Gaynor v Burns (No. 2)

[2015] NSWDC 283

District Court

New South Wales

Medium Neutral Citation:	Gaynor v Burns (No. 2) [2015] NSWDC 283
Hearing dates:	3 December 2015 (written submissions)
Date of orders:	03 December 2015
Decision date:	03 December 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Imputation 3(d) is struck out with leave to replead. (2) Defendant’s objections to imputations 3(a) and 3(c) dismissed. (3) Imputations 5(b) and 5(e) are capable of being conveyed and will go to the jury. (4) Each party pay his own costs.
Catchwords:	TORT – defamation – imputations – form and capacity – “vulgar abuse”
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 64 Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 19.5 and 28.2
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bennette v Cohen (2005) 64 NSWLR 81 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n Clift v Clarke [2011] EWHC 1164 (QB) Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822 Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 Mundey v Askin [1982] 2 NSWLR 369 Polias v Ryall [2013] NSWSC 1267 Sergi v Australian Broadcasting Corporation [1982] 2 NSWLR 669 Sheffield Wednesday Football Club Ltd & Ors v Hargreaves [2007] EWHC 2375 (QB)
Texts Cited:	D. Rolph, “Defamation Law” (Lawbook Co., Thomson Reuters, 2016)
Category:	Procedural and other rulings
Parties:	Plaintiff: Bernard Gaynor Defendant: Garry Burns
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendant: Ms P Wass SC / Ms M Curry   Solicitors: Plaintiff: Robert Balzola & Associates Defendant: James Leaver Lawyer
File Number(s):	2014/269572
Publication restriction:	None

Judgment

1. This is an application pursuant to rr 14.28 and 28.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) challenging the form and capacity of the imputations. Due to availability problems for counsel for the parties, it has been determined on the basis of written submissions.

2. The matters complained of are two blog posts dated 19 May and 14 July 2014. The imputations pleaded for the first matter complained of (paragraph 3 of the statement of claim) are as follows:

1. The plaintiff vilifies homosexuals by allowing statements to be published on his blog calling for the extermination of all homosexuals.

2. The plaintiff condones the killing of homosexuals.

3. The plaintiff was investigated by the NSW Anti-Discrimination Board for vilifying homosexuals because he allowed to be published on his blog the words ‘exterminate all homos’.

4. The plaintiff is a pernicious boofhead. [Note: the plaintiff has now amended this imputation to read: “the plaintiff is a pernicious boofhead in that he is a dangerous and harmful fool”.

5. The plaintiff permitted excerpts from the verse of St. Paul calling for homosexuals to be put to death on his blog.

6. The plaintiff is a pernicious imbecile. [Note: this imputation has now been withdrawn.]

3. The imputations pleaded in paragraph 5 of the statement of claim are as follows:

1. The plaintiff claims that homosexuals are depraved criminals.

2. The plaintiff vilified homosexuals on his facebook page when he commented upon the remarks of Judge Garry Neilson during a criminal trial.

3. The plaintiff knowingly encourages the view on his facebook page that being homosexual is a criminal offence and is a psychiatric perversion needing jailing.

4. The plaintiff believes that being homosexual is a criminal offence.

5. The plaintiff believes that being homosexual is a psychiatric perversion requiring jailing.

6. The plaintiff was sacked form the Australian Defence Force for his harsh and intolerant public treatment toward homosexual Australians.

7. The plaintiff was sacked as a candidate for the Katter Australia Party for his harsh and intolerant public treatment toward homosexual Australians.

8. The plaintiff is a hate mongering pernicious grub.

9. The plaintiff is a NAZI [sic].

The issues before the court

4. The issues before the court have changed as a result of amendments to the imputations pleaded. The issues now are:

1. Whether the plaintiff should be granted leave to replead imputation 3(d);

2. A ruling on the revised imputation 3(d);

3. A ruling as to whether imputations 3(a) and 3(c) differ in substance;

4. A ruling as to whether imputation 3(e) is defamatory;

5. A ruling as to the capacity of imputations 5(b) and 5(e);

6. Costs of the argument

The history of this dispute

5. The plaintiff commenced proceedings by way of Summons to identify the defendant. A statement of claim was filed on 23 April 2015 and the defendant, who was then representing himself, filed defences on 15 and 29 May 2015 and 25 September 2015.

6. The defendant challenged the imputations only after the most recent defence was filed. His counsel provided a list of the following objections to the statement of claim:

1. Imputations 3(a) and 3(c) are not materially different;

2. Imputations 3(d) and 3(f) are not defamatory, being mere vulgar abuse, and do not differ in substance;

3. Imputation 3(e) is not defamatory; and

4. Imputations 5(a), 5(b), 5(e) and 5(i) are incapable of being conveyed.

7. By email dated 29 September 2015, the defendant revised his objections to the imputations as follows:

1. Imputations 3(d) and 3(f), as well as being not defamatory by reason of being mere vulgar abuse, are also not materially different in substance.

2. The objection to imputation 5(a) is no longer pressed.

3. The objection to imputation 5(i) is no longer pressed.

8. This history is relevant to the first submission of the defendant, namely that leave to amend imputation 3(d) should not be granted by reason of the case management principles to defamation litigation as set out in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [30]-[31]. The submissions in support complain of the failure to seek leave to amend and to file an amended statement of claim, which is asserted to be a prerequisite to such applications (s 64 Civil Procedure Act 2005 (NSW); r 19.5 UCPR). Alternatively or additionally, a special costs order should be made in relation to the costs of this amendment.

9. Neither side has conducted these proceedings in full compliance with the rules. The defendant filed three defences before objecting to the form and capacity of the imputations. It is common for there to be amendments to imputations made “on the run” in the course of form and capacity arguments. It is not necessary to go through the formality of filing an amended pleading each time that this occurs. Taking all these factors into account, I do not propose to refuse leave to amend, or to make any special costs order in relation to this amendment, although I have taken it into account as a factor relevant to the costs order I have made for the costs of this argument.

10. The defendant’s alternative grounds of objection are that the amended imputation still does not address the plaintiff’s complaints as to form, and additionally that the imputation pleaded (and the portions of the matter complained of giving rise to it) still amount only to “vulgar abuse”; the publication is therefore not capable of conveying any meaning, let alone a defamatory meaning.

Imputation 3(d) and vulgar abuse

11. Language which is abusive may still be defamatory (Bennette v Cohen (2005) 64 NSWLR 81 at [98]). However, if what is conveyed is in such general derogative terms that no defamatory act or condition is capable of being distilled, the statement may be mere vulgar abuse: Mundey v Askin [1982] 2 NSWLR 369 at 371-372 (“Mundey”).

12. Whether statements in a publication amount to mere vulgar abuse depends upon a careful analysis of the matter complained of, rather than upon legal principles. In “Defamation Law” (Lawbook Co., Thomson Reuters, 2016, pp. 109-110), Dr David Rolph explains:

“However, “vulgar abuse” is not a term of art. It is important not to overstate the distinction between mere vulgar abuse on the one hand and defamation on the other. The fundamental question should remain whether the matter in question was capable of conveying an imputation which disparaged the plaintiff’s reputation, rather than whether the defendant’s conduct amounted to mere vulgar abuse.”

13. Claims of “vulgar abuse” were so rare that Mundey, the leading case on this issue, remained unreported for some years after it was handed down. Its increase in popularity in recent times owes much to the colourful and intemperate language that is the hallmark of Internet blogs and social media, as more than one judge has observed. In Sheffield Wednesday Football Club Ltd & Ors v Hargreaves [2007] EWHC 2375 (QB), Justice Richard Parkes QC described one such publication as “saloon bar moanings” (at [17]), while in Clift v Clarke [2011] EWHC 1164 (QB) the description (at [36]) was "pub talk".

14. In Polias v Ryall [2013] NSWSC 1267, where the matters complained of were a series of social media posts of this kind, McCallum J explained the application of the principles discussed in Mundey as follows:

“[11] …Sir Robert Askin was Premier of New South Wales and a member of the Liberal Party. When the Party opened its campaign in the general election which took place later that year, Sir Askin made a speech which included the following remarks (at 370B):

The “real masters” of the Labor Party are Messrs Hawke, Mundey, Carmichael, Halfpenny and Crawford and all the rest of the left-wingers with a good sprinkling of commos. Fancy leaving the running of Australia — even if they do it behind the scenes — to that happy bunch.

But don’t under-estimate some of these vermin.

Mr Mundey is the trade union official who is generally credited with having pressured Mr Whitlam into putting into his policy speech last Monday an undertaking to remove the penal clause from the Arbitration Act.

Is this the kind of person you want having a say in the running of Australia?

Because, make no mistake, it is abundantly clear that these are the kind of people who would be standing at the elbow of any Labor prime minister prompting and urging and threatening industrial turmoil and violence unless their demands were granted.

Don’t let the public say they haven’t had a full warning of the dangers of electing a Labor Government. It might seem innocuous on the surface, but it would be a prisoner and obey the dictates of the extreme left-wing.

[12] Mundey sued.

[13] At trial, the judge directed the jury that, if they thought any of the words complained of amounted to no more than vulgar abuse, it was open to them to take the view that the words were not defamatory of Mr Mundey. The jury evidently acceded to that proposition, expressly finding that the words were not defamatory. The plaintiff’s appeal against the verdict was dismissed. The Court of Appeal held that there was no error in his Honour’s direction to the jury that words might be abusive, vulgar or objectionable without being defamatory. The court specifically endorsed the trial judge’s remark that such words “might injure a man’s pride without injuring his reputation” (at 372C).

[14] It must be recalled that Mr Mundey’s action went to trial. On a preliminary capacity objection, the characterisation of words sued on in a defamation action as being “mere vulgar abuse” cannot supplant the test as to whether the matter complained of is capable of conveying the imputation in question. As noted in Bennette v Cohen, there is not a dichotomy between vulgar abuse and matter which is defamatory: [2005] NSWCA 341; (2005) 64 NSWLR 81 at [51] per Bryson JA; Beazley JA and Brownie A-JA agreeing at [1] and [60] respectively. Ultimately, the question is whether the jury could reasonably understand the matter complained of in the defamatory sense contended for: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52.

[15] Conversely, it does not follow that a capacity argument could never succeed in such a case. There will be instances in which the position is clear enough to conclude that abusive words are incapable of conveying any defamatory meaning. The Frenchman’s taunt in the well-known Monty Python film may afford an example (“your mother was a hamster and your father smelled of elderberries”).”

15. The matter complained of purports to describe proceedings commenced against the plaintiff by the defendant in the Anti-Discrimination Board after publication by “this pernicious boofhead Bernard Gaynor” of statements which condone “the killing of homosexuals” by calling for their extermination on his blog (paragraph 7). It goes on to complain that “this pernicious imbecile thinks it’s perfectly okay” to call for homosexuals to be “exterminated” (paragraph 14).

16. Although conveyed in disparaging terms, an imputation (of condition) is capable of arising to the effect that the plaintiff is not merely stupid, but dangerously stupid, for advocating the mass extermination of homosexuals. In other words, the matter complained of does not merely abuse the plaintiff, but makes a statement capable of being disparaging to the plaintiff’s reputation.

17. The vice in the imputation as currently pleaded is that the plaintiff has merely repeated the words of the matter complained of and added some extra words to explain what the sting of the meaning is, in a rolled-up form.

18. While a plaintiff may use the words in the matter complained of, that is permissible where those words capture the sting. Adding extra words to explain it (especially where more than one concept is added, by use of the word “and”) is no substitute for capturing the meaning in a clear and simply worded imputation.

19. The words added do not, in any event, convey the sting of the plaintiff behaving in a “pernicious” way. Ms Wass SC points out that the Macquarie Dictionary defines “pernicious” as “ruinous; “highly hurtful”; “deadly”; “fatal”; “evil”; or “wicked”. I note that Wiktionary defines “pernicious” as meaning “causing death or injury”.

20. Imputation 3(d) is struck out with leave to replead. Great care will need to be exercised to ensure that the repleaded imputation differs in substance from the other pleaded imputations.

Imputations 3(a) and 3(c)

21. Imputation 3(a) refers to the plaintiff vilifying homosexuals on his blog, whereas imputation 3(c) sets out that the plaintiff was investigated by the NSW Anti-Discrimination Board for this conduct.

22. It is not submitted that to be investigated for such conduct is not capable of defamatory meaning (to say of any person that they are reasonably suspected, let alone under investigation, by an organisation of this nature is capable of being defamatory: Sergi v Australian Broadcasting Corporation [1982] 2 NSWLR 669 at 671 per Hutley JA). What is asserted is that being investigated for the conduct, rather than committing the conduct, is not capable of differing in substance.

23. The difference in meaning is immediately apparent when considering the evidence which would be necessary to justify the meanings. The evidence necessary for imputation 3(a) would be the tender of the blogs referred to, while the evidence for imputation 3(c) would be the tender of documents demonstrating that the plaintiff was in fact investigated by this body. The defendant’s objection therefore fails.

24. Imputations 3(a) and 3(c) accordingly differ in substance.

Imputation 3(e) and defamatory meaning

25. Ms Wass SC submits that an imputation to the effect that the plaintiff published verses from the Bible calling for homosexuals to be put to death is not capable of being defamatory, for much the same reason as saying someone is seriously ill is not defamatory (Grappelli v Derek Block (Holdings) Ltd [1981] 1 WLR 822).

26. There may be cases where it is not defamatory to say of someone that they are a killer or have killed someone. It all depends on the context. In Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 Young CJ in Eq observed:

“[54] There was discussion before us as to whether some ordinarily offensive terms could be said to be innocuous. Thus, words like "get away you old bastard" may well not be defamatory and to call someone a killer may be even laudatory of a boxer. Even to call a police officer "killer" may merely mean the officer has a singleness of purpose in cleaning up crime. However, all these are really fanciful examples and had little to do with the instant case. There is a theoretical problem that if the jury do not see the context, counsel will in future cases put fanciful submissions like this. I do not believe this is a serious problem if the imputations are precisely pleaded or the problems are identified early on in the case.

[55] I should note that in Attorney-General of Ontario v Dieleman (1994) 117 DLR (4th) 449, 670-671 Adams J held that a sign "Dr X kills unborn babies" was not defamatory.”

27. However, to say of any person that he or she has called for any group of persons to be put to death in the context of a publication of the present kind is clearly capable of conveying a defamatory meaning. Defamatory meanings are determined by considering the matter complained of and not merely the language of the imputation (Greek Herald Pty Ltd v Nikolopoulos). The language of the portions of the matter complained of giving rise to this imputation is neither merely insulting nor written in a joking fashion. Nor does the reference to St Paul render the imputation’s meaning anodyne.

28. Additionally, these issues are matters best left to the tribunal of fact, and determination of defamatory meaning should only be dealt with summarily in very clear cases: Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n.

29. The defendant’s application to strike out imputation 3(e) is dismissed.

Imputations 5(b) and 5(e)

30. The objection to these imputations is put on the basis of capacity. The approach to a challenge to capacity of the matter complained of to convey imputations has been explained by the New South Wales Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [134]-[138] as follows:

“[134] That standard by which the issue of law raised by the separate trial was to be determined was addressed in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 (“Favell“) where the plurality (Gleeson CJ, McHugh, Gummow and Heydon JJ, Kirby J generally agreeing) approved the following statement by McPherson JA in the Court of Appeal:

Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.”

31. I first note the nature of the two challenged imputations. Imputation 5(b) is an “act” imputation (namely the publication of vilification of homosexuals), while imputation 5(e) is an imputation of “condition” (namely that the plaintiff hold certain beliefs).

32. Ms Wass SC submits, as to imputation 5(b), that the ordinary reasonable reader would have understood the “comments” that are quoted in the post were apparently made by others, and not by the plaintiff. The imputation would be that the plaintiff allows the statements of others (not the plaintiff) on his Facebook wall, which statements encourage the view that homosexuality is a psychiatric perversion for which jail is the only answer. The matter complained of is thus not capable of conveying an imputation that the plaintiff actually published these remarks.

33. The matter complained of is in sensational, tabloid style, where the ordinary reasonable reader would be likely to engage in loose thinking: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. Applying the test for capacity set out in Corby (see above), this imputation is capable of being conveyed.

31. For the same reasons, and applying the same principles of “generosity not parsimony” (Corby at [135]), imputation 5(e) is similarly capable of being conveyed.

Costs

35. While it might appear that the plaintiff has succeeded more often than the defendant, this is as the result of abandonment or amendment of some of the plaintiff’s unsuccessful pleadings, in circumstances where those changes occurred very late in the day. The appropriate order is that each party pay his own costs.

Orders

1. Imputation 3(d) is struck out with leave to replead.

2. Defendant’s objections to imputations 3(a) and 3(c) dismissed.

3. Imputations 5(b) and 5(e) are capable of being conveyed and will go to the jury.

4. Each party pay his own costs.

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Decision last updated: 03 December 2015