Dorahy v Westbus Pty Limited and Ors
[2001] NSWSC 655
•13 July 2001
NEW SOUTH WALES SUPREME COURT
CITATION: Dorahy v Westbus Pty Limited & Ors [2001] NSWSC 655
CURRENT JURISDICTION: Common Law Division
FILE NUMBER(S): 20329/01
HEARING DATE{S): 13 July 2001
JUDGMENT DATE: 13/07/2001
PARTIES:
Grant Dorahy v Westbus Pty Limited, Ken Hind and Garry Alexander
JUDGMENT OF: Michael Grove J
LOWER COURT JURISDICTION: Not Applicable
LOWER COURT FILE NUMBER(S): Not Applicable
LOWER COURT JUDICIAL OFFICER: Not Applicable
COUNSEL:
M. Rollinson (Plaintiff)
T. Blackburn (Defendant)
SOLICITORS:
Teakle Ormsby Conn (Plaintiff)
Blake Dawson Waldron (Defendant)
CATCHWORDS:
DEFAMATION
IMPUTATIONS
CAPACITY OF MATTER COMPLAINED OF TO CONVEY
ACTS CITED:
DECISION:
Orders Made.
JUDGMENT:
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
MICHAEL GROVE J
Friday 13 July 2001
20329/01 - GRANT DORAHY v WESTBUS PTY LIMITED, KEN HIND and GARRY ALEXANDER
JUDGMENT
HIS HONOUR : There is before the Court for argument essentially an application to strike out two imputations. It is convenient to deal with the second in sequence first.
An imputation is pleaded that the matter complained of conveys in respect of the plaintiff that he tried to abuse the system in order to get away with a free ride. The argument on behalf of the defendant is as succinctly put in terms that if this means simply that the plaintiff avoided paying the proper fare it does not differentiate in substance from the other imputation which asserts that the matter complained of conveys that the plaintiff is a fare evader.
I mentioned in the course of argument that there is a difference between the two imputations pleaded in that is one is an allegation of success in fare evasion whereas the other charges there was an attempt so to do. Whilst almost every success involves an attempt, I am persuaded that there is sufficient difference in substance between the imputations pleaded to decline any relief in relation to imputation (f).
The second matter relates to an imputation which pleaded that the matters complained of convey of the plaintiff that he “rorted the system”. Counsel for the plaintiff has pointed out that at least the Macquarie Dictionary gives a definition of rorting as meaning reprehensible or suspect. My attention was directed to the explicit use of the word, “rort”, in the matter complained of itself but more importantly further, that there were assertions in the publication that the passenger produced a ticket to police which did not coincide with the boarding point or the time travelled and that there had been breaches of some specific regulations.
The purpose of this reference was to attempt to demonstrate that there was a difference in substance between an allegation that the plaintiff rorted the system and two other imputations already pleaded respectively asserting that the matters complained of show that the plaintiff was dishonest and, second, that the plaintiff was a fare evader.
Despite the earnest submissions by counsel for the plaintiff I am unable to accept that any ordinary reasonable person would conceive of a category of honest rorter. In my view there is no difference in substance to be found between what is asserted in imputation paragraph 4(e) and those in paragraphs (a) and (b).
For that reason a further submission is made that the plaintiff should be put to election between imputations pleaded as paragraphs (a) and (b), namely, that the plaintiff was dishonest or was a fare evader. I decline to put the plaintiff to election in those matters. I regard them as sufficiently distinct to stand as pleaded but I return to the other issue.
I would direct that imputation (e) be struck out in both paragraphs 2 and 4. I direct that an appropriate defence to the issues to be determined pursuant to section 7A be filed within 28 days of today and the matter can be placed in the next call up list for the purpose of date allocation of that hearing. I make no order as to costs.
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LAST UPDATED: 01/08/2001
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