Moran v Nationwide News Pty Ltd

[2007] NSWDC 230

Reported Decision: 6 DCLR (NSW) 1

District Court

CITATION:	Moran v Nationwide News Pty Ltd [2007] NSWDC 230
HEARING DATE(S):	19/10/07
EX TEMPORE JUDGMENT DATE:	19 October 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Imputations (a), (b), (c) and (d) will go to the jury, with imputation (c) as a fall-back to imputation (a); (2) The defendant pay the plaintiff’s costs.
CATCHWORDS:	Tort – defamation – imputations – form and capacity
CASES CITED:	General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Malcolm v Nationwide News Pty Limited [2007] NSWCA 254 Singleton v John Fairfax (20 February 1980, Supreme Court of New South Wales, unreported)
PARTIES:	Plaintiff: Michael Moran Defendant: Nationwide News Pty Ltd
FILE NUMBER(S):	3595 of 2007
COUNSEL:	Plaintiff: C A Evatt / R Rasmussen Defendant: J Hmelnitsky
SOLICITORS:	Plaintiff: Friend and Co Lawyers Defendant: Blake Dawson Waldron Lawyers

JUDGMENT

1. The plaintiff by way of statement of claim brings proceedings for damages for defamation for an article published in The Daily Telegraph on 26 October 2006. The words of the matter complained of are pleaded as conveying the following imputations:

(a) The plaintiff took part in an alcohol incident which caused his contract to be terminated (paragraphs 1, 2, 9, 10, 11, 14 and 25).
(b) The plaintiff was unfit to be a rugby league football player with South Sydney because of his consumption of alcohol (paragraphs 1, 2, 9, 10, 11, 14, 25, 38 and 39).
(c) The plaintiff consumed alcohol to such an extent that his contract was terminated (paragraphs 1, 2, 9, 10, 11, 14 and 25).
(d) The plaintiff has became an anti-social menace because of his consumption of alcohol (paragraphs 1, 2, 9, 10, 11, 14, 25, 38 and 39).

2. I note that imputation (c) is a “fall-back” to imputation (a).

3. The imputations are objected to on the basis of form and capacity. I will deal first with the issue of capacity, since it is easier to do so.

4. The matter complained of contains the following:

“During the past two seasons, the Rabbitohs have been plagued by a series of alcohol related incidents – leading to the sacking of two promising players.

Local junior Mick Moran had his contract terminated for disciplinary reasons late in the season, with alcohol believed to be a contributing factor.

In 2005 winger Roy Bell was sacked after a drink-driving conviction.”

5. The matter complained of goes on to talk about one of the Rabbitohs’ directors questioning the role of alcohol and being stunned to find that footballers who use their bodies as a means of income would drink, talks about the dangers of alcohol, and goes on to state that it does not make sense that people who rely on their body for their employment to abuse it. It talks also about the dangers of drinking culture.

6. It is asserted that imputation (a) cannot arise because of the fact that it is said that alcohol was only “believed to be a contributing factor” (in paragraph 10).

7. In paragraph 9, and indeed throughout the matter complained of, it is made clear that this is an article about players with drink problems and, in particular, that there has been the sacking of two promising players, one of whom is the plaintiff, because the Rabbitohs “have been plagued by a series of alcohol related incidents”.

8. True it is that the matter complained of goes on to say that alcohol was “believed to be a contributing factor”, but it is quintessentially a jury question as to whether the jury would reject the imputation that his participation in an alcohol incident caused his contract to be terminated. The text is, at its lowest, inconsistent. At its highest, given the way in which this is placed in the context of an article which makes it clear that there is a serious drinking problem and that players are being sacked for it, it may be that the jury does not have the problems that Mr Hmelnitsky considers they would have.

9. On any test in relation to the conveying of imputations, whether the General Steel test (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125) or the more restrictive test which is asserted to be applicable by reason of the Court of Appeal’s recent decision in Malcolm v Nationwide News Pty Limited [2007] NSWCA 254, this is an imputation which by reason of its context in the matter complained of, and the bald statement in paragraph 9, is one which ought to go to the jury.

10. Similarly, imputation (b) is an imputation which arises from the same portion of the matter complained of. I shall shortly deal with an objection as to form. It is asserted that imputation (a) and (b) do not differ in substance. Imputation (a) is an act, whereas imputation (b) is a condition, and for the reasons explained by Hunt J in Singleton v John Fairfax (20 February 1980, Supreme Court of New South Wales, unreported), an imputation conveying a condition and an imputation conveying an act can be pleaded without there being a complaint that they do not differ in substance. In fact, there is a difference in substance, in that one imputation asserts he took part in an alcohol incident, whereas the other is a general imputation of a condition of unfitness to be a rugby league football player at all.

11. There is an objection to imputation (d) on the basis that this imputation is incapable of arising. The matter complained of says, at paragraphs 38-39:

“Alcohol is an addictive drug that has caused devastating headlines for various players, including some at Souths, and for the game overall.

It’s the sport’s biggest anti-social menace.”

12. Mr Hmelnitsky submits that the anti-social menace is alcohol, not the players, which is redolent of the argument of the gun control lobby, that it is not the guns that cause problems, it is people. Obviously what is being referred to here is the “devastating headlines” for “players” at Souths (which includes the plaintiff) and for the game overall as a result, and it is in my view a jury question as to whether or not the “It’s” is a reference to the plaintiff, or to merely the publicity about the plaintiff. In any event, it is my view that it is not drawing an inference on an inference, to assert that the jury would need to take several steps in order to arrive at this result.

13. Accordingly, it is my view that this imputation is conveyed and is not defective in form.

14. Accordingly, the orders that I make are as follows:

(1) Imputations (a), (b), (c) and (d) will go to the jury, with imputation (c) as a fall-back to imputation (a).

(2) The defendant pay the plaintiff’s costs.

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