Carroll v Nationwide News Pty Limited

[1999] NSWSC 856

CITATION:

Carroll v Nationwide News Pty Limited [1999] NSWSC 856

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20745 of 1997

HEARING DATE(S):

13 August 1999

JUDGMENT DATE:

3 September 1999

PARTIES :

RENE ALEXANDRA CARROLL
(Plaintiff)

v

NATIONWIDE NEWS PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	T Molomby (Plaintiff) W H Nicholas Q.C. T Blackburn (Defendant)
SOLICITORS:	Roberts Mann Davies (Plaintiff) Blake Dawson Waldron (Defendant)
CATCHWORDS:	Imputations - capacity - difference in substance - "lack of commitment" - "lack of discipline"
CASES CITED:	Bryant v Nationwide News Pty Limited (unreported, Levine J, 10 July 1998) Bryant v Nationwide News Pty Limited (unreported, Levine J, 21 April 1999)
DECISION:	See paragraph 23

DLJ: 2

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

No. 20745 of 1997

JUSTICE DAVID LEVINE

FRIDAY 3 SEPTEMBER 1999

RENE ALEXANDRA CARROLL
(Plaintiff)

v

Nationwide News Pty Limited
(Defendant)

JUDGMENT (Imputations - capacity - difference in substance - “ lack of commitment ” - “ lack of discipline” )

1    The publication in respect of which this plaintiff sues is an edition of The Daily Telegraph of 8 January 1997. 2    By an Amended Statement of Claim filed in Court on 28 November 1997, the plaintiff contends that that publication conveyed of her, in its natural and ordinary meaning the following defamatory imputations:

“(a) that she obtained unusually poor results in her HSC exams because of a lack of commitment on her part;
(b) that she obtained unusually poor results in her HSC exams because of a lack of discipline on her part”.

3    The plaintiff seeks leave to file a Further Amended Statement of Claim to plead the following imputations:

“(a) that she obtained unusually poor results in her HSC exams due in past to a lack of commitment on her part.
(b) that she obtained unusually poor results in her HSC exams due in past to a lack of discipline on her part.
(c) that she had no commitment to her studies for the HSC.
(d) that she had no discipline in her studies for the HSC.
(e) that she obtained unusually poor results in her HSC exams due in part to not being sufficiently committed to her studies.
(f) that she obtained unusually poor results in her HSC exams due in part to her not being sufficiently disciplined in her studies.
(g) that she lacked sufficient commitment to her studies for the HSC.
(h) that she lacked sufficient discipline in her studies for the HSC”.

4    Imputations (e) to (h) are said to be “fall-back” imputations. 5    The matter published by The Daily Telegraph has been the subject of two judgments by myself in Bryant v Nationwide News Pty Limited; 10 July 1998 (DLJ: 1) and 21 April 1999 (NSWSC 360: DLJ: 2). Those judgments dealt with different causes of action. It is clear however that the relevant matter complained of common to both actions deals with principally the failure of the “system”. It is the concluding paragraphs however that have given rise acutely to the various plaintiffs’ cases. 6    Those concluding paragraphs are:

“Students from Mt Druitt High School’s class of ’96 blamed poor resources, a lack of discipline and their own tomfoolery ofr the 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’.”

7    These constitute what Mr Molomby described as the “sting in the tail of the publication”. 8    For the defendant it is submitted, first, that the expressions “lack of commitment” and “lack of discipline” are ambiguous and essentially do not differ in substance. Secondly, the word “unusually” as used in respect of the plaintiff Ms Carroll is “unsustainable” insofar as it is a reference back to her performance and achievement of “poor results” This is meaningless vis-a-vis the plaintiff and the matter complained of is incapable of conveying such a concept. 9    Thirdly, the word “sufficient” is equally vague there being no benchmark or guideline vis-a-vis the plaintiff personally capable of being isolated from the matter complained of. 10    Fourthly, the proposed imputations (g) and (h) arguably are not capable of being defamatory. 11    It is to be observed that in the proposed imputations there is included the word “partly”. This is explicable (and not subject to dispute) on the basis to which I have referred namely that the article clearly attributes fault in the system as a cause for poor results. 12    For the plaintiff it is argued that there is no ambiguity on the one hand and there is a clear difference in substance on the other in the use of the words “commitment” and “discipline”. The proposition is put that one could be “committed” to a particular course of action yet lack “discipline” in pursuing the course to which one is committed. 13    It is further argued for the plaintiff that the origin of the word “unusually” is clear: it is the natural meaning that would be understood by the ordinary reasonable reader of the “whole” of the matter complained of by reference to the performance, as I understand it, of Mount Druitt High School in terms of its results in the context of the whole of the State. 14    With respect to the first submission for the defendant I am not persuaded that either of the words in the context of the proposed imputations “commitment” and “discipline” is ambiguous. They are ordinary words in the English language readily understood and the more so by reference to the matter complained of. Further they do differ in substance as articulated by Mr Molomby. The submission for the plaintiff I accept. 15    With respect to the second and third submissions for the defendant relating to the words “unusually” and “sufficient” I accept the submissions for the defendant. As to the former, the publication is pleaded to be of and concerning this plaintiff and the simple point about it is the obtaining by her of “poor results”. That there are several causes is capable of being understood from the article. The failure of the system arguably is the principal one that arises from the whole of the article, the second is the lack of commitment combined with a lack of discipline. I agree that essentially the use of the word “unusually” is meaningless in the context of the article. Assuming it to be the fact that the article could be established as being “of and concerning” Ms Carroll, it is capable of being understood as saying no more than she achieved poor results for the reasons to which I have referred. 16    As to “sufficiently” nothing in the matter complained of in relation to the plaintiff, in my view, admits of any question of “degree”. The article is capable of being understood as speaking of a “lack” of commitment and discipline and that is all. 17    These connotations can be captured in imputations of the following substance:

“(a) That she obtained poor results in her HSC exams due in part to a lack of commitment on her part.
(b) That she obtained poor results in her HSC exams due in part to a lack of discipline on her part.”

18    By reason of the conclusions I have reached as to the “absolute” nature of the “lack” of “discipline” and “commitment” there is, in my view, no room for fall-back imputations at all. Leave will not be granted to plead them. In this context however, I would add that imputations in the form of (g) and (h) as proposed could be understood by the ordinary reasonable reader, in my view, as being defamatory. 19    Proposed imputations (c) and (d) are directed to the conduct or the act of the plaintiff in relation to her studies. Imputations (a) and (b) as amended consequent upon my rulings are different and are directed to the consequence of the discretely identified conduct in (c) and (d). 20    Accordingly, the plaintiff will have leave to file a Further Amended Statement of Claim on terms that the following imputations are pleaded:

“(a) That she obtained poor results in her HSC exams due in part to a lack of commitment on her part.
(b) That she obtained poor results in her HSC exams due in part to a lack of discipline on her part.
(c) That she had no commitment to her studies for the HSC.
(d) That she had no discipline in her studies for the HSC.”

21    These imputations I would find are capable of being conveyed, are proper in form and are capable of being defamatory. 22    On reviewing the submissions it seems to me that the degree of success on each side is roughly equivalent and a costs order will reflect that. The pleadings had otherwise been closed and accordingly the plaintiff will have to pay any costs of the defendant occasioned by the filing of the Further Amended Statement of Claim. 23    The formal orders are:

1. Leave to the plaintiff to file a Further Amended Statement of Claim within 21 days of today pleading the four imputations referred to in these reasons.

2. The plaintiff is to pay any costs occasioned to the defendant by reason of the grant of leave to file a Further Amended Statement of Claim.

3. Each party is to pay her and its own costs of the application of 13 August 1999.

4. At the expiry of 21 days liberty to restore to the Defamation List on 7 days notice.

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Last Modified: 09/03/1999