Malpass v Murphy

[2001] NSWDC 2

District Court

New South Wales

Medium Neutral Citation:

Malpass & ORS v Murphy & ANOR [2001] NSWDC 2

Hearing dates:

26 October 2001

Date of orders:

02 November 2001

Decision date:

02 November 2001

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

Orders:

(1)   All imputations for all three plaintiffs pleaded in the Statement of Claim and proposed Amended Statement of Claim struck out.

(2) Pursuant to Part 11A r 3 District Court Rules these proceedings struck out as disclosing no cause of action in defamation.

(3)   Defendants to be refunded their jury requisition fee by the District Court Registry.

(4)   Plaintiffs pay defendants' costs.

Catchwords:

TORT - defamation – parents sued for signs placed by their small son pinned to his bedroom window and on the footpath outside – the first sign consists of the words “the Pooh Heads” chalked on the footpath and the second sign is a cartoon of a penis and terms of abuse (“cocksucker’; “mind your own business”) – whether publications were actionably defamatory or mere vulgar abuse – no evidence signs seen by third party – proceedings struck out with costs

Cases Cited:

Berkoffv Burchill [1994] 4 All ER 1008

Bjelke-Peterson v Warburton [1987] 2 Qd R 485

Darbyshir v Daily Examiner 29 August 1997

Drummoyne MC v ABC (1990) 21 NSWLR 135

Ettingshausen v AustralianConsolidated Press Ltd (1991) 23 NSWLR 443

McCormick v John Fairfax Publications Pty Limited (1989) 16 NSWLR 485

McGuiness vJT Publishing [1999] NSWSC 471

M'Laughlan v Orr, Pollock & Co (1894) 22 R 38

Mundey v Askin [1982] 2 NSWLR 369

NSW Moham-Wilde v John Fairfax Ply Limited 8 August 1997

Patton v Moffatt (Supreme Court of NSW, Kirby J, 25 November 1999)

Ralston v Fomich (1992) 66 BCLR 166

Uren v Australian Consolidated Press Ltd [1969] 1 NSWR 745

Vander Zalin v Times Publishers (1980) 18 BCLR 210

Young v Munro (Supreme Court of NSW, Levine J, 12 May 1995

Category:

Procedural rulings

Parties:

Plaintiffs: Brian Arthur Malpass & Ors
Defendants: Russell Damian Murphy & Anor

Representation:

Counsel:
Plaintiffs: P Sibtain
Defendants: C A Evatt

Solicitors:
Plaintiffs: Richard Barron Lawyer
Defendants: Oates & Smith

File Number(s):

6025 of 2001

Publication restriction:

Nil

Judgment

1. This is an application by the defendants pursuant to Part 11A r 3 District Court Rules to strike out the statement of claim, which pleads two claims for damages for defamation. The application was heard by me on 26 October 2001 in the Defamation List and I made the orders set out at the end of this judgment. As I had a number of other matters in the List that day, I indicated I would hand down a written judgment shortly rather than deliver oral reasons for my decision.

The cause of action pleaded by the plaintiffs

2. The plaintiffs commenced proceedings by statement of claim filed on 21 June 2001 seeking damages for defamatory imputations arising out of two publications, the first made on a date or dates during September 2000 and the second, made during November 2000.

3. The circumstances and text of the publications are as follows. The plaintiffs and defendants are neighbours with a common side boundary. Although there is no reference to it in the pleadings, I was advised from the bar table there was a dispute about the boundary fence. In September 2000, a sign was chalked on the footpath across the entrance to the plaintiffs' home consisting of the words "the Pooh Heads" together with one or more directional arrows. This is the first matter complained of.

4. The plaintiffs pleaded in their original Statement of Claim that this gives rise to the following imputations:

1. that each of them is a figure of ridicule and contempt;

2. that each of them is an idiot who behaves in a stupid fashion;

3. that each of them is deserving of public derision;

4. that each of them is a disgusting and offensive person.

5. In the course of argument, I was handed a proposed amended statement of claim which changed the word "is" to "had acted in such a manner".

6. The second matter complained of was a piece of white A4 paper with words written on it in black felt pen. It was pinned to the window of the minor son of the first and second defendants and, according to the proposed draft amended statement of claim, "positioned such that it faced the plaintiffs' dining room" but not, I gather, the street. This sign, which is signed "Ian" and illustrated with two rather crude pictures, says:

"GET FUCKED

COCKSUCKER!!

YOU FUCKING POOF!

MIND YOUTR OWN BUSINESS

IAN"

7. The illustrations to the left and right of Ian's name consist of a heart and a childishly drawn penis with a smile on its face. A photograph of this publication is annexed to this judgment.

8. The defendants challenge the defamatory capacity of the publications. In addition, Mr Evatt mentioned the problems caused by lack of particulars of identification. The plaintiffs sought to remedy some defects in the proposed new pleading, and I shall assume that the plaintiffs move on that publication in answer to the strike-out application.

9. The imputations pleaded as arising from this second publication are based in part on the extrinsic facts that the first plaintiff is married to the second plaintiff and the third plaintiff is their adult son. The first plaintiff pleads the following imputations in their natural and ordinary meaning:

1. that the first plaintiff is a homosexual;

2. alternatively, that the first plaintiff is bi-sexual;

3. that the first plaintiff practises fellatio;

4. that the first plaintiff unreasonably pries into the private lives of others.

10. Further (and it is not pleaded whether these imputations are in addition to or in the alternative to the imputations arising as a result of the natural and ordinary meaning of the words), by reason of extrinsic facts, namely the first plaintiff's monogamous heterosexual marriage to the second plaintiff the following imputations are pleaded:

1. that the first plaintiff is dishonest in that he presents to members of the public as a heterosexual married man in a monogamous relationship with the second plaintiff when he is in fact homosexual or bi-sexual;

2. that the first plaintiff is dishonest in that he presents to members of the public as a heterosexual married man in a monogamous relationship with the second plaintiff when he in fact practices fellatio.

11. The second plaintiff pleads the following imputations:

1. that the second plaintiff engages in fellatio;

2. that the second plaintiff unreasonably pries into the private lives of others.

12. The second plaintiff pleads the following true innuendos by reason of the extrinsic facts relating to her marriage to the first plaintiff:

1. that the second plaintiff is dishonest in that she presents to members of the public as a heterosexual married woman in a monogamous relationship with the first plaintiff when the first plaintiff is in fact homosexual or bi-sexual;

2. that the second plaintiff is dishonest in that she presents to members of the public as a heterosexual married woman in a monogamous relationship with the first plaintiff when the first plaintiff in fact practises fellatio.

13. The third plaintiff pleads effectively the same imputations as the first plaintiff, save that there is no reference to his being a married man.

14. This proposed draft amended statement of claim had not been served on the defendants' legal representatives, and their counsel saw it for the first time at the bar table when the matter came before me for argument. The new pleading handed up to me was a draft with formal parts missing. Ms Sibtain of counsel, for the plaintiffs, said that this statement of claim had not been served before because I had refused the plaintiff leave to amend the statement of claim when the matter was before me on 8 October 2001. This is not what happened on that date; the orders made on 8 October were to set a date for this argument and to note the parties were attempting mediation. The plaintiffs were granted leave to amend the statement of claim on 31 August 2001 but did not do so. No sensible judge would refuse a party leave to amend pleadings at such an early stage of the litigation. The problem with the statement of claim has been that the plaintiffs adhered to their pleadings despite knowing that this application was to be made, not that they wished to change them.

15. On the assumption that the plaintiffs would have liked to amend to plead the imputations in their draft pleadings, I have dealt with the argument on the basis that they have sought leave to amend in accordance with the draft amended Statement of Claim. There is only one complication, in that I note that this document seeks to join a third party, namely the defendants' young son, Ian Murphy, who is joined as third defendant with his father as tutor by reason of the fact that he is under 18. He is, I gather, the youthful author of the matters complained of, one of which was published to the plaintiffs by his having pinned it to his bedroom window within view of the plaintiffs' family dining room. I shall assume, for the purpose of this application, that he is represented by the same legal team as his parents.

16. The plaintiffs' desire to proceed on amended pleadings made no noticeable difference to the submissions of the plaintiffs' counsel, Mr Evatt, who stated he saw no need to elaborate further on his earlier submissions to me. Those submissions consisted of saying that the pleadings should suffer the legal equivalent of euthanasia because they were hopeless, and sitting down again. Mr Evatt did, however, rise briefly to his feet again to remind me of Mundey v Askin [1982] 2 NSWLR 369.

17. Ms Sibtain, for the plaintiffs, submitted to me that the pleadings would have to be absolutely hopeless before the court would strike them out, and that the proper tribunal of fact was the jury which the defendants had requisitioned. The matter complained of had gone to the jury in Mundey v Askin and the same should happen here.

18. However, the decision in Mundey v Askin is really only of limited relevance to this case. The publication in Mundy v Askin was a political speech in the course of which the defendant (the Premier of New South Wales) made a series of remarks about a Mr Jack Mundey only one of which was: "But don't underestimate some of these vermin". That publication went to the jury, and a verdict was returned that the whole publication was not defamatory of Mr Mundey. On appeal the trial judge's direction to the jury was challenged on the basis that His Honour had allegedly asserted that there was a defence of "vulgar abuse" to an action for defamation. The Court of Appeal affirmed there was no such defence and upheld the trial judge's directions to the jury on the basis that the reference to vulgar abuse was in the context of whether or not vulgar abuse could damage reputation and thus be defamatory.

19. In the present case, the context of the words giving rise to the imputations is very different. The insulting words are not merely a small part of the publications, as was the case in Mundey v Askin; the publications consist solely of insults.

20. In defamation actions the context of the publication is of great importance in determining whether an imputation is conveyed: Young v Munro (Supreme Court of NSW, Levine J, 12 May 1995 at [11]); McGuiness v J T Publishing [1999] NSWSC 471 (21 May 1999) at [5]).

21. I now turn to a consideration of whether either of the publications pleaded is capable of giving rise to any imputations. The pleader of the statement of claim has framed the first publication's imputations as a "ridicule" case but in relation to the second publication has interpreted the words of insult literally.

The first publication

22. The first publication consists of the words "the pooh heads", a descriptive phrase popular in playgrounds but not found in any dictionary, so the pleader has attempted to frame this action as a "ridicule" case. Ridicule cases were rare (Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 being the anomalous exception) until the English Court of Appeal explained the nature of ridicule in the phrase "hatred, ridicule or contempt" in Berkoff v Burchill [1994] 4 All ER 1008, where the matter complained of consisted of an article attacking the plaintiff (an English actor) as "hideously ugly". While holding that such a publication could lower the standing of someone like Mr Berkoff (whose face was, effectively, his fortune) the Court of Appeal emphasised that there could not be a cause of action for insults which do not diminish a person's standing in the community.

23. This area of the law was examined in a series of decisions by Levine J in the Supreme Court of NSW (Moham-Wilde v John Fairfax Ply Limited 8 August 1997, Darbyshir v Daily Examiner 29 August 1997, McGuiness v JT. Publishing Australia Ply Limited). Of these cases, McGuiness is the most apposite, since it consisted of a similarly epigrammatic and insulting matter complained of in the form of a cartoon. The plaintiff in that action, a police officer, had been decorated for bravery after a dangerous siege situation in which he had shot the gunman; he later gave an interview describing his distress at having to shoot the offender, and this article was illustrated by a photograph of him sitting under a tree wearing his police uniform. The matter complained of consisted of a reproduction of this same photo of the plaintiff in the defendant's publication (a gentleman's picture magazine called "Hustler"). The defamatory addition was that the defendant put a "speech bubble" beside the face of the plaintiff in the photograph, under a heading "COP THIS", which said:

"That was flicking fantastic - next time I'll empty both barrels".

24. Although Levine J called the case "close to borderline", the plaintiff successfully resisted a strike-out application because the matter complained of conveyed imputations of recognisably defamatory acts and conditions, to the effect that he was a hypocrite for saying he had been upset by killing someone when he had actually enjoyed it, and that he would like to kill again.

25. However, the publication in that case differed because the photograph and language conveyed more than just insulting words. Unless a defamatory act or condition is conveyed, there can be no defamation because "mere insult or vulgar abuse have been held not to constitute defamation" (per Seaton JA in Vander Zalin v Times Publishers (1980) 18 BCLR 210 at [218] (BCCA). The law regards as non-actionable language which is merely offensive and vituperative (M'Laughlan v Orr, Pollock & Co (1894) 22 R 38 at [43] per Lord M'Laren); in that case the plaintiff was called a "terrible Zulu" and "bloated aristocrat". In Patton v Moffatt (Supreme Court of NSW, Kirby J, 25 November 1999) a broadcast showing Redfern police calling an Aboriginal a "coon" while checking his car registration was held to convey a defamatory imputation of racial inferiority, but again this insult was published in the course of a longer series of words and actions capable of ascribing an act or condition of a defamatory nature, given the context of assertions of lawbreaking.

26. However cases of this kind can be distinguished because the offensive word occurred in a sentence or sentences conveying an imputation (albeit, in Mundey, an imputation which the jury found was not defamatory). In this case "the pooh heads" imputes no act or condition capable of being defamed. The pleader has not attempted with this publication (unlike the second publication complained of) to plead some kind of literal meaning from the use of the words "pooh" or "head".

27. Is vulgar abuse restricted to the spoken word? In Uren v Australian Consolidated Press Ltd [1969] 1 NSWR 745 at [752] per Sugarman JA) it was held that the rule that words spoken in mere vulgar abuse are not actionable is applicable to oral and not to written defamation. However, where the matter complained of is a childishly insulting word chalked on a pavement, the only difference between writing this word down and shouting it in the street would be the extent of publication, which has never been an acceptable way of differentiating between libel and slander. Since Sugarman JA expressed this view; the Defamation Act 1974 (NSW) has effectively abolished the difference between libel and slander. Furthermore, the test is whether a defamatory imputation can be identified with sufficient precision to be able to be conveyed, not whether the publication involved words of abuse. The example generally quoted as one requiring no further precision is the statement "X is disgusting" (Drummoyne MC v ABC (1990) 21 NSWLR 135 at [137] per Gleeson CJ). The sentence "X is disgusting" may itself be a borderline example, but no amount of practical justice (as opposed to philology) can distil any meaning out of the words "the pooh heads" beyond simple insult. The test for imputations is that the hypothetical ordinary reasonable reader would be able to identify them as arising without the meaning being strained, forced or utterly unreasonable; the test is not to require the ordinary reasonable reader to solve the riddle of the sphinx. As a publication, this is effectively what Oscar Wilde once described as a "sphinx without a secret".

28. The second publication

29. Although several words longer than the first publication, the second publication is, similarly, little more than a child's graffiti. No possibility of ridicule arises with this publication; the words are words of insult. The pleader's approach to this publication has been to take the words "poofter" and "cocksucker" literally (unlike "pooh heads") to attempt to distil meanings of homosexual conduct and (by true innuendo) hypocrisy in pretending to live a heterosexual life and to assert that "mind your own business" is a reference to prior conduct by the plaintiffs rather than a forceful abjuration.

30. However, words of insult such as "son of a bitch" or "motherfucker" are not literal assertions of the insulting conduct encapsulated within the insult. Such accusations are not actual allegations of the illegitimacy or incest literally contained in the insult. In Ralston v Fomich (1992) 66 BCLR 166 at [169] (SC) Spencer J explained this at [169] as follows:

"In my opinion, the words "son of a bitch" by themselves are not capable of any defamatory meaning... They are a translucent vessel waiting to be filled with colour by their immediate qualifier.. .At most they insult. They are not likely to lower the object in the estimation of right thinking people. More probably they will demean the speaker, depending upon the company and the occasion."

31. In Ralston the offensive words were, as in Mundey v Askin, part of a much longer political diatribe. However where only the words of insult occur, no actionable imputation can be conveyed.

32. As with the first publication, the context of this publication, including the crude drawings, is such that no imputation of any defamatory act or condition (as opposed to merely insulting language) can be distilled, In the context of some other publication an assertion that the plaintiffs should mind their own business might be defamatory but what this publication is doing is telling the plaintiffs to do (to use the words in the first line of the publication) is to "get fucked".

33. In his brief submissions Mr Evatt devoted a sentence to the failure to properly plead particulars of identification to both publications, although he considered this was a subsidiary issue. I suspect a further pleading problem may be that because the second publication was put in the defendants' son's window it was only visible to the plaintiffs, who could see it from their dining room, in which case there has been no publication to a third party. I also fear, in relation to the second publication, that the use of "cocksucker" and "poofter" means that any imputation would have to be pleaded in the conditional fashion necessary for a group libel where the plaintiff is a member of a group where only one of the group is accused ( Bjelke-Peterson v Warburton [1987] 2 Qd R 485; McCormick v John Fairfax Publications Pty Limited (1989) 16 NSWLR 485). Since I have held that the publications are incapable of giving rise to any imputation pleaded, or indeed any imputation of a defamatory act or condition at all, these difficult additional issues of law do not need to be addressed.

Orders:

1. All imputations for all three plaintiffs pleaded in the Statement of Claim and proposed Amended Statement of Claim struck out.

2. Pursuant to Part 11A r 3 District Court Rules these proceedings struck out as disclosing no cause of action in defamation.

3. Defendants to be refunded their jury requisition fee by the District Court Registry.

4. Plaintiffs pay defendants' costs.

********

(the 2nd Matter Complained of)

Decision last updated: 19 September 2025