Karandonis v Nationwide News Pty Ltd

[2009] NSWDC 166

CITATION:	Karandonis v Nationwide News Pty Ltd [2009] NSWDC 166
HEARING DATE(S):	2 July 2009
JUDGMENT DATE:	2 July 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Plaintiff’s imputations (a)-(f) and proposed alternatives (g)-(j) are struck out with leave to replead. (2) Reserve the position of the plaintiff and second defendant in relation to this application. (3) Plaintiff pay first defendant’s costs. (4) Amended Statement of Claim in 7 days. (5) Judge Gibson to email reasons for decision to parties later today. (6) Matter stood over for further directions to Friday 17 July 2009 at 9:00am in the Defamation List.
CATCHWORDS:	TORT - defamation - capacity - all imputations struck out as incapable of arising
LEGISLATION CITED:	Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2
CASES CITED:	Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Bik v Australian Consolidated Press Ltd [1973] 2 NSWLR 473 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Gillespie v Nationwide News Pty Ltd [2002] NSWSC 553 Griffith v John Fairfax Publications [2004] NSWCA 300 Ma Ching Kwan v John Fairfax Publications Pty Ltd (NSW Court of Appeal, 30 July 1998, unreported) Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Rep 81-915; [2007] NSWCA 254 Marsden v Amalgamated Television Services Pty Ltd (1998) 43 NSWLR 158 Woodward v Australian Broadcasting Corporation (Supreme Court of NSW, Levine J, 27 June 1996, unreported)
PARTIES:	Plaintiff: Nick Karandonis First Defendant: Nationwide News Pty Ltd Second Defendant: Ron Delezio
FILE NUMBER(S):	1508 of 2009
COUNSEL:	Plaintiff: Mr R Rasmussen First Defendant: Mr D Sibtain
SOLICITORS:	Plaintiff: Balog & Associates First Defendant: Blake Dawson Second Defendant: Allens Arthur Robinson

Judgment

[1] The plaintiff commenced proceedings for defamation by Statement of Claim filed on 9 April 2009 concerning an article published in The Daily Telegraph on 13 February 2009. This article is set out in a schedule to this judgment.

[2] The application is for the court to determine these issues as separate questions of law pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) and to strike out the imputations pursuant to r 14.28(1) Uniform Civil Procedure Rules 2005. The relevant Act is the Defamation Act 2005 (NSW).

[3] The plaintiff pleads the following imputations arise from the matter complained of:

(a) The plaintiff caused a relationship breakdown with Ron Delezio thereby prejudicing the Day of Difference Foundation. (Paragraphs 1, 2, 3, 4 and 7)
(b) The plaintiff caused his dispute with Ron Delezio to turn into a row thereby hurting Ron Delezio and his wife Carolyn. (Paragraphs 1, 2, 3, 4 and 7)
(c) The plaintiff wrongfully caused the breakdown of his business relationship with Ron Delezio to such extent that Ron Delezio had to retain the services of legal teams Allans [sic] Arthur Robinson. (Paragraphs 1, 2, 3, 4 and 7)
(d) The plaintiff was responsibility [sic] for causing a relationship breakdown with Ron Delezio thereby hurting him and his wife Carolyn. (Paragraphs 1, 2, 3, 4 and 7)
(e) The plaintiff caused his business relationship with Ron Delezio to sour thereby harming the charitable organisation that raises money for critically injured kids. (Paragraphs 1, 2, 3, 4 and 7)
(f) The plaintiff avoided speaking to “The Daily Telegraph” because he was apprehensive his answers to questions would put him in a bad light” [sic]. (Paragraphs 1, 2, 3, 4, 7 and 9)

[4] This matter was listed for an imputation argument this morning, during which Mr Rasmussen, counsel for the plaintiff, sought to add four imputations to the Statement of Claim:

(g) The plaintiff is greedy because he is not prepared to work for a charity for charitable reasons but only for financial gain.
(h) Because of the plaintiff’s greed, he permitted the relationship with the Day of Difference Foundation to unravel over finances.
(i) The plaintiff is so greedy that he permitted an 18 month relationship with a worthy charity to unravel over finances.
(j) The plaintiff hurt Ron and his wife Carolyn because he has allowed a personal dispute with Ron to become a row.

[5] I heard this matter as a special one-hour fixture at 9 am today. As I have a part-heard trial running this week which must start at 10 am, I made the orders set out below in court without delivering an ex tempore judgment, as there was no time to do so. It is important that a fully reasoned judgment be provided when orders of this kinds are made (Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6). Being aware of my difficulties with a part-heard matter involving concurrent expert evidence, the parties in this case have agreed that I should provide written reasons for making these orders by email after the court rises this afternoon.

[6] The defendant’s application is for all of the imputations to be struck out on the basis that none of the meanings pleaded is capable of arising.

[7] The headline “Sophie dad row” and photograph of the second defendant (with the caption “Dispute: Delezio”) draw attention to the conduct of Mr Delezio (who is the second defendant) rather than the plaintiff. Paragraph 2 refers to “a relationship breakdown” between Mr Delezio and the plaintiff, who is described as his “former publicity manager” and says that Mr Delezio has retained legal team Allens Arthur Robinsons to “help him mediate” this relationship breakdown. The matter complained of then goes on to refer to the work of the foundation set up to raise money for critically injured children, and says that after eighteen months the relationship between the plaintiff and Mr Delezio “unraveled…over finances”. One dispute between them over the charity but the other, “a second dispute pertaining to Delezio personally”, is still “at issue”.

[8] Some inkling of the personal dispute comes from paragraph 8, which speaks of Mr Delezio and his wife giving up their good incomes to work for injured children and their preference to “go without to benefit those in greater need”. The article says Mr Delezio was reluctant to discuss the matter but that he and his wife were “’hurting’ over the matter”.

[9] This paints a picture of the breakdown of a work relationship between the plaintiff, a publicity manager, and Mr Delezio and his wife, who had set up the foundation following their own “personal tragedy” concerning their daughter, and how they would “go without” to benefit those in greater need.

[10] The defendant submits that the breakdown of a work or personal relationship, when described in this even-handed fashion, is simply not capable of conveying any of the imputations pleaded by the defendant. In addition, the defendant makes the following specific objections to each of the imputations:

(a) imputations (a) - (e) all contain the word “caused”, which is impermissible for the reasons explained by Hunt A-JA in Marsden v Amalgamated Television Services Pty Ltd (1998) 43 NSWLR 158 at 163A - C. Whether this word is permitted should depend on whether what the word “caused” means can be ascertained from the text of the publication: Gillespie v Nationwide News Pty Ltd [2002] NSWSC 553 at [14]. The defendant’s objection here is more fundamental; there is nothing in the matter complained to capable of conveying that the plaintiff caused any of these acts.
(b) Imputation (c) offends further, in that it says the plaintiff “wrongfully” caused, which is impermissible for the reasons explained by the Court of Appeal in Ma Ching Kwan v John Fairfax Publications Pty Ltd (NSW Court of Appeal, 30 July 1998, unreported).
(c) Imputations (a) and (e) and imputations (b) and (d) do not differ in substance.

[11] Mr Rasmussen for the plaintiff shortened the argument by abandoning all these imputations and seeking in their place to plead new imputations, namely those in paragraph [3] above.

[12] Imputations (g)-(i) are imputations of greed. There is nothing in the matter complained of, even if the ordinary reasonable reader drew an inference on an inference, which could support an imputation that the plaintiff was greedy. The relevant passages in the matter complained of refer to mediation of a financial dispute in circumstances where Mr Delezio and his wife are idealists who “go without”, and which is described as having been settled.

[13] The test for whether or not an imputation is conveyed is set out in Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Rep 81-915; [2007] NSWCA 254 at [14]:

“[14] In Griffith v John Fairfax Publications [2004] NSWCA 300, Tobias JA (with whom Sheller JA and Young CJ in Eq agreed) set out at [19] the principles that govern the issue in question here in the following terms:

“The principles applicable to the correct approach of the primary judge and this Court to the issue [whether the matter complained of is reasonably capable of carrying the imputations pleaded] ... may be summarised as follows:

(a) Section 7A(1) of the [ Defamation Act 1974 (NSW)] is declaratory of the common law, namely, that the issue of the capacity of the matter complained of in a defamation action was properly described as the task of deciding whether it would be open to the jury in the particular case to find that ordinary reasonable readers would have understood the matter complained of, when read as a whole, in the defamatory sense pleaded.

(b) On any appeal, this Court is required to independently come to the conclusion as to whether there is a case to go to the jury.

(c) If reasonable persons may differ as to whether the matter complained of was capable of carrying the imputation pleaded, then the issue must be left to the jury; otherwise, it is a matter for the court.

(d) The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it; in deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable; accordingly, any strained or forced or utterly unreasonable interpretation must be rejected.

(e) The ordinary reasonable reader is a person of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal. However, that person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs.

(f) The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader.

(g) The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking.

(h) There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual.

(i) There is a distinction to be drawn in the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded. The distinction is between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said: it is the former approach, not the latter, which must be adopted.””

[14] The very great caution the court should exercise when striking out imputations has been stressed repeatedly by the court since Bik v Australian Consolidated Press Ltd [1973] 2 NSWLR 473. This is particularly important in a case where, as occurred in Bik, the application effectively is to strike out all of the imputations.

[15] Having regard to the test set out in Malcolm, this clearly is a case where the matter complained of is certainly one where the ordinary reasonable reader would be capable of a degree of loose thinking and would read between the lines. If reasonable persons would differ, then the imputations must go to the jury. The problem is that the matter complained of really does portray the dispute evenhandedly and describes the behaviour of each of the parties in a sympathetic way, referring to mediation, resolved disputes and hinting at personal reactions of the Delezios (rather than any fault of the plaintiff) as perhaps being the explanation.

[16] It is perfectly possible to describe a dispute between two persons in a neutral way so that neither of the parties can point to defamatory stings. In Woodward v Australian Broadcasting Corporation (Supreme Court of NSW, Levine J, 27 June 1996, unreported) the plaintiff brought proceedings for a broadcast which a guest, Ms McPhee, who had been invited onto the Philip Adams programme discussed a dispute in which Mr Woodward was involved. Mr Adams, on learning that his guest had never met Mr Woodward, offered to do some “matchmaking” to achieve a “rapprochement”, including a “lovely little candlelight dinner”, saying “I’m sure I can sort this out, it’s only a misunderstanding”. Levine J considered that imputations, including an imputation that the plaintiff hated Ms McPhee, were not conveyed because the context of the discussion was a light-hearted discussion of a dispute in which no blame was sheeted home to anyone.

[17] Although the matter complained of in these proceedings is not light-hearted, it similarly fails to identify any act or condition of the plaintiff that is capable of conveying imputations of any kind of wrongdoing, and particularly greed. Imputations (g), (h) and (i) are simply incapable of being conveyed.

[18] Imputation (j), which the plaintiff proposed as an alternative to (b), asserts that the plaintiff has allowed a personal dispute to become a row. However, the matter complained of does not portray the dispute as escalating; it reports that one of the disputes has been resolved. If anything, the heading “Sophie dad row” and the use of the word “dispute: Delezio” under the photograph suggest that any rowing is coming from Mr Delezio, since the unresolved dispute is with him personally.

[19] In Woodward Levine J considered that the very nature of the imputations and the plaintiff’s submissions in support “demonstrate the tortuous approach that would be demanded of the listener to this programme to elicit any one of the imputations pleaded” (at 11). The same is the case here.

[20] Mr Rasmussen, in a further attempt at refinement, suggested a further redraft of the imputations to plead imputations of selfishness. However, I did not consider it fair to the defendant to have to deal with a third set of imputations on the run, so I have instead granted leave to replead, although there must come a time when repleading will have to stop: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37.

[21] I have not made any orders in relation to the second defendant. The pro bono solicitor (Mr Afshar of Messrs Allens Arthur Robinsons) appearing for the second defendant informed me from the bar table that last night the plaintiff and second defendant successfully resolved all matters, including this action, at a mediation. At the request of Mr Rasmussen, who knew nothing of this development, and with the concurrence of Mr Afshar, I will reserve their respective positions in relation to this application.

Orders

(1) Plaintiff’s imputations (a)-(f) and proposed alternatives (g)-(j) are struck out with leave to replead.

(2) Reserve the position of the plaintiff and second defendant in relation to this application.

(3) Plaintiff pay first defendant’s costs.

(4) Amended Statement of Claim in 7 days.

(5) Judge Gibson to email reasons for decision to parties later today.

(6) Matter stood over for further directions to Friday 17 July 2009 at 9:00am in the Defamation List.

Schedule

1. Sophie dad row

2. Ron Delezio, father of burns victim Sophie, has engaged lawyers to help him mediate a relationship breakdown with his former publicity manager Nick Karandonis. Delezio yesterday confirmed he had retained the services of legal team Allens Arthur Robinson after a business relationship with Karandonis soured.

3. Delezio recruited Karandonis to work on behalf of his Day of Difference Foundation, a charitable organisation that raises money for critically injured kids.

4. The foundation grew out of his own personal tragedy after daughter Sophie was injured when a car crashed into her childcare centre. Karandonis worked with Delezio for 18 months but Confidential has learned the relationship unravelled last year over finances.

5. This column understands Delezio and Karandonis have settled a dispute concerning the charity and at issue, presently, is a second dispute pertaining to Delezio personally.

6. As he prepared yesterday for a trip to Victoria to offer his foundation’s services to Melbourne hospitals working with bushfire burns patients, Delezio was reluctant to discuss the details of the dispute.

7. A friend of the family said Ron and his wife Carolyn were “hurting” over the matter.

8. “Ron and his family have forfeited their right to good incomes to set up and operate the foundation,” the source said. “They could be earning more money working in their old jobs, but they have seen a need in the community for the work they do and they go without to benefit those in greater need.”

9. Karandonis could not be reached for comment yesterday.

10. [Photograph with caption “Dispute: Delezio”.]

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