Isaac Moses v Sam Ayoub

[2007] NSWDC 172

CITATION:	Isaac Moses v Sam Ayoub [2007] NSWDC 172
HEARING DATE(S):	10 August 2007
JUDGMENT DATE:	10 August 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Strike out the pleading in the proposed paragraph 2 concerning extrinsic facts, with leave to replead; 2. Imputation (b) to be pleaded as a fall back to imputation (a); 3. Imputations (d) and (e) are capable of being conveyed; 4. Note parties dispense with a jury; 5. The plaintiff is to pay the defendant’s costs of the argument today and the costs thrown away by reason of amendment to Statement of Claim; 6. Stood over for further directions to Friday 24 August 2007 at 9:00am.
CATCHWORDS:	Defamation - pleadings - imputations - true innuendo - natural and ordinary meaning
LEGISLATION CITED:	Defamation Act 2005 (NSW)
CASES CITED:	Drummond- Jackson v British Medical Association [1970] 1 All ER 1094 FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479 Jones v Skelton [1963] 1 WLR 1362 Kazi Zafar Ahmed v John Fairfax Publications Pty Limited [2006] NSWCA 6 Mirror Newspapers Limited v World Hosts Pty Ltd (1979) 141 CLR 632 Nixon v Slater and Gordon (2000) Aust Torts Rep [81-565] Tolley v Fry [1931] AC 333
PARTIES:	Plaintiff: Isaac Moses Defendant: Sam Ayoub
FILE NUMBER(S):	2753 of 2007
COUNSEL:	Plaintiff: M K Rollinson Defendant: S M Littlemore QC
SOLICITORS:	Plaintiff: Carters Law Firm Defendant: Shad Partners Solicitors

Introduction
1. This is an application to strike out imputations pleaded as arising from a publication on 22 November 2006 which is the subject matter of defamation proceedings commenced by statement of claim filed on 28 June 2007. The provisions of the Defamation Act 2005 (NSW) apply.

2. On 10 August 2007, I heard the application and made the orders set out at the end of this judgment, and in accordance with my obligations to give reasons for decisions concerning applications to strike out imputations (Kazi Zafar Ahmed v John Fairfax Publications Pty Limited [2006] NSWCA 6), I have emailed these reasons for my orders to the parties.

3. The matter complained of is an email in very informal terms. The full text of the matter of the complained of and the pleading needs to be set out in order to understand the issues in this application.

4. The full text of the matter complained of is as follows:

“From: Sam Ayoub [mailto: [email protected] ]
Sent: Wednesday, 22 November 2006 12:00PM
To: David Riolo
Cc: Paul Osborne; Allan Gainey
Subject: Issac moses

1. Hi Dave

2. Just thought i would send you another email about that weezle [sic] that works for you.

3. I have now had another complaint from a kid and parent at the Tigers. This follows a
4. complaint
5. that I had last week from on or our kids, also at the Tigers.

6. The complaints are identical.

7. Isaac attends training of Matthews and Ball kids, sits around like a scumbag and approaches
8. players and makes them Bullshit promises (similar to the ones that he has made to many
9. players in the past but never delivers on those promises once he signs the players).

10. The specifics of this though are:

11. – He told one play that he gets all his players boots and extra clothing etc
12. – He also told the player that he would have got him a better Contract than what we did
13. had he signed with Titan.
14. – He also told him that he can get him into the Rep teams because the Rep Coaches
15. and selectors are friends of his etc. 16. The mother of the kid explained to me that after a couple of occasions of ger son telling
17. her of the approaches made by Isaac to him, she went to confront Isaac but as expected
18. he bowed his head and squirmed off, like the coward that he is. The same cowardly way
19. that he walks off when he sees us around. 20. I have asked the parents and the kid to provide me with a formal complaint and I will
21. be lodging this with paul Osborne. 22. We have spent years trying to clean up our game, yet Isaac continues to behave in
23. the disgraceful manner that he does. 24. Dave, he is becoming a reflection on your organisation and unless you deal with this
25. immediately and refrain this jerk from continuing to carry –on the way he does (mind
26. you, he only has the balls to do it with 15, 16 & 17 year old kids), then I will
27. ensure that he is confronted with the legal issues that his actions are deserve. 28. I look forward to your immediate response with an apology and acknowledgement that
29. Isaac refrain from his gutter and cowardly tactics. Failing this, we will deal with the
30. matter in our own way.

31. Kind Regards,

32. Sam Ayoub
33. Director
34. Ultra Management (Sports) Pty Ltd
35. Phone: [phone]
36. Fax: [phone]
37. Mobile: [phone]”

5. The plaintiff in response to objections proposed the following amendments to the statement of claim:

“MOSES v AYOUB

PROPOSED AMENDMENTS TO STATEMENT OF CLAIM

Delete paragraphs 1-5, substitute:

1. On 22 November 2006 at 12 pm the defendant caused to be published of and concerning the Plaintiff an e-mail (“the matter complained of”), a copy of which is annexed hereto and marked “Schedule A”.

Particulars

The matter complained of was published by e-mail to David Riolo, the Managing Director of Titan Management Pty Ltd (‘Titan’); Paul Osborne, Accreditation Office of the National Rugby League (‘NRL’); and Allan Gainey, an Accredited Player Agent with the NRL.

2. The matter complained of, in its natural and ordinary meaning together with certain extrinsic facts, conveyed the following imputations, each of which is defamatory of the Plaintiff:


(a) The Plaintiff makes deliberately false promises to 15, 16 and 17 year old football players to induce them to engage him as their agent.

(b) The Plaintiff makes promises to 15, 16 and 17 year old football players, to induce them to engage him as their agent, which he fails to keep.

(c) The Plaintiff was too cowardly to face the mother of a young football player who confronted the Plaintiff about the approaches he had made to her son.

(d) The Plaintiff was too cowardly to face the Defendant (Sam Ayoub) when he saw the Defendant at a training session for young football players.

(e) The Plaintiff’s behaviour as an NRL Accredited Player Agent is contrary to the ethical requirements of the NRL Rugby League Accredited Player Agent Scheme (‘APAS’).

CPR 15.19 – EXTRINSIC FACTS

(1) The Plaintiff is an employee of Titan, which is an Accredited Player Agent under the APAS, and he is thereby an Accredited Employed Agent.

(2) David Riolo is the Managing Director of Titan.

(3) The APAS governs the conduct of persons, including the Plaintiff, who work as Player Agents for players in teams fielded by Clubs in the NRL, and imposes a Code of Ethics on such Agents.

(4) ‘The Tigers’ is the popular name for the West Tigers Rugby League Football Club, one of the Clubs in the NRL.

(5) The Tigers Club fields, inter alia, teams of 15, 16 and 17 year old players.

(6) The Defendant is a director of Ultra Management (Sports) Pty Ltd, which is an Accredited Player Agent under the APAS, and is thereby an Employed Accredited Agent.

PERSONS TO WHOM EXTRINSIC FACTS KNOWN

At the time of publication to each of them of the matter complained of, the above extrinsic facts were known to David Riolo, Paul Osborne and Allan Gainey.

[Paragraph 6, renumbered, and Particulars of Aggravated Damages, retained as now].”

6. The defendant’s objections to this amended pleading are:

(a) imputations (a) and (b) do not differ in substance;
(b) imputations (d) and (e) are not conveyed;
(c) the pleading of the extrinsic facts and the manner of pleading misconceive the nature of extrinsic facts, in that most if not all of the imputations were capable of arising, if they arose at all, in their natural and ordinary meaning and the particulars in paragraphs 1-5 were, if anything, particulars of identification.

Pleading extrinsic facts

7. The first matter for consideration is the adequacy of the pleading set out in paragraph 2, which asserts that the imputations all arise by reason of “certain extrinsic facts”, namely the matters listed in paragraphs 1-6 of the particulars of extrinsic facts.

8. The defendant’s first objection is that most of these particulars are not of extrinsic facts but of identification, which is unnecessary. While it is essential to the plaintiff’s case to prove that the defamatory matter was published and concerning him, there is a clear distinction between cases where the plaintiff is named and those where the plaintiff is not. Where publication refers by name to the plaintiff it is necessary to prove only that it is published by the defendant, not that the persons to whom it is published had any knowledge of the plaintiff: Mirror Newspapers Limited v World Hosts Pty Ltd (1979) 141 CLR 632 at 639.

9. The plaintiff, Isaac Moses, is identified by name in the subject line of the email as well as in the text in line 7 and line 17. He is identified as performing the conduct which is the subject matter of the email, namely complaints about the plaintiff that he makes “bullshit” promises to the young football players (for examples are given in lines 11-15) but that he is too much of a coward to face up to the parents of the players when they attempted to confront him. No particulars of identification are necessary for any imputation.

10. The defendant’s second objection is to the pleading of the whole case as a true innuendo. The phrase “natural and ordinary meaning” includes not only the literal meaning but also inferences that are conveyed by words. The ordinary reasonable reader drawing on his general knowledge would be able to determine from reading the matter complained of that the plaintiff’s job is to sign young players for some kind of football code. The ordinary reasonable reader is not fettered by strict legal rules of construction and is able to draw on general knowledge, including general knowledge that the Tigers is a club which has something to do with football. The test of reasonableness guides and directs the court in its function of deciding whether it is open to the jury in any particular case to hold that reasonable person would understand the word complained of in a defamatory sense: Jones v Skelton [1963] 1 WLR 1362 per Lord Morris at 1371. True innuendoes are pleaded where a publication which is prima facie innocent (or conveys a defamatory meaning, but of a different kind) nevertheless conveys a specific defamatory imputation because of special circumstances called “extrinsic facts”, which are known to some of the persons to whom the matter is published. A number of the cases in relation to true innuendo deal with conduct which prime facie appears to be innocent but is in fact in breach of some ethical or other obligation (e.g. Tolley v Fry [1931] AC 333).

11. Although the matter complained of is written in informal terms, the identity of the plaintiff, the recipient of the publication and subject matter are sufficiently clear from the point of view of identification. In addition, there is nothing in the particulars of identification to convey some extrinsic fact giving rise to any of the imputations except possibly for imputation (e). Each of (a), (b), (c) and (d) is taken from the matter complained of.

12. The one possible exception is imputation (e), which refers to ethical requirements of Accredited Player Agents. This refers to the fact that the plaintiff as an Accredited Player Agent is subject to the Accredited Player Agent Scheme. This scheme governs the conduct of persons such as the plaintiff who work as player agents to find new players for the NRL teams. The scheme includes a code of ethics. There is no reference to this obligation in the publication.

13. It is not, however, necessary to plead a true innuendo where the matter complained of was published essentially to a group or class of persons possessing particular knowledge due to their position or profession. In Drummond- Jackson v British Medical Association [1970] 1 All ER 1094 at 109, Lord Denning MR defined the ordinary reasonable reader as being “persons who read the British Medical Journal, namely medical men”. A similar approach was taken by Merkel J in Nixon v Slater and Gordon (2000) Aust Torts Rep [81-565] concerning a booklet about a law firm distributed to medical practitioners and by Foster J in FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479 concerning a publication to a group of architects.

14. Strictly speaking, since it is apparent from the matter complained of that the recipients of the publication knew these facts, it is not necessary to plead that a code of ethics is imposed on the plaintiff, for the reasons enunciated by Lord Denning MR. Furthermore, if such an extrinsic fact were to be pleaded, some precision as to which of the ethical requirements was involved may be required. Merely pleading that there is a code of ethics is not particularly enlightening. The matter complained of talks of the plaintiff being subject to “legal issues” and the lodging of a formal complaint. There is enough for a defamatory imputation of misconduct to be conveyed, but if the plaintiff wants to plead that his conduct is contrary to a specific requirement of the APAS not in the matter complained of then he must plead the specific provision. Nevertheless, imputation (e) as presently drafted is not a matter I am persuaded needs the particularisation of extrinsic facts.

15. Accordingly the pleading of the imputations as arising only by reason of extrinsic facts is struck out, with leave to replead.

Imputations (a) and (b)

16. On the understanding that same or similar imputations would be pleaded as arising in the natural and ordinary meaning, I note the submission of Mr Littlemore QC that the making of deliberately false promises and the making of promises either do not differ in substance or conflict and cannot arise at the same time. This is clearly a case where a fall-back imputation of making promises he could not keep (as opposed to deliberately false promises) should be pleaded, since the two cannot both arise at the same time and accordingly imputation (b) should be pleaded as a fall-back imputation to imputation (a).

Imputations (d) and (e)

17. The terms of the matter complained of concerning the way that the plaintiff walked off in a cowardly way when he saw the defendant is, in my view, capable of conveying imputation (d).

18. In addition, in relation to imputation (e) I am satisfied that the reference to a complaints process, the need to “clean up our game” and the reference to the plaintiff’s disgraceful making of promises which he never delivers once he signs the players is capable of giving rise to imputation (e) in its natural and ordinary meaning, in the special circumstances referred to by Lord Denning, Merkel J and Foster J in the cases set out above. It is not necessary, merely because the subject matter of the dispute is well known amongst the recipients of the libel but not in the general community, for the complication of pleading of extrinsic facts other than in circumstances where the publication requires this addition facts to give a defamatory meaning that otherwise is not conveyed.

1. Strike out the pleading in the proposed paragraph 2 concerning extrinsic facts, with leave to replead.

2. Imputation (b) to be pleaded as a fall back to imputation (a).

3. Imputations (d) and (e) are capable of being conveyed.

4. Note parties dispense with a jury.

5. The plaintiff is to pay the defendant’s costs of the argument today and the costs thrown away by reason of amendment to Statement of Claim.

6. Stood over for further directions to Friday 24 August 2007 at 9:00am.