Nassif v Nationwide News Pty Limited

[1999] NSWSC 150

CITATION:	Nassif v Nationwide News Pty Limited [1999] NSWSC 150
CURRENT JURISDICTION:	Common Law Defamation List
FILE NUMBER(S):	20347/98
HEARING DATE(S):	19 February 1999
JUDGMENT DATE:	5 March 1999
PARTIES :	Yvonne NASSIF v NATIONWIDE NEWS PTY LIMITED
JUDGMENT OF:	Simpson J

COUNSEL :	Mr M K Rollinson (Plaintiff) Mr T D Blackburn (Defendant)
SOLICITORS:	Hovan & Co. (Plaintiff) Blake Dawson Waldron (Defendant)
CATCHWORDS:	Defamation
DECISION:	Imputations (a),(b) and (c) struck out.

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THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Friday 5 March 1999

20347/98

Yvonne NASSIF v NATIONWIDE NEWS PTY LIMITED

Judgment

HER HONOUR :
1 The plaintiff sues the defendant for defamation arising out of a publication by the defendant in “The Daily Telegraph” a daily newspaper circulating in NSW.
2 The publication was a news item concerning evidence given to a hearing by the Independent Commission Against Corruption (ICAC) in April 1988 into allegations that involved a person called Louis Bayeh, who was described in the body of the item as an “underground figure” It was headlined:
“Bayeh Lawyer says he met Whelan”.
3 Underneath the headline was a large photograph, to which I will return, and underneath the photograph was a report of evidence given to the inquiry. In the body of the report was a reference to evidence about a meeting attended by, among others, a person described as a “brothel owner”.
4 A subsidiary story was contained in a box inserted into the body of the main story, and this was headed:
“Louie’s faithful Yvonne”.
5 “Yvonne” was Yvonne Nassif, the plaintiff. In this box the plaintiff was described as having “maintained a diligent presence in the public gallery”, to have arrived regularly in Bayeh’s Mercedes and developed friendly relationships with his legal representatives and others around the inquiry.
6 The photograph is a significant part of the publication, and is central to the plaintiff’s claims. It is captioned:
“Louis Beyeh’s girlfriend Yvonne outside the commission hearing yesterday.”
7 The plaintiff is depicted on the far right of the photograph, dressed in a full length coat, carrying a handbag, and holding something which may be and, for the purposes of the argument, was assumed to be, a mobile phone to her right ear. The remainder of the photograph is taken up with what appears to be a large garage roller door which is closed, and on which is painted or printed in large block letters the words “ANY TIME”.
8 The plaintiff claims that the publication taken as a whole conveys five imputations, each of which is defamatory of her. They are:
“(a) The Plaintiff is a Prostitute.

(b) The Plaintiff solicits clients for the purpose of prostitution by mobile telephone.
(c) The Plaintiff is available for prostitution any time.
(d) The Plaintiff is a person of loose morals.
(e) the Plaintiff is the sort of person who would pose provocatively in front of a sign reading “Any Time.”

9 The defendant has objected to the imputations.
10 The principal argument was that the matter complained of is incapable of conveying any of the imputations pleaded except imputation (d).
11 Counsel for the plaintiff sought to support the imputations pleaded. He pointed to the reference to the “brothel owner” in the body of the news report; to the references to the plaintiff by name in the boxed inset; to the manner in which the plaintiff is depicted, standing in front of the garage door; to the words “Any Time” painted on the garage door; to the description of Bayeh as an “underworld figure”; and to the identification of the plaintiff as Bayeh’s “girlfriend”. When all of these were combined, counsel argued, the imputations pleaded were available.
12 One essential element of each of imputations (a), (b) and (c) is the attribution of prostitution to the plaintiff. I am unable to see that the publication as a whole, or any individual part of it, is capable of conveying any such imputation. In this regard counsel relied heavily upon the juxtaposition of the words “Any Time” with the depiction of the plaintiff. I am satisfied that, even without regard to the caption, but particularly if the caption is taken into account, those words could not be taken to bear any relationship to the plaintiff. It is nowhere suggested that the garage door is at the plaintiff’s premises, or has anything to do with her other than providing a backdrop for her use of the mobile phone (if that is what it is) outside the hearing. The mere mention of a brothel owner in another context in the news report, and the assertion that the plaintiff’s fiance is “an underworld figure” do not create a connection or strengthen an existing connection between those words and the plaintiff. I am of the view that there is nothing in the matter complained of that identifies the plaintiff as a prostitute. Imputations (a), (b) and (c) will be struck out.
13 In any event, I am satisfied that the defendant’s secondary argument, that imputations (b) and (c) do not differ in substance from imputation (a), should be accepted. Counsel for the plaintiff argued that imputations (b) and (c) conveyed a notion of immorality more serious and greater in degree than the imputation that the plaintiff is a prostitute. However, he was unable to pinpoint the escalation in seriousness other than by suggesting that the use of the mobile telephone for prostitution purposes, or ready availability at “any time” for the purposes of prostitution somehow suggests that she is more indiscriminate in the selection of her clientele than some other prostitutes and therefore morally more blameworthy. I do not accept that the use of a mobile telephone for the purposes of prostitution in any way denotes less discriminating selection of clients than solicitation by some other means. Furthermore I do not accept that availability at “any time” is morally more reprehensible than prostitution during limited hours. It is true that each of these imputations conveys an additional alleged fact about the manner in which, it is suggested, the plaintiff goes about the business of prostitution, but there is no difference in the essence of the allegations - that is, that the plaintiff is employed in prostitution. I am therefore satisfied that imputations (b) and (c) do not differ in substance, for the purposes of the law of defamation, from imputation (a).
14 The final argument concerned imputation (e). That imputation is dependent upon an inference that the plaintiff posed for the photograph, as distinct from having her photograph taken, whether nor not she was aware of it, by a photographer near where she happened to be. In my opinion the photograph is capable of being interpreted by an ordinary reasonable viewer as either posed or not posed. The next question is whether the pose could properly be described as “provocative”. The word is imprecise; but a reader who inferred that the photograph was posed, might think that the plaintiff had deliberately joined with the photographer, in a somewhat sardonic joke. I doubt whether that, alone, could really be held to defame the plaintiff, but that is not the question. The present question is whether the matter complained of is capable of conveying the imputation pleaded, and, with some hesitation, I conclude that it is so capable.
15 Accordingly, I strike out imputations (a), (b) and (c).

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