant pleading and here repeated. In the instant case I am not persuaded by any of the considerations referred to as going to determining whether the matter is capable of giving rise to an imputation of the kind on which the plaintiffs individually will seek to rely, that any of them conclusively operates to the exclusion of any such appropriately drawn imputation. I do not see those considerations operating to prevent, otherwise, the availability, as a matter of capacity, of the imputations remaining on the record. The size of the class is large, namely 26 plaintiffs. The charges presently represented by the imputations on the record are general in nature but are capable of being applied, in my view, to each individual member of that class as a plaintiff.
15 As to the second matter complained of (the editorial), in the end, I have come to the view that the defendant’s position on the capacity question in relation to the remaining imputation in issue is stronger. A fair reading of this piece (taking into account even the arguable proposition that editorials may be read with more care than a news item), it does state “ The cruel reality is that these students did not fail the academic system. The truth is that the system failed them and that is an unpardonable disgrace ” (paragraph 10) and “ there is little gain to be made in blaming the students, although some told The Daily Telegraph yesterday they could have applied themselves more rigorously to their studies”. Clearly, this publication is fairly and squarely attributing blame, on any fair reading, and in an emphatic way to the “ system ” rather than the students.
16 I find I am unable to accept the proposition advanced for the plaintiffs that the defendant’s submissions proceed on the explicit assumption that the imputations in 5(c) and 7(d) required that the lack of application and academic self-discipline be the sole cause, the exclusive cause of the plaintiffs failure. Nor do I assert the submission for the plaintiffs that that is not what the imputations say at all. I read the imputations saying nothing but that.
17 Whilst, as I have said in this judgment, the concluding paragraphs of the first matter complained of are problematical, the conclusion I have reached is that neither imputations 5(c) and 7(d) is capable of arising from the respective matters complained of and neither will go to the jury.
18 I was requested by counsel for the defendant to reserve the question of costs; I shall do so noting the abandonment by the plaintiffs of the imputations to which reference has been made and the overall success of the defendants. An appropriate order for costs will be made at an appropriate time.
19 The formal orders are:
1. Imputations 5(c) and 7(d) will not go to the jury.
2. Liberty to restore to the Defamation List on 3 days notice.
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