EL-AZZI v Nationwide News Pty Ltd

[2004] NSWSC 1055

CITATION:

EL-AZZI v NATIONWIDE NEWS PTY LTD [2004] NSWSC 1055

HEARING DATE(S):

12 October 2004

JUDGMENT DATE:

12 October 2004

JUDGMENT OF:

Levine J

DECISION:

1 O'Hagan permits reputational evidence of the kind on which the defendant proposes to rely ; 2 Post-publication bad reputation material is inadmissible; 3 The Burstein particulars must, in the limited way to which I have referred, by reference to paragraph 5 of the letter of 4 October 2004 be particularised pursuant to SCR Pr 67 r 18(3); 4 Grant leave to the plaintiff to file in court a third amended statement of claim; 5 Grant leave to the plaintiff to file in court an amended reply

CATCHWORDS:

On plaintiff's application to strike out particulars

LEGISLATION CITED:

Evidence Act 1995 s 135

CASES CITED:

Amalgamated Television Services Pty Limited v Marsden (2002) NSWCA 419
Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Middendorp Electric Co Pty Ltd v Sonneveld (2001) VSC 312
O'Hagan v Nationwide News Pty Limited (2001) 53 NSWLR 89
Rochfort v John Fairfax and Sons Ltd (1972) 1 NSWLR 16
Television New Zealand v Quinn [1996] 3 NZLR 24

PARTIES :

WILLIAM EL-AZZI
(Plaintiff)

v

NATIONWIDE NEWS PTY LTD
(Defendant)

FILE NUMBER(S):

SC 10930 OF 1993

COUNSEL:

R Rasmussen
(Plaintiff)

T Blackburn SC / J Hmelnitsky
(Defendant)

SOLICITORS:

Kings Lawyers
(Plaintiff)

Blake Dawson Waldron
(Defendant)

DLJ:5
Ex tempore: revised
[2004] NSWSC 1055

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

JUSTICE DAVID LEVINE

TUESDAY 12 OCTOBER 2004

10930 OF 1993

WILLIAM EL-AZZI
(Plaintiff)

v

NATIONWIDE NEWS PTY LTD
(Defendant)
JUDGMENT (On plaintiff’s application to strike out particulars)

1 By notice of motion the plaintiff seeks to have struck out particulars 4(b) to (g) of the defendant’s case in mitigation of damages. It can be taken that the plaintiff also objects to the additional matters in mitigation of damages as set out in the defendant’s solicitor’s letter of 4 October 2004.

2 At the end of these reasons both the particulars appended to the relevant defence and the matters in the letter just referred to I trust will have been dealt with.

3 The plaintiff’s causes of action are as follows:

(a) That he was a notorious, powerful and feared criminal;
(b) That he was a feared underworld figure so powerful that his associates could be killed by him in pursuit of his criminal activities;
(c) That he was a feared underworld figure so powerful that his associates had been killed by him in pursuit of his criminal activities;
(d) That he was a feared underworld figure so powerful that he could cause his associates to disappear;
(e) That he was a feared underworld figure so powerful that he had caused his associates to disappear;
(f) That he was a member of a notorious criminal underworld whose other members and associates were involved in assassination, drug trafficking and murder;
(g) That he was corrupted by his involvement and association with a notorious criminal underworld.

4 I have enumerated the imputations because, trite though it is to say, they are of critical importance because it is their publication that the plaintiff says is injurious to his reputation. In response, the defendant in very general terms asserts the plaintiff to have a bad reputation.

5 The particulars sought to be struck out are as follows:

4(b) The plaintiff had a reputation amongst members of the New South Wales Police Service as an associate of Tom Domican, who at the time of publication was in jail for shooting at Christopher Dale Flannery with intent to murder him;
(c) The plaintiff had a reputation amongst members of the New South Wales Police Service as a dishonest policeman;
(d) The plaintiff had a reputation amongst members of the New South Wales Police Service as a person who mixed socially with people who have committed serious crimes;
(e) The plaintiff had a reputation amongst members of the New South Wales Police Service as a policeman who associated with underworld figures;
(f) The plaintiff had a reputation amongst members of the New South Wales Police Service as a policeman that mixed socially with members of the criminal underworld;
(g) The plaintiff had a reputation amongst members of the New South Wales Police Service as a policeman who had been involved in violent crimes.

6 The additional particulars in the letter of 4 October are as follows:

1. The plaintiff had a reputation as a policeman who was suspended from duty from September 1987 and who remained on suspension until he left the NSW police;
2. The plaintiff had a reputation as a person who was charged in 1988 with conspiring with Roy Thurgar, Tom Domican, Victor Camilleri and Barry McCann to murder Michael Sayers;
3. The plaintiff had a reputation as a person who was convicted in 1994 of corruptly taking reward for helping to recover stolen property;
4. The plaintiff had a reputation as a person who was convicted in 2002 of two counts of conspiring to manufacture a commercial quantity of methyl amphetamine;
5. Prior to publication of the matter complained of the plaintiff associated with Roy Thurgar, Tom Domican and Barry McCann as particularised in the second further amended defence;
6. At some time in the 1980s prior to the plaintiff’s suspension the plaintiff:
(a) Met with Michael Sayers at the races; and
(b) Visited Michael Sayers at his house.

7 By reason of the wording of the letter, there must be incorporated a substantial body of particulars from page 8 and following of the defendant’s second amended defence formerly relied on in support of the now withdrawn defence of contextual truth.

8 It is desirable at the outset to state that this application in my view gives rise to the consideration of recent and old authority, but certainly the former, which on one view might be said to challenge orthodoxy in the area of reputation evidence.

9 In O'Hagan v Nationwide News Pty Limited (2001) 53 NSWLR 89 at 91, Meagher JA said at para [5]:

“One would therefore have suspected that a plaintiff would always be at liberty to lead evidence about the excellence of his reputation, and a defendant would always be at liberty to lead evidence about the evil reputation of the plaintiff. However, things are not as simple as that. Despite earlier doubts on the matter, it is now clear that evidence may be led by a plaintiff of his good reputation, either by his own testimony or from the evidence of witnesses; and it has always been held that the defendant may lead evidence to the contrary; but, in either case, the reputation evidence is subject to two fundamental rules. The first is that the evidence must relate to ‘the relevant sector’ of the plaintiff’s reputation. Thus if a plaintiff sues on a libel that he is a dishonest solicitor, it is not to the point that he has a reputation as a good golfer. Similarly, if the libel is that he is dishonest, it is not to the point for the defendant to demonstrate that he is a reckless motorist.

The other [rule] is that evidence of bad reputation must be limited to general reputation, evidence of specific incidents being inadmissible.” (references omitted)

10 It is the second rule to which his Honour referred that recent decisions, including O’Hagan itself – and, if I might say so, especially O’Hagan – could be understood to be challenging orthodoxy.

11 Taking, for example, the first cause of action on which Mr El Azzi sues, that he was a notorious, powerful and feared criminal. According to orthodox thinking one would not complain if a defendant called a witness who, after being appropriately qualified, gave evidence that the plaintiff had a reputation as a notorious, powerful and feared criminal. That will be traditional evidence of bad reputation in the relevant sector.

12 Assuming such evidence to have been admitted, a plaintiff is put in a position of extreme fragility and peril; how does a plaintiff go about challenging such evidence by a defendant? The worst step a plaintiff could take, subject to instructions, would be to invite the witness to warrant the statement that the plaintiff had a reputation as a notorious, powerful and feared criminal, or, in other words, “on what basis do you assert that?” That would be the most perilous question plaintiff’s counsel could ask, because it could lead to the admission into evidence of those things which the second rule to which I have referred would normally exclude, specific incidents.

13 The only sound basis upon which a plaintiff could challenge such testimony would be if within the plaintiff’s camp there were sufficient instructions successfully to impugn what I have referred to as the qualifying evidence of the witness. It may be to the effect the witness falsely testified that he moved in relevant circles and the like.

14 I have taken time to stress this orthodoxy because the particulars which the plaintiff challenges are worded in a way that invites a description as to being dangerously close to asserting more than a general bad reputation in the relevant sector. To that aspect I will return.

15 The first basis of challenge for the plaintiff is founded upon the “relevant sector” notion, reliance being placed upon statements in Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430, particularly para [28] in the judgment of Ipp AJA, where his Honour said:

“In my view the rule of evidence that bad reputation must be confined to the relevant sector of a plaintiff’s reputation means merely that the evidence, to be admissible, must be relevant to that part of the plaintiff’s reputation capable of being harmed by the defamatory material.” (emphasis in the original)

16 Further, his Honour said at para [30]:

“The essential question in determining the relevant sector remains: what is the scope of the plaintiff’s reputation capable of being harmed by the defamatory material?”

17 His Honour cites O’Hagan in support of the proposition that the identification of the relevant sector may be difficult in practice.

18 Here, as I understand it, it is argued for the plaintiff that the generality of the relevant sector is represented by the formulation of the causes of action that the imputation would not permit evidence to be led in mitigation that is in some way limited to a sector of the “catchment” area of the publication of those imputations, which is a wordy way of saying that the plaintiff is saying you cannot call evidence of bad reputation in the New South Wales Police Service in the face of the general nature of the bad reputation encompassed by the causes of action pleaded.

19 The short answer to that proposition was, as advanced by Mr Blackburn yesterday, that if the words “amongst members of the New South Wales Police Force” did not appear in the particulars, it would not preclude the defendant from calling any member of the New South Wales Police Service to give evidence that the plaintiff had, for example, a reputation as an associate of Tom Domican, who at the time of publication was in gaol for shooting Christopher Dale Flannery with intent to murder him.

20 Whilst that deals with the broad and narrow components of the questions of sector, it does, however, still to some extent beg the question of whether a defendant can call evidence in the face of the generality of the imputations of the particularity of the one I have just given as an example, namely, the reputation of being an associate of Tom Domican.

21 But for the decision in O’Hagan, I must admit to having reservations at least as to whether such specific evidence of bad reputation would be admissible. O’Hagan provides authority by reference to the very matter set out in para [2] of Meagher JA’s judgment that supports the availability to the defendant of the more particularised assertions as to bad reputation, even in the face of generalised imputations. The more so is that argument in support of the defendant’s position available when the imputation in O’Hagan itself is considered.

22 That imputation makes no reference to that plaintiff having been a police officer but merely asserts that he had arranged with another for a price to have a third person murdered.

23 On that basis I would not be predisposed to strike out particulars (b) to (g) and would grant leave to the defendant to rely on additional particulars 1 to 4 in the letter of 4 October 2004.

24 Insofar as it was argued generally that if such bad reputation evidence was ruled to be admissible I would nonetheless exercise my discretion under s 135 of the Evidence Act, I am not persuaded that it is appropriate at this stage either to exercise it, because there is nothing in respect of which at this stage I would exercise such a discretion. It is appropriate that when the evidence is tendered, if it be tendered, that such discretionary matters may be visited.

25 The next matter to which I would turn in these reasons that raised its head during the course of yesterday’s submissions, was the decision of the Court of Appeal in Rochfort v John Fairfax and Sons Ltd (1972) 1 NSWLR 16 and in particular that component of the judgment of Sugarman ACJ which is set out at pages 22 to 23. This relates to post publication reputational material. Rochfort is authority for such material being inadmissible.

26 What is the status of the decision of the Court of Appeal in Rochfort? No case has been cited to me that expressly overrules that part of it. In McBride, Rochfort was expressly referred to and the passage from the judgment of Sugarman ACJ to which I have referred cited in para [64] and following. Ipp AJA also referred to the decision of Gillard J in Middendorp Electric Co Pty Ltd v Sonneveld (2001) VSC 312 at 338, but said (at para [75]):

“I would be inclined to follow the reasoning of Gillard J, but in the light of my conclusion that the reputation particulars do not relate to the same sector of the respondent’s reputation as the subject of the defamation claim, and in the light of the decision of this Court in Rochfort v John Fairfax & Sons , I think it desirable for a decision on the point to be left to another day”.

and I emphasise:

“... in the light of the decision in Rochfort v John Fairfax & Sons I think it desirable for a decision on the point to be left for another day”.

27 I add that in Middendorp Gillard J expressly referred to Rochfort.

28 I turn now to the decision of the Court of Appeal in Amalgamated Television Services Pty Limited v Marsden (2002) NSWCA 419. A question arose in that appeal which was not taken during the trial as to adverse findings made by the trial judge, and whether or not they, those adverse findings, should have affected by way of mitigation the award of damages the trial judge otherwise made. The relevant part of the judgment of the Court commences at para [1392], and in para [1404] reference again is made to Gillard J’s decision in Middendorp, to the decision in Television New Zealand v Quinn [1996] 3 NZLR 24 and to McBride.

29 It also appears to me curious, that in considering this area there was not cited to the Court of Appeal in Marsden the decision in Rochfort, although otherwise it would have come to their Honours’ attention by reference to Middendorp.

30 The peculiarity of the subject matter with which the Court in Marsden was concerned, despite statements there conforming with what was the spirit in Middendorp, do not amount to an express overruling of Rochfort either in my view.

31 In summary, whilst there have been expressions to the effect that post-publication adverse reputational material should be admissible, to the extent that Rochfort says that it is not, the authority of that case still stands, and thus to the extent the defendant would wish to introduce post-publication reputational material, it will be precluded from doing so.

32 I come now to the third principal area, which I will describe as the Burstein particulars. Those particulars have been identified as paragraphs 5 and 6 in the letter of 4 October 2004 and have been identified as such based upon the decision of the English Court of Appeal in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 and the judgment of May LJ.

33 The asserted libel in Burstein does not bear comparison with the asserted libel in this action. In Burstein the libel was said to be that the plaintiff had organised hecklers to wreck performances of modern atonal music. The defendants pleaded fair comment and, amongst other things, alleged three years before the article had been published, the plaintiff had associated with a particular group called “The Hecklers” to oppose modernist atonal music and that that group had encouraged the public to boo at the end of the performance of an opera. The judge struck out that defence and ruled that the facts pleaded in support of it were inadmissible evidence in mitigation of the plaintiff’s damages.

34 The matter went to trial and the judge awarded the plaintiff eight thousand pounds. There was the inevitable appeal, in the course of which the status of those particulars, by way of background and in the context of mitigating damages, was considered by his Lordship. Paragraph 47 of his Lordship’s judgment is in the following terms:

“In my view, these authorities show that it is not permissible to advance an unsustainable defence of justification and thereby, under the guise of particulars of justification, seek to rely on particulars which Scott v Samson 8 QBD 491 and Speidel v Plato Films Ltd [1961] AC 1090 would not permit. That, however, does not prevent a defendant from frankly accepting that there is no proper plea of justification, but seeking to rely in reduction of damages on particulars which Scott v Samson and Speidel v Plato Films Ltd do not exclude. If this were not so, there is a danger that the jury would be required to assess damages in blinkers, in ignorance of background context directly relevant to the damage which the claimant claims has been caused by the defamatory publication. This is consistent with the sense of what Lord Denning said in Speidel v Plato Films Ltd , where his conclusion was that it was permissible to adduce the evidence in question”.

35 The important statement his Lordship makes is follows:

“Thus, in my view, a defendant is not prevented from taking the sensible course of accepting that the publication means what it says and that it is not on the facts justified and yet putting in evidence directly relevant facts which in other circumstances might have been ingredients of the defence of justification. It would, I think, be illogical and unfair if this were not so. Evidence in support of a plea of justification which fails is admissible in reduction of damages...”

36 Is what his Lordship is there referring to some new category of material upon which a defendant can rely in circumstances where no doubt for good forensic reason it chooses not to justify directly pursuant to s15 or contextually pursuant to s16? In my view his Lordship is not creating any new category of evidence, but is really referring to that situation for which express provision is made in the Supreme Court Rules in Pt 67 r 18(3) which is in the following terms:

r18(3) Where a defendant intends to show, in mitigation of
damages, that any imputation complained of was true or was a matter of substantial truth, the defendant shall give particulars identifying the imputation, stating that intention, and of the facts, matters and circumstances the defendant relies upon to establish that the imputation was true or was a matter of substantial truth.

37 If the defendant in mitigation of damages wishes to put in evidence directly relevant facts which in other circumstances might have been ingredients of a defence of justification, it is obliged to give notice thereof under the rule to which I have referred, and to give appropriate particulars. Having said that, the question remains whether the defendant should be permitted to do no more than what is in my view involves a readjustment of language in the particulars provided hitherto.

38 To state that the relevant matters from page 8 and following of its defence are relied upon pursuant to SCR Pt 67 r 18(3) in mitigation of damages, I would permit the defendant so to do, the limitation thereon being that the directly relevant facts to which I have referred (and using May LJ’s words) must fall within paragraph 5 in terms of, in temporal sense, prior to publication, and limited to the association with Roy Thurgar, Tom Domican and Barry McCann.

39 As to paragraph 6 of that letter, as intimated yesterday in the course of submissions, that paragraph is so vague and embarrassing to the plaintiff, I will not permit any case to be made in support of it.

40 In summary therefore, O’Hagan permits, notwithstanding the reservations I have about it, reputational evidence of the kind on which the defendant proposes to rely. Secondly, post-publication bad reputation material is inadmissible. And, thirdly, what otherwise has been described as the Burstein particulars must, in the limited way to which I have referred, by reference to paragraph 5 of the letter of 4 October 2004 be particularised pursuant to SCR Pr 67 r 18(3).

41 (Mr Rasmussen stated in or about August 2001 it was orally notified to the defendant that the plaintiff wished to amend his reply by deleting two paragraphs. Mr Rasmussen asked that the defendant now consent to the amended reply being amended by removal of two paragraphs. Mr Blackburn stated there was no objection.)

42 I make an order granting leave to the plaintiff to file in court a third amended statement of claim. I grant leave to the plaintiff to file in court an amended reply.

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Last Modified: 11/10/2004