Gilbert v Catholic Education Office

[2003] NSWSC 766

CITATION:	Gilbert v Catholic Education Office & Ors [2003] NSWSC 766
HEARING DATE(S):	18 August 2003
JUDGMENT DATE:	18 August 2003
JUDGMENT OF:	Simpson J
DECISION:	leave granted to the plaintiff to amend paragraphs 3(b) and 5 of the statement of claim by inserting in the imputations lettered (b) and (d), in each case, the word "wrongful" before the word "sexual"; imputation (a) is capable of being conveyed; imputation (c) is capable of being conveyed; the matter complained of is, in each case, capable of conveying imputations (b) and (d); defendant to pay two thirds of the costs of the plaintiff; leave granted to plaintiff to amend the third further amended statement of claim by correctly identifying the first defendant
CATCHWORDS:	defamation - third further amended statement of claim - costs
PARTIES :	Michael Gilbert - Plaintiff Catholic Education Office - 1st Defendant Margaret Hilder - 2nd Defendant State of New South Wales - 4th Defendant
FILE NUMBER(S):	SC 20877/01
COUNSEL:	CA Evatt - Plaintiff Lynch - 4th Defendant
SOLICITORS:	Friend & Co - Plaintiff IV Knight - 4th Defendant

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

SIMPSON J

Monday 18 August 2003

20877/01 Michael Gilbert v Catholic Education Office and Ors

JUDGMENT

1 HER HONOUR: I will grant leave to the plaintiff to amend paragraphs 3B and 5 of the statement of claim by inserting in the imputations lettered (b) and (d) in each case, the word "wrongful" before the word "sexual".

2 That having been done, I will make my rulings.

3 By third further amended statement of claim, filed on 27 June 2003, the plaintiff has joined, as fourth defendant, the State of New South Wales, to proceedings already commenced against the Catholic Education Office, and a Ms Margaret Hilder (there having been apparently, a third defendant who has disappeared from the statement of claim) in relation to the publication of allegedly defamatory imputations contained in annexures A and B to the statement of claim. The two publications are in substantially similar terms and are said to have been published orally by the State of New South Wales through the Department of Education and Training and the New South Wales Police Service respectively. They are also in substantially similar (though not identical) terms to Annexure C, which, the plaintiff pleads, contains defamatory imputations published orally by the first and second defendants.

4 The contents of the annexures amount to a warning involving assertions that reports had been received of two vehicles loitering near a number of primary and secondary schools and of a man trying to entice school children to go with him. That is followed by a description of the vehicle and the man, and then there is an assertion that the man, on one occasion, identified himself as being from "Motor Cross Magazine" and invited a secondary school boy to be involved with some of his mates in a photo shoot which would also involve some girls to be provided by the man. The man is also said to have followed a primary school boy on the way home from school.

5 The plaintiff pleads that four imputations are conveyed by each of the publications. These are:

(a) The plaintiff is a child molester;

(b) The plaintiff has tried to entice school children to go with him for sexual purposes;

(c) The plaintiff invited a secondary schoolboy to be involved with some of his mates in a sexual photo shoot which would involve some girls;

(d) The plaintiff provided the girls for sexual purposes involving children.

6 Objection having been taken on behalf of the fourth defendant, the State of New South Wales, to each of the imputations, I have heard argument in relation to that objection. The objections to imputations (b) and (d) were as to both form and capacity, the objections to imputations (a) and (c) were as to capacity. Having heard the defendant's argument in relation to imputations (b) and (d), counsel for the plaintiff sought and was granted leave to amend those imputations by adding the word "wrongful" before the word "sexual". Counsel for the fourth defendant accepted that that amendment met his objections as to the form of the imputations.

7 That leaves for consideration the capacity of the matters complained of to convey each of the imputations.

8 Having read the annexures, I am satisfied that, in the overall context of what was said, the imputation (imputation (a)) that the plaintiff was a child molester, is capable of being conveyed. The overall tenor of the matter complained of is of a warning to school children and/or to their parents to beware of the man referred to. The use of the words "loitering" and "entice" support that conclusion, and there are the later references to the man having invited a secondary schoolboy to be involved in a photo shoot also involving girls, and to his following a primary schoolboy on his way home from school.

9 An imputation in similar terms was considered by Levine J in objections raised by the first and second defendants to the material reproduced in annexure C (Gilbert v Catholic Education Office [2002] NSWSC 214, unreported, 18 March 2002). Levine J concluded that that imputation was capable of being conveyed and I have independently reached the same conclusion.

10 Imputation (c) is also in similar terms to an imputation pleaded against the first and second defendants and again the same objection was taken before Levine J who held that the imputation was capable of being conveyed. Again, I have independently reached the same conclusion.

11 As I understand it, the principal matter raised on behalf of the defendant in relation to the capacity of the matter complained of to convey these imputations concerned whether it could reasonably be inferred that the photo shoot referred to involved some improper sexual purpose. Again, when the overall tenor of the matter complained of is taken into account I am satisfied that the impropriety may reasonably be inferred.

12 Although the objection to form in relation to imputations (b) and (d) has disposed of one part of the defendant's objection in relation to those imputations, it does not dispose of the complaint about capacity. In my opinion, each of these imputations falls into the same category as those with which I have dealt in more detail. The matter complained of is, in each case, capable of conveying imputations (b) and (d).

13 I order the defendant to pay two thirds of the plaintiff's costs.

14 The parties have liberty to refer the matter to the registrar for the purpose of putting this matter into the next call-over for a s7A trial.

15 I grant leave to the plaintiff to amend the third further amended statement of claim by correctly identifying the first defendant.

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Last Modified: 08/27/2003