O'Neill v Fairfax Media Publications Pty Ltd
[2017] NSWSC 631
•05 May 2017
Supreme Court
New South Wales
Medium Neutral Citation: O’Neill v Fairfax Media Publications Pty Ltd [2017] NSWSC 631 Hearing dates: 5 May 2017 Decision date: 05 May 2017 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff granted leave to file an amended statement of claim by close of business on 8 May 2017; orders as sought in the short minutes; defendants directed to serve any admission in accordance with clause 13(b) of the Practice Note within 14 days
Catchwords: DEFAMATION – pleadings – rulings as to form and capacity of imputations – consideration of adequacy of particulars of identification Legislation Cited: Defamation List Practice Note SC CL 4, cl 13
Uniform Civil Procedure Rules 2005 (NSW), r 15.19(1)(d)Category: Procedural and other rulings Parties: Dr John O’Neill (plaintiff)
Fairfax Media Publications Pty Ltd (first defendant)
Peter FitzSimons (second defendant)Representation: Counsel:
Solicitors:
S Chrysanthou (plaintiff)
R Jedrzejczyk (defendants)
Horton Rhodes Lawyers (plaintiff)
Banki Haddock Fiora (defendants)
File Number(s): 2017/89572
Judgment
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HER HONOUR: These are proceedings for defamation arising out of an article published in The Sydney Morning Herald in print and on line. The article was written by the popular sports journalist, Mr Peter FitzSimons, and concerned a widely publicised fight between Anthony Mundine and Danny Green. The fight attracted a deal of publicity in circumstances where the reporting suggested that Mr Green was obviously injured during the fight, suffering from concussion, and that the fight ought to have been stopped.
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That was the burden of Mr FitzSimon's article, published in the printed edition of the newspaper under the headline "Stop the fight! Please, stop the fight" and, in the online edition, under the heading "Danny Green suffered bleeding on the brain against Anthony Mundine, and yet they let the fight go on".
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The plaintiff, Dr John O'Neill, was one of the two ringside doctors at the fight.
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The proceedings are before the Court today for the first listing. In accordance with clause 13 of the Defamation List Practice Note SC CL 4, the parties have brought forward the contested objections to the form of the statement of claim. Two issues were raised in argument.
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First, the defendants submit that two of the imputations pleaded in the statement of claim do not differ in substance. They are imputations 4(a) and (c), as follows:
(a) The plaintiff, a doctor, incompetently allowed boxer Danny Green to continue fighting in a boxing match despite the fact that Mr Green suffered bleeding on the brain
(c) The plaintiff was such an incompetent ringside doctor that he failed to stop a fight despite the fact that one of the boxers obviously had brain damage
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Ms Chrysanthou submitted that imputation (c) differs from (a) in that it is more serious, the seriousness being elevated by the reference to the damage in question having been suffered "obviously".
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In my view, the notion of obviousness of the suffering of Mr Green is necessarily also implicit in imputation (a). In particular, I do not see how a reader could accept that the doctor's conduct was incompetent unless the bleeding on the brain suffered by Mr Green was obvious at the point when the fight was allowed to continue.
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Ms Chrysanthou, who appears for the plaintiff, submitted that the difficulty arises from the fact that imputation (a) is conveyed by the headline alone, at least in the case of the online publication. She took me to the parts of the matter complained of alleged separately to convey imputation (c). Those parts of the matter complained of, in my view, are capable of conveying a different and indeed more serious sting than the imputation presently captured in (a) that is not reflected in the current imputation (c) as pleaded.
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In my view, imputations (a) and (c) in their present form do not differ in substance and it is necessary for the plaintiff to elect between them or else re-plead imputation (c). The plaintiff will have leave to do that.
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The second issue raised in the correspondence concerned the particulars of identification. Dr O'Neill is not named in either article. The plaintiff has provided particulars of identification, as required under r 15.19(1)(d) of the Uniform Civil Procedure Rules 2005 (NSW). The defendants object that, as to a number of the particulars (namely (a), (b), (d), (e) and (f)), each would be incapable on its own of leading a reader to the conclusion that the doctor referred to and strongly condemned in the matters complained of was the plaintiff.
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The plaintiff responded in correspondence by contending that that conclusion should not warrant the particulars being struck out at this stage. It was argued that the particulars "flow and are to be taken in combination" and that the purpose of the particulars is to put the defendants on notice of the case the plaintiff will make at trial and the scope of evidence likely to be adduced.
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In my view, there is force in the plaintiff's position on that issue. I do not think it is appropriate to pick off individual particulars at this stage, for the reason identified.
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Mr Jedrzejczyk, who appears for the defendants, submitted that the difficulty arises from the fact that particular (i), which identifies two individuals who read the matter complained of and identified the plaintiff, does so in terms specifying only that each of those men was aware of "one or more of the matters" set out in the particulars. I do not think it follows that the individual particular referred to should be struck out at this stage.
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As submitted by Ms Chrysanthou on behalf of the plaintiff, the overwhelming likelihood is that there are persons who knew some or all of the particulars of identification in such combination as to lead them to identify the plaintiff as the doctor referred to. I am satisfied that the pleading adequately puts the defendants on notice of a case to that effect. The challenge to the particulars of identification is rejected.
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Clause 13(b) of the Practice Note requires the defendants to inform the Court whether the element of publication is admitted and if so the admitted scope of publication. The defendants admit publication but need to qualify that admission in respect of the online article, which was amended at some point.
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I grant leave to the plaintiff to file an amended statement of claim by close of business on 8 May 2017. I make orders 1 to 4 in the short minutes. I direct the defendants to serve any admission in accordance with clause 13(b) of the Practice Note within 14 days.
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Decision last updated: 22 May 2017
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