Lansley v Gaynon

[2000] NSWSC 746

CITATION:

Lansley v Gaynon [2000] NSWSC 746

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20173 of 2000

HEARING DATE(S):

27 July 2000

JUDGMENT DATE:

4 August 2000

PARTIES :

JULIA DAWN LANSLEY
(Plaintiff)

v

TERENCE PATRICK GAYNON
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	P See (Plaintiff) J Gibson (Defendant)
SOLICITORS:	Lansley Lawyers (Plaintiff) Gisela Ramensky & Co. (Defendant)
CATCHWORDS:	Particulars of republication - true innuendo - "metaphor"
CASES CITED:	Allsop v Church of England Newspaper Limited (1972) 2 QB 161 Lee v Wilson & MacKinnon (1934) 51 CLR 276 Toomey v John Fairfax & Sons Pty Limited (1985) 1 NSWLR 291
DECISION:	See paragraph 20

DLJ: 1
CAV
[2000] NSWSC 746

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

No. 20173 of 2000

JUSTICE DAVID LEVINE

FRIDAY 4 AUGUST 2000

JULIA DAWN LANSLEY
(Plaintiff)

v

TERENCE PATRICK GAYNON
(Defendant)

JUDGMENT (Particulars of republication - true innuendo - “ metaphor ”)

1    The plaintiff is a legal practitioner. The defendant is a former partner of the plaintiff and is said to have knowledge of the plaintiff’s clients and the business affairs of her firm. 2    By paragraph 3 of the Amended Statement of Claim filed, on 26 July 2000, the plaintiff alleges that the defendant published by email the following:

“Dear Zen,
I am truly sorry for the way you have been treated. And I say that because I don’t often recommend anyone these days for fear of being let down.
With respect (very little) to the law firm, I’d like to say your shoddy, unprofessional treatment is connected of our friendship, but, I can’t.
It is my reliable inside information that the place is booked for a first class trip on NT Airlines. And as a major financial guarantor, I’ll be boarding the aircraft with them.
It is my concern the other side may apply to have your complaint dismissed. I think you have been more than patient.
TTFNOS,
Terry
PS I am personally offended by your tasteless humour whereby you vilified the Mighty Macintosh.
Bah and Humbug to you, Sir!!!!!!!!!!!!!”

3    It is further alleged (paragraph 4) that on 27 March Mr Wijeyesinghe, the recipient of the email, republished the matter complained of to the Legal Services Commissioner. 4    Paragraph 7 of the Amended Statement of Claim is curiously worded in the sense that it states that the matter complained of “in its natural and ordinary meaning together with certain extrinsic facts” conveys certain imputations. If the plaintiff is relying upon natural and ordinary meaning she should say so; if she is relying upon the imputations arising from the natural and ordinary meaning solely, no reference should be made to extrinsic facts. If reliance is to be placed upon true innuendos, then that should clearly be stated. 5    The imputations pleaded are as follows:

“(a) The plaintiff as a solicitor treated Mr Wijeyesinghe in an unprofessional manner.
(b) The plaintiff carried on her legal practice in an unprofessional way.
(c) The plaintiff’s practice as a solicitor is financially unviable.
(d) The plaintiff is about to become insolvent.
(e) The plaintiff has so conducted herself in her business as a sole legal practitioner that she is about to cause the defendant financial ruin”.

6    Without forming a concluded view on the matter because it has not been argued, it would seem to me in the light of the content of the email and the imputations pleaded that this more probably than not should be a “true innuendo” case. 7    The following extrinsic facts are particularised pursuant to SCR Pt 67 r 12(b):

“(a) Mr Wijeyesinghe and the defendant were friends at the time of the publication.
(b) Mr Wijeyesinghe knew that the defendant was a former partner in the plaintiff’s law firm and practice manager of the plaintiff’s law firm.
(c) At all material times Mr Wijeyesinghe was a client of the plaintiff’s law firm.
(d) At all material times Mr Wijeyesinghe knew that ‘A first class trip on NT airlines’ is a metaphor for imminent financial failure.
(e) Mr Wijeyesinghe was in the course of lodging a complaint to the Legal Services Commissioner in respect of the professional conduct of the plaintiff”.

8 As the plaintiff is not named in the matter complained of particulars of identification are given founded upon Mr Wijeyesinghe having been a client of the plaintiff’s law firm, being aware of the plaintiff’s status as a sole practitioner and by reason of Mr Wijeyesinghe and the defendant’s friendship. 9 Various matters in dispute have been dealt with by very thorough and useful written submissions delivered before the hearing before me on 27 July. 10 For the defendant there appears to be a pre-occupation with the ramifications of the allegation of republication in paragraph 4. There is also an objection that it is deficient in terms of its want of particularisation. The former is premature, the latter is a point rightly taken. 11 The defendant is entitled to have proper particulars of the facts and matters relied upon by the plaintiff in asserting (a) the fact of republication by Mr Wijeyesinghe to the Legal Services Commission; and (b) the facts, matters and circumstances on which the plaintiff relies as establishing liability in the defendant for that republication. 12 The provision of such particulars will then enable consideration of such issues as the availability of any defence of absolute privilege pursuant to s 17J of the Defamation Act 1974 with respect to matters dealt with by Pt 10 of the Legal Profession Act 1987. Consideration will then be able to be given by the defendant to whether or not any abuse of process can be alleged. The clear impression I gained from oral submissions is that the email sued upon was somehow in the possession of the Legal Services Commission in the context of a complaint having been made by Mr Wijeyesinghe as is referred to in Particular of Extrinsic fact B(e). It is premature however to raise such issues now. 13    It is a matter entirely for the plaintiff as to whether or not a case of republication can be pleaded and particularised in a way that does not give rise to any potential problems with respect to absolute privilege or abuse of process. 14    The next matter to be attended to by the plaintiff is the allegation by way of an extrinsic fact that the recipient of the email knew that the expression “a first class on NT airlines” is a “metaphor” for imminent financial failure. The fact that I myself have never heard the expression is beside the point. What is here contended is that the ordinary reasonable reader (in this case as far as the principal allegation is concerned, one person) would understand those words as conveying the meaning asserted to be by way of “metaphor”. 15    The issues of “metaphor” and “slang” are always difficult. The fact that the publication principally sued upon is by one person to one other, in my view, does not ameliorate the situation (see Toomey v John Fairfax & Sons Pty Limited (1985) 1 NSWLR 291; Lee v Wilson & MacKinnon (1934) 51 CLR 276; Allsop v Church of England Newspaper Limited (1972) 2 QB 161). 16 The particularisation of the plaintiff in terms of B(d) that Mr Wijeyesinghe knew the meaning, in my present view begs the question. 17 It is very important for the plaintiff properly to particularise this component of her case, not only with respect to the principal publication but especially so with respect to the allegations to be particularised in relation to republication. 18 The final matter for present purposes is the application the plaintiff has made to have the matter transferred to the District Court. The application having been made by the plaintiff, it is ultimately a decision for this Court whether or not to transfer it. It seems to me premature so to do. There are interesting and perhaps even novel points to be considered in the structure of the plaintiff’s pleading; these should be cleared up before final consideration is given to the plaintiff’s application. 19 The defendant has been predominantly successful thus far in the principal matters raised in oral submissions consequent upon the issues referred to in written submissions in the proceedings before me on 27 July and should have the benefit of a costs order. 20 Accordingly, the formal orders are:

1. The plaintiff has leave to file, by 5.00pm Friday 18 August 2000, a Further Amended Statement of Claim providing proper particulars under SCR Pt 67 r 12(c) and of republication in accordance with these reasons.

2. The defendant is to notify the plaintiff by 5.00pm Friday 25 August 2000 of any additional objection to the amended pleading together with an outline of supporting submissions, and the plaintiff, by 5.00pm on Thursday 31 August 2000 is to notify the defendant of any submissions in reply.

3. The plaintiff is to pay the defendant’s cost of the hearing on 27 July 2000.

4. The matter is to be listed in the Defamation List on 1 September 2000.

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Last Modified: 09/26/2000