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Hague v Cordiner

Hague v Cordiner

Case [2019] NSWDC 603 25 October 2019

Defamation

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Imputations

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Defamation

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District Court

New South Wales

Medium Neutral Citation: Hague v Cordiner [2019] NSWDC 603
Hearing dates: 17 October 2019
Date of orders: 17 October 2019
Decision date: 25 October 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Noting the only basis upon which imputations 6(a) to 6(c) is challenged is the use of the words “captured” and “reasonably”, these imputations are reasonably capable of being conveyed.
(2) Noting the basis of the challenge to imputations 6(d) to 6(k) is on a Chase 1/Chase 2 basis: (a) Each of imputations 6(d) to 6(k) is reasonably capable of being conveyed, but (b) The Chase 2 meaning is to be pleaded as fall-back to the Chase 1 meaning.
(3) Plaintiff’s amended statement of claim in 7 days.
(4) Defendant’s defence or an application for security for costs by 13 November 2019.
(5) Matter listed for further directions only in the Defamation List on Thursday 14 November 2019.
(6) Defendant pay plaintiff’s costs in relation to the imputations argument of today.

Catchwords: TORT – defamation – form and capacity of imputations – whether imputations of guilt or of suspicion – no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited: Berezovsky v Forbes [2001] EWCA Civ 1251
Bolton v Stoltenberg [2018] NSWSC 1518
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 ; [2003] EMLR 11
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Cronau v Nelson (No 2) [2018] NSWSC 1905
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Duffy v Google Inc (No 1) [2015] SASC 170
El-Mouelhy v QSociety of Australia Inc (No 3) [2015] NSWSC 1069
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
Jenman v McIntyre [2013] NSWSC 1100
Lewis v Daily Telegraph Ltd (1964) AC 234
McDonald v Dods [2017] VSCA 129
Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808; 42 ALR 487
Moran v Schwartz Publishing Pty Ltd [2014] WASC 334
Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245
Rayney v State of Western Australia (No 9) [2017] WASC 367
Sands v State of South Australia (2015) 122 SASR 195
Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669
Sternberg v Pritchard Englefield (a firm) [2005] EWCA 288
Wagner v Harbour Radio Pty Ltd [2018] QSC 201
Texts Cited: R Parkes QC, Professor A Mullis, G Busuttil, A Speker, A Scott, C Strong, Gatley On Libel and Slander (12th ed, 2013, Sweet & Maxwell)
Category: Procedural and other rulings
Parties: Plaintiff: Nathan Hague
Defendant: Sarah Louise Cordiner
Representation:
Counsel:
Plaintiff: Mr T Senior
Defendants: Mr B Goldsmith
Solicitors:
Plaintiff: Keleher Lawyers
Defendants: Goldsmith Lawyers

File Number(s): 2019/254138
Publication restriction: None

Judgment

Following argument on 17 October 2019, these are my reasons for rulings on the capacity of imputations pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), as well as to challenges…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hague v Cordiner

Details

AGLC: Hague v Cordiner [2019] NSWDC 603
Case: [2019] NSWDC 603
Decision Date: 25 October 2019

CaseChat Overview and Summary

The case of Hague v Cordiner involved a dispute between the plaintiff, Hague, and the defendant, Cordiner, regarding allegations of defamation. The matter was heard in the Federal Court of Australia. Hague sought to amend his statement of claim to include additional imputations of defamation against Cordiner. Cordiner, in turn, argued that some of these imputations were not reasonably capable of being conveyed to the ordinary reasonable reader.

The court was tasked with determining whether certain imputations alleged by Hague were reasonably capable of being conveyed to the ordinary reasonable reader. Specifically, Cordiner challenged the use of the words “captured” and “reasonably” in imputations 6(a) to 6(c) and argued that imputations 6(d) to 6(k) should be pleaded on a Chase 1/Chase 2 basis, meaning that the Chase 2 meaning should be pleaded as a fall-back to the Chase 1 meaning. The court needed to assess the validity of these challenges and decide whether the imputations were reasonably capable of being conveyed as alleged.

The court found that imputations 6(a) to 6(c) were reasonably capable of being conveyed despite the use of the words “captured” and “reasonably”. The court also determined that each of the imputations 6(d) to 6(k) was reasonably capable of being conveyed, but that the Chase 2 meaning should be pleaded as a fall-back to the Chase 1 meaning. Consequently, the court ordered that Hague’s amended statement of claim be filed within seven days. Cordiner was required to file either a defence or an application for security for costs by 13 November 2019. The matter was then listed for further directions in the Defamation List on 14 November 2019. Additionally, the court ordered Cordiner to pay Hague’s costs in relation to the argument regarding the imputations.

Orders

Orders of the court

(1) Noting the only basis upon which imputations 6(a) to 6(c) is challenged is the use of the words “captured” and “reasonably”, these imputations are reasonably capable of being conveyed.

(2) Noting the basis of the challenge to imputations 6(d) to 6(k) is on a Chase 1/Chase 2 basis: (a) Each of imputations 6(d) to 6(k) is reasonably capable of being conveyed, but (b) The Chase 2 meaning is to be pleaded as fall-back to the Chase 1 meaning.

(3) Plaintiff’s amended statement of claim in 7 days.

(4) Defendant’s defence or an application for security for costs by 13 November 2019.

(5) Matter listed for further directions only in the Defamation List on Thursday 14 November 2019.

(6) Defendant pay plaintiff’s costs in relation to the imputations argument of today.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hague v Cordiner [2019] NSWDC 603

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 20 of 20 shown

Cronau v Nelson (No 2)
[2018] NSWSC 1905 Para 26

…tance where there are a series of posts and where there is a challenge as to the manner or form of the publication as pleaded: Cronau v Nelson (No 2) [2018] NSWSC 1905.…
Bolton v Stoltenberg
[2018] NSWSC 1518 Para 29

…that three of the defendant’s followers “liked” the post, which is sufficient to demonstrate publication to a third party: Bolton v Stoltenberg [2018] NSWSC 1518. As the Court of Appeal noted in McDonald v Dods at [57], courts take into account the degree to which members of the public use the internet (to which sho…
Wagner v Harbour Radio Pty Ltd
[2018] QSC 201 Para 8

…where a radio or television broadcast is involved, or a sensational publication, the “degree of analytical care” (Wagner v Harbour Radio Pty Ltd [2018] QSC 201 at [34]) may be considerably less.…
Rayney v The State of Western Australia [No 9]
[2017] WASC 367 Para 10

…ethod of analysis has been applied across Australia at both interlocutory and trial level; see Rayney v State of Western Australia (No 9) [2017] WASC 367 at [60]-[64] and in Sands v State of South Australia (2015) 122 SASR 195 at [238].…
McDonald v Dods
[2017] VSCA 129 Para 28

…e circumstances in which the court may draw inferences of publication from sources other than evidence of downloading are examined in McDonald v Dods [2017] VSCA 129 at [30]-[61]; these may include the drawing of inferences as well as express evidence of downloading. The Court noted decisions in the United Kingdom…
Duffy v Google Inc
[2015] SASC 170 Para 28

…he Court noted decisions in the United Kingdom ( Sternberg v Pritchard Englefield (a firm) [2005] EWCA 288) and Australia ( Duffy v Google Inc (No 1) [2015] SASC 170) to the effect that other factors, such as an eye-catching headline, may be sufficient for publication to be inferred.…
El-Mouelhy v QSociety of Australia Inc (No 3)
[2015] NSWSC 1069 Para 22

…I am unaware of any prior challenge to the phrase “reasonably suspected” on this basis. In El-Mouelhy v QSociety of Australia Inc (No 3) [2015] NSWSC 1069 an objection was taken in relation to the need for the reasonable suspicion to be held by the relevant authority needing to be clarified ( Sergi v Australian Broa…
Hockey v Fairfax Media Publications Pty Ltd (No 2)
[2015] FCA 750 Para 4

…r to determine whether or not to plead the link should be incorporated into the matter complained of (see Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 at [196]-[197] and [202]).…
Sands v State of South Australia
[2015] SASCFC 36 Para 10

…tory and trial level; see Rayney v State of Western Australia (No 9) [2017] WASC 367 at [60]-[64] and in Sands v State of South Australia (2015) 122 SASR 195 at [238].…
Moran v Schwartz Publishing Pty Ltd
[2014] WASC 334 Para 10

…le grounds for suspicion, accurately reflect the sting of the libel at the capacity stage is explained in Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 at [32]. I note that, in Corby v Allen & Unwin Pty Ltd , the Court considered that certain imputations of guilt were conveyed and that the first instance jud…
Corby v Allen & Unwin Pty Ltd
[2014] NSWCA 227 Para 7

…The relevant principles in relation to capacity of imputations are set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], namely that the determination of capacity is “an issue of generosity and not of parsimony”, and that the imputation is a “matter of impression ... the impression is not of wha…
Jenman v McIntyre
[2013] NSWSC 1100 Para 26

…Where a publication is made online, proof of readership (generally in the form of downloading) is required: Jenman v McIntyre [2013] NSWSC 1100. This is of particular importance where there are a series of posts and where there is a challenge as to the manner or form of the publication as pleaded: Cronau v Nelson (N…
Favell v Queensland Newspapers Pty Ltd
[2005] HCA 52 Para 20

…ing of a suspicion (usually by a prosecuting authority) as expressed in the passive voice: see for example Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [3]. Mr Goldsmith’s objection was that no ordinary reasonable reader would think in terms of such an imputation…
Purcell v Cruising Yacht Club of Australia Pty Ltd
[2003] NSWSC 245 Para 22

…Corporatio n at 671 by Hutley JA), but that objection was ultimately not pressed, in light of Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 at [28]. In the present case, even this basis for challenge does not even arise.…
Vella v John Fairfax Publications Pty Ltd
[2000] NSWSC 615

…(No 9) [2017] WASC 367 Sands v State of South Australia (2015) 122 SASR 195 Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 Sternberg v Pritchard Englefield (a firm) [2005] EWCA 288 Wagner v Harbour Radio Pty Ltd [2018] QSC 201 Texts Cited: R Parkes QC, Professor A Mullis, G Busuttil, A Speker,…
Sergi v Australian Broadcasting Corporation
[1989] NSWCA 184 Para 9

…gh Court of Australia in Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808; 42 ALR 487, as explained in Sergi v Australian Broadcasting Corporation (1983) 2 NSWLR 669 at 676 – 677. More recently, imputations of guilt and suspicion have been referred to as “Chase level 1” and “Chase level 2” imputations ( Chase v Ne…
Mirror Newspapers Ltd v Harrison
[1982] HCA 50 Para 9

…imputations of both guilt and suspicion, in terms of the explanation of this issue by the High Court of Australia in Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808; 42 ALR 487, as explained in Sergi v Australian Broadcasting Corporation (1983) 2 NSWLR 669 at 676 – 677. More recently, imputations of guilt and sus…
(1964) AC 234
(1964) AC 234 Para 12

…As Lord Devlin explained in Lewis v Daily Telegraph Ltd (1964) AC 234 at 277, whereas, for a lawyer, an imputation as to guilt may not be as readily drawn, ordinary readers draw implications much more freely, especially when the text of the matter complained of is derogatory in nature. In Favell v Queensland New…
Drummoyne Municipal Council v Australian Broadcasting Corporation
79 ER 667 Para 18

…The relevant principles for the determination of objections to form are set out in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137A.…
Lewis v Daily Telegraph
(1964) AC 264 Para 12

…As Lord Devlin explained in Lewis v Daily Telegraph Ltd (1964) AC 234 at 277, whereas, for a lawyer, an imputation as to guilt may not be as readily drawn, ordinary readers draw implications much more freely, especially when the text of the matter complained of is derogatory in nature. In Favell v Queensland Newspapers Pty Ltd at [1…

Legislation cited in this decision · 1

Uniform Civil Procedure Rules 2005 (NSW)
28.2 2 mentions (from Para 1)

Medium Neutral Citation:	Hague v Cordiner [2019] NSWDC 603
Hearing dates:	17 October 2019
Date of orders:	17 October 2019
Decision date:	25 October 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Noting the only basis upon which imputations 6(a) to 6(c) is challenged is the use of the words “captured” and “reasonably”, these imputations are reasonably capable of being conveyed. (2) Noting the basis of the challenge to imputations 6(d) to 6(k) is on a Chase 1/Chase 2 basis: (a) Each of imputations 6(d) to 6(k) is reasonably capable of being conveyed, but (b) The Chase 2 meaning is to be pleaded as fall-back to the Chase 1 meaning. (3) Plaintiff’s amended statement of claim in 7 days. (4) Defendant’s defence or an application for security for costs by 13 November 2019. (5) Matter listed for further directions only in the Defamation List on Thursday 14 November 2019. (6) Defendant pay plaintiff’s costs in relation to the imputations argument of today.
Catchwords:	TORT – defamation – form and capacity of imputations – whether imputations of guilt or of suspicion – no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Berezovsky v Forbes [2001] EWCA Civ 1251 Bolton v Stoltenberg [2018] NSWSC 1518 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 ; [2003] EMLR 11 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Cronau v Nelson (No 2) [2018] NSWSC 1905 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Duffy v Google Inc (No 1) [2015] SASC 170 El-Mouelhy v QSociety of Australia Inc (No 3) [2015] NSWSC 1069 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 Jenman v McIntyre [2013] NSWSC 1100 Lewis v Daily Telegraph Ltd (1964) AC 234 McDonald v Dods [2017] VSCA 129 Mirror Newspapers Ltd v Harrison (1982) 56 ALJR 808; 42 ALR 487 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 Rayney v State of Western Australia (No 9) [2017] WASC 367 Sands v State of South Australia (2015) 122 SASR 195 Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669 Sternberg v Pritchard Englefield (a firm) [2005] EWCA 288 Wagner v Harbour Radio Pty Ltd [2018] QSC 201
Texts Cited:	R Parkes QC, Professor A Mullis, G Busuttil, A Speker, A Scott, C Strong, Gatley On Libel and Slander (12th ed, 2013, Sweet & Maxwell)
Category:	Procedural and other rulings
Parties:	Plaintiff: Nathan Hague Defendant: Sarah Louise Cordiner
Representation:	Counsel: Plaintiff: Mr T Senior Defendants: Mr B Goldsmith Solicitors: Plaintiff: Keleher Lawyers Defendants: Goldsmith Lawyers
File Number(s):	2019/254138
Publication restriction:	None