Karadonis v Random House Australia Pty Limited

[1999] NSWSC 891

CITATION:

Karadonis v Random House Australia Pty Limited [1999] NSWSC 891

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20249 of 1999

HEARING DATE(S):

27 August 1999

JUDGMENT DATE:

3 September 1999

PARTIES :

NICHOLAS KARADONIS
(Plaintiff)

v

RANDOM HOUSE AUSTRALIA PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	M Rollinson (Plaintiff) T Blackburn (Defendant)
SOLICITORS:	Williamsons Solicitors (Plaintiff) Phillips Fox (Defendant)
CATCHWORDS:	Imputations - capacity - form
ACTS CITED:	Defamation Act 1974 (as amended) s 7A(3)
DECISION:	See paragraph 21

DLJ: 1

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

No. 20249 of 1999

JUSTICE DAVID LEVINE

FRIDAY 3 SEPTEMBER 1999

NICHOLAS KARADONIS
(Plaintiff)

v

RANDOM HOUSE AUSTRALIA PTY LIMITED
(Defendant)

JUDGMENT (Imputations - capacity - form)

1    By his Statement of Claim filed on 28 May 1999 the plaintiff alleges that the defendant, in 1997, published of and concerning him a certain book entitled “Ian Roberts Finding Out”. The relevant pages of the book for the purposes of the action are appended to the Statement of Claim. 2    The imputations pleaded in paragraph 3 as arising from the natural and ordinary meaning are as follows:

“(a) The plaintiff was incompetent as a business manager.
(b) The plaintiff failed in his duty as a business manager to Ian Roberts by telling him to co-operate in the writing of a tacky story about him in a low grade, down market magazine.
(c) The plaintiff attempted to blackmail Ray and Jean Roberts.
(d) the plaintiff threatened Ray Roberts.
(e) The plaintiff did not act in the best interests of his client because he encouraged him to do some promotions for a clothing label posing naked for a contemptible amount of money”.

3    The plaintiff seeks to add the following imputation:

“(f) The plaintiff is dishonest because without the permission of Mr Roberts and against his wishes the plaintiff approved of the article in the ‘New Weekly’ while Mr Roberts was overseas”.

4    Imputations (c), (d), (e) and (f) are under challenge. 5    It is said for the defendant that imputation (c) highlights the class of cases of imputations where it is simply not sufficient to “parrot” something which appears in the matter complained of. The words in the matter complained of may be used in a figurative sense and the imputation has to be characterised with precision. 6    A similar argument is advanced in relation to imputation (d). 7    I reject the submissions for the defendant in relation to both. This is a case where the words of the matter complained of are perfectly clear and the words in the imputation are perfectly clear. The coincidence between the latter and the former gives rise, in my respectful view, to no issue encapsulated by the expression used by counsel for the defendant “what is the jury to make of that?” There can be no rational or sensible basis for suggesting that a jury would not understand what either of those imputations means as a compilation of ordinary English words. There will be no difficulty in the jury determining whether or not as a matter of fact the relevant part of the book carries such meanings. 8    Imputations (c) and (d) are proper in form, are capable of arising, are capable of being defamatory and will go to the jury. 9    With respect to imputation (e) it is contended for the defendant that the component of it that the plaintiff did not act in the best interests of his client is not necessarily capable of being defamatory in the light of the balance of the imputation. It is further argued that there is nothing there to support the notion of “contemptible amount of money”. As to the last I would have considered the statement “some friends who thought the money was lousy” sufficient by themselves and in context to sustain that component of the imputation. 10    A pertinent part of the matter complained of is as follows:

“Nick had approached Ian a few months earlier and offered to represent him. He had encouraged Ian to do some promotions for a clothing label (naked) against the advice of some friends who thought the money was lousy. Ian seemed more concerned with whether the client was a nice bloke than with protecting himself as an advertising asset. Then New Weekly appeared offering not unattractive quick money - $20,000, less Nick’s commission. Never mind that it was supermarket journalism, definitely downmarket, lower than Lowe’s and taking Ian beyond the reach of a quality advertising market”.

11    I am of the view that there is sufficient within that part of the matter complained of set out above, at least, to sustain on a capacity argument imputation (e). I do not consider it to be improper in form and I consider it is capable of being defamatory. 12    Imputation (e) will go to the jury. 13    As to imputation (f), the short point for the defendant is that the imputation is incapable of arising. The imputation in form asserts the “condition” of the plaintiff namely, dishonesty, and the basis therefor namely, that without Mr Roberts’ approval and against Mr Roberts’ wishes the plaintiff approved the article whilst Mr Roberts was abroad. 14    A relevant part of the matter complained of is as follows:

“Ian was told that if he didn’t cooperate with the magazine they were running with a story anyway. Better to take the money and at least have a say in the story. He understood he had final approval on the story. However, it appeared the contract enabled Nick to approve it, and the article hit the stands after Ian had left for a holiday in England”.

15 It was argued for the plaintiff that implicit from the statement to the effect that Mr Roberts understood he had final approval of the story was the proposition that he had been told the consequences of his non-cooperation and that his understanding as to approval could only have come from the plaintiff. 16 After considering this imputation in particular and the fact that it was attacked on the basis of capacity, I have come to the view that it is really a jury question. I find that the material quoted from the relevant section of the book is capable as a matter of law of giving rise to this imputation , and the imputation is capable of being defamatory. 17 Imputation (f) will go to the jury. 18 It thus comes about that all imputations pleaded by the plaintiff and to be relied upon (including (f)) are capable of arising, capable of being defamatory, are proper in form and will go to the jury. 19 I see no need for the plaintiff to incur the additional costs of filing a further Amended Statement of Claim to plead imputation (f) at this stage. The defendant knows that it is there and that it will be subject to the consideration of the jury. 20 This is an appropriate case for an immediate referral of the matter to that tribunal under s 7A(3) of the Defamation Act 1974 (as amended). It is also appropriate that the defendant indicate without delay whether or not there is to be an issue on publication as is alleged in paragraph 2 of the Statement of Claim. If there is to be an issue (and I would find that surprising unless there are reasonable grounds therefor) it will be speedily disposed of before the hearing. 21    The formal orders are:

1. Imputation (a) - (f) inclusive will go to the jury.

2. I order the separate determination of the question of fact as to whether the matter complained of carries the imputations (a) - (f) inclusive by the jury in accordance with s 7A(3) of the Defamation Act 1974 (as amended).

3. I place the matter in the Holding List.

4. The defendant is to pay the plaintiff’s costs of the application heard on 27 August 1999.

5. Liberty to restore to the Defamation List on 5 days notice.

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Last Modified: 09/03/1999