Harb v Trustees of the Christian Brothers trading as St Patrick's College Strathfield

[2016] NSWDC 90

District Court

New South Wales

Medium Neutral Citation:	Harb v Trustees of the Christian Brothers trading as St Patrick’s College Strathfield [2016] NSWDC 90
Hearing dates:	28 April 2016
Date of orders:	28 April 2016
Decision date:	27 May 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Strike out imputations (a) and (c) and in lieu permit the plaintiff to plead “the plaintiff is a traitor in that he betrays his friends and colleagues”. (2) Imputation (d) is struck out as incapable of arising. (3) Plaintiff to serve amended statement of claim in 7 days. (4) Defendants to file and serve their defence(s) 21 days after receipt of the amended statement of claim. (5) Plaintiff pay defendants’ costs of the imputations argument. (6) Matter stood over to the Defamation List on 2 June 2016 for further directions.
Catchwords:	TORT – defamation – imputations – form and capacity – “Judas” – whether imputations differ in substance
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Ager v Canjex Publishing Ltd 16 CCLT (3d) 188 2003 CarswellBC 1406, 2003 BCSC 891 Ager v Canjex Publishing Ltd (2005) 259 DLR (4th) 727 Berezovsky v Forbes [2001] EWCA Civ 1251 Communications Workers, Local 8611 v Archibeque 105 N.M. 635, 735 P. 2d 1141 (S. Ct. 1987) Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Geary v Alger (1925) 57 O.L.R. 218 Lawson v Thompson (1968) 66 WWR 427; (1969) 69 WWR 304 (BCCA) New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 Younan v Nationwide News Pty Ltd[2013] NSWCA 335
Texts Cited:	D. L. Jeffrey, ed., “A Dictionary of Biblical Tradition in English Literature”, 1992, Wm. B. Eerdmans Publishing. R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States) (2nd Ed., Carswell)
Category:	Procedural and other rulings
Parties:	Plaintiff: George Harb First Defendant: Trustees of the Christian Brothers trading as St Patrick’s College Strathfield (ACN 066 939 786) Second Defendant: Brian Roberts
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendants: Mr M Richardson   Solicitors: Plaintiff: Kennedys Law Firm Defendants: McInnes Wilson Lawyers
File Number(s):	2016/29254
Publication restriction:	None

Judgment

Introduction

1. These are my reasons for orders on 27 April 2016 in relation to imputations (a), (c), (d) and (e) as pleaded by the plaintiff (and subsequently amended), following an argument on form and capacity, heard by me (as to the capacity of imputation (d)) pursuant to UCPR r 28.2 Uniform Civil Procedure Rules 2005 (NSW).

2. I first note the relevant principles in relation to objections to the capacity of an imputation being capable of being conveyed, as set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], namely that it is “an exercise in generosity not parsimony“, as well as being a “matter of impression … the impression is not of what the words mean but of what a jury could sensibly think they meant” (see also Berezovsky v Forbes [2001] EWCA Civ 1251).

3. Where the objection relates to the form of the imputation, the relevant tests are set out in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 197 and, more recently, in Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [20].

The matter complained of and the imputations

4. The matter complained of consists of the following two sentences spoken by the second defendant, the headmaster of St Patrick’s College Strathfield, in the course of a parent information evening event at the college on 3 February 2015:

“I have made changes to the College executive. I now have eleven disciples and I have managed to get rid of Judas.”

5. The plaintiff was not named, but relies upon particulars of extrinsic facts in relation to identification. Prior to these words being spoken, there had been, according to these particulars of identification, a 12-person executive which assisted the headmaster in the administration of the school. The plaintiff was dismissed from his employment by the first defendant when his contract was terminated at the end of 2014 instead of being renewed, leaving 11 members.

6. The particulars of identification do not refer to who Judas was, or what he did, this being considered by both parties to be so notorious as not to warrant inclusion in the particulars of identification. The parties agree that Judas was paid thirty pieces of silver to perform what Mr Rasmussen described as one of the earliest examples of identification evidence, namely to identify Jesus to Roman law enforcement officers by kissing him on the cheek. This is the basis for the first three imputations. Judas’ performance of this act of betrayal of trust in exchange for the thirty pieces of silver is also relied upon in relation to the sting of the libel as set out in the fourth and fifth imputations pleaded.

7. Precise imputations are, however, not easy to convey from just one word (i.e. “Judas”). The plaintiff’s statement of claim initially pleaded the imputations as follows:

1. The plaintiff is a traitor.

2. The plaintiff is not to be trusted.

3. The plaintiff betrays his friends and colleagues.

4. The plaintiff is a Judas like person.

8. Following correspondence challenging the form and capacity of these imputations, they were repleaded as follows:

1. The plaintiff is a traitor.

2. The plaintiff is not to be trusted.

3. The plaintiff betrays his friends and colleagues.

4. The plaintiff is the type of person who accepts bribes.

5. The plaintiff is the type of person who would sell out his associates for money.

9. The challenges relate to these revised imputations.

The issues for determination

10. The imputations argument, like the matter complained of, was short and to the point. No objection was taken to imputation (b). The issues for determination were:

1. Whether imputations (a) and (c) differ in substance;

2. Whether imputations (d) and (e) differ in substance and, if so, whether imputation (d) is capable of being conveyed.

Imputations arising by way of comparison to notorious persons

11. The correct approach to imputations containing unflattering comparisons to notorious persons is often a question of the degree of infamy involved (New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 – “Government Jackie”).

12. Where the person concerned is someone of a sufficiently opprobrious character, such as Judas, the issue is comparatively simple. Defamatory imputations arising by comparison to Judas are, in fact, so common in defamation litigation that “Judas” has his own heading in the index to R. E. Brown, Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States) (2nd Ed., Carswell). This means I am not obliged to perform the more difficult task of determining whether it is defamatory to call someone “Clintonesque” (“a reference to a former President of the United States with a reputation for not telling the truth” according to Shaw J in Ager v Canjex Publishing Ltd 16 CCLT (3d) 188 2003 CarswellBC 1406, 2003 BCSC 891, reversed on other grounds in Ager v Canjex Publishing Ltd (2005) 259 DLR (4th) 727), or to compare someone with a person of flawed but fascinating character, such as Madame Bovary (as to which, see the discussion by Professor Brown at [5.9(8)]).

13. The imputation generally conveyed by a comparison to Judas has generally been interpreted as one of being disloyal (see, for example, Geary v Alger (1925) 57 O.L.R. 218, where a lawyer acting for the defendant in criminal proceedings was accused of being “a Judas who betrayed His Lord and Master”), or as a person who is untrustworthy in that he or she is likely to sell out friends or other persons in a trust relationship (Lawson v Thompson (1968) 66 WWR 427; (1969) 69 WWR 304 (BCCA)).

14. While Professor Brown notes at [5.9(8)] that a mere comparison to Judas is capable of being defamatory, he goes on to note that in today’s world it may in some cases amount to “rhetorical hyperbole”, citing Communications Workers, Local 8611 v Archibeque 105 N.M. 635, 735 P. 2d 1141 (S. Ct. 1987). Accordingly, it is essential to consider the meaning of a comparison to Judas by reference to the context and contents of the matter complained of, rather than have regard to its interpretation in other judicial decisions.

Imputations (a) and (c)

15. The matter complained of, when interpreted by reference to the extrinsic facts, clearly draws a direct parallel between the absence of the twelfth “disciple” and the newly effective running of the Executive.

16. The first issue is whether the imputations differ in substance. The essence of Judas’ betrayal was agreed by both counsel, in the context of the words spoken by the headmaster, to be that Judas betrayed the trust of the person to whom he owed loyalty (i.e. the headmaster), rather than that he was a “traitor”, in the general sense (for example, being a traitor to one’s country). This is, therefore, the same as an imputation that he betrays his friends and colleagues.

17. Mr Rasmussen conceded during argument that imputations (a) and (c) do not differ in substance and proffered the amended imputation contained in the orders I made on 27 April. Imputations (a) and (c) have accordingly been struck out and the plaintiff given liberty to plead, in their place, an imputation that “the plaintiff is a traitor in that he betrays his friends and colleagues”.

Imputations (d) and (e)

18. These imputations refer to the additional meaning arising from the reference to “Judas”, namely an attempt to capture the sting of his accepting 30 pieces of silver for his betrayal of Jesus.

19. The concept of accepting thirty pieces of silver is used in common speech and literature to refer to people “selling out” a person who trusts them for personal gain, according to the Wikipedia entry for “thirty pieces of silver” (see also D. L. Jeffrey, ed., “A Dictionary of Biblical Tradition in English Literature”, 1992, Wm. B. Eerdmans Publishing. p. 766). Imputation (e) clearly captures such a meaning.

20. The imputation of accepting bribes (imputation (d)), while differing in substance from imputation (e), is different to the concept of selling out a person with whom one has a relationship of trust. The concept of bribe generally connotes the giving of money or some other benefit to a person in power, which does not capture the sting of the libel in relation to the conduct of Judas. Consequently, while I accept the plaintiff’s submission that imputations (d) and (e) differ in substance, I consider that imputation (e) is not conveyed.

Costs

21. The plaintiff has effectively repleaded the imputations on two occasions. Four of the five imputations were challenged and resulted in the amendments sought by the defendant.

22. Mr Rasmussen submitted that by reason of his concessions in the course of argument, he should be entitled to a more favourable costs order. Mr Rasmussen’s quick and effective conduct of the argument certainly aided the prompt resolution of the argument, and I also take into account the late raising of the capacity challenge to imputation (d). However, there were concessions that the plaintiff could have made earlier, rather than putting the defendant to the cost of the argument today; additionally, it was the plaintiff’s second attempt at drafting imputations. Accordingly, the appropriate order is for the plaintiff to pay the defendants’ costs of the imputations argument.

Orders

1. Strike out imputations (a) and (c) and in lieu permit the plaintiff to plead “the plaintiff is a traitor in that he betrays his friends and colleagues”.

2. Imputation (d) is struck out as incapable of arising.

3. Plaintiff to serve amended statement of claim in 7 days.

4. Defendants to file and serve their defence(s) 21 days after receipt of the amended statement of claim.

5. Plaintiff pay defendants’ costs of the imputations argument.

6. Matter stood over to the Defamation List on 2 June 2016 for further directions.

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Decision last updated: 30 May 2016