Corby v Allen & Unwin Pty Ltd (No 2)

[2013] NSWSC 617

Supreme Court

New South Wales

Medium Neutral Citation:

Corby v Allen & Unwin Pty Ltd (No 2) [2013] NSWSC 617

Hearing dates:

17 May 2013

Decision date:

23 May 2013

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) The following imputations are struck out:

(a) In proceedings 340887 of 2012

(brought by Mercedes), (b).

(b) In proceedings 348219 of 2012

(brought by Michael Jnr), (a).

(2) Costs of this application are reserved and are to be determined together with any application for costs arising out of the earlier hearing on 27 and 28 March 2013.

Catchwords:

DEFAMATION-application to strike out imputation-whether imputation has capacity to lower plaintiff in estimation of others

DEFAMATION-application to strike out imputation-whether imputation capable of arising-importance of context

Cases Cited:

- Corby v Allen v Unwin Pty Limited [2013] NSWSC 308
- Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
- John Fairfax Publications Pty Ltd v Obeid [2005] NSWCA 60; 64 NSWLR 485
- Morosi v Broadcasting Station 2 GB Pty Limited (unreported, Court of Appeal, 28 September 1978; to be found at [1980] 2 NSWLR 418)
- Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460
- Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43

Category:

Procedural and other rulings

Parties:

Mercedes Pearl Esma Corby (Plaintiff)
Michael Corby Jnr (Plaintiff)
Allen & Unwin Pty Ltd (First Defendant)
Eamonn Duff (Second Defendant)

Representation:

Counsel:
KP Smark SC (Plaintiff)
ATS Dawson (Defendants)
Solicitors:
Kalantzis Lawyers (Plaintiffs)
Banki Haddock Fiora (Defendants)

File Number(s):

2012/340887; 2012/348219

Publication restriction:

Nil

Judgment

Introduction

1. By statement of claim filed on 1 November 2012 Mercedes Corby (Mercedes) commenced defamation proceedings against the defendants concerning a book written by the second defendant (the Author) entitled "Sins of the Father" (the matter complained of) which was published by the first defendant in about November 2011.

1. By statements of claim filed on 8 November 2012, Rosleigh Rose (Rosleigh) and Michael Corby Jnr (Michael Jnr) also commenced defamation proceedings against the defendants in relation to the publication.

1. The defendants sought by notices of motion dated 21 March 2013 to have every imputation in each of the statements of claim struck out. These motions were determined by me following a hearing on 27 and 28 March 2013: Corby v Allen v Unwin Pty Limited [2013] NSWSC 308.

1. The matter was re-listed before me on 17 May 2013 for the purposes of determining outstanding matters concerning two imputations - one alleged to have been carried by the matter complained of in respect of Mercedes and the other in respect of Michael Jnr. It was also listed for the purposes of determining the costs of the earlier notice of motions. However, as the costs order to be made following the motions could be affected by my determination of the further issues, I considered it preferable to defer a consideration of the appropriate costs orders until the present applications were disposed of.

Imputation (b) in the amended statement of claim in the Mercedes proceedings: whether it is capable of being defamatory

1. During the course of the hearing in March 2013, Mercedes sought leave to amend imputation (e) as follows:

"Mercedes Corby worked as a hostess in the Japanese sex industry."

1. Mr Smark SC, who appeared on behalf of Mercedes, confirmed that it would not be suggested that there was any imputation that Mercedes had sex for money. Mr Dawson, who appeared on behalf of the defendants, submitted that although he accepted that the imputation in the amended form was capable of arising, it was not capable of being defamatory.

1. Although I noted Mr Dawson's concession, I did not proceed to determine whether the imputation, as clarified by Mr Smark, was capable of being defamatory. This question remains to be determined.

1. The passages in the matter complained of that are referred to as giving rise to the imputation include the following:

"In Japan, Jodie and Mercedes were among the thousands of young western women who, as well as backpacking and teaching English, made good money working as hostesses in nightclubs and bars. Back then, hostessing by foreigners used to exist on the relatively 'innocent' fringes of the Japanese sex industry." (page 79)

"This kind of hostessing is unique to Japan . . . The biggest part of a hostessing job is to act as an enabler at a banquet or drinking party, assisting men in having fun. The hostess gets paid to drink and chat with men and ensure that they have a good time at outrageously priced entertainment clubs.

A hostess also gets paid to develop highly stylised relationships with customers- extensions of her work at the club. In most cases she does not sell sex; she sells love or, rather, an embellished variety of it. Yet the hostess is always, in some form, selling the most alluring of sexual fantasies. She reminds her customers of sex and sensuality after they've spent the day in a work environment that treats them more like robots than men." (page 82)

1. The relevant principles are settled. In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460 at [36]-[40] the plurality stated the relevant test: does the imputation lower a person's standing in the community in the sense that it is likely to cause people to think less of the plaintiff? This test does not involve the exercise of a moral judgment. The hypothetical referee is a person who shares the standards of the general community and will apply them.

1. Mr Dawson submitted that the imputation would not be capable of lowering Mercedes in the eyes of a hypothetical referee who shares the standards of the general community since such work is, as the matter complained of makes clear, undertaken by thousands of back-packers.

1. Mr Smark submitted that, even though I have undoubted jurisdiction to strike out the imputation on the grounds of capacity, a jury is better placed to determine whether the matter is defamatory, than a court is to determine whether it is capable of being so because of the relevance of general community standards. The application of community standards is pre-eminently a matter for a jury, rather than a judge.

1. Although I accept Mr Smark's submission as a general proposition, I do not consider it to follow that I ought not adjudicate on whether an imputation is capable of being defamatory in circumstances where some application of community standards, but not a moral judgment, is required.

1. I do not consider the imputation to be capable of being defamatory. Once it is clarified, as Mr Smark undertakes to do at the hearing of the matter, that Mercedes did not sell sex in connection with her role as a hostess, I do not consider that the imputation is capable of lowering her in the eyes of the ordinary reasonable reader, who, by definition, does not make a moral judgment but shares the standards of the general community and will apply them.

Imputation (a) in the amended statement of claim in the Michael Jnr proceedings: whether it is capable of arising

1. Following publication of my reasons in Corby v Allen v Unwin Pty Limited [2013] NSWSC 308, Michael Jnr filed an amended statement of claim on 24 April 2013 in which he alleged that the following imputation was carried by the matter complained of:

Michael Corby was a drug dealer involved in the marijuana trade on the Gold Coast.

1. The defendants moved to strike out the imputation on the following three grounds:

(1)   it was outside the leave to replead granted on the last occasion;

(2)   it involved an impermissible challenge to my reasons in Corby v Allen v Unwin Pty Limited [2013] NSWSC 308; and

(3)   in any event, it was incapable of arising.

1. The new imputation is different in substance from those that I struck out on the last occasion, although it involves the same subject matter: the involvement of Michael Jnr in the drug trade. In all the circumstances I propose to determine as a matter of substance whether the imputation is capable of arising since, although I determined related matters, I have not earlier determined this question.

1. The principal basis on which Mr Smark contended that the imputation was capable of arising (which involved an acceptance of my earlier reasons which found that earlier permutations were not) was that the defendants had repeated the accusations made to Michael Jnr's face to that effect. Mr Smark placed particular reliance on the following passage on the last page of Chapter 33: Thirty Pieces of Silver, a chapter dedicated to the defamation proceedings brought by Mercedes and Rosleigh against Channel 7 which were resolved "for an undisclosed sum":

"The Australian media was not concerned about the litigious Corbys and became reluctant to undertake any further investigations into them. As Michael Jnr would often say to people who alleged that he was involved in the marijuana trade on the Gold Coast, 'Prove it, go on, prove it!'."

1. Mr Smark relied on the following statement of principle from Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50 per Manning, Hope and Reynolds JJA:

"There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted. The purpose of the republication will also have a significant bearing. There can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts it or re-affirms it. Principle and authority both lead in a different direction. Lord Devlin said in Lewis v. Daily Telegraph Ltd.: "For the purpose of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it." (footnotes omitted)

1. He submitted that the defendants, by repeating the accusations made to Michael Jnr by people on the Gold Coast, were themselves making a defamatory statement, or, for present purposes, one that was capable of being defamatory.

1. Mr Dawson accepted the applicable principle but contended that when the passage was viewed in the context of the matter complained of as a whole, it ceased to be capable of being defamatory. He pointed to the third principle (c) identified in the summary of the relevant authorities in McColl JA's judgment (Sheller JA and McClellan A-JA agreeing) in John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60; 64 NSWLR 485 at [119]:

"This review of the authorities demonstrates that:

(a) Republication of defamatory hearsay constitutes adoption of the defamatory statement - using "adoption" in the primary sense;

(b) As a general rule the republisher is liable in defamation as if the author of the defamatory hearsay;

(c) To determine what, if any, defamatory imputations are conveyed by the publication in which the defamatory hearsay appears, the matter complained of must be viewed as a whole. Relevant indicia will include whether the defamatory hearsay is approved, reaffirmed and/or endorsed (adopted in the secondary sense), repudiated or discounted and the purpose of the republication."

1. I consider the context of the passage set out above to be determinative. Taken out of context, it is certainly arguable the imputation would be capable of arising from the particular passage. However, it comes at the end of a chapter in which the allegations made by Channel 7 against Mercedes to the effect that she was connected with drugs were proved to be baseless apart from some admitted youthful experimentation. The proceedings were resolved before their conclusion by payment to Mercedes and Rosleigh of "an undisclosed sum, speculated to be millions".

1. The Channel 7 broadcast was not about Michael Jnr. Nor was he involved in the proceedings brought by Mercedes and Rosleigh against Channel 7. The only substantive reference to him in this chapter is in the passage set out above. The matter complained of refers to the accusations made against him by "people" on the Gold Coast in the context of statements about Mercedes which were shown to be without foundation and statements about Rosleigh which had not yet been the subject of evidence when the matter was settled but which the ordinary reasonable reader would infer, from the substantial settlement sums that were paid to Mercedes and Rosleigh, were also without foundation.

1. If the repetition of allegations of drug involvement against him is the bane, Michael Jnr has the benefit of the antidote which has been administered by the victory that Mercedes and Rosleigh enjoyed in the Channel 7 proceedings.

1. I regard the imputation under challenge as being in a wholly different category from the imputations considered in Morosi v Broadcasting Station 2 GB Pty Limited (to be found following the report of Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 418), on which Mr Smark relied.

1. The ordinary reasonable reader would not, in my view, give any credence to the accusations reported to have been made to Michael Jnr in these circumstances, and would regard them as being at least as worthless as those made by Channel 7 against his sister Mercedes and his mother. The passage identified as forming the basis of the imputation is not capable of conveying, in the context of the matter complained of as a whole, and particularly in the context of the chapter at the conclusion of which the passage appears, imputation (a).

1. Mr Dawson also made a formal challenge to this imputation. Had I consider it to be capable of arising, I would have allowed it to go to the jury in its present form. Any imprecision arises from the matter complained of.

Orders

1. I make the following orders:

(1) The following imputations are struck out:

(a)   In proceedings 340887 of 2012 (brought by Mercedes), (b).

(b)   In proceedings 348219 of 2012 (brought by Michael Jnr), (a).

(2) Costs of this application are reserved and are to be determined together with any application for costs arising out of the earlier hearing on 27 and 28 March 2013.

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Decision last updated: 23 May 2013