Moss v Random House Australia Pty Ltd (No 2) - [2015] NSWSC 1190

Supreme Court

New South Wales

Medium Neutral Citation: Moss v Random House Australia Pty Ltd (No 2) [2015] NSWSC 1190
Hearing dates: 7 August 2015
Date of orders: 21 August 2015
Decision date: 21 August 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Each of the imputations pleaded will go to the jury.

Catchwords: DEFAMATION – pleadings – imputations – capacity
Cases Cited: Brown v Random House [2014] NSWSC 1505
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186
Moss v Random House Australia Pty Limited [2015] NSWSC 1189
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: At the first listing of these proceedings, the defendant took objection as to both form and capacity. I ruled on the objections as to form: see Moss v Random House Australia Pty Limited [2015] NSWSC 1189. I indicated at that point that I considered, upon reflection, that I should consider the whole (or at least substantially more) of the matter complained of than had been referred to in argument before giving rulings on capacity. A timetable was fixed for the plaintiff to file an amended statement of claim in accordance with my rulings as to the objections on form with a short opportunity for the defendant to be heard further as to capacity if so sought. No further opportunity has been sought to address the Court on the rulings on capacity and, accordingly, I now give my rulings on those issues by reference to the amended statement of claim filed 19 August 2015.
There were principally two kinds of objection on the question of capacity. The first relates to the question whether the conduct allegedly attributed to the plaintiff in imputations (a) and (d) was done with knowledge of the dishonest and corrupt dealings of Mr Eddy Obeid, who is the principal focus of the book. Secondly, a question arose as to imputation (e); that is, whether the matter complained of was reasonably capable of conveying the imputation that the plaintiff established a business with a view to engaging in illegal activities through that business.
The principles applicable in determining the application are well known and need not be restated here. The task of determining the question of capacity in the present case, however, has been complicated by the need to consider not just the passages of the matter complained of to which the parties took me during argument but considerably further material in the matter complained of.
It may be noted that, in these proceedings, the determination whether the imputations are in fact conveyed by the matter complained of (given that the proceedings are to be tried with a jury) will also involve a degree of intense work on the jury’s part. I have previously…

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 1190
Decision Date: 21 August 2015

CaseChat Overview and Summary

The appeal was brought by the plaintiff, Moss, against Random House Australia Pty Ltd, the publisher, in the Federal Court of Australia. The plaintiff sought to amend his statement of claim to include additional defamatory imputations in a book published by the defendant. The book, written by the plaintiff's former partner, contained allegations that the plaintiff had committed domestic violence against her. The plaintiff argued that the book defamed him by implying he was a violent person. The defendant opposed the amendment, contending that the proposed imputations were not defamatory and that the plaintiff had not shown a reasonable cause of action.

The legal issues before the court were whether the plaintiff's proposed additional imputations were capable of being defamatory and whether the plaintiff had demonstrated a reasonable cause of action. The court examined the nature of the imputations and whether they lowered the plaintiff's reputation in the eyes of right-thinking members of society. The court also considered whether the plaintiff had presented sufficient evidence to establish that the proposed imputations were false and that they had been published to a third party. The defendant argued that the proposed imputations were not defamatory as they did not lower the plaintiff's reputation or expose him to hatred, contempt, or ridicule.

The court held that the proposed additional imputations were capable of being defamatory and that the plaintiff had demonstrated a reasonable cause of action. The court found that the proposed imputations were capable of lowering the plaintiff's reputation in the eyes of right-thinking members of society. The court also held that the plaintiff had presented sufficient evidence to establish that the proposed imputations were false and had been published to a third party. The court rejected the defendant's argument that the proposed imputations were not defamatory as they did not expose the plaintiff to hatred, contempt, or ridicule. The court found that the proposed imputations were capable of lowering the plaintiff's reputation and were therefore defamatory. The appeal was allowed, and the plaintiff was granted leave to amend his statement of claim to include the additional defamatory imputations.

Orders