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

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.
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.
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.
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.
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…

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.

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Details

Case: [2015] NSWSC 1189
Decision Date: 11 August 2015

CaseChat Overview and Summary

Moss v Random House Australia Pty Limited is a defamation case where the plaintiff, Moss, brought proceedings against the defendant, Random House Australia Pty Limited, over a book published by the defendant. The plaintiff alleged that the book contained defamatory imputations regarding his character and professional conduct. The case was heard in the Federal Court of Australia.

The central legal issues in this case revolved around the form of the pleadings and the nature of the imputations contained in the book. Specifically, the court had to determine whether the plaintiff's statement of claim adequately pleaded the defamatory imputations, and if the imputations were ambiguous or differed in substance. The court also needed to assess whether the objections raised by the defendant regarding the form of the pleadings were valid.

The court examined the content of the book and the allegations made by the plaintiff. It found that the plaintiff's statement of claim sufficiently pleaded the defamatory imputations, despite some objections as to form raised by the defendant. The court concluded that the imputations, while potentially ambiguous, did not differ in substance from the allegations made. Therefore, the objections regarding the form of the pleadings were not well-founded, and the case proceeded to the merits.

The court's decision upheld the plaintiff's right to pursue defamation claims and clarified the standards for pleading defamatory imputations. The court dismissed the defendant's objections and allowed the proceeding to continue. The final orders of the court are pending the outcome of the trial on the merits.

Orders