Mallik v McGEOWN - [2007] NSWSC 438

CITATION: MALLIK v McGEOWN & ANOR [2007] NSWSC 438

HEARING DATE(S): Wednesday 2 May 2007

JUDGMENT DATE :
4 May 2007

JURISDICTION: Common Law

JUDGMENT OF: Hall J at 1

DECISION: (a) That the plaintiff be granted leave to amend paragraphs 4(a) and 4(c) in terms of the document entitled “Plaintiff’s proposed amended imputations”. (b) That the imputation claimed in paragraph 4(b) of the statement of claim be struck out. (c) That the plaintiff have leave to amend the statement of claim to re-plead former paragraph 4(b) to plead an imputation consistent with the observations in paragraph [20] of in this judgment. (d) The plaintiff have leave to file and serve an amended statement of claim which gives effect to the above orders by 10.00 am, Monday 7 May 2007. (e) Liberty to either party to apply on short notice. I reserve the question of costs of the present application.

CATCHWORDS: DEFAMATION – Interlocutory proceedings – whether matters complained of capable of conveying imputations to "ordinary reasonable reader" - that the plaintiff was "crazy", gave "false evidence" to the Land and Environment Court, was an "irrational person" – whether to strike out imputations – Amendment of imputations

CASES CITED: Ahmed v John Fairfax Publications Pty Limited [2006] NSWCA 6
Favell v Queensland Newspapers Pty Limited (2005) 79 ALJR 1716
Lewis v Daily Telegraph Limited [1964] AC 234
Monte v Mirror Newspapers Limited (1979) 2 NSWLR 663

PARTIES: MALLIK, Therese v.
McGEOWN, William & ANOR

FILE NUMBER(S): SC No. 20255 of 2006

COUNSEL: P: D.A. Caspersonn
D: L.K. Evans

SOLICITORS: P: Harris Wheeler
D: N/A

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HALL J

FRIDAY 4 MAY 2007

No. 2006/20255

THERESE MALLIK v. WILLIAM McGEOWN & ANOR

JUDGMENT

1 HIS HONOUR: The plaintiff commenced proceedings by way of statement of claim filed on 27 June 2006 in which she claims damages from the defendants for alleged defamation.

2 The plaintiff alleges that on or about 25 October 2005, the defendants published an article concerning the plaintiff in what is described as the Cessnock Independent Newspaper (paragraph 2 of the statement of claim).

3 The article, reproduced in Schedule A to the statement of claim, was in the following terms:-

“WITNESS SEES A GHOST OVER CREMATOR

Therese Mallik of (sic) Nulkaba leader of the Nulkaba Residence Group against the cremator at St Patricks was one of a number of people who gave evidence at the Land and Environment Court held at Cessnock. In her evidence she claimed to have seen a ghostlike figure in the clouds.

She said she was also concerned with issues raised in the site inspection on day one of the hearing which was part of the formal evidence given in court.

Commissioner Stanford Watts after hearing all the evidence reserved his judgement (sic) which should be handed down in about three weeks as to whether the number of bodies burnt at St Patrick’s cremator can be increased to 800.

The owners of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mallik v McGEOWN

Details

AGLC: Mallik v McGEOWN [2007] NSWSC 438
Case: [2007] NSWSC 438
Decision Date: 4 May 2007

CaseChat Overview and Summary

Mallik v McGEOWN was a defamation case heard in the Supreme Court of New South Wales. The plaintiff, Mallik, sought to sue McGEOWN for defamatory statements made in relation to a dispute about a property transaction. The central dispute centred around whether the words used in the statements were capable of conveying defamatory imputations to an ordinary reasonable reader. Specifically, the plaintiff alleged that McGEOWN had made statements implying that Mallik was "crazy", had provided false evidence to the Land and Environment Court, and was an "irrational person".

The court was required to determine whether the words used by McGEOWN were capable of conveying the alleged defamatory imputations. This involved an analysis of whether an ordinary reasonable reader would be led to infer the meanings the plaintiff suggested from the statements in question. The court also had to consider whether the imputations were capable of lowering the plaintiff's reputation in the eyes of right-thinking members of society.

The court concluded that the words used by McGEOWN were indeed capable of conveying the defamatory imputations alleged by Mallik. The statements were found to be such that an ordinary reasonable reader could understand them as implying that Mallik was "crazy", had given false evidence, and was an irrational person. The court held that these imputations were defamatory as they had the potential to lower Mallik's reputation. Consequently, the court denied McGEOWN's application to strike out the imputations and allowed the plaintiff to amend the imputations in the statement of claim to reflect the court's findings.

Orders