James v Faddoul

[2008] NSWSC 176

CITATION:	JAMES v FADDOUL [2008] NSWSC 176
HEARING DATE(S):	8 February 2008
JUDGMENT DATE :	5 March 2008
JUDGMENT OF:	Latham J
DECISION:	The Motion is dismissed with costs
CATCHWORDS:	DEFAMATION - application to strike out defence pleadings - UCPR 4.15 - whether pleadings scandalous, oppressive or an abuse of process - relevance of pleadings to defence of truth and to contextual imputations - capacity of contextual imputations to arise from published material
LEGISLATION CITED:	Defamation Act 2005
CATEGORY:	Principal judgment
CASES CITED:	James v Faddoul [2007] NSWSC 821 General Steele Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125 Edward Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 Batistatos v Roads and Traffic Authority of NSW ; Batistatos v Newcastle City Council [2006] HCA 27 ; (2006) 226 CLR 256 Millington v Loring (1880) 6 QBD 190 Cavill Business Solutions v Jackson (2005) WASC 138 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 Shari-Lea Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7 Moorgate Tobacco Co Ltd v Phillip Morris Limited (1984) 156 CLR 414 ; [1984] HCA 73 Maisel v Financial Times (1915) 112 LT 953 Allen v John Fairfax & Sons Ltd NSWSC (unreported) 2/12/88 James & Anor. v Faddoul & Anor. [2006] NSWSC 1330
PARTIES:	Adriana James (First Plaintiff) Everett Woodbury James (Second Plaintiff) Bluespark Pty Limited (Third Plaintiff) Roberta Faddoul (First Defendant George Faddoul (Second Defendant)
FILE NUMBER(S):	SC 20421/2006
COUNSEL:	R Pepper (Plaintiffs) M Richardson (Defendants)
SOLICITORS:	Henry Davis York (Plaintiffs) John Winter & Slattery Lawyers (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

LATHAM J

5 MARCH 2008

2006/20421 ADRIANA JAMES & ORS. v ROBERTA FADDOUL& ANOR

JUDGMENT

1 Since the commencement of proceedings in this Court by the plaintiffs in August 2006, there have been a number of skirmishes concerning the pleadings between the parties that have taken up considerable judicial time and resources, ostensibly with a view to allowing the substantive matter to be listed for hearing. This judgment represents yet another step in that process.

2 The background to the proceedings has been summarised by Price J in James v Faddoul [2007] NSWSC 821 at [3] – [6] and I see no need to repeat it here. It is sufficient to note that the published material giving rise to the plaintiffs’ actions in defamation, breach of confidence and injurious falsehood are constituted by four emails, with attachments depicting the first plaintiff naked or partially naked in sexually suggestive poses. The four images were stored in a laptop computer that originally belonged to the plaintiffs. The computer was given to the defendants at the end of 2005. The emails were sent in May 2006.

3 In respect of the first and third emails, including the images attached to them, the plaintiffs allege that two imputations, namely, that the first plaintiff is a woman of loose sexual morals and that the first plaintiff is a woman who would allow herself to be photographed in sexually provocative poses, arise from the publication of the material (31(a) and (b) of the Second Further Amended Statement of Claim (SFASC) filed on 12 April 2007). In respect of the second and fourth emails, including the images attached to them, the plaintiffs allege that the same two imputations arise from that material and in addition a further imputation, namely, that the first plaintiff is a woman who would allow herself to be photographed nude (35(a), (b) and (c) SFASC).

4 The first and second defendants each filed a Defence on 21 September 2007 to the SFASC. The defendants pleaded substantial truth with respect to the imputations above, and contextual truth. The allegations of breach of confidence and injurious falsehood are denied. The particulars of truth and the particulars relied upon to rebut the claim of breach of confidence are based upon data and photographic material, in addition to the four images the subject of the emails, discovered by the defendants on the laptop computer. That material is identified in a letter to the plaintiffs’ solicitors of 31 October 2007 (Annexure C to the Affidavit of Paul Andrew Reidy of 1 November 2007).

5 By Amended Notice of Motion filed on 19 November 2007 the plaintiffs seek the striking out of a number of paragraphs of the Defences. The grounds enumerated in the Notice of Motion are based upon rule 4.15 UCPR, that is, that the nominated paragraphs are scandalous. In the alternative, it is alleged that certain “contextual imputations” are incapable of arising from the published material, and that certain particulars are irrelevant and/or oppressive or an abuse of process.

6 The challenged parts of the Defence filed on behalf of the first defendant are (ii), (iii) and (iv) under the heading “Particulars” in par 9, par 17(i)(a) and (b), Particulars A to par 18, and par 20(i) and (ii). The content of those paragraphs is identical to the challenged parts of the Defence filed on behalf of the second defendant, namely, (ii), (iii) and (iv) under the heading “Particulars” in par 8, par 16(i)(a) and (b), Particulars A to par 17, and par 19(i) and (ii). For convenience, the following comes from the Defence filed on behalf of the first defendant :-

9 PARTICULARS [Pleaded in answer to the claim of Breach of Confidence]
(i) ……………………………………………………………….
(ii) The laptop computer also contained a large number of other images of the First Plaintiff, including images of her partly dressed, dressed provocatively, engaging in various sexual acts in various positions, (including sexual acts in public places) as well as details of the Plaintiffs’ public and private affairs including notes about the First and Second Plaintiffs’ sexual activities.

(iii) The computer also contained information and materials from the computer of the Second Plaintiff’s former defacto wife ‘Lori’, including details of her public and private affairs.

(iv) The computer also contained stored links to various pornographic internet sites.
17(i) [Contextual Truth pleaded in answer to the Statement of Claim]
(a) the First Plaintiff is a woman who would allow herself to be photographed in pornographic poses ;
(b) the First Plaintiff is a sexual exhibitionist.
18. PARTICULARS
A. Truth
Imputations 31(b), 35(b) and (c) and Contextual Imputations 17(i)(a) and (b).
(i)The first plaintiff allowed herself to be photographed on repeated occasions whilst naked and having sex.
(ii)The first plaintiff allowed herself to be videotaped whilst having sex.
(iii)The first plaintiff allowed herself to be photographed on repeated occasions in sexually provocative and/or pornographic poses including in the three photographs contained within the matters complained of.
(iv)The first plaintiff allowed herself to be photographed with her breasts exposed in a sexual position in the back seat of a car near the ocean.
(v)The first plaintiff allowed herself to be photographed standing up on the balcony of an apartment with her breasts exposed, dressed in cut out lingerie with stockings and boots.
(vi)The first plaintiff allowed herself to be photographed sitting on a chair on the balcony of an apartment with her breasts exposed, dressed in cut out lingerie with stockings and boots.
(vii)The first plaintiff allowed close-up photographs to be taken of her genitals.
(viii)The first plaintiff allowed close-up photographs to be taken of a penis entering her vagina.
Imputations 31(a) – 35(a) Loose Sexual Morals.
(ix)The defendants repeat paragraphs (i) to (viii) above.
(x)The first plaintiff maintained on her computer links to various pornographic websites.
(xi)The first plaintiff maintained on her computer notes of her sexual conduct, including details of sexual acts between the plaintiffs in public places and details of sharing milk from the first plaintiff's breasts with the second plaintiff and cutting her finger as a blood sacrifice relating to a sexual act.
(xii)The first plaintiff maintained on her computer files and details of studies and books on female ejaculation.
(xiii)The first plaintiff maintained on her computer details of various spiritual and magical powers, spells and gods related to sexual performance.

20 [Pleaded in answer to the claim of Injurious Falsehood]
(i) the First Plaintiff is a woman who would and does allow herself to be photographed in sexually provocative poses and repeats the particulars of truth ;
(ii) the First Plaintiff is a woman of loose sexual morals and repeats the particulars of truth.

7 Before passing to a consideration of what is scandalous, so as to justify the grave step of striking out the pleadings, it should be observed that the question whether defamatory material has been published by the defendants and whether any defences have been established will be determined by a jury under the provisions of the Defamation Act 2005. It will immediately be apparent that the imputations pleaded by the plaintiffs, and the contextual imputations relied upon by the defendants, call for an assessment by those representatives of the community of what constitutes “pornographic poses”, a “sexual exhibitionist”, “loose sexual morals” and other value-laden terms. Minds can and do differ on the limits of appropriate sexual behaviour, within the privacy of one’s home and in public.

8 Unless I am of the view that the pleadings set out at [6] are so clearly untenable that they cannot possibly succeed or that they are manifestly groundless, the plaintiffs’ application must fail ; General Steele Industries Incorporated v Commissioner for Railways (NSW) (1964) 112 CLR 125. That test is particularly onerous in the context of a jury trial of this character. The impression that the images and words are likely to make upon the reasonable recipient is not one that can be confidently predicted by a lawyer ; see Edward Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 at [10] and [11]. Accordingly, it may be difficult to reach that high degree of certainty about the ultimate outcome of the proceedings, if it is allowed to go to trial, that would justify striking out the pleadings ; John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364, applying Batistatos v Roads and Traffic Authority of NSW ; Batistatos v Newcastle City Council [2006] HCA 27 ; (2006) 226 CLR 256.

The Meaning of “Scandalous” within the Rules.

9 There is no dispute between the parties that a scandalous pleading is an indecent, offensive pleading that is not essential to the cause of action, in the sense that it is not material ; Millington v Loring (1880) 6 QBD 190. An analogous power to that under UCPR 4.15 to strike out pleadings that are scandalous was considered in more recent times in Cavill Business Solutions v Jackson (2005) WASC 138 :-

The mere allegation of a scandalous fact does not render the pleading liable to be struck out as scandalous, for material which is degrading and therefore scandalous will not be struck out unless it is also irrelevant. Scandal consists in the allegation of anything which is unbecoming to the dignity of the Court to hear or is contrary to good manners or which charges some person with a crime not necessary to be shown in the cause: to which may be added that any unnecessary (not relevant to the subject) allegation bearing purely upon the moral character of an individual is also scandalous.

10 It may be conceded at once that the identified pleadings in both Defences contain degrading material and allegations bearing upon the moral character of the first plaintiff, but are they irrelevant, given the way the plaintiffs have framed their causes of action? Dealing firstly with the contextual imputations pleaded by the defendants, they necessarily accept the defamatory nature of the imputations relied upon by the plaintiffs. The substantial and contextual truth of the various imputations are at the heart of the defendants’ defence of triviality. For these reasons alone, the pleadings under par 17(i)(a) and (b) of the first defendant’s Defence and those under par 16(i)(a) and (b) of the second defendant’s Defence are relevant to the proceedings. Perhaps in recognition of this obstacle to success, the plaintiffs’ alternative argument in relation to the contextual imputations set out at 17(i) (a) and (b) (and the corresponding par in the second defendant’s Defence) is that these imputations cannot arise.

Contextual Imputations – “Pornographic Poses” and “Sexual Exhibitionist”

11 The plaintiffs maintain that there is nothing “pornographic” in any of the images attached to the four emails and that the term “sexual exhibitionist” is so ambiguous as to be incapable of being sustained.

12 The defendants rely upon the images attached to all four emails to sustain the contextual imputations, and the words within the fourth email (“sample pic” and “this is one of many”) to sustain the contextual imputation that the first plaintiff is a sexual exhibitionist.

13 The question of the capacity of the publications to sustain these imputations must be approached from the perspective of the ordinary reasonable reader/viewer in the context of all four emails and their attachments. As Nicholas J observed in Hayson v John Fairfax at [11], referring to Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, if reasonable minds may possibly differ about whether or not the material is capable of carrying the contextual meaning, that would be “ … a strong, perhaps an insuperable, reason for not exercising the discretion to strike out” (Favell at [6]).

14 Having seen reproductions of the attachments to the emails, and bearing in mind the primacy of the jury’s function in reflecting the ordinary reasonable reader, I cannot conclude that the contextual imputations are not capable of arising. Pornography may be defined as obscene material, designed to excite or provoke sexual desire. I do not doubt that the material may be viewed as sexually provocative. It will be obscene if it is offensive to modesty or decency, however one construes that term in the context of a married relationship (within which the photographs were allegedly taken). However, it is not possible to reach a concluded view that reasonable minds would not differ on this issue and that the outcome would almost certainly be adverse to the defendants. Similarly, the words relied upon in the fourth email are capable of conveying a pattern of behaviour on the part of the first plaintiff that may suggest to the ordinary reasonable reader a predilection for display of a sexual nature (exhibitionism). It may be that the photographs attached to the emails, either severally or individually are sufficient to convey this imputation ; see Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 ; Shari-Lea Hitchcock v John Fairfax Publications Pty Ltd [2007] NSWSC 7.

15 In conclusion, the pleaded contextual imputations are capable of arising and they are material to the issues at trial. Par 17(i)(a) and (b) of the first defendant’s Defence and par 16(i)(a) and (b) of the second defendant’s Defence are not scandalous within the meaning of UCPR 4.15.

The Particulars to the Denial of Breach of Confidence.

16 The Particulars to Par 9, namely (ii), (iii) and (iv) (and the corresponding particulars at par 8 of the second defendant’s Defence) are said to refute the plaintiffs’ claim that they had property in the images and that the information on the laptop was confidential. Both the number and nature of the images, including the references to images taken in public places, are relevant, it is submitted, to a determination of confidentiality.

17 The plaintiffs submit that the existence or content of other material on the laptop computer is entirely irrelevant to their claim of confidentiality in relation to the material contained within the four emails. They further submit that this other material “is plainly confidential and personal to the first and/or second plaintiff”.

18 An assertion that material is confidential is not sufficient to found this claim at law. The basis for relief against a breach of confidentiality :-

lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. Relief under the jurisdiction is not available, however, unless it appears that the information in question has "the necessary quality of confidence about it" (per Lord Greene M.R., Saltman, at p.215) and that it is significant, not necessarily in the sense of commercially valuable (see Argyle v. Argyle (1967) Ch 302, at p 329) but in the sense that the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff.

Moorgate Tobacco Co Ltd v Phillip Morris Limited (1984) 156 CLR 414 ; [1984] HCA 73 at [28].

19 Clearly, the fact that the information was obtained by way of a voluntary transfer of the computer by the plaintiffs to the defendants is relevant to a consideration of whether the plaintiffs continued to enjoy any property in the material attached to the four emails. Those circumstances are also relevant to a consideration of its confidentiality, as is the number and character of the other images and data particularised by the Defences. It is arguable, in my view, that both the quantity of sexually explicit images stored on the computer and the fact that some of those images portray the first plaintiff in public places, are capable of calling into question “the necessary quality of confidence about [the images the subject of the four emails]”.

20 I reject the plaintiffs’ submission that these particulars are scandalous within the meaning of UCPR 4.15.

The Particulars of Truth.

21 The plaintiffs’ submission on this aspect of the Defences claims that the material described in the particulars is irrelevant to a determination of the truth of the imputation that the first plaintiff is a woman of “loose sexual morals”, primarily because (as I apprehend the submission) they are private images taken within the confines of a consenting marital relationship. Putting that argument to one side, the submission appears to ignore the fact that Particulars (i) – (viii) are plainly capable of sustaining the truth of the other imputations pleaded under 31 (b), 35(b) and 35(c) of the SFASC, as well as the contextual imputations pleaded by the defendants. They are not irrelevant in that respect and therefore not scandalous.

22 Particulars (x) – (xiii) are also capable of supporting the truth of the imputation pleaded by the plaintiff at 31(a) and 35(a). A jury may find that the defence of truth has not been made out, on the basis that the activities of the first plaintiff carried out in the privacy of her marital relationship say nothing about her sexual morality, but that possibility does not determine the relevancy of the particulars. A finding adverse to the plaintiffs on this issue cannot be dismissed out of hand.

23 I do not regard the particulars set out at 18 A and 17 A of the respective Defences as scandalous within the meaning of UCPR 4.15. In the alternative, it is submitted that these particulars, and the particulars provided by way of the letter of 31 October 2007 referred to at [4], ought be struck out as oppressive or as an abuse of process.

24 I can discern nothing about the particulars that will prejudice, embarrass or delay the fair trial of the plaintiffs’ causes of action. The particulars are relevant to the imputations, both substantive and contextual, and to the defences. The plaintiffs may not have appreciated that, in pleading the imputations in the SFASC in such general terms, the way was left open for the defendants to rely upon a significant quantity of material, other than that published, in support of the defence of truth ; Maisel v Financial Times (1915) 112 LT 953 at 955, referred to with approval by Hunt J in Allen v John Fairfax & Sons Ltd NSWSC (unreported) 2/12/88. Be that as it may, the defendants are entitled to respond to the SFASC by taking that approach and are obliged to provide particulars of that material.

25 There remains the issue of abuse of process. This submission arises out of earlier proceedings before Brereton J and Nicholas J, together with some correspondence between the parties. In effect, the plaintiffs maintain that the defendants’ access to the additional material on the laptop, as identified in the letter of 31 October 2007, was in breach of an order of the Court of 11 September 2006. In oral submissions, it was suggested that the defendants had disavowed the relevance of the additional material in correspondence, and that their subsequent reliance upon it constituted an abuse of process.

26 The history of the matter may be briefly stated. On 16 August 2006, an order was made restraining the first defendant from distributing, forwarding, communicating, printing or making copies of the images attached to the emails, except for the purpose of communicating with her legal advisers. In addition, the first defendant was restrained from removing, tampering or deleting those images or any email or document associated with them. On 11 September 2006, Brereton J. made a number of orders relating to the images attached to the emails, relevantly requiring the defendants to deliver up those images if they were in their possession. Further orders provided for the appointment of an expert to conduct a forensic examination of the defendants’ computers, within the offices of the defendants’ solicitors, with respect to the storage and provenance of the images attached to the emails. This was at a time in the proceedings when the defendants did not admit that they were responsible for the publication.

27 On 18 September the defendants delivered the laptop and other computers to the plaintiffs’ solicitors in compliance with the orders made by Brereton J. The following day, the laptop and computers were released back to the defendants’ solicitors for the purpose of an examination of them by an expert appointed in accordance with the same orders.

28 On 22 September 2006, the plaintiffs’ solicitors wrote to the defendants’ solicitors concerning the possibility that additional images of the first plaintiff were stored on the laptop computer. On the assumption that such additional images existed, the plaintiffs’ solicitors requested delivery to them of all printed copies of further pictures and, in the case of any copy of further pictures stored in electronic format on the defendants’ computers, the identification of the file name and storage location on the defendants’ computers of the further pictures. Of particular relevance to the present argument, the plaintiffs’ solicitors asked whether the defendants undertook to be bound by the orders made on 16 August 2006 with respect to any further images.

29 On 10 October 2006, the defendants’ solicitors wrote to the plaintiffs’ solicitors acknowledging that further images had been in the possession of the defendants, but that since 18 September 2006 the images stored on their computers had been in the possession of the defendants’ solicitors. In addition, the company undertaking the computer forensic examination also had a copy of the further images. In response to the particular questions asked by the plaintiffs’ solicitors, the defendants’ solicitors acknowledged that the further images were stored in electronic format on the defendants’ computers, and that “the file name and storage location, if known to the defendants, is not a matter relevant to these proceedings." The defendants’ solicitors offered undertakings in relation to those further images in the same terms as the orders of 16 August 2006.

30 On 23 October Nicholas J. noted the undertaking given by the defendants in relation to the further images of the first plaintiff stored on the defendants’ computers.

31 It should be noted that an Amended Statement of Claim was filed on 30 October 2006 and a Further Amended Statement of Claim was filed on 20 December 2006. No Defences were filed to those Statements of Claim. The most that can be said of the defendants’ position as at the end of 2006 and early 2007 is that they were content to “keep their powder dry”.

32 Having regard to this history, it is abundantly clear that the defendants and/or their solicitors have not breached any order of the Court, nor have they given any undertakings with the intention of causing any prejudice to, or misleading, the plaintiffs. Firstly, all of the orders implicitly acknowledge that the laptop computer was the property of the defendants. Indeed, the decision of Brereton J. of 11 September 2006 (see James & Anor. v Faddoul & Anor. [2006] NSWSC 1330 at [6] and [8]) refers to the plaintiffs’ claims for orders relating to the delivery up of any computers “owned, leased or operated by the defendants” and specifically refutes the suggestion that the plaintiffs should be afforded the opportunity to trawl through any such computers for the purpose of accessing other information which might be stored on those computers. None of the orders of this date suggest that the defendants did not have unrestricted access to their computers.

33 Secondly, the orders of 16 August 2006 were expressly subject to the defendants’ rights to communicate with their legal representatives. Accordingly, the communication to the defendants’ solicitors of any further images, other than those attached to the four emails, and any corresponding reliance by the defendants’ solicitors upon those further images for the purposes of mounting a defence to the plaintiffs’ causes of action, were not in breach of those orders or the undertakings given on 10 October 2006.

34 Thirdly, the letter of 10 October 2006 did no more than refute the relevance of the file name and storage location of the further pictures at that time in the proceedings. It did not refute the relevance of the further pictures themselves at that time, or at any future time. Of course, once the Defences sought to rely upon the further images, the filename and storage location of those images were properly given as particulars.

Injurious Falsehood

35 Par 20(i) and (ii) of the Defence filed on behalf of the first defendant and par 19(i) and (ii) of the Defence filed on behalf of the second defendant simply assert the truth of the imputations pleaded by the plaintiffs. The defendants are entitled to meet the claim of Injurious Falsehood in this way. There is nothing scandalous about these pleadings.

Conclusion

36 The plaintiffs have failed to persuade the Court that any of the pleadings in the Defences filed are scandalous, irrelevant, oppressive or an abuse of process, so as to justify the relief sought in the Amended Notice of Motion. The Motion is dismissed with costs.