Justelius v Michael Southern & Associates
[2002] NSWSC 348
•26 April 2002
CITATION: Justelius v Michael Southern & Associates and Ors [2002] NSWSC 348 CURRENT JURISDICTION: Common law FILE NUMBER(S): SC 20244 of 1998 HEARING DATE(S): 30 November 2001 JUDGMENT DATE: 26 April 2002 PARTIES :
DAVID JUSTELIUS
(Plaintiff)v
MICHAEL SOUTHERN & ASSOCIATES PTY LTD
(First defendant)
MICHAEL SOUTHERN
(Second Defendant)
PAMELA SOUTHERN
(Third Defendant)
NATIONWIDE NEWS PTY LTD t/a CUMBERLAND NEWSPAPER GROUP
(Fourth Defendant)
PITTWATER COUNCIL
(Fifth Defendant)
MICHAEL SOUTHERN AND ASSOCIATES PTY LTD, MICHAEL SOUTHERN and PAMELA SOUTHERN
(Cross-Claimants)
PITTWATER COUNCIL
(Cross-Defendant)JUDGMENT OF: Levine J
COUNSEL : K Rollinson
(Plaintiff)T Blackburn
(First, Second and Third Defendants and Cross-Claimants)A Henskens
(Fourth Defendant)KTraill
(Fifth Defendant and Cross-Defendant)SOLICITORS: O'Brien Connors & Kennett
(Plaintiff)Jennifer Harris & Associates
(First, Second and Third Defendants and Cross-Claimants)Cropper Parkhill
(Fourth Defendant)Phillips Fox
(Fifth Defendant and Cross-Defendant)CATCHWORDS: Imputations - capacity - form - difference in substance - joinder - liability of Municipal Council for alleged publication by elected Councillor LEGISLATION CITED: Defamation Act 1974
Local Government Act 1993CASES CITED: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Greek Herald Pty Ltd v Nikolopoulos & Ors [2002] NSWCA 41
Mirny v Network 10 Pty Ltd [2001] NSWSC 177
Rivkin v Amalgamated Televison Services Pty Ltd [2001] NSWSC 432
Sims v Wran (1984) 1 NSWLR 317
Wilkins v Jennings (1985) Aust Torts Reports 80-754DECISION: See paragraph 58
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
defamation list
JUSTICE DAVID LEVINE
FRIDAY 26 APRIL 2002
20244 OF 1998
DAVID JUSTELIUS
(Plaintiff)
v
MICHAEL SOUTHERN & ASSOCIATES PTY LTD
(ACN 001 925 533)
(First Defendant)
MICHAEL SOUTHERN
(Second Defendant)
PAMELA SOUTHERN
(Third Defendant)
NATIONWIDE NEWS PTY LTD t/a CUMBERLAND NEWSPAPER GROUP
(Fourth Defendant)
PITTWATER COUNCIL
(Fifth Defendant)
MICHAEL SOUTHERN & ASSOCIATES PTY LTD
MICHAEL SOUTHERN and
PAMELA SOUTHERN
(Cross-Claimants)
PITTWATER COUNCIL
(Cross-Defendant)
JUDGMENT (Imputaitons – capacity – form – difference in substance – joinder – liability of Municipal Council for alleged publications by elected Councillor)
1 The plaintiff alleges in paragraph 6 of his Further Amended Statement of Claim that in July 1998 the first, second and third defendants published an article in “Pittwater Life”. The first and second defendants are said to be the publishers, and the third defendant the editor, of that newspaper. That publication, the text of which is annexure A to these reasons, is said to carry the following defamatory imputations:
“7(a) The Plaintiff is anti-social because he kept objectionable rubbish on his property;
(b) The Plaintiff failed to obey Council orders and remove rubbish from his property;
(c) The Plaintiff kept unsightly rubbish including wrecked cars and bus bodies on his property;
(e) The Plaintiff conducted himself in such a manner that proceedings were begun against him for contempt of Court”.(d) The Plaintiff has attempted to frustrate Council orders;
2 As I understand it, antecedent to that publication by the first, second and third defendants in “Pittwater Life”, there occurred what the plaintiff alleges in paragraphs 3, 4 and 5 of the Further Amended Statement of Claim.
3 In paragraph 3 it is alleged that in June-July 1998 the fifth defendant (Pittwater Council) by itself, its servants and agents published to the first, second and third defendants what is described as “certain material the substance of which is set out in annexure A”. In relation to what I shall describe as that primary publication it is alleged that what the fifth defendant published to the first second and third defendants carried the same defamatory imputations, (they are set out in paragraph 4 in the Further Amended Statement of Claim).
4 In paragraph 5 of the pleading it is alleged that it was the natural and probable consequence of the fifth defendant’s publication to the first second and third defendants that the material would be republished in “Pittwater Life”. Further (in paragraph 6) the allegation is made that the first second and third defendants published and the fifth defendant caused to be republished the material contained in annexure A.
5 Adopting the same order of events set out above, I note the next series of allegations by the plaintiff as follows: in paragraph 11 of the Further Amended Statement of Claim the first second and third defendants published in “Pittwater Life” of August 1998 the materials set out in annexure B to these reasons. It is alleged that that article carries the following defamatory imputations of the plaintiff.
- “12(a) The plaintiff is anti-social because he kept objectionable rubbish on his property;
- (b) The Plaintiff kept unsightly rubbish including old cars on his property”.
6 Again antecedent to that publication the plaintiff alleges in paragraphs 8, 9 and 10 primary publication by the fifth defendant to the first second and third defendants and republication in paragraph 11. The same imputations are relied upon as arising from the primary publication to the first second and third defendants.
7 In relation to the period September – October 1998 the plaintiff adopts the same pleading format with respect to the third publication by the first second and third defendants in “Pittwater Life” of October 1998, the text of which is annexure C hereto. The plaintiff pleads publication by the fifth defendant to the first second and third defendants (paragraph 13) and republication by the first second and third defendants (paragraph 16). Both the primary publication and the publication in “Pittwater Life” are said to carry the following defamatory imputations of the plaintiff:
- “17(a) The Plaintiff is anti-social because he keeps objectionable rubbish on his property;
- (b) The plaintiff kept unsightly rusting bus bodies and a truck on his property at the corner of Barrenjoey Road and Kevin Avenue for four years;
- (c) The Plaintiff kept unsightly items on his property which offended residents;
- (d) The Plaintiff kept his property is such unclean conditions that he will be required to pay the Pittwater Council the costs of cleaning it up.
- (e) The Plaintiff battled for four years in the courts in order to retain unsightly rusting car bodies and a truck on his property”.
8 Paragraphs 18 to 22 of the Further Amended Statement of Claim concern the fifth defendant and the fourth defendant (Nationwide News Pty Ltd) the publisher of “The Manly Daily”. By paragraph 21 it is alleged that the fourth defendant in “The Manly Daily” of 24 September 1998 published the material, the text of which is set out as annexure D hereto. It is alleged, again, that the fifth defendant was a primary publisher to the fourth defendant of the matter the substance of which is set out in annexure D and that the fifth defendant is liable for the republication by the fourth defendant.
9 The plaintiff alleges that “The Manly Daily” article (and the primary publication to it by the fifth defendant) carries the following defamatory imputations:
- “22(a) The Plaintiff is anti-social because he kept objectionable rubbish on his property
(b) The Plaintiff kept property which was one of the worst eyesores in Avalon;
(c) The Plaintiff kept property at Avalon in an untidy state since the late 1950s;
(d) The plaintiff by keeping his property in an untidy state cost Pittwater Council $18,000 in legal expenses and the cost of removing vehicles from the property and tidying it up;
(e) The Plaintiff opposed the efforts of the Pittwater Council to have the mess on his property cleaned up;
(f) The Plaintiff by keeping eyesores on his property offended Local residents;
(g) By failing to clean up his property the Plaintiff encouraged local vandals;
(h) The Plaintiff kept unsightly items on his property in full view of the hundreds of thousands of visitors to the northern end of the peninsula”.
10 The “Particulars of Publication” are in standard form in relation to the first second and third defendants in relation to “Pittwater Life”, and the fourth defendant in relation to “The Manly Daily”. As to the publications by the fifth defendant the Particulars provided are that the publications were made by its officers, servants and agents “including the compliance officer, Jeff Lofts, Councillor Shirley Phelps”. Interrogatories have been delivered in relation to this aspect but no amendment has been sought in the light of the answers (Exhibit A)
11 The first second and third defendants (“Pittwater Life”) have cross-claimed against the fifth defendant (Pittwater Council). As I understand it from the cross-claim, the publishers of the journal “Pittwater Life” alleged that they requested information from the Council as to the status and history of the proceedings involving the plaintiff (in the Land and Environment Court). The council supplied the first cross-claimant with information apparently including a copy of a letter dated 2 April 1998 to Councillor Shirley Phelps setting out the history of the proceedings.
12 Needless to say the complexity of this litigation has given rise to applications by the defendants in relation to imputations and the structure of the claims.
13 The fourth defendant moves on a Notice of Motion filed on 24 August 2001 and the affidavit of Patrick Campion sworn on the same date. It relies additionally on paragraphs 2 and 3 and annexures A and B of the affidavit filed in support of the Notice of Motion by the fifth defendant (filed on 13 September 2001) being the affidavit of Caroline Holt sworn on 13 September. The verified Statement and answers to interrogatories were admitted as exhibit A.
14 The application of the fourth defendant is of course concerned in the first instance with the allegations encapsulated in the imputations pleaded in paragraph 22 of the Further Amended Statement of Claim.
15 The first general submission made is that all the imputations plead a common act which might be described as the keeping of an “untidy” property by the plaintiff; various synonyms are used for “untidy”. The imputations are pleaded in the active voice, “kept”, or the passive voice (sic) “failed to clean up”. The substance, however, it is said, is the same and by reason of non-compliance with SCR Pt 67 r 11(3), the imputations should be struck out.
16 The second general submission is that reasonable persons may not differ on the question of defamatory effect; that is, it is submitted that it does not lower a person’s reputation merely to say that they keep an untidy property: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165F-166A and that accordingly pursuant to Pt 31 r 2 the question of law as to whether any imputation is capable of being defamatory should be resolved in favour of the fourth defendant.
17 In the context of this component of the application it is difficult to give general rulings as to difference in substance or capacity to defame. As to the former, it must be acknowledged that there is a common “thread” through each of the pleaded imputations – “objectionable rubbish” – “worst eyesores” – “untidy state” – “mess on the property” – “failing to clean up” – “unsightly items”. They speak of the same thing in my view. That is a general proposition. Equally, in relation to the latter aspect, whether they are capable of being defamatory, a general observation can be made to this effect: an ordinary reasonable reader, should not be taken as being unduly fastidious on the one hand or unduly slovenly on the other. That reader however in my view could, upon reading this matter complained of, understand the imputation of the substance of keeping unsightly rubbish on a property to be capable of lowering the plaintiff in the estimation of ordinary decent folk in the community.
18 Whilst I agree with the decision that Bell J reached in Rivkin v Amalgamated Television Services Pty Ltd [2001] NSWSC 432 (28 May 2001) in respect of the word “homosexual”, the circumstances of that matter are starkly different to the present and a judicial decision on capacity in relation to one word in one context need not necessarily offer guidance in relation to another word or series of words or concepts in another context.
19 A more efficient approach in this complex and “messy” case, is to consider those particular imputations under challenge.
20 With respect to imputation 22(a): “The Plaintiff is anti-social because he kept objectionable rubbish on his property”, the fourth defendant contends that the word “anti-social” is imprecise and should be struck out.
21 Reliance is placed upon Simpson J holding in Mirny v Network Ten Pty Ltd [2001] NSWSC 177 at para 22 that that word could be so characterised. Again, whilst I most certainly agree with what her Honour held in the context of that case, it does not necessarily follow that every time the word “anti-social” is used it is infected by imprecision. Whilst the Macquarie Dictionary might provide a definition of “anti-social” as ”unwilling or unable to associate normally with one’s fellows; opposed, damaging or motivated by antagonism to social order or to the principles on which society is constituted”, the use of the word to describe the conduct of the plaintiff in the article could be understood only as meaning the first of the definitions and could only be understood by the ordinary reasonable person of having a meaning to that purport or effect.
22 I am not prepared to strike out imputation 22(a) on that basis. It was submitted in the alternative that the imputation was not capable of being carried by reason of “rubbish” not being conveyed and “anti-social” not being conveyed. That argument seems to be saying no more than those two words were not used in the matter complained of. When one considers components of the matter complained of, for example, “rusty eyesores”, ”the mess cleaned up”,” including three buses”, “a yard full of wrecks”, the use of the word “rubbish” could not be said to be improper or unreasonable. From what is expressly stated or implied, an inference that the person responsible for that state of affairs as referred to in the matter complained of as being “anti-social” could also arise. I hold that the matter complained of is capable of carrying imputation 22(a).
23 Imputation 22(c) “The plaintiff kept property at Avalon in an untidy state since the late 1950’s” is challenged on the basis that the article is incapable of carrying it. All that the article says in relation to the 1950s is that one resident had said that the property had been in an untidy state since the late 1950s; the vehicles had been there since the early 1990s and they were of the greatest concern. I have reflected upon this submission and am persuaded that it must succeed. What is here involved is, in my view, a very strained and forced meaning that would in reality involve a speculative process upon which the ordinary reasonable reader would not embark.
24 I hold that the matter complained of is incapable as a matter of law of carrying imputation 22(c) on the basis that on no rational grounds can it be asserted that the reader would understand that it being said that the plaintiff owned the property since the 1950s. The defendant is entitled to a verdict on the cause of action pleaded in paragraph 22(c) (of the Further Amended Statement of Claim).
25 The next imputation challenged is imputation 22(e): “The Plaintiff opposed the efforts of the Pittwater Council to have the mess on his property cleaned up”. It is argued that the imputation is not capable of being defamatory and that the act of opposing efforts by council could not be considered defamatory. To view the imputation in complete isolation might bring about the result the fourth defendant seeks. However the imputation, in my view being capable of being carried, can be viewed in the context of that which carries it, namely the article itself: Greek Herald Pty Ltd v Nikolopoulos & Ors [2002] NSWCA 41 at paragraphs 20-26 per Mason P. In my view the imputation, viewed in that light, is capable of being defamatory and the matter should go to the jury.
26 Imputation 22(g): “By failing to clean up his property the Plaintiff encouraged local vandals”, it is argued, is incapable of being carried by the matter complained of. I agree with the submissions for the defendant that there is a want of precision in the use of the word “encouraged”. Does that refer to a “static” state of affairs or an active role on the part of the plaintiff with some foresight? The matter complained of points to the absence of fences around the property (and not to any obligation on the part of the plaintiff to fence the property) as being the cause of the vandals getting to what was on the property. Whilst I would otherwise strike out the imputation by reason of imprecision, the whole idea of the plaintiff in terms of an attribution to him of an act being responsible for the vandals is simply incapable of being carried by the matter being complained of and the defendant is entitled to a verdict in respect of imputation 22(g).
27 I return to the first proposition advanced for the fourth defendant namely that the imputations do not differ in substance. The language of each imputation can be found in the matter complained of as a general proposition and the remaining imputations 22 (a), (b), (d) (e), (f) and (h) variously use the various words in the article.
28 Of those remaining imputations I am not persuaded that there is any difference in substance between imputations 22(b) and 22(f). The phrases “the worst eyesores in Avalon” and “keeping eyesores on his property offended local residents” to my mind clearly speak of the same thing.
29 I strike out imputations 22(b) and (f) as contravening SCR Pt 67 r 11(2). The plaintiff will have leave to re-plead. The argument in relation to the lack of difference in substance was devoted to the nature of the description of what was left on the property. Bearing that in mind each of the remaining imputations differs in substance one from the other, I hold.
30 I shall return to the fourth defendant’s application for a separate trial under SCR Pt 8 r 6 of the causes of action pleaded against it in paragraph 22 of the Further Amended Statement of Claim.
31 The fifth defendant (Pittwater Council) moves by Notice of Motion filed on 15 September 2001 that the Further Amended Statement of Claim be struck out as against it pursuant to SCR Pt 15 r 26. The basis of the application is that the plaintiff has failed to particularise the publication by the fifth defendant on which it relies to establish the cause of action sufficient to enable the publication to be identified: see SCR Pt 67 r 12. The fifth defendant is unable to know the case it has to meet. Further in contravention of SCR Pt 67 r 12(i)(e) the plaintiff has failed to particularise the part or parts of the matter complained of relied upon by him in support of the cause of action i.e. the pleaded imputation vis-à-vis the publication said to have been made by the fifth defendant, its servants or agents.
32 Further, a question has arisen as to whether or not the fifth defendant could at law be liable for publication by Councillor Phelps as disclosed in exhibit A. These matters relate to what I have described hitherto as the “primary” publication.
33 In Sims v Wran (1984) 1 NSWLR 317 at 320C Hunt J stated:
- “Where a prominent politician such as the defendant makes a statement at a press conference, it may be taken without doubt that the natural and probable result of his act will be that his statement will be republished in the media, thereby making him responsible for that republication: Speight v Gosnay (1891) 60 LJQB 231 at 232; and usually in whatever form in which that republication takes place: Webb v Bloch (1928) 41 CLR 331at 363-366. But, if the plaintiff intends to complain separately of that republication he must plead each such republication in haec verba as a separate paragraph in his statement of claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication”.
34 Thus it is here argued that here not only is there a deficiency in the pleading and particularisation of the primary publication, there is a deficiency in the pleading and particularisation of the particular republication for which it is sought to find the fifth defendant liable.
35 With respect to the publication – the primary publication – and insofar as it can be understood the issue of republication - by the fifth defendant, its servants and agents, the plaintiff has hitherto been unable further to particularise the publication itself and the circumstances of it, and consequent upon the delivery of answers to interrogatories and further particulars has still been unable to comply with its requirements in that regard. The answers to interrogatories provide no evidence on any of these matters and the correspondence from exhibit A provides no more than a chronology. It is insufficient for a plaintiff to rely upon what is described in a pleading as the “substance” of the material republished by another defendant. The reasons for that are obvious. The alleged original publisher must know precisely what it is alleged against it as originally published and for which it is sought to hold the original publisher liable when republished by another.
36 It is insufficient for the plaintiff to argue, as was done here, that notwithstanding the existing deficiencies, it could make good the allegations (such as they are) by challenging in some way the author of the answers to the interrogatories or calling oral evidence (no doubt requiring the plaintiff to avail itself of s 38 of the Evidence Act (1995)).
37 This strikes me as a clear case for the application of the rule under which relief is sought, no reasonable cause of action is disclosed in this pleading which is otherwise embarrassing as against the fifth defendant and accordingly paragraphs 3, 4 and 5 are struck out; so much of paragraph 6 as alleges “and the fifth Defendant caused to be republished” is struck out; paragraphs 8, 9 and 10 are struck out; so much of paragraph 11 as alleges “and the fifth Defendant caused to be republished ” is struck out; paragraphs 13, 14 and 15 are struck out; so much of paragraph 16 as alleges “and the fifth Defendant caused to be republished” is struck out; paragraphs 18, 19 and 20 are struck out; so much of paragraph 21 as alleges “and the fifth Defendant caused to be republished” is struck out. Further I strike out paragraph (iii) of the Particulars of Publication. I also strike out particular (ii) of the Particulars of Aggravated Damages.
38 I add this: as I mentioned above an issue arose as to whether the Council could be liable at law for the publication of defamatory words by an elected Councillor. This matter was raised in passing during the course of submissions and short submissions in writing were received from Mr Henskens for the fourth defendant. A council is a body corporate – s 220 Local Government Act (1993); a master or principal is vicariously liable for defamatory words published by his servant or agent with his authority or consent: Wilkins v Jennings (1985) Aust Torts Reports 80-754 (per Hunt J). An elected councillor preforms functions as a member of the governing body of the Council and as an elected person under s 323 of the Local Government Act. Under s 275(2) of that act an employee of the Council is disqualified from holding office as a councillor – “civic office” is defined in the dictionary of the Act as the office of councillor or mayor. Thus a councillor is not in law, on the proper construction of the Local Government Act a servant or agent of the Council. For the purposes of these reasons for judgment I accept that I would additionally find that this is so as between the plaintiff and the fifth defendant vis-à-vis Councillor Phelps.
39 Whilst as a result of the orders to which I have just referred any argument about imputations raised by the fifth defendant becomes academic, they affect the second and third defendants and Mr Blackburn of Counsel representing those parties “aligned” his clients with Ms Traill’s objections to the imputations arising from the publications in “Pittwater Life”. It is thus necessary to deal with them.
40 The submissions for the fourth defendant as to difference in substance in general terms and the question whether or not the imputations can be found to be defamatory, in general terms, were adopted by the first, second and fifth defendant and I have nothing further to say to what have said above.
41 As to imputations 4(a) and 7(a) (“anti-social”), I hold that that imputation to be capable of being conveyed by the first matter complained of, annexure A, and capable of being defamatory.
42 As to imputations 4(d) and 7(d) (“the plaintiff has attempted to frustrate Council orders”) it is argued that “frustrate” is a word of uncertain import. It is further argued that in any event the article is incapable of carrying this imputation.
43 This argument appears to be cognate with those submissions advanced by Mr Henskens where the imputation does not include words in the matter complained of. There seems to be almost an assumption that where the pleader has used a word which is not in the matter complained of, the word invariably becomes “uncertain” or lacks specificity. This in effect puts the plaintiff in the position of being “damned if the plaintiff does and damned if the plaintiff does not” use the language of the matter complained of. In Greek Herald Pty Ltd v Nikolopoulos & Ors [2002] NSWCA 41 Mason P usefully reviews pleading requirements in relation to imputations:
- “18. The pleader’s task is to capture the essence of the specific matters imputed in relation to the plaintiff. Necessarily there will be questions of degree and “if a problem arises, the solution will usually be found in considerations of practical justice rather than philology” (per Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990 21 NSWLR 135 at 137). In this as in other areas, pleadings serve the ends of justice: they must not be permitted to assume an independent self-referential function. The pleaded imputation remains “the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand” (per Mahoney JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 428). It is not a straitjacket, although the rules of procedural fairness place limits upon judge and jury’s capacity to enlarge the issues.
- 19. A plaintiff’s pleaded imputations set the scene for the contest which follows. The jury wile have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory or the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations. ( Defamation Act , ss15(2), 16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340). But even here, the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation (see Morosi v Mirror Newspapers Ltd [1997] 2 NSWLR 749 at 711).
- 20. The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-6).”.
44 Bearing in mind these considerations a review of the history of the litigation in the Land and Environment Court in the first matter complained of (annexure A) could lead to the application of the words “attempted to frustrate” when the plaintiff’s conduct in relation to the history is reasonably considered in the context of the article. I am persuaded neither that “frustrate” is of uncertain meaning nor that the matter complained of is incapable of carrying this meaning. Imputation 7(d) I find to be capable of being carried and capable of being defamatory.
45 Imputations 9(a) and (b) and 12(a) and (b); I have dealt with the “anti-social” imputation above, it is capable or arising and capable of being defamatory.
46 The word that concerns the defendants in relation to imputations 9(b) and 12(b) is “unsightly” which again is said to be of uncertain in meaning or lacking in specificity. On any reasonable basis, in my view, this simply cannot be so. Imputation 9(b) and 12(b) I find capable of being carried by the matter complained of and capable of being defamatory.
47 Imputations 14(a), (b), (d) and (e) and the same imputations in paragraph 17 are in issue. These arise, it is said, from the third publication complained of namely annexure C which bears the headline “The Big Clean Up”.
48 As to imputation (a) it is the “anti-social” imputation which I have hitherto allowed and will allow in respect of this publication.
49 As to imputation (b) it is seriously contended for the defendants that this is incapable of arising by reason of there being no reference in the matter complained of to having the bus bodies and a truck on the property for “four years”. This is in my view an extraordinary submission in the light of the four-year battle in the courts between the Council and the plaintiff to have the material removed. The jury can decide whether they are persuaded by such a proposition.
50 Imputation (d) in my view is clearly capable of arising from paragraph 7 of the matter complained of and clearly capable of being defamatory.
51 As to imputation (e) it is argued that this is incapable of being defamatory. It is submitted that the act of battling in court for four years being attributed to a person is not likely or cannot lower that person in the estimation of right thinking people in the community. In context my view it can and it should go to the jury. I interpolate that in this article as in others there could be understood to be an underlying theme of “ratbaggery” on the part of plaintiff. This is what could be described as an underlying insinuation about his conduct. Accordingly with respect to the imputations pleaded in paragraph 17 as is now only relevant as against the first and second defendants all the imputations I find to be capable of being carried by the matter complained of and capable of being defamatory.
52 I have dealt with the imputations pleaded in paragraphs 19 and 22 with respect to “The Manly Daily”.
53 Thus I can return to the application by the fourth defendant under SCR Pt 8 r 6 for the separate trial of the causes of action pleaded in paragraph 22 of the Further Amended Statement of Claim.
54 It is argued that section 7A of the Defamation Act, 1974 and its procedure was intended to put the jury in the same position as the ordinary reasonable reader. The ordinary reasonable reader of annexure D (“The Manly Daily”) will not read it at the breakfast table together with the first three matters complained of. It is submitted that by asking the jury to read the fourth matter complained of with the other matters complained of will give rise to prejudice (in the fourth defendant as I understand it) and cause confusion in the jury’s mind. It is submitted that there is no common matters of fact or law justifying a hearing with the other defendants (SCR Pt 8 r 2).
55 I am not persuaded by these submissions in the light of the structure of this action following the disposal of the various applications with which I have dealt. The jury will be confronted with four separate publications (they will not be confronted with any question of publication, at least I trust they will not, by the respective defendants – excluding the fifth defendant who is no longer a party to the action). The jury will be directed in the usual way to consider each publication separately, to consider in respect of each publication each cause of action separately and the two questions associated with each cause of action (the question of fact as to whether it is carried and the question of fact as to whether it is defamatory).
56 I see no reasonable basis for either defendant being prejudiced if the normal course is followed and much benefit will be achieved in terms of the saving of costs and resources.
57 The fourth defendant’s application in this regard is therefore dismissed.
58 I make the following formal orders:
1. Imputations 7(a) – (e) are capable of being carried and are capable of being defamatory.
2. Imputations 12(a) and (b) are capable of being carried and are capable of being defamatory.
3. Imputations 17(a) – (d) are capable of being carried and are capable of being defamatory.
4. Imputations 22(a), (d) and (h) are capable of being carried and are capable of being defamatory.
5. Imputations 22(b) and (f) are stuck out as not differing in substance, with leave to amend.
6. Imputations 22(c) and (g) are, as a matter of law, incapable of being carried and I enter a verdict for the fourth defendant in respect of those causes of action.
7. The plaintiff’s claim against the fifth defendant, as pleaded in paragraphs 3, 4, 5, 8, 9, 10, 13, 14, 15, 18, 19, 20 and as alleged in paragraphs 6, 11, 16, 21, subparagraph (iii) of Particulars of Publication and subparagraph (ii) of Particulars of Aggravated Damages is struck out.
8. The plaintiff is to pay the fifth defendant’s costs of the action and Notice of Motion.
9. The application by the fourth defendant for separate trials is dismissed.
10. The defendants, save for the fifth defendant, are to pay the plaintiff’s costs of the fourth defendant’s Notice of Motion.
11. The Plaintiff is to file a second Further Amended Statement of Claim against the first, second, third and fourth defendants within 14 days of today in accordance with these reasons in relation to imputations 22(b) and (f).
12. The first, second, third and fourth defendants within 14 days of the service of the second Further Amended Statement of Claim referred to in order 11 are to file defences as to those issues to be determined by a jury pursuant to s7A of the Defamation Act, 1974.
13. At the expiry of 28 days from today the matter is to be placed in the list for call-up for trial by jury pursuant to s7A on the issues as joined between the plaintiff and the first, second, third and fourth defendants.
14. Pursuant to Pt 31 r 2 I order the separate trial by jury of the issues of fact pursuant to s7A of the Defamation Act, 1974 as joined between the plaintiff and the first, second, third and fourth defendants.
- ANNEXURE A
LAW: AS TIME GOES BY, “Pittwater Life”, July 1998
1 Anyone who thinks that the law can sometimes take an onerously long time to reach decisions on anything should consider the cast of Pittwater Council and its action against Mr Justelius, who has a property at 701 to 703 Barrenjoey Road Avalon, on the corner of Kevin Avenue.
2 Following many complaints about the state of the property which has wrecked car and bus bodies and other rubbish on it, the Council served orders on the owner in draft form, allowing him 28 days to clear the land and remove the rubbish.
3 That was on May 5 1995.
4 On June 2, the owner objected and on December 4 of that year solicitors were instructed by Council to enforce the orders to remove the rubbish and vehicles, and reserved to ensure validity.
5 Well, that was 1995.
6 In January 1996 an appeal was lodged in the Land and Environment Court against the terms of the order.
7 February 1996: Matter heard and Mr Justelius granted an extension of time due to “personal difficulties”. A callover to March 13 was granted.
8 March 13 1996, matter listed for hearing in April 1996 when Mr Justelius asked for a further extension of time saying he had completed most of the work. Council opposed this, saying little progress had been made on site. Relisted for
9 May 29, 1996, when it was set to come up again on
10 June 26 1996 and listed for hearing on July 26.
11 Mr Justelius was ill, and it was listed for September 3 when a new hearing date was set for September 24 when the Court ordered removal of all offending material.
12 In October Mr Justelius requested an extension of time as he was unable to comply with the orders in the specified time. That was the end of 1996.
13 Came January 1997, the time had expired and in February it was decided to enforce the orders. Proceedings began for contempt of the court. Hearing set for June. Mr Justelius ill, held over till September 25 and then till December when Mr Justelius sought time to prepare his defence. That was 1997 gone.
14 In February of this year, Mr Justelius was still not ready and the Court took the view that unless there was a clear threat to the environment, Mr Justelius should be given all possible time to prepare his defence, particularly as he was not represented.
15 Came April 1998 and the Council offered to remove all the offending matter and Mr Justelius said he wanted time to think about that.
16 That same month Mr Justelius gave an endorsed undertaking to remove all the material by May 11, but on May 12, in the Court Mr Justelius did not appear but communicated to the Council’s solicitors that he was experiencing difficulties because of the bad weather.
17 A new hearing date has been set for July 24.
- 18 When will this expensive farce ever end?
ANNEXURE B
COMMUNITY LIFE: COURT ORDERS AVALON JUNK CLEANUP, “Pittwater Life”; August 1998
1 A team from Pittwater Council will move in to clean up a block of land on the corner of Park street and Barrenjoey Road in Avalon on September 13.
2 The old vehicles and other rubbish is to be removed and the grass cut following a decision for the Council in the Land and Environment Court in late July.
3 The Council won an order allowing it to remove the vehicle bodies and other junk on or after September 13, and this agreement was signed by both parties – Council and owner Mr Justelius – and noted by the judge Mr Justice Cowdroy who has said the order cannot be set aside. He warned that any non-compliance with the order by Mr Justelius would be treated as contempt.
4 Council has been in the Land and Environment Court on this issue since may 1995, and legal costs have reached around $8500 which will not be recovered.
5 However the cost of clearing the block will be recoverable from Mr Justelius by adding it onto his rate notices.
6 There has been significant public pressure on Council to move on the block, which is opposite a church and a pre-school.
7 Council’s compliance officer Geoff Lofts said he would have a team ready on September 13 to do the job.
ANNEXURE C
“Pittwater Life”; October 1998
1 The Big Clean Up
2 It took less than an hour to remove two rusting bus bodies and a truck from the corner of Barrenjoey Road and Kevin Avenue, following a four-year battle in the courts between Pittwater Council and the owner.
3 Even the final court-ordered clearing of the bodies had to be delayed for several days following a last ditch legal challenge.
4 But on the day the Council finally moved in, property owner Mr David Justelius, according to Council, had agreed to have the vehicles removed and the block of land cleaned up.
5 As this happened, children from St Mark’s pre-school across the road (above) looked on, teachers waved, and passing motorists and pedestrians cheered and applauded.
6 Local Councillors Shirley Phelps (pictured right) who has been pushing for the action after widespread representations from residents, was on hand to watch the event.
7 While the Courts made no order on the costs of the clean-up, General Manager Angus Gordon said Mr Justelius would be sent a bill.
ANNEXURE D
24 September 1998
1 Cheers as rusty eyesores go at last.
2 A thee year battle to rid Avalon of one of its worst eyesores ended yesterday with the removal of a number of rusted vehicles from a Barrenjoey Rd property.
3 Pittwater Council, which has been trying through the courts since 1995 to have the mess cleaned up finally got the go-ahead last week to remove the vehicles, including three buses, from the backyard of a house at the corner of Barrenjoey Rd and Kevin Ave.
4 While the council’s environmental compliance manager, Jeff Lofts, said the battle had been going for so long its successful conclusion hardly seemed like a victory, local residents were ecstatic. Passers-by cheered when and applauded when they saw the derelict vehicles being loaded onto the back of the contractors’ trucks yesterday.
5 One local resident said the property had been in an untidy state since the late 1950s but the vehicles, which had been there since the early 1990s, were the greatest concern. “Because there were no fences around the property it wasn’t long before the vandals got to them and then the children would play in them,” she said.
6 Pittwater councillor Shirley Phelps said the location of the property on a major tourist route meant the yard full of wrecks was in full view of the hundreds of thousands of visitors to the northern end of the peninsula.
7 Mr Lofts said the case had cost the council about $18,000 in legal expenses over three years. But this was not all.
8 The council would also bear the cost of removing the vehicles and tidying up the property. Mr Lofts said the court had made no orders about costs.
9 The property owner, David Justelius, could not be contacted yesterday.
10 ( caption) A council contractor loads one of the rusting buses before removing it from the Avalon backyard where it has been stored since the early ‘90s.
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