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: sam@ultramanagment.com.au ]
Sent: Wednesday, 22 November 2006 12:00PM
To: David Riolo
Cc: Paul Osborne; Allan Gainey
Subject: Issac moses

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

6. The complaints are identical.

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 Isaac Moses v Sam Ayoub

Details

AGLC: Isaac Moses v Sam Ayoub [2007] NSWDC 172
Case: [2007] NSWDC 172
Decision Date: 10 August 2007

CaseChat Overview and Summary

Isaac Moses commenced proceedings against Sam Ayoub, seeking damages for defamation. The claim arose from certain statements made by Ayoub that were alleged to have damaged Moses' reputation. The matter was heard in the Federal Court of Australia. The central dispute involved the interpretation and pleading of specific defamatory imputations, particularly whether certain extrinsic facts could be considered in determining the meaning of the statements.

The court was required to decide several legal issues. Primarily, it had to determine whether extrinsic facts could be used to interpret the defamatory imputations. This involved assessing the natural and ordinary meaning of the words used in the context of the statements made by Ayoub. The court also had to consider whether certain imputations pleaded by Moses were capable of being conveyed to third parties, and whether these imputations were defamatory. Furthermore, the court needed to assess the pleadings to ensure they complied with the rules of court regarding the manner in which defamation claims should be presented.

The court found that the pleading in the proposed paragraph 2 concerning extrinsic facts should be struck out, with leave to replead. It determined that the natural and ordinary meaning of the statements made by Ayoub could be ascertained without considering extrinsic facts. The court also found that imputation (b) should be pleaded as a fallback to imputation (a) and that imputations (d) and (e) were capable of being conveyed. The parties agreed to dispense with a jury, and the court ordered Moses to pay Ayoub's costs of the argument and the costs thrown away due to the amendment to the Statement of Claim. The case was stood over for further directions.

Orders

Orders of the court

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.

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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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