Nikolopoulos and 10 Ors v Greek Herald Pty Limited

[1999] NSWSC 420

CITATION:

Nikolopoulos & 10 Ors v Greek Herald Pty Limited & Anor [1999] NSWSC 420

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20071 of 1999

HEARING DATE(S):

30 April 1999

JUDGMENT DATE:

30 April 1999

PARTIES :

GEORGE NIKOLOPOULOS
(First Plaintiff)

JOHN GEORGOPOULOS
(Second Plaintiff)

ALEX PETTAS
(Third Plaintiff)

TOM HARALAMBIDIS
(Fourth Plaintiff)

PETER MITROTHANASIS
(Fifth Plaintiff)

BILL KATEGIANNIS
(Sixth Plaintiff)

GEORGE TSOKOS
(Seventh Plaintiff)

JIM PANAGAKIS
(Eighth Plaintiff)

CHRIS GIORGAKOPOULOS
(Ninth Plaintiff)

JOHN GOUNAROPOULOS
(Tenth Plaintiff)

BILL VENETOULIS
(Eleventh Plaintiff)

v

GREEK HERALD PTY LIMITED
(First Defendant)

THEODORE SKALKOS
(Second Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	M Rollinson (Plaintiffs) T Lazaropoulos (Defendants)
SOLICITORS:	Brock Partners (Plaintiffs) Tony Lazaropoulos (Defendants)
CATCHWORDS:	Imputations - particulars of matter complained of
DECISION:	See paragraphs 20-22

DLJ : 1
(Ex Tempore - Revised)

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

No. 20071 of 1999

JUSTICE DAVID LEVINE

FRIDAY 30 APRIL 1999

GEORGE NIKOLOPOULOS
(First Plaintiff)

JOHN GEORGOPOULOS
(Second Plaintiff)

ALEX PETTAS
(Third Plaintiff)

TOM HARALAMBIDIS
(Fourth Plaintiff)

PETER MITROTHANASIS
(Fifth Plaintiff)

BILL KATEGIANNIS
(Sixth Plaintiff)

GEORGE TSOKOS
(Seventh Plaintiff)

JIM PANAGAKIS
(Eighth Plaintiff)

CHRIS GIORGAKOPOULOS
(Ninth Plaintiff)

JOHN GOUNAROPOULOS
(Tenth Plaintiff)

BILL VENETOULIS
(Eleventh Plaintiff)

v

GREEK HERALD PTY LIMITED
(First Defendant)

THEODORE SKALKOS
(Second Defendant)

JUDGMENT (Imputations - particulars of matter complained of)

1 HIS HONOUR: In these proceedings eleven plaintiffs sue the first and second defendants claiming damages for defamation arising from three publications in " The Greek Herald " published on 20 January and 10 and 11 February this year.
2 The plaintiffs at the relevant times say they were the directors of Canterbury Marrickville Olympic Soccer Football Club Limited.
3 Each of the three publications deals with the subject matter of the sale by the club of certain real estate, to put it in very general terms.
4 The first matter complained of appears from annexure A1 to the statement of claim to take up three columns in the Greek language which have been translated into three and a half pages of English text in annexure A2.
5 The second matter complained of is again three columns in the Greek language which has been rendered into a page and a half of English.
6 The third is three columns rendered into just over one page of English.
7 The references to column length in the original Greek publication do not and cannot fairly indicate the length, in fact, of the publications as, no doubt, the annexures have been subject to reduction or possibly even expansion in the photocopying process. The point is, however, that each matter complained of cannot be said to be of undue or any great length. The second point that can be made about each matter complained of for the purposes of the present application is that the language used by the publishers is fairly clear in what it is saying.
8 The present dispute arises in connection with a matter that is not commonly the subject of contention: it is the adequacy of particulars provided by the defendants in response to a request in the following terms: " Nominate the part or parts of the first matter complained of alleged to give rise to each of the imputations complained of. Please provide a specific answer for each imputation pleaded ".
9 Using that as an example, the response was provided: " The plaintiffs rely on the whole of the material complained of to convey each and every imputation ".
10 There is, of course, an obligation upon a plaintiff that is well-known; namely, to plead and particularise his case in such a way as to clearly inform the relevant defendant of the case that defendant has to meet.
11 In a defamation action the cause of action is constituted by the imputation alleged to be carried by the particular matter published. In the usual course of events a request for particulars in the form to which I have referred is made and a not uncommon response is to the effect: " The plaintiff relies upon the whole of the matter complained of as giving rise to imputation X and, in particular, paragraphs A, B, C and D ".
12 Does the failure of the plaintiff to adopt that usual approach amount to a failure properly to particularise its case for the purpose to which I have referred? In some instances clearly it will not. If the publication was to the effect " the plaintiff is a thief " and the imputation is the “ plaintiff is a thief” , there would hardly be any need for an exchange of particulars on this subject at all, one would think.
13 Where the publication sued upon is, for example, a television or radio broadcast, a " transient " publication, that is, it passes through the relevant senses from beginning to end, the issue may be important by reason of the recipient not having, at the one time, the whole of the publication before him or her.
14 A response to the request for particulars in the form I have used which refers both to the whole of the matter and relevant parts does not and cannot bind the plaintiff in the presentation of its case to those parts to the exclusion of others which make up the whole. Also it has to be acknowledged that it would be imprudent for a plaintiff, unless the case was abundantly clear, to say in respect of imputation X, " The plaintiff relies only on paragraph Y of the published matter ".
15 The question to be answered in the current application can be framed: " are the defendants uninformed to the point of embarrassment by the response that in respect of each and every imputation the plaintiff relies upon the whole of the matter complained of; are the defendants uninformed, in a reasonable sense, by such a response?"
16 Whilst the defendants might take the view that it would be of some utility to be provided with further information, it does not necessarily follow that its non-provision amounts to an inadequate statement of the plaintiffs' case.
17 In respect of the first publication sued upon, each plaintiff has pleaded seven imputations and the view to which I have come is that it could hardly be clearer that those imputations, and each of them, fairly can be attributed to the whole of the matter complained of. In the course of submissions the exercise of identifying particular paragraphs, for example in relation to imputations 4(f) and (g), was easily dealt with, but the publications on their face are such that the defendants cannot be embarrassed in the way to which I have referred by a plaintiff going through what appears to me to be an unnecessary exercise to isolate one part of an allegedly disparaging publication from beginning to end that might lend particular support to one imputation.
18 Subject to any discrete argument as to capacity which in my view would not be affected by the form of particulars as described, or any discrete argument as to form, the Court here is not concerned with principles relating to material qualifying the complexion of the imputations vis a vis the respective publications sued upon.
19 Insofar as it is to be taken that in each case the whole of the matter is pleaded, the principles referred to in Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410 are not directly apposite. I do not find that the pleading or the method of particularisation in this case in the light of the form, content and tenor of each publication embarrasses the defendants or requires them to embark upon any investigatory process to identify the case they have to meet in respect to each publication of each plaintiff.
20 The application for further particulars is dismissed.
21 I will note that the plaintiff will be moving the Court under SCR Pt 31 r 2 for determination of whether the matters complained of are capable of conveying the imputations pleaded. I will stand that matter over to Friday 11 June for argument.
22 The defendants are to pay the plaintiffs' costs of today. In the event that the defendants wish to move the Court on the same basis or to make any application in relation to issues of form with respect to the imputations, notice thereof is to be given to the plaintiffs by no later than 5 pm on Friday 21 May.
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