Ferrier v Nationwide News Pty Limited (No 2)

[2015] NSWSC 1044

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Ferrier v Nationwide News Pty Limited (No 2) [2015] NSWSC 1044
Hearing dates:	19 June 2015
Date of orders:	19 June 2015
Decision date:	19 June 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Rulings as to imputations
Catchwords:	DEFAMATION – procedure – pleadings – imputations – whether imputations do not differ in substance – where imputations pleaded in alternative
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 14.30(3)
Cases Cited:	Griffith v Australian Broadcasting Corporation [2003] NSWSC 483
Category:	Procedural and other rulings
Parties:	Mark James Ferrier (Plaintiff) Nationwide News Pty Limited (First Defendant) Adam Shand (Second Defendant)
Representation:	Counsel: W Soon (Plaintiff) D Sibtain (Defendant) Solicitors: Plaintiff self-represented M+K Lawyers (Defendants)
File Number(s):	2014/283791
Publication restriction:	None

Judgment – Ex tempore

1. HER HONOUR: This is the first listing of proceedings for defamation commenced by Mr Mark Ferrier in respect of an article published in The Australian. The statement of claim sues on two publications, the second being substantially the same article online.

2. Objection is taken to the imputations on a limited basis. The principal complaint is that imputations (a), (d) and (f) in respect of the first matter complained of do not differ in substance. The same point is taken in respect of the like imputations pleaded in respect of the second matter complained of.

3. The imputations in question are as follows:

(a)   The plaintiff is a serial fraudster in that he went on a year-long fraud spree in Western Australia defrauding people and companies of more than $500,000.

(d)   The plaintiff is a conman in that he scams hotels, aviation and mining companies, lawyers, old school mates and vehicle and heavy equipment distributors in Western Australia out of their money by pretending to be a successful mining consultant and contractor.

(f)   The plaintiff defrauded several companies and individuals, by convincing them to work for and supply equipment to his company MJF Mining Contractors (MJF) on the strength of an agreement between MJF and Paynes Find Gold, and then failing to pay the monies owed.

4. Mr Sibtain, who appears for the defendant, submitted that although in theory a fraudster might be a different kind of person from a conman, upon consideration of the context in which the imputations are allegedly conveyed in accordance with the principles stated by Simpson J (as her Honour then was) in Griffith v Australian Broadcasting Corporation [2003] NSWSC 483, those allegations could be seen to be the same in the present case.

5. While I accept there is some force in that submission, it seems to me that, in the circumstances of the present publication, an imputation of being a “fraudster” and a separate imputation of being a “conman” should be allowed to stand, notwithstanding the provision of r 14.30(3) of the Uniform Civil Procedure Rules 2005 (NSW).

6. The opening paragraphs of the matter complained of, combined with the accusation that the plaintiff has been using aliases, suggest a degree of outright dishonest fraud whereas other parts of the matter complained of, in my view, are capable of conveying the different sense of the plaintiff's being a conman or confidence trickster. In my view, however, imputation (f) substantially replicates the allegation in imputation (a) and cannot stand as a separate imputation.

7. The order I would propose is that the plaintiff be required to elect as between imputations (a) and (f), or else replead imputations (a), (d) and (f) in accordance with these reasons. The same ruling applies in respect of the imputations pleaded in respect of the second matter complained of, in paragraph 6.

8. A separate point is that, for reasons that are unclear, in paragraph 4 imputations (a) and (b) are pleaded as alternatives whereas identical imputations in paragraph 6 (a) and (c) are not. Those imputations would appear to be appropriately pleaded as alternatives. They are:

(a)   The plaintiff is a serial fraudster in that he went on a year-long fraud spree in Western Australia defrauding people and companies of more than $500,000;

or

(b)   The plaintiff had behaved in such a way so as to deserve to be reasonably suspected by police of having committed a year-long fraud spree in Western Australia defrauding people and companies of more than $500,000.

9. The plaintiff should address that anomaly in any amended pleading.

10. Finally, the defendants complain (and the plaintiff accepts) that the plaintiff must provide particulars of his special damages claim. Those particulars should be provided within three weeks.

11. I direct the plaintiff to file and serve a further amended statement of claim reflecting these reasons within three weeks. The further amended statement of claim should include particulars of any special damages claimed. The defendants are to file a defence within a further three weeks.

12. Costs are reserved.

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Amendments

14 September 2015 - Formatting issue rectified