Moss v Random House Australia Pty Limited

[2015] NSWSC 1189

Supreme Court

New South Wales

Medium Neutral Citation:	Moss v Random House Australia Pty Limited [2015] NSWSC 1189
Hearing dates:	7 August 2015
Date of orders:	11 August 2015
Decision date:	11 August 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Rulings on imputations
Catchwords:	DEFAMATION – pleadings – imputations – objections as to form – whether imputation ambiguous – whether imputations differ in substance
Legislation Cited:	Defamation Act 2005 (NSW)
Cases Cited:	Corby v Allen and Unwin [2013] NSWSC 308 Fairfax Media Publications Pty Limited v Alex [2014] NSWCA 273 John Fairfax and Sons v Foord (1988) 12 NSWLR at 706 Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
Category:	Procedural and other rulings
Parties:	William James Moss (plaintiff) Random House Australia Pty Limited (defendant)
Representation:	Counsel: S Chrysanthou (plaintiff) T Blackburn SC (defendant)   Solicitors: Dibbs Barker (plaintiff) Kennedys (defendant)
File Number(s):	2015/180440
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation arising out of the publication of a book titled "He Who Must Be Obeid: The Untold Story" written by Kate McClymont and Linton Besser.

2. At the first listing of the proceedings, the defendant took objections to the imputations pleaded by the plaintiff as to both form and capacity. The defendant initially submitted that I should first determine the objections as to the form of the imputations so that, if the statement of claim was to be amended, the capacity argument could proceed by reference to the amended pleading.

3. As the argument unfolded, I determined to hear the defendant's submissions as to capacity at the same time, since the scope of any potential amendments as to form were clear. In that context, I asked the parties whether it would be necessary for me to read the whole of the book in order to give rulings as to capacity. That was the approach taken by Adamson J in Corby v Allen and Unwin [2013] NSWSC 308. The parties informed me that that case was listed as a two-day fixture and that her Honour had had the opportunity to read the whole of the book before the argument commenced.

4. The present matter came before me as Defamation List judge in the normal Friday List, which is a busy practice list. The parties agreed that it would be sufficient for me to read only the parts of the matter complained of identified in the particulars to the statement of claim and in argument as going to sustain the imputations pleaded by the plaintiff. So far as the defendants are concerned, it was implicit in that concession that there was elsewhere in the matter complained of no antidote (to adopt the common analogy) to any bane in the parts identified.

5. Upon reflection, however, I have concluded that I should consider the whole (or substantially the whole) of the matter complained of in order to give rulings on capacity. I have reached that conclusion in part due to my experience of reading the parts identified for my consideration and finding myself wishing to place those passages in context and to have a better understanding of internal references within the book. Accordingly, I propose to address the question of capacity after the form of the pleading has been brought into order, as initially contemplated in the submissions of the defendant.

6. These are my rulings as to objections to form.

7. The first objection is to imputation (a):

"the plaintiff, through his role as sounding board, financial advisor and mediator for the notoriously corrupt Eddie Obeid, facilitated and advanced Mr Obeid's corrupt activities".

8. The objection is that the imputation contains an obvious ambiguity in that it does not make clear whether the plaintiff is supposed to have known of Mr Obeid's corrupt activities in acting as a sounding board, financial advisor and mediator (or whether he acted in that role on some more innocent basis).

9. In correspondence in relation to the objections, the solicitors for the plaintiff contended that the defamatory sting is adequately distilled in that imputation, stating "it is clear from the conduct set out in the imputation that the facilitation by the plaintiff was knowing".

10. The defendants submitted that that is not clear because the imputation is capable of being understood as an allegation that the matter complained of attributes to the plaintiff only the act of having inadvertently or incidentally assisted the plaintiff through the advice referred to.

11. In my view, there is an ambiguity and it should be clarified. The Court of Appeal has recently reiterated the importance, particularly in the context of a defamation trial under the Defamation Act 2005 (NSW) (where all issues but damages are determined by the jury) of having any ambiguity in the imputation clarified prior to trial rather than being left as a matter the subject of a clarification in correspondence: see Fairfax Media Publications Pty Limited v Alex [2014] NSWCA 273. That was a case raising a similar issue to the issue raised in the present matter; the ambiguity related to the state of knowledge allegedly attributed to the plaintiff by the matter complained of.

12. The imputation under challenge was "there are reasonable grounds to suspect that [the plaintiff] is the person who arranged for the visit to Mr Steve Mitrovic's premises of a group of men carrying a firearm during which visit Mr Mitrovic was shot dead”. The ambiguity was as to whether that consequence (the shooting) was something that was intended by the plaintiff, merely foreseen or contemplated by the plaintiff or unintended by him altogether. That issue had been clarified in submissions by counsel for the plaintiff but the Court of Appeal held that it was incumbent upon the trial court to make a ruling so that there could be no ambiguity at the point of trial: see particularly at [21] to [24] per McColl JA; Leeming JA and Tobias AJA agreeing at [29] and [30] respectively.

13. The imputation in the present case should, in my view, be clarified in the manner indicated by Ms Chrysanthou (who appears for the plaintiff), namely, by insertion of the word "knowingly" before the word "facilitated" or otherwise as those advising the plaintiff see fit.

14. The next objection is to imputation (b):

"the plaintiff, while working for Macquarie Bank, gave financial advice to Eddie Obeid in relation Obeid's various corrupt and dishonest business ventures".

15. As with imputation (a), the principal objection was ambiguity. The defendant made the same submissions as in respect of imputation (a).

16. The plaintiff's correspondence in response to the defendant's objection asserted, "Again, it is clear from the conduct attributed to the plaintiff in the imputation that he knowingly gave such advice". However, Ms Chrysanthou indicated at the hearing that that contention was in error and that the imputation was, in fact, intended only to complain that the matter complained of attributes the plaintiff with having given such advice "not knowingly".

17. Ms Chrysanthou submitted that the intention is to convey ignorance, stupidity or lack of judgment and that it should be a matter for the jury whether that is defamatory but it was made clear in argument that the imputation was not intended to convey the meaning that the plaintiff gave such advice knowingly. In my view, the course of the correspondence itself reveals the ambiguity. The imputation should be clarified.

18. It is convenient at this point to deal with imputation (d) which is:

"the plaintiff, while working for Macquarie Bank, had knowledge of the dishonest and corrupt business ventures of Eddie Obeid".

19. Ms Chrysanthou accepted during argument that the imputation in that form fails to make clear what defamatory charge is levelled against the plaintiff. Ms Chrysanthou sought to amend the imputation so as to read:

"the plaintiff, while working for Macquarie Bank and giving advice to Eddie Obeid, had knowledge of the dishonest and corrupt business ventures of Eddie Obeid."    

20. Mr Blackburn submitted that depending on the meaning contended for, imputation (d) might not differ in substance from imputation (b). In light of the clarification as to imputation (b) and the proposed amendment to imputation (d), it is clear that the imputations differ in substance but it may be that they could only be relied upon as alternatives. That is an issue on which I do not think I heard from Ms Chrysanthou. At the time of giving this judgment orally, I do not have the transcript of argument last Friday. If the plaintiff wishes to be heard further on that issue an opportunity will be afforded for that to occur.

21. Otherwise, my ruling is that imputation (b) must be struck out for ambiguity with leave to re-plead or else in order to make clear the distinction between imputation (b) and imputation (d) should be pleaded as an alternative to imputation (d) with such amendment to the grammatical structure of each imputation as to make it plain that they are alternatives. It seems to me that the meaning of imputation (b) would be made clear if it were re-pleaded as an alternative with the same structure as imputation (d); one alleging giving the advice with knowledge of the dishonesty and corruption and one omitting that last element.

22. Imputation (c) is:

"the plaintiff was a close friend and business associate of criminal Eddie Obeid".

23. The defendant submitted that the imputation does not make clear whether the plaintiff was supposed to have known that Obeid was a criminal. It was submitted that there is a substantial difference between being a close friend and an associate of a criminal in ignorance of the criminality and having such a friendship knowing of the criminality.

24. Ms Chrysanthou submitted that the imputation is sufficiently clear. She noted that, in the matter of Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, there was left to the jury an imputation that the plaintiff was an associate of criminals. The plaintiff in those proceedings was a solicitor admitted to practice in New South Wales. The matters complained of were television broadcasts relating to fraudulent land sales perpetrated by a named company. Each programme made reference to the plaintiff.

25. The imputations left to the jury (evidently without complaint as to form) were “that the plaintiff was associated in fraudulent land deals set up by criminals”, “that the plaintiff was knowingly involved as a solicitor with fraudulent land deals” and, curiously, "that quite apart from the land deals, the plaintiff was an associate of criminals".

26. I say "curiously" because, in my experience, it is unusual to have imputations left to the jury with internal references each to the other. In any event, the decision certainly indicates that it was considered acceptable to leave an imputation to the jury that the plaintiff was an associate of criminals. What is clear from considering all three imputations together is that one of the imputations was more specific as to the attribution of knowledge.

27. Reference might also be had in this context to the decision of the Court of Appeal in John Fairfax and Sons v Foord (1988) 12 NSWLR 706. In that case, there were imputations that the plaintiff is a criminal associate of notorious drug dealers and that the plaintiff has criminally participated in the illegal drug trade. Those imputations survived an attack as to capacity but the judgment does not record any challenge to form: see 721. It may be noted that in that imputation however the association was described as criminal and the drug dealers were described as notorious.

28. In my view, there is a potential ambiguity in the present imputation. It is not clear whether what is attributed to the plaintiff is some form of naivety or lack of judgment in associating with a person the plaintiff ought to have appreciated was a criminal or whether the allegation is, more seriously, associating with a known or notorious criminal.

29. In correspondence, the plaintiff has indicated that the defamatory condition sought to be stated in the imputation is closeness to "a known criminal". If that is the intention, I think it needs to be stated in the imputation, applying the principles stated by the Court of Appeal in Alex. The clarification could be made simply by inserting the word "known" before the word "criminal".

30. Finally, there is an objection to imputation (e):

"the plaintiff was part of a business venture, Oceania, which was established with Paul Obeid and Samir El Khalil to engage in illegal activities".

31. Once again, the challenge is that the imputation is ambiguous because it does not make plain whether the imputation is intended to connote knowing involvement on the part of the plaintiff.

32. The plaintiff submitted that the defamatory sting sought to be captured in the imputation is that he was party to an illegal business venture and that that is a defamatory condition. In my view, there is a potential ambiguity in the difference between being party to a business venture not known to the plaintiff to be illegal and being party to a business venture the plaintiff knew was illegal. That is an ambiguity which in my view is apt to cause confusion in the proceedings both at the pleadings stage and at the trial. Accordingly, again in accordance with the principle stated in Alex, I think I am compelled to reject the imputation with leave to re-plead.

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Decision last updated: 07 September 2015