Csortan v Nationwide News Pty Ltd
[2017] NSWSC 1349
•15 September 2017
Supreme Court
New South Wales
Medium Neutral Citation: Csortan v Nationwide News Pty Ltd [2017] NSWSC 1349 Hearing dates: 15 September 2017 Decision date: 15 September 2017 Jurisdiction: Common Law Before: McCallum J Decision: Imputations (a), (b) and (c) will go to the jury
Catchwords: DEFAMATION – objections to imputations – no question of principle Category: Procedural and other rulings Parties: Laura Csortan (plaintiff)
Nationwide News Pty Ltd (first defendant)
Annette Sharp (second defendant)Representation: Counsel:
Solicitors:
M Richardson (plaintiff)
MJ Lewis (defendants)
Mark O’Brien Legal (plaintiff)
Banki Haddock Fiora (defendants)
File Number(s): 2017/00239785 Publication restriction: None
Judgment
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HER HONOUR: These are proceedings for defamation commenced by Ms Laura Csortan against Nationwide News Pty Ltd in respect of an article published in The Sunday Telegraph in print and online. The proceedings are before the Court today for the first listing at which, as contemplated by the Defamation List Practice Note SC CL 4, a defendant is expected to bring forward any objection to the form of the originating process.
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The defendant raises two objections to the imputations pleaded by the plaintiff in the present case. The article concerned an alleged adulterous affair between the plaintiff and a man referred to as "celebrity accountant" Anthony Bell. The article is illustrated by a number of photographs of the plaintiff in the company of Mr Bell and also with her child. There is at least a hint in the text of the article, taken together with the photographs, that Mr Bell might be the father of the child.
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The first objection is that imputations (a) and (b) specified by the plaintiff do not differ in substance and so contravene r 14.30(3) of the UCPR. The imputations specified are:
(a) The plaintiff had an adulterous affair with Anthony Bell during his marriage;
(b) The plaintiff engaged in an adulterous relationship with Anthony Bell during his marriage, in the course of which he fathered her child.
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Mr Lewis, who appears for the defendant, submitted that each imputation rests on the same defamatory sting, namely, the commission of some adulterous act and that the additional words in imputation (b) "in the course of which he fathered her child" may be regarded as advocate's flourish, adding nothing to the sting of the imputation.
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In my view, the additional element that the relationship actually resulted in the birth of a child is something at least capable of adding to the defamatory sting of the imputation, suggesting a kind of adulterous relationship the gravity of which could be regarded as being of a higher order by members of the jury.
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Separately, however, I have considered whether the sting of imputation (a) is wholly subsumed within the sting of imputation (b). On balance, Mr Richardson's submissions have persuaded me that it is not. The additional element of fathering a child and the description of the adulterous encounter as one amounting to a "relationship" in imputation (b) rather than merely an "affair" (as it is described in imputation (a)) leads me to think that there is a difference in substance between the two imputations and that each may stand on the pleading independently.
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The second objection is that imputation (c) is incapable of being conveyed by the matter complained of. That imputation is:
The plaintiff is a woman prepared to engage in an affair with a married man, bear his children and then dishonestly conceal the child's paternity.
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Mr Lewis submitted that the matter complained of contains nothing to suggest any dishonesty on the part of the plaintiff as to the child's paternity as opposed to her merely keeping that fact to herself.
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Mr Richardson submitted that the article conveys the suggestion that, on the one hand, the plaintiff was telling people that the father of the child did not want to be involved whereas, outwardly, the content of the article considered together with the many photographs of the two, or rather three, together suggests heavy involvement on the part of Mr Bell, combined with the hint that he is in fact the father of the child. Mr Richardson submitted that that combination of features of the article is at least capable of suggesting that the plaintiff was outwardly seeking to convey the impression that the father was someone other than Mr Bell and someone who did not wish to be involved with the child whereas the true position was otherwise.
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Whilst I think a robust submission could be put to the jury as to the matters raised by Mr Lewis, I think, on balance, it would be wrong to take the imputation from the jury on the grounds of capacity, having regard to the high test a defendant must meet to have an imputation withheld from a jury on that basis.
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For those reasons, the defendant's objections are rejected. Imputations (a), (b) and (c) will go to the jury.
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Decision last updated: 05 October 2017
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