Gregory Russell v Nationwide News Pty Limited
[2013] ACTSC 241
•29 November 2013
GREGORY RUSSELL v NATIONWIDE NEWS PTY LIMITED
[2013] ACTSC 241 (29 November 2013)
DEFAMATION – PLEADINGS – Application for strike out – whether imputations complained of reasonably capable of being defamatory – imputations to be considered in context of entire article – test for strike out stringent
Court Procedures Rules 2006 (ACT), r 1521
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Charleston & Anor v News Group Newspapers Ltd [1995] 2 AC 65
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763
Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254
No. SC 388 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 29 November 2013
IN THE SUPREME COURT OF THE )
) No. SC 388 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: GREGORY RUSSELL
Plaintiff/Respondent
AND: NATIONWIDE NEWS PTY LIMITED
Defendant/Applicant
ORDER
Judge: Burns J
Date: 29 November 2013
Place: Canberra
THE COURT ORDERS THAT:
The requirements under r 1521(3)(d) are dispensed with.
The questions to be answered as a separate question are answered in the affirmative.
The application for strike out dated 12 August 2013 is refused.
The defendant/applicant is to pay the plaintiff/respondent’s costs of the application.
The plaintiff claims damages in defamation from the defendant with respect to articles concerning him and his then position as Chief Executive of Airservices Australia in newspapers published by the defendant. On or about 17 June 2013, the plaintiff lodged an Amended Statement of Claim pleading his case in defamation. By an Application in proceedings dated 12 August 2013 (the Application) the defendant seeks orders striking out imputations pleaded in the Amended Statement of Claim on the grounds that the articles are not reasonably capable of conveying the defamatory meanings particularised or that the defamatory meaning particularised is not reasonably capable of being defamatory.
The Application is pursuant to r 1521 of the Court Procedures Rules 2006 (ACT), raising questions for separate determination:
a)is the first matter complained of reasonably capable of conveying the defamatory meanings particularised by the plaintiff in each of paragraphs 4(a), (d), (f) and (g) of the Amended Statement of Claim dated 14 June 2013 (Amended Statement of Claim);
b)is the second matter complained of reasonably capable of conveying the defamatory meanings particularised by the plaintiff in each of paragraphs 6(a), (d) and (f) of the Amended Statement of Claim;
c)is the fourth matter complained of reasonably capable of conveying the defamatory meanings particularised by the plaintiff in each of paragraphs 10(a), (d), (f) and (g) of the Amended Statement of Claim;
d)is the fifth matter complained of reasonably capable of conveying the defamatory meanings particularised by the plaintiff in each of paragraphs, 12(a), (b) and (d) of the Amended Statement of Claim;
e)is the sixth matter complained of reasonably capable of conveying the defamatory meanings particularised by the plaintiff in each of paragraphs 14(b) and (e) of the Amended Statement of Claim; and
f)is the defamatory meaning particularised by the plaintiff in paragraph 14(e) of the Amended Statement of Claim reasonably capable of being defamatory?
The Application seeks a further order that r 1521(2)(d) be dispensed with. From the way the matter was argued on 9 October 2013 it is clear that in fact the order sought is for dispensation of the requirement under r 1521(3)(d). Rule 1521(3)(d) requires questions for separate determination to be settled by the Registrar unless the Court otherwise orders. These questions were not settled by the Registrar, and the defendant seeks an order that compliance with the provision be disposed with. There was no opposition to this course, and I make the order.
The principles governing this application are well settled. In Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763, Nicholas J said, at [10] – [11]:
The principles applicable to the correct approach of the court on the question of capacity are well known. A court must keep in mind that a reasonable person can and does read between the lines in light of his general knowledge and experience of worldly affairs, and will draw implications much more freely than a lawyer, especially when they are derogatory. Each alleged imputation is to be considered in the context of the entire article. One must try to envisage people between those who are unusually suspicious and those who are unusually naive and see what is the most damaging meaning they would put on the words in question. The question of meaning turns on what the publication, taken as a whole, conveys to the reasonable reader, and this must always be a matter of impression. Ultimately, the question is what a jury could properly make of it (see e.g. Lewis v Daily Telegraph Ltd [1964] AC 234, pp 258, 259, 277, 285; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, para 17).
The exercise of discretion in deciding whether or not an imputation should be struck out is to be undertaken with great caution. The applicable test remains as stated in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, pp 129, 130, which requires demonstration that the case for the imputation is so obviously untenable that it cannot possibly succeed or is manifestly groundless. If reasonable minds may possibly differ about whether or not the matter complained of is capable of carrying a defamatory meaning, that would be “... a strong, perhaps an insuperable, reason for not exercising the discretion to strike out” (Favell, para 6)
As the plaintiff submits, impression is critical in assessing the material complained of. In Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254, Beazley JA, with whom Basten and Bryson JJA agreed, said at [30]:
[T]his is one of those cases where reasonable persons may differ as to whether the news article was capable of conveying the defamatory imputation. In circumstances where reasonable persons may differ as to their understanding of the article, the matter is one that must, in accordance with authority, be left to the jury.
The article complained of must be read in its entirety to determine whether it is capable of bearing the defamatory meaning advanced by the plaintiff: Charleston & Anor v News Group Newspapers Ltd [1995] 2 AC 65.
It is also important to bear in mind that the question of capacity is also governed by considerations of reasonableness. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ at CL, with whom Mason P and Handley JA agreed, said at 166:
What must be emphasised is that it is the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded by the plaintiff.
With respect to imputations complained of by the defendant as set out in paragraph 2 (a) to (e) above the defendant submits they are not reasonably capable of conveying the imputations that the expenditure referred to was “personal” or “for himself”. Looking at each of the articles as a whole, and bearing in mind the stringency of the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, I am not satisfied that these imputations do not arise, and as such they should go forward to trial. Whether the plaintiff will succeed on these imputations is a different question.
The first issue raised by the defendant in whether the imputation pleaded by the plaintiff at paragraph 14 (e) of the Amended Statement of Claim is reasonably capable of being defamatory. The plaintiff alleges in that paragraph that the second article conveyed the imputation, inter alia, that the plaintiff used his corporate credit card to pay for luxury hotel accommodation for himself, fine dining, and the upkeep of a luxury motor vehicle that he used. Looking at the article as a whole, particularly the use of adjectives such as “fine”, “upmarket” and “luxury”, I am not satisfied that the imputation is not capable of being defamatory.
The questions to be determined as separate questions having been answered in the affirmative, the application for strike out is accordingly refused. The defendant is to pay the plaintiff’s costs of the Application.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 29 November 2013
Counsel for the Applicant: J. H. Hmelnitsky SC
Solicitor for the Applicant: Malcolm Johns & Company Lawyers
Counsel for the Respondent: K. P. Smark SC
Solicitor for the Respondent: Ashurst Australia
Date of hearing: 9 October 2013
Date of judgment: 29 November 2013
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