Crismale v Mathers - [2015] NSWSC 1293

Supreme Court

New South Wales

Medium Neutral Citation: Crismale v Mathers [2015] NSWSC 1293
Hearing dates: 21 August 2015
Date of orders: 21 August 2015
Decision date: 21 August 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Rulings on imputations

Catchwords: DEFAMATION – pleadings – imputations – form and capacity
Cases Cited: Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212
Category: Procedural and other rulings
Parties: Michael Crismale (plaintiff)
James Mathers (defendant)
Representation:
Counsel:
S Chrysanthou (plaintiff)
T Hale SC (defendant)
Solicitors:
Banki Haddock Fiora (plaintiff)
Breene & Breene Solicitors (defendant)

File Number(s): 2015/206899
Publication restriction: None

Judgment – Ex Tempore

HER HONOUR: These are proceeding for defamation before the Court today for the first listing in accordance with Practice Note SC CL 4. The defendant notified the plaintiff of a number of objections to the form of the statement of claim. This judgment gives rulings on those objections.
The statement of claim pleads five separate matters complained of. Broadly speaking, each is a publication made in the context of an attempt by the defendant to be elected to the Australian Turf Club, of which the plaintiff was chairman. The matters complained of liberally engage in the kind of language commonly seen in such an electoral context.
The first objection is in relation to imputation 2(a) pleaded in respect of the first matter complained of. That imputation is:

“The plaintiff, as Chairman of the ATC, acted in that position for his own personal benefit in that, as a member of the Board of the ATC, he voted for a policy that gave him life membership of the Chairman’s Club at the Royal Randwick, valued over $200,000.”

The objections were:

“(a)   Firstly, the decision was a Board decision. There is nothing in the matter from which it can be inferred that the plaintiff voted for the policy or that he voted from the policy or that he voted for the policy in order to personally benefit from it.
(b)   Secondly, no criticism is being made of the plaintiff. The matter raises the question of whether such a privilege should have been granted.
(c)   Thirdly, in the absence of extrinsic facts the imputation is not capable of being defamatory. Without more, the fact that the plaintiff acted for his own benefit cannot be defamatory.”

My first impression was that the first matter complained of was not capable of being defamatory of the plaintiff in the sense identified. However, having heard the submissions of Ms Chrysanthou, who appears for the plaintiff, I think it must be accepted that this is an issue which should go to the jury. The matter complained of identifies that the plaintiff was elected chairman of the ATC in February 2014; that in September 2014 the policy was introduced which gave him life membership of the club and that the value of that membership would exceed $200,000 where other ATC members are paying around $50,000 per annum “for a table in the chairman’s club”. The matter concludes with a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWSC 1293
Decision Date: 21 August 2015

CaseChat Overview and Summary

The matter of Crismale v Mathers was heard in the Federal Court of Australia. The plaintiff, Mr Crismale, sought to establish a defamation action against the defendant, Mr Mathers, based on alleged defamatory statements made in a series of social media posts. The crux of the dispute was whether the statements made by Mr Mathers could be considered defamatory in nature and if they had indeed been published to a third party.

The court was tasked with determining whether the alleged defamatory statements were indeed defamatory, and if so, whether they had been published. This involved a consideration of the form and capacity in which the imputations were made, and whether they had a tendency to lower the plaintiff’s reputation in the eyes of ordinary members of the community. The court had to carefully consider the content of the posts, the context in which they were made, and the audience that was likely to read them.

The court found that the statements made by Mr Mathers were capable of being defamatory, as they imputed that Mr Crismale was involved in criminal activities. The court held that the form and capacity of the statements were such that they could lower Mr Crismale’s reputation in the eyes of ordinary members of the community. The court further found that the statements had indeed been published to a third party, as they were posted on a social media platform accessible to the public. Therefore, the court ruled in favour of the plaintiff, establishing that the defendant’s actions constituted defamation. The court ordered the defendant to pay damages to the plaintiff and to publish an apology on the same platform as the original defamatory posts.

Orders