Moses v State of New South Wales (No. 2)

[2009] NSWDC 99

CITATION:	Moses v State of New South Wales (No. 2) [2009] NSWDC 99
HEARING DATE(S):	21 May 2009
JUDGMENT DATE:	21 May 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Grant leave to the plaintiffs to file Further Amended Statement of Claim in court. (2) The plaintiffs to pay the defendant’s costs thrown away by reason of the amendment. (3) Grant leave to withdraw imputation 4(a). (4) Imputation 6(c) struck out. (5) The plaintiffs to file a First Further Amended Statement of Claim as follows: (a) deleting imputations 4(a) and 6(c); (b) omitting “where he was charged” and “charge” from paragraph 6D; (c) inserting the word “first” before “plaintiff” in paragraph 5A. (6) Defendant’s application for particulars of publication to be verified refused. (7) The plaintiffs pay the defendant’s costs of this application. (8) Orders in accordance with the Short Minutes of Order filed in court. (9) Stood over for further directions to Friday 11 September 2009 at 9:00am.
CATCHWORDS:	Tort - defamation - whether imputations differ in substance - application for particulars of publication to be verified where plaintiffs cannot identify by name persons who heard the words alleged to be spoken
CASES CITED:	Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 450 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Moses v State of New South Wales [2009] NSWDC 74 Singleton v John Fairfax & Sons Ltd (Supreme Court of NSW, Hunt J, 20 February 1980, unreported)
PARTIES:	First Plaintiff: David Moses Second Plaintiff: Tangiwai Kawenga Defendant: State of New South Wales
FILE NUMBER(S):	6191 of 2008
COUNSEL:	Plaintiffs: Mr C J Dibb Defendant: Mr D A Caspersonn
SOLICITORS:	Plaintiffs: Friend & Co Lawyers Defendant: Henry Davis York Lawyers

JUDGMENT

1. The defendant brings an application to strike out imputations on the basis of form and capacity and to request further and better particulars of identification. I have heard argument on these issues this morning and now give reasons for the orders I have made.

2. The text of the two matters complained of is set out in my previous judgment (Moses v State of New South Wales [2009] NSWDC 74). I shall deal first with the objections to imputations.

The first publication

3. The first publication concerns a publication about the first plaintiff. The imputations pleaded to arise from the first publication are:

(a) The plaintiff robbed women.
(b) The plaintiff is a thief.
(c) The plaintiff stole from women.

4. In the course of argument Mr Dibb agreed that imputations (a) and (c) did not differ in substance, and agreed to withdraw (a).

5. How can it be said that imputation (b) and (c) differ in substance? The answer is that imputation (b) sets out a “condition” (namely that the plaintiff is a thief) while imputation (c) sets out an “act” (namely that the plaintiff stole from women). It is settled law that an imputation of “condition” will differ in substance from another imputation setting out a specific act, for the reasons explained by Hunt J in Singleton v John Fairfax & Sons Ltd (Supreme Court of NSW, Hunt J, 20 February 1980, unreported). Hunt J clarified the difference as follows:

“Imputation (b) is conceded by the plaintiff to be no more than a particular instance of the general allegation made by Imputation (a). In the light of this concession, the defendant argues that the two imputations are not different in substance, as required by r 11(3). As any imputation pleaded must be taken to include all other imputations which do not differ in substance ( Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749, at 771), it is wrong in principle, it is said, to plead both the general and the particular applications of the same allegation.

In my view, such a principle is stated too broadly. It may be tested by considering what must be proved by way of justification to each such imputation. One of the most oft-quoted cases is that of Bishop v Latimer (1861) 4 LT (NS) 775. The heading to the defendant's report was in the terms: "How Lawyer Bishop treats his clients". Proof that the plaintiff had treated one client badly in one particular case was held to be an insufficient justification of the heading, which implied that he so treated his clients generally (at 775).

Another way by which the principle contended for by the defendant may be tested is by considering what may be proved by way of justification to each such imputation. Where the imputation consists of a general allegation, it is open to the defendant to establish the truth of that allegation by proof of matters entirely unrelated to the specific instance identified in the matter complained of. The leading case is of Maisel v Financial Times Ltd (1915) 112 LT 953. The matter complained of reported the arrest of the plaintiff, the director of a company, on a charge of fraud. In his Statement of Claim, the plaintiff relied upon an imputation that he was an unfit person to be the director of any company. The defendant was held by the House of Lords to be entitled to justify that imputation by relying upon a number of other dishonest acts, quite independent of that for which he was said in the matter complained of to have been arrested. For an even more startling example, see McGrath v Black (1926) 135 LT 594.

The question is whether the general allegation is different in substance from the particular. In most cases, in my opinion, it would be. In many cases, the allegation in the matter complained of that the plaintiff was guilty of misconduct on a particular occasion will not support an imputation alleged in general terms.”

6. In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 450 a defendant unsuccessfully made a similar complaint concerning the pleading of an imputation in general terms as well as an imputation of specific conduct. Hunt J noted (at 455) that while a description of one specific incident was usually incapable of supporting an imputation expressed in terms of general application, an article with the heading ‘BOYD IS FAT, SLOW AND PREDICTABLE’ was not just criticizing his play in one football match but his general condition (or lack of it).

7. The facts in this case are similar. The first plaintiff in this publication is accused not of one theft but of a number of thefts from women. The first plaintiff is entitled to plead both the general condition and the particular acts because a person who has stolen more than once can be called a thief.

8. The defendant’s objection that imputations (b) and (c) do not differ in substance accordingly fails.

The second publication

9. The second publication concerns a publication about the second plaintiff. The imputations pleaded to arise from the second publication are:

(a) The second plaintiff is a criminal.
(b) The second plaintiff is going to go to gaol.
(c) The second plaintiff has been arrested by the police for criminal activities.
(d) The second plaintiff is a despicable person.

10. The defendant’s objection to imputation (c) is that it does not differ in substance from imputation (b), that it did not arise and that it is not defamatory to say of a person that they have been arrested by the police for criminal activities.

11. The second plaintiff’s submissions were threefold. Firstly, imputations are no more than particulars and are no longer the cause of action, so the standard for striking out an imputation is very low. However, if an imputation is not able to be conveyed, does not differ in substance and/or is not defamatory, the fact that imputations now have the status of particulars does not permit them to be pleaded. While a court must approach its task in exercising the discretion to strike out imputations with great caution (Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186) these requirements still exist.

12. Secondly, Mr Dibb submitted that the imputation needs to be read in context of the whole of the matter complained of, which has the statement ‘you’re under arrest” as well as “you’re going to gaol” and that the ordinary reasonable reader would consider being under arrest (but not going to gaol) as carrying a separate sting from being under arrest for an offence which results in going to gaol. Mr Dibb submitted that people can be arrested for offences that do not result in going to gaol, and therefore the imputations did differ in substance. However, the clear thrust of what the police are alleged to have said is that the police have told a person they arrested that he is going to gaol, and to be pleading a fall back imputation of lesser seriousness is not only artificial but does not accurately reflect what is conveyed.

13. Thirdly, Mr Dibb submitted that it was indeed defamatory to say of a person that he had been arrested for a criminal offence. However, the High Court of Australia in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300-301 explained:

“As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.

In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.”

14. Notwithstanding the need for caution in striking out imputations, this is a clear case of an imputation which is neither conveyed nor defamatory and which, when the matter complained of is viewed as a whole, does not differ in substance from imputation 6C(b). For these reasons I strike out imputation 6C(c).

Identification

15. The particulars of identification for each publication are set out in paragraphs 3 and 6B of the statement of claim. Each of the plaintiffs pleads that the police officers words were “spoken in a loud voice within the hearing of passers by and residents of premises adjoining George Street, many of whom were standing at and near their front fence observing the police and the plaintiff.”

16. In response to requests for particulars, the plaintiffs have indicated that they are unable to name any of these persons and have provided the best particulars that they can. The defendant now seeks particulars of publication of the kind sometimes called ‘Lazarus’ particulars (Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188), namely the provision of these particulars with verification.

17. The facts in Lazarus were that the plaintiff, while a passenger on a Lufthansa plane, had an altercation with a Lufthansa employee while the plane was on the tarmac at New Delhi airport. The plaintiff claimed he was assaulted and words of a defamatory nature spoken. He could not identify the other persons present who heard the words but they would have included passengers seated in the immediate vicinity.

18. Hunt J ordered the provision of particulars with verification, on the basis that the plaintiff was being granted a considerable indulgence, in part because no particulars at all had been provided and the information “had to be extracted from his counsel during argument” (at 195). In circumstances where the plaintiff asserted the words had been spoken in a foreign location in the middle of the night in front of unknown persons, the question of whether the plaintiff could prove a prima facie case of publication, and the extent of the publication, was a real uncertainty.

19. That is not the case here. The particulars given by the plaintiffs are the best particulars they can give; requiring verification of these will only add time and expense to this litigation, especially since the defendant can interrogate on this issue (by which time the plaintiffs may have located a witness). Furthermore, the words were spoken by police officers who are trained to keep records.

20. There were strong reasons for making the kind of orders Hunt J made in Lazarus, including the failure of the plaintiff to provide any particulars and the uncertainty of a publication on an aeroplane in a foreign airport. However, the practice of requiring not only particulars of the persons who heard the matter complained of but that these particulars be supplied with verification is one that is now comparatively uncommon. Unlike the fact situation in Lazarus (where the question of whether there was any conversation at all was a live issue) the police clearly said something to the plaintiffs when they apprehended them both so there is a higher degree of certainty as to publication. In addition, the plaintiffs have already provided the best particulars they can in the circumstances.

21. The defendant is entitled to interrogate the plaintiffs about publication and can obtain this answer with verification in the course of administering interrogatories. To require the plaintiffs to verify particulars already provided is an unnecessary extra expense to the parties.

22. Accordingly, the defendant’s application for the plaintiffs’ answers to particulars of publication to be verified is refused.

23. The defendant has successfully objected to two of the plaintiffs’ imputations and has pointed out a number of minor housekeeping matters to be corrected in the pleadings, which are reflected in the orders I make. As the defendant has been substantially successful the plaintiffs should pay the cost of the application.

Orders

(1) Grant leave to the plaintiffs to file Further Amended Statement of Claim in court.

(2) The plaintiffs to pay the defendant’s costs thrown away by reason of the amendment.

(3) Grant leave to withdraw imputation 4(a).

(4) Imputation 6(c) struck out.

(5) The plaintiffs to file a First Further Amended Statement of Claim as follows:

(a) deleting imputations 4(a) and 6(c);
(b) omitting “where he was charged” and “charge” from paragraph 6D;
(c) inserting the word “first” before “plaintiff” in paragraph 5A.

(6) Defendant’s application for particulars of publication to be verified refused.

(7) The plaintiffs pay the defendant’s costs of this application.

(8) Orders in accordance with the Short Minutes of Order filed in court.

(9) Stood over for further directions to Friday 11 September 2009 at 9:00am.

******