Khalil v Fairfax Media Publications Pty Ltd

[2017] NSWDC 346

District Court

New South Wales

Medium Neutral Citation:	Khalil v Fairfax Media Publications Pty Ltd [2017] NSWDC 346
Hearing dates:	30 November 2017
Date of orders:	07 December 2017
Decision date:	07 December 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendant’s application for summary dismissal of the proceedings refused. (2) Grant leave to the plaintiffs to replead imputations 3(a) to 3(f). (3) Amended Statement of Claim to be filed and served in 7 days. (4) Costs reserved with liberty to apply. (5) Liberty to the parties to bring in Short Minutes of Order for a timetable for the proceedings.
Catchwords:	TORT – defamation – application for summary dismissal of claim on the basis that no defamatory imputations could arise – nature of test for summary dismissal – application refused – challenge to form of imputations – whether “involved” is a “weasel word” – whether challenges to the form and capacity of imputations may be made on such a basis – imputations struck out with leave to replead
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Accommodation West Pty Ltd v Aikman [2017] WASC 157 Adeang v Australian Broadcasting Corporation [2016] FCA 1200 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 Dunsec Pty Ltd v Nationwide News Pty Ltd [2000] NSWCA 155 Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 Hepburn v TCN Channel Nine [1984] 1 NSWLR 386 Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257 Lim v TVW Enterprises Pty Ltd [2002] WASC 214 Ma Ching Kwan v John Fairfax Publications Pty Ltd [1998] NSWSC 321; Court of Appeal, Mason P Meagher and Handley JJA, 30 July 1998 (unreported) Maher v Nationwide News Pty Ltd (No 2) [2013] WASC 254 Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781 Pickering v Publishing & Broadcasting Pty Ltd (Supreme Court of NSW, Levine J, 21 June 1996) Trkulja v Google Inc [2017] HCATrans 129
Category:	Procedural and other rulings
Parties:	First Plaintiff: Khalil Khalil Second Plaintiff: Hassan Souied Defendant: Fairfax Media Publications Pty Ltd
Representation:	Counsel: Plaintiffs: Mr R Rasmussen Defendant: Mr M Lewis   Solicitors: Plaintiffs: Peter Erman Defendant: Bank Haddock Fiora
File Number(s):	2017/306390
Publication restriction:	None

Judgment

1. These are proceedings for defamation commenced by statement of claim filed on 9 October 2017. The defendant brings an application for summary dismissal of the whole of the claim on the basis that the matter complained of is incapable of identifying the plaintiffs in any manner capable of giving rise to a defamatory imputation. The defendant alternatively challenges the form and capacity of the imputations pleaded.

The publication

2. This is a court report of criminal proceedings. It starts with an explanation that it was only after non-publication orders were vacated in the Supreme Court in relation to a lengthy and complex criminal trial involving four members of the “Brothers for Life” gang that the story could now be told of the dramatic events occurring in the court itself (namely the embedded Channel Seven video showing an assault in the court precincts) as well as the crimes leading to the guilty verdicts returned by the jury.

3. The structure of the matter complained of is as follows:

1. The heading and paragraphs 1 to 4 explain that this is an account of a “lengthy court trial” in which “senior members of a notorious Sydney street gang violently turned on each other in extraordinary scenes”, resulting in jury verdicts of guilty to 18 charges.

2. The first topic is the video of the Channel Seven news programme (paragraph 4A); there is a caption to this video (paragraph 5) which states that “members of the Brothers for Life gang had been found guilty of a series of shootings in Sydney”. (An interesting question arises as to whether this can form part of the matter complained of if it is referred to in the print publication but, for the purposes of this argument, the parties agreed that the contents of the Channel Seven news bulletin formed part of the matter complained of). I note that the inclusion of this video in the matter complained of puts the defendant in a difficult position in relation to the summary dismissal application, as I have already held (in a separate argument in the proceedings the plaintiffs have commenced against Channel Seven) that this broadcast, of itself, is reasonably capable of conveying imputations defamatory of the plaintiffs.

3. Paragraphs 6 to 10 provide details of the “senior members of Brothers for Life” (paragraph 6) and the circumstances in which the non-publication orders were lifted. Three named persons are identified as being found guilty of certain offences and there is a photograph of the backs of three persons wearing “Brothers for Life” T-shirts (identified as “the street gang Brothers for Life”) accompanying this part of the publication.

4. The first of the shootings is identified as the charges arising from the shooting of Mahmoud Hamzy, who was killed apparently by accident when the trio of convicted persons were attempting to murder his cousin, Mohammed Hamzy. Omar Ajaj, described as “a man with MEOCS [sic] tattooed across his neck” (paragraph 15) is described as also having been injured.

5. From paragraph 18 onwards, the report states that “the trio” were also convicted of soliciting someone to kill Michael Odisho less than a week later. Odisho, “whose tattoos denote his own gang allegiances” (paragraph 20), was shot outside his home but survived.

6. From paragraph 23 onwards, the shooting of “a 13-year-old girl” when the intended target was her brother, described as “a low ranking Brothers for Life member”, is described. There is a photograph of Mr Odisho’s back tattoos denoting his gang allegiances underneath this paragraph, although this clearly relates to the Odisho shooting.

7. The next section, paragraph 27 onwards is the passage in which the plaintiffs are identified:

“27. Three days later Abdul Abu-Mahmoud was shot in a drive-by shooting outside the Chokolatta Cafe in Bankstown.

28. Just after midnight on November 7, Mr Abu-Mahmoud’s car was stormed by gunmen armed with machine guns, firing through its windows so ferociously they destroyed a headrest.

29. Miraculously, the three men inside – Mr Abu-Mahmoud, Khalil Khalil and Hassan Souedi – survived.

30. The court had previously heard Mr Abu-Mahmoud was targeted because the Blacktown BFL members thought he had links to a real estate agency that could find out Farhad’s address.

31. [Picture with Caption “Former Brothers for Life Blacktown chapter leader Farhad Qaumi. Photo: Supplied”]

32. Intercepted phone calls captured Farhad’s loyal cronies talking of the need to “protect our leader”.”

8. Finally, it is noted that Farhad and Mumtaz Qaumi were also found guilty of a drive-by shooting targeting a home and of separate firearm offences. This is followed by a correction to an earlier story identifying Mumtaz and Jamil Qaumi as the two persons involved in a machine gun attack on Mr Abu-Mahmoud’s car.

4. The plaintiffs are named in the Sydney Morning Herald report at paragraph 29 and in the video which is embedded in it.

The defendant’s submissions

5. The defendant submits that the ordinary reasonable reader could not reasonably conclude that Mr Mahmoud, let alone the plaintiffs who were in his car with him at the time of the shooting, were members of the Brothers for Life gang, as opposed to innocent victims of a drive-by shooting. It is submitted that it would be clear to the ordinary reasonable reader that:

1. the target of the shooting was Abdul Abu-Mahmoud (paragraphs 27, 28 and 30);

2. it was Mr Mahmoud’s car that was shot at and the plaintiffs were merely “inside” his car (paragraph 29);

3. Mr Mahmoud and the two plaintiffs (who are named) “miraculously” survive the shooting (paragraph 29);

4. the reason Mr Mahmoud was “targeted” was because the four Brothers for Life members who have been found guilty (and indeed those loyal to them) “thought he had links to a real estate agency that could find out Farhad [Quami]’s address” (paragraph 30);

5. the reader is then told that intercepted phone calls captured Farhad’s “loyal cronies” talking of the need to “protect our leader” (paragraph 32).

6. Mr Rasmussen’s brief submissions were to the effect that what was being revealed in the broadcast was internal gang warfare, where the targets were generally other members of the gang, in circumstances where the plaintiffs had been named in the Channel Seven broadcast and where innocent victims (such as the 13-year-old girl) were not. Mr Rasmussen also pointed to the seriousness of the attack (which the language of paragraph 28 eloquently demonstrates) as part of the violent internal conflict and to the common thread of going to the homes of Brothers for Life members for the purpose of carrying out shootings.

The relevant principles

7. The care that a judge must take in applications such as these has recently been emphasised by the High Court of Australia in Trkulja v Google Inc [2017] HCATrans 129, a case factually similar to the present in that the plaintiff was the victim of a shooting who complained of imputations that he was a criminal himself.

8. During the course of granting leave to appeal, Nettle J made observations that evidence may be led at a trial concerning defamatory meaning:

“NETTLE J: Mr Heywood-Smith, if I can just go to what appears to me at least, speaking for myself, to be the principal issue. It is really about whether or not the Court of Appeal was correct to undertake the exercise they did without the benefit of the trial and factual findings which would have resulted from it, is it not?

MR HEYWOOD-SMITH: Certainly, your Honour. That is our position and if I can best illustrate it - if there had been proper pleadings and the parameters of the litigation were thereby established there would have then needed to be discovery and here if, for example, there had been a defence which had denied publication or which had pleaded innocent dissemination at common law or the statutory defence, which was section 32, there would have been an obligation on Google to discover such material as policies as to content removal, manuals as to content moderation, all of those sorts of matters including the policies and operation manuals at the crawling and indexing stage.

Now, the Court is aware that the search engines operate by crawling the web and they pick up what they want to pick up and they reject what they do not want to reject, then at the indexing stage they index material under certain headings. Here, for example, to take this case as an example, one might say, all right, Mr Trkulja had proceedings in the Victorian Supreme Court and he was successful against Google some years ago and there are articles about that, that is appropriate, but at the indexing stage questions arise as to whether that story should be indexed under the heading of “Google Defamation Litigation” or should it be indexed under the heading “Melbourne Criminal Underworld Figures”.

…

NETTLE J: Mr Heywood-Smith, would the question of whether it is capable of being defamatory be at all informed by evidence that might be adduced if there were a trial?

MR HEYWOOD-SMITH: Quite so, if your Honour pleases. Well, it might be. The defendant in those proceedings might seek to adduce evidence as to what the reasonable individual user of a search engine – what information they have, so it is quite possible.”

9. These observations underline the longstanding rule that only in the clearest of cases should a judge make orders “driving the plaintiff from the judgment seat” (Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679), and any challenge to defamatory meaning on a summary dismissal basis should be viewed with the utmost caution.

10. In the present case, the plaintiffs are identified by name as persons who were shot at as part of internecine gang warfare. The common thread with all of the shootings is that the targeted victims are rival gang members, even though the offenders have, on a surprising number of occasions, shot someone else instead. The reference to Mr Abu-Mahmoud being able to obtain Mr Farhad’s address is significant in that all the shootings occurred outside the homes of the victims and Mr Farhad’s “loyal cronies” wanted to “protect our leader” (paragraph 32), presumably from being shot outside his own home.

11. Mr Lewis submitted that while this may suggest Mr Abu-Mahmoud was complicit, in that he had links to obtain that information, the presence of the two plaintiffs in his car was merely fortuitous, like that of the 13-year-old girl.

12. However, as Mr Rasmussen points out, this was a ferocious attack where gunmen “stormed” the vehicle armed with machine guns, and the survival of the three car occupants is described as “miraculous” (paragraphs 28 – 29). The assailants intended to kill all three persons as a pre-emptive strike to protect their leader from the gang rivals they feared were plotting his demise in a home shooting of their own. All of these incidents of violence were between gang members, and the portrayal of this incident is given as yet another example.

13. The facts of this case are far removed from examples such as Bik v Mirror Newspapers Ltd. The imputations arising from an allegation of membership of Brothers for Life are serious. The burden of establishing grounds for summary dismissal of proceedings is high, and the defendant has not discharged it. Whether defamatory imputations of the kind currently pleaded, or of a similar nature (noting the difficulties with the form of the imputations set out below) is an issue which must be determined at trial. I am fortified in this regard by the observations of Mason P in Dunsec Pty Ltd v Nationwide News Pty Ltd [2000] NSWCA 155 at [16]-[20].

14. Publications such as the present, where members of the jury bring their understanding of how ordinary members of the community (as opposed to lawyers and judges) read publications of this nature, form a vital part of defamation proceedings.

15. Accordingly, the defendant’s application for summary dismissal of the proceedings is refused.

The challenges to the imputations pleaded

16. This brings me to a consideration to the challenges to the form and capacity of the imputations which, by reason of recent decisions of the Federal Court which are inconsistent with or have refused to follow longstanding Court of Appeal authority, has been a question of more than usual difficulty.

17. The imputations in questions are as follows (paragraph 3 of the statement of claim):

1. The first plaintiff was a member or associate of the notorious Brothers for Life criminal group (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32, 35).

2. The first plaintiff was the target of gunmen armed with machine guns because he was involved in internal and violent feuding by the notorious Brothers for Life criminal gang (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32, 35).

3. The first plaintiff was shot in a drive-by shooting because of his association with members of the notorious Brothers for Life criminal gang (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32, 35).

4. The second plaintiff was a member or associate of the notorious Brothers for Life criminal group (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32, 35).

5. The second plaintiff was the target of gunmen armed with machine guns because he was involved in internal and violent feuding by the notorious Brothers for Life criminal gang (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32, 35).

6. The second plaintiff was shot in a drive-by shooting because of his association with members of the notorious Brothers for Life criminal gang (paragraphs 1, 5, 6, 7, 8, 12, 13, 14, 16, 27, 28, 29, 30, 32, 35).

18. The principles for challenges to the form of the imputation were until recently comparatively settled. However, this is no longer the case, as there are now decisions of the Federal Court of Australia which not only conflict with longstanding authority of the New South Wales Court of Appeal but, to a degree, with each other.

19. The principal difficulty is that imputations 3(b) and 3(d) use the word “involved”, a word held in a series of decisions to be a “weasel word” and thus impermissible in an imputation. The defendant, in correspondence and submissions, had raised the usual objections to this as a “weasel word”, and the plaintiffs had responded in kind, without referring to the recent Federal Court authority on this issue discussed in more detail below. It was regrettably necessary for me to reserve to consider this issue, and the orders I have made in relation to the form objections seek to accommodate the inconvenience which both parties have suffered as a result.

Use of “weasel words” such as “involved” in imputations

20. The locus classicus for the determination of “weasel word” issues is Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, where Hunt CJ at CL described “caused” as an example of a “weasel word” by reason of its “convenient ambiguity” (at 163) and discussed the undesirability of this and other “weasel words”.

21. In Maher v Nationwide News Pty Ltd (No 2) [2013] WASC 254, Kenneth Martin J has more recently explained how the problems caused by use of a “weasel word” in an imputation:

“83 A problematic use of the term ‘improperly obtain’ in this imputation requires me to pause to mention the concept of ‘weasel words’. The phase ‘weasel word’ was popularised by Theodore Roosevelt in 1916 as he made his declaration that the ‘tendency to use what have been called weasel words was “one of the defects of our nation”’. The concept emerges even earlier. It appears to be drawn from William Shakespeare’s play As You Like It, in which Jacques says he could suck ‘melancholy out of a song as a weasel sucks eggs’ (As You Like It, Act II, scene V). The implication is that a weasel word is a word lacking in substance and devoid of meaning, despite its presence in popular vocabulary.

84 The word ‘improper’ (likewise ‘improperly’) is a weasel word due to a profusion of meanings it is capable of carrying. ‘Improper’, like ‘corruption’, is a word best avoided in formulating imputations. ‘Improperly’ will potentially be objectionable, if the nature of the impropriety is unclear: see Gascoine v McGinty (1995) 14 WAR 542; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260; cf Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 138 (Gleeson CJ).

85 The word ‘caused’ has been classed as a weasel word, for ‘such is its convenient ambiguity, no-one will ever know the way in which it is being used or understood’: see Amalgamated Television Services Pty Ltd v Marsden [1988] 43 NSWLR 158, 163; and, as well, my decision in Rambal v Cahill [2012] WASC 353.”

22. The word “involved” has long been considered to be a “weasel word”: see, for example, Pickering v Publishing & Broadcasting Pty Ltd (Supreme Court of NSW, Levine J, 21 June 1996, which was cited with approval and followed by Barker J in Lim v TVW Enterprises Pty Ltd [2002] WASC 214. Leave to appeal was refused when Nicholas J struck out “involved” in Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 at [29]; Hayson v John Fairfax Publications Pty Ltd has been relied upon as recently as earlier this year, in Accommodation West Pty Ltd v Aikman [2017] WASC 157. In Accommodation West Pty Ltd v Aikman [2017] WASC 157, a series of imputations using the word “involved” were struck out by Kenneth Martin J, who upheld the challenges made by the defendant to the use of both “improperly profiting” (citing Hepburn v TCN Channel Nine [1984] 1 NSWLR 386 per Hunt J at 403) and “involved”.

23. However, in Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 Wigney J dismissed all of these principles as being part of what his Honour called the “meretricious” pleadings practices in courts other than the Federal Court.

22. Wigney J’s judgment commenced with an acknowledgement (at [20] – [21]) that his Honour’s approach to the form of imputations was inconsistent with the approach taken in Murphy v Nationwide News Pty Ltd(No 2) [2017] FCA 781, where White J relied upon the appellate decision in Ma Ching Kwan v John Fairfax Publications Pty Ltd to strike out the word “inappropriately” in contextual imputations pleaded by the respondent. Wigney J distinguished Murphy v Nationwide News Pty Ltd(No 2) on the basis that the form of an imputation “is only significant if [respondent] plead a defence of justification…or contextual truth”, which was not yet the case as the application for a separate ruling had been consented to by the applicant:

“[20] Many of the observations made by White J in Murphy are apposite to this case. Nevertheless, two points should be noted. First, Mr Goodfellow did not object to the interlocutory application being determined prior to Fairfax and Mr Duff being required to file their defence. Indeed, he consented to the orders that brought the interlocutory application on for hearing at an early stage. Second, it is tolerably clear that White J was not intending to lay down an invariable rule that such applications in defamation matters in this Court should not be made and determined before the respondent is required to file a defence. The question whether an interlocutory application concerning the pleadings in a defamation case can or should be considered before a defence is filed must be considered on the facts of each case.

[21] The more significant point raised by Mr Goodfellow in this context was that the fact that Fairfax and Mr Duff had filed the interlocutory application before they had filed their defence created a hurdle for them. That hurdle was said to be that, to the extent that their objections to the particularised imputations relied on the contention that the form of the imputations was likely to cause prejudice or embarrassment at the pleading stage, that contention could not be made out until they filed their defence. In Mr Goodfellow’s submission, the form of the particularised imputations is only significant if Fairfax and Mr Duff plead a defence of justification under s 25 of the Defamation Act, or a defence of contextual truth under s 26 of the Defamation Act. That submission is considered later in the context of the challenge to the form of the particularised imputations.”

25. It was in this context that Wigney J went on to deplore the “meretricious pleading debates” (at [26]) about the form of imputations in other jurisdictions around Australia, comparing them unfavourably to the approach taken by the Federal Court in Adeang v Australian Broadcasting Corporation [2016] FCA 1200 at [22], and indicating that separate rulings as to pleadings should be rarely ordered as judges, not juries would try the action, and these were matters for trial where, if the imputations were not conveyed, that ruling would be part of the trial where, if it transpired that there was any “vagueness or ambiguity in any of the particulars, the issue can then be revisited and dealt with” (at [73]). Defamation actions should be approached “like all other civil actions” (at [28]), all of which should be conducted in the same way, no matter what the cause of action, with pleading issues of this nature being determined (and if necessary, revisited) at the trial.

26. The difficulty which I have, in relation to the application for rulings that is before me for determination, is that notwithstanding these observations, Wigney J then went on to determine the issues relevant as to form, dismissing the entire concept of “weasel word” as having no merit whatsoever:

“[53] Fairfax and Mr Duff contended that this alleged imputation is bad in form by reason of the use of the words “improperly” and “caused”. They relied on cases decided under the 1974 Act in support of that submission. In Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260, Hunt J described the word “improper” as a word of “very uncertain import” and one that can be productive of “trouble” when used in a pleaded imputation. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ at CL described the word “caused” as a “weasel word”, being a word of “convenient ambiguity” such that nobody will ever know the way in which it is being used or understood.

[54] The answer to these complaints is essentially the same as the answer to the complaint in relation to the word “mishandled” in particular (a).

[55] It is, with the greatest respect, difficult to see how a plain English word like “caused” could be described as a “weasel word”. That would depend entirely on the context in which the word is used. It could perhaps be accepted that in some circumstances, considered in isolation and in the abstract, the words “improperly” or “caused” might be of uncertain import. Read in isolation, they might in some circumstances prompt the questions: “how is it said that the conduct was improper” or “how is it said that the conduct caused something to occur”? When imputation (b) is read in the context of the article in question in this matter, however, any suggested ambiguity arising from the use of these words evaporates. Mr Goodfellow’s case concerning this alleged imputation is tolerably clear.

27. Wigney J was unpersuaded by decisions of intermediate appellate courts to the contrary, including the decision relied upon by White J for his rulings on contextual imputations, namely Ma Ching Kwan v John Fairfax Publications Pty Ltd (although referring only to the first instance decision, [1998] NSWSC 321, at [62]). I am therefore faced with inconsistency on two bases: first, whether applications of this kind should be permitted at all and second, whether I should disregard the intermediate appellate courts’ rulings in relation to “weasel words” in general and the word “involved” in particular.

28. Those intermediate appellate judgments are not only of long standing, but are binding upon me, and I intend to follow them. What is more, I consider that they correctly identify the need for clear and careful pleadings of imputations, so as to avoid the horrific expense of a trial failing on a preliminary issue such as form or capacity of imputations, as occurred (on the issue of capacity) in Hockey v Fairfax Media Publications Pty Ltd (2015) 332 ALR 257. While issues of expense are not an issue in these proceedings (the defendant being a media organisation), many of the defendants in this court are members of the public who find themselves sued for publications such as a social media post or a club newsletter, invariably in circumstances where they are uninsured.

29. Inconsistent decisions by superior courts of record create real difficulties for judicial officers in lower courts endeavouring to determine such issues. I have considered the discussion of these issues by Wigney J, but I propose to err on the side of caution and to follow the application of the “weasel word” principles to “involved” taken by judges in New South Wales and Western Australia as opposed to the developing trends in the Federal Court.

30. There can be cases where the meaning of a word asserted to be a “weasel word” is asserted to be so clear that the word may remain, as the Court of Appeal noted in Ma Ching Kwan v John Fairfax Publications Pty Ltd. In the present case, the dramatic nature of the publication and the scanty nature of the facts render the use of the word “involved” almost meaningless in terms of the specific act or condition attributed to the plaintiff. In those circumstances, the imputations in question must be repleaded.

31. This brings me to my rulings on the form of the imputations which, having regard to the difficulties set out above, are more than usually informal in nature.

Imputations 3(a) and 3(d)

32. As agreed by counsel for the plaintiffs in the course of argument, these imputations need to be amended to plead “member”. I have already indicated that leave to replead should be granted.

Imputations 3(b) and 3(e)

33. These imputations use the word “involved”, the problems with which are set out above. As noted in my discussion of this issue, I consider I am bound by the rulings of the New South Wales Court of Appeal and by the consistent practice of the Defamation List. These imputations should be repleaded to replace this word with one of clearer import.

Imputations 3(c) and 3(f)

34. These imputations differ in substance from imputations 3(b) and 3(d) essentially insofar as it refers to an “association” as opposed to an involvement.

35. As the terms of imputations 3(b) and 3(d) are unclear because they have been struck out for form reasons, this creates the somewhat unusual situation that it is not possible to do more than to note that, as currently pleaded, these imputations do not appear to differ in substance.

36. Accordingly, I propose to strike each of these out with leave to replead. That does not prevent the plaintiffs from repleading this same imputation if so advised, but it similarly does not prevent the defendant from challenging it a second time when the other imputations are repleaded.

Concluding remarks

37. What I propose to do, having regard to the difficulties set out above, is to grant the plaintiffs a general leave to replead in relation to all of the imputations for each of the plaintiffs, to enable the plaintiffs’ legal advisers to reconsider a formulation of all of the imputations at the same time. The striking out of individual imputations can at times create real difficulty in relation to those imputations which remain, and it may be that this is a course which should be taken more often when one or more imputations is defective by reason of form, as opposed to capacity.

38. By reason of the success of the defendant’s arguments in relation to form, it has not been possible to determine the issue of capacity pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW).

39. I thank counsel for their assistance with the issues in this application.

40. I have reserved the issue of costs.

Orders

1. Defendant’s application for summary dismissal of the proceedings refused.

2. Grant leave to the plaintiffs to replead imputations 3(a) to 3(f).

3. Amended Statement of Claim to be filed and served in 7 days.

4. Costs reserved with liberty to apply.

5. Liberty to the parties to bring in Short Minutes of Order for a timetable for the proceedings.

**********

Decision last updated: 07 December 2017