Otto v Dailymail.com Australia Pty Ltd

[2017] NSWDC 32

District Court

New South Wales

Medium Neutral Citation:	Otto v Dailymail.com Australia Pty Ltd [2017] NSWDC 32
Hearing dates:	2 March 2017
Date of orders:	02 March 2017
Decision date:	02 March 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to r 14.30 Uniform Civil Procedure Rules 2005 (NSW) strike out imputation (b) as not differing in substance to imputation (d); requirement to file an Amended Statement of Claim waived. (2) Plaintiff pay defendant’s costs. (3) Defendant’s Defence in 28 days. (4) Plaintiff’s Reply 28 days thereafter. (5) Matter stood over to the Defamation List on Thursday 27 April for further directions.
Catchwords:	TORT – defamation – imputations – capacity – no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 14.30
Cases Cited:	Barbknecht v Great Northern R. Co. 55 ND 104, 212 NW 776 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) Toben v Milne [2014] NSWCA 200
Category:	Procedural and other rulings
Parties:	Plaintiff: David Otto Defendant: Dailymail.com Australia Pty Ltd (ABN 94 166 912 465)
Representation:	Counsel: Plaintiff: Mr M K Rollinson Defendant: Ms L Barnett   Solicitors: Plaintiff: Carters Law Firm Defendant: Mark O'Brien Legal
File Number(s):	2016/338264
Publication restriction:	None

Judgment

1. The plaintiff by statement of claim filed on 11 November 2016 brings proceedings for defamation for publication of an article dated 15 November 2015 entitled “Young woman, 21, stunned after applying for a receptionist position only to be told it was 'group romance as an island girlfriend’”.

2. The plaintiff pleads the following imputations:

1. The plaintiff deceived Shayla Chandler by making her believe he was offering her a proper job when his real motive was to seduce her.

2. The plaintiff made an indecent proposal to Shayla Chandler.

3. The plaintiff tried to con Shayla Chandler.

4. The plaintiff offered Shayla Chandler money if she would enter into a sexual relationship with him.

5. The plaintiff frequently posted job listings on his Facebook page with the intent of obtaining women for sexual relationship.

6. The plaintiff posted misleading and deceptive advertisements for women to apply for employment when his real aim was to have sex with him.

3. The defendant, pursuant to r 14.30(3) Uniform Civil Procedure Rules 2005 (NSW), challenges the form of imputations (b) and (d) on the basis that they do not differ in substance. An alternate submission was made that, if the imputation “[t]he plaintiff made an indecent proposal to Shayla Chandler” meant anything other than that which was stated in imputation (d), it was impermissibly vague and should be struck out under r 14.30(3) on that alternate basis.

4. These are my reasons for my rulings in favour of the defendant.

The relevant test to apply

5. The test identified by Hunt J in Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) is as follows:

“Imputation (b) is conceded by the plaintiff to be no more than a particular instance of the general allegation made by Imputation (a). In the light of this concession, the defendant argues that the two imputations are not different in substance, as required by r 11(3). As any imputation pleaded must be taken to include all other imputations which do not differ in substance (Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749, at 771), it is wrong in principle, it is said, to plead both the general and the particular applications of the same allegation.

In my view, such a principle is stated too broadly. It may be tested by considering what must be proved by way of justification to each such imputation. One of the most oft-quoted cases is that of Bishop v Latimer (1861) 4 LT (NS) 775. The heading to the defendant's report was in the terms: "How Lawyer Bishop treats his clients". Proof that the plaintiff had treated one client badly in one particular case was held to be an insufficient justification of the heading, which implied that he so treated his clients generally (at 775).

Another way by which the principle contended for by the defendant may be tested is by considering what may be proved by way of justification to each such imputation. Where the imputation consists of a general allegation, it is open to the defendant to establish the truth of that allegation by proof of matters entirely unrelated to the specific instance identified in the matter complained of. The leading case is of Maisel v Financial Times Ltd (1915) 112 LT 953. The matter complained of reported the arrest of the plaintiff, the director of a company, on a charge of fraud. In his Statement of Claim, the plaintiff relied upon an imputation that he was an unfit person to be the director of any company. The defendant was held by the House of Lords to be entitled to justify that imputation by relying upon a number of other dishonest acts, quite independent of that for which he was said in the matter complained of to have been arrested. For an even more startling example, see McGrath v Black (1926) 135 LT 594.

The question is whether the general allegation is different in substance from the particular. In most cases, in my opinion, it would be. In many cases, the allegation in the matter complained of that the plaintiff was guilty of misconduct on a particular occasion will not support an imputation alleged in general terms.”

6. More recently, Simpson J in Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 at [67] identified the test as follows:

“[67] However, after consideration, I reject these contentions. The differences are not of substance, but are, rather, properly characterised as insubstantial. Although, in the usual case, determining a difference in substance between two or more imputations can be done by reference only to the imputations, it is, on occasions, permissible to look to the matter complained of in order to determine what the plaintiff is really asserting. When that is done it can be seen that there is no asserted "threat to the community" other than through "a harmful and destructive influence on young people". Thus, when they are read in the proper context of the matter complained of, it can be seen that the two imputations are no more than different ways of complaining of the same message. If it were not for what appears below, it would be necessary for the Foundation to elect on which of these imputations it wishes to go to the jury.”

7. In Toben v Milne [2014] NSWCA 200 the court considered both of these tests at [12]-[14] as follows:

“[12] Singleton v John Fairfax was a case where both a general and a particular imputation had been pleaded. Hunt J suggested two possible ways to test whether the pleaded imputations differed in substance. The first was to ask what would be required to prove justification to each imputation. His Honour referred by way of example to the decision of Bishop v Latimer (1861) 4 LT (NS) 775, where the defamatory statement in issue was “How Lawyer Bishop treats his clients“. It was held in that case that proof that the lawyer treated one client badly was not sufficient justification of the statement, which implied that that was how he treated his clients generally. The second was to ask what may be proved by way of justification to each imputation. In that regard, his Honour pointed out that in the case of a general imputation a defendant could prove the truth of the allegation by matters unrelated to the specific instance identified in the matter complained of.

[13] An example of the application of the ‘test’ articulated by Hunt J is to be found in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484. In that case, McColl JA held that the imputation that the plaintiff had gatecrashed a social function knowing she was not invited was different in substance from the imputation that the plaintiff had merely gatecrashed a social function, because to prove the first it would be necessary to demonstrate the respondent’s state of mind, whereas that was not necessary for the latter. Her Honour found that although there was clearly a significant overlap in the imputations pleaded, there was a point of difference sufficient to support the independent pleading of the different imputations.

[14] In Griffith v Australian Broadcasting Corporation & Ors [2002] NSWSC 86, to which the court was referred by the respondent, Simpson J, at [67], observed that in the usual case the question whether pleaded imputations were different in substance could only be answered by reference to the terms in which the imputations had been pleaded. However, her Honour accepted that it was permissible on occasions to look to the matter complained of in order to determine the context in which the alleged defamatory statements were made.”

8. The court concluded at [18]:

“[18] The ‘tests’ stated in Singleton v John Fairfax and Griffith v Australian Broadcasting Corporation, useful as they may be, are no more than available means by which a court may go about the task of determining whether imputations differ in substance. A court might find utility in engaging one or more of these so called ‘tests’. Depending upon the particular case, it may be sufficient for the court to have regard only to the words themselves, as Simpson J indicated in Griffith v Australian Broadcasting Corporation. Or, as her Honour added, it may be appropriate to look at the matter complained of to determine the context in which it is said the implication arises. The position was well expressed by Kirby J in Parker v Laws [2002] NSWSC 311, at [12]:

In the context of Pt 67 r 11(3) [the predecessor rule to UCPR, r 14.30], the test formulated by Hunt J is useful. However, it will not always be determinative. For instance, it will often be appropriate for the plaintiff to plead different gradations of seriousness in separate imputations, so that the jury may select the way in which the matter would have been understood by the ordinary reasonable reader (Hunt J, Hepburn v TCN Channel 9 Pty Ltd (1984) 1 NSWLR 386 at 398). The same evidence may prove the truth of each imputation, and yet they will differ in substance. That simply is a reminder that one must attend to the wording of the imputation, as well as the issues raised by it.”

9. In practical terms, the question of whether imputations differ in substance must be considered by reference to the meaning attributed to each individual imputation in the context of the passages from which each imputation is alleged to arise.

The relevant portions of the matter complained of

10. The relevant portions are:

1. The heading;

2. The offer to the plaintiff of a job which would be for “group romance as an island girlfriend” (paragraph 1);

3. Ms Chandler claims the plaintiff offered her a $400,000 trust fund is she ‘committed’ to the plaintiff for two years (paragraphs 2 and 10);

4. The role included romantic expectations from the plaintiff who calls himself a ‘cross between Dave Grohl and Hugh Hefner’ (paragraph 4);

5. Ms Chandler had no idea the plaintiff wanted some sort of relationship, and added that the plaintiff would follow her everywhere (paragraph 11);

6. the plaintiff posted a job listing in October which stated that he wanted women who are ‘happy not to interact with anyone outside the group romantically, physically or emotionally’ and ‘happy to live by the normal rules of a relationship only there’s a group of us (paragraphs 14A and 15); and

7. the job listing specified that the women would be paid $1,500 a month to live on the island, plus bonus ‘pocket money’ if they chose to help out in the office, and a ‘large trust fund for loyalty’ (paragraph 17).

11. What then does it mean for a man to make an “indecent proposal” to a woman? Mr Rollinson submitted that imputation (b) arose on the basis that a proposal was made to Ms Chandler of a “less definite but nonetheless indecent nature” than offering her money in that there is reference to a job, staying in a one-bedroom apartment and engaging in what he calls an “unusual, ill-defined relationship” (written submissions). Read together, what is put forward is a proposal of an indecent nature namely “contrary to accepted standards of propriety, especially as to relations between the sexes” (written submissions).

12. The term “indecent proposal” in legal terms, according to mylawdictionary.org, is “a proposal made directly or indirectly for unlawful or improper sexual relations” (Barbknecht v Great Northern R. Co. 55 ND 104, 212 NW 776). In general parlance, the term has much the same meaning. Webster’s 1913 Dictionary notes that the term “proposal” is an offer of marriage and an “indecent proposal” is a request for marital rights outside this context, generally in return for some financial inducement. The term “indecent proposal” achieved wide usage after a book entitled “Indecent Proposal” (written by Jack Ingelhard) was made into a film with the same name in 1993. The film’s plot related to a billionaire who offered a man $1 million for a sexual relationship with his wife.

13. In the context of the matter complained of, the “indecent proposal” to Ms Chandler is the offer to pay her money if she would enter into a sexual relationship namely imputation (d)). Whether that sexual relationship involved not only the plaintiff but other persons, and the precise terms of the financial inducement involved are not to the point, because the essence of the transaction in imputation (d) is the indecent proposal to Ms Chandler that she would be offered money if she entered into a sexual relationship with the plaintiff. It is not simply the general form of imputation (d), but the same. Nor does it pick up on the matters in imputation (a) as some sort of extension of (d); if it did, it would be a rolled-up imputation as well as impermissibly vague.

14. Taking all of the above into account, I am satisfied that imputations (b) and (d) do not differ in substance.

What orders should be made in relation to imputations (b) and (d)?

15. Generally speaking when two imputations do not differ in substance, the better approach is to strike out both and grant leave to replead. However, I am persuaded by Ms Barnett’s alternate argument that imputation (b) is so general that it lacks the specificity required (Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137). I accept her submission that it is unclear what act is alleged by imputation (b) apart from being a restatement of imputation (d), and that, if it is to be understood to be in some way different to imputation (d), this must be identified with some precision. Mr Rollinson’s submission that the material in imputation (a) was also relevant to imputation (b) only confirms my concerns.

16. I am satisfied that imputation (b) is so broadly framed that the defendant cannot know the case it is called upon to meet. Rather than striking out both imputations (b) and (d) with leave to replead, I propose to strike imputation (b) out as impermissibly vague. This means that the parties can continue with the timetable on the basis of this imputation being deleted from the current pleading, which will save time and costs.

Costs

17. Mr Rollinson did not oppose an order for costs in favour of the defendant.

Orders

1. Pursuant to r 14.30 Uniform Civil Procedure Rules 2005 (NSW) strike out imputation (b) as not differing in substance to imputation (d); requirement to file an Amended Statement of Claim waived.

2. Plaintiff pay defendant’s costs.

3. Defendant’s Defence in 28 days.

4. Plaintiff’s Reply 28 days thereafter.

5. Matter stood over to the Defamation List on Thursday 27 April for further directions.

Annexure

Young woman, 21, stunned after applying for a receptionist position only to be told it was ‘group romance as an island girlfriend’

- Gold Coasts's Shayla Chandler, 21, said she applied for receptionist job

- She thought it was on Tangalooma Island Resort, 60km off Brisbane

- But she found it was for a one-bedroom apartment with a couple

- Claims David Otto offered $400,000 trust fund if she stayed 'committed'

By Rachel Eddie For Daily Mail Australia

PUBLISHED: 02:54 +11:00, 15 November 2015 | UPDATED: 03:08 +11:00, 15 November 2015

A woman applied for a position as a receptionist but claims the role instead included romantic expectations from a man who calls himself a 'a cross between Dave Grohl and Hugh Hefner'.

Shayla Chandler has told of her experiences with 36-year-old Gold Coast man David Otto, who frequently posts job listings for women aged 18-22, Gold Coast Bulletin reported.

The 21-year-old Clear Island Waters woman said she paid $200 she believed was for a trial to be a receptionist at Tangalooma Island Resort, around 60km off Brisbane, after responding to a Facebook post.

[Picture]

[Caption] 21-year-old Shayla Chandler, from Clear Island Waters, has told of her experiences with 36-year-old Gold Coast man David Otto

Upon arriving on October 16, Mr Otto allegedly told her she would instead be calling more young women to book them into his next 'island tour'.

She’d been told there would be 10 other girls trialling for the position, but that it ended up just being her, Mr Otto and his girlfriend staying in a one-bedroom apartment.

At night they asked her to cuddle, and Mr Otto reportedly offered her a $400,000 trust fund if she 'committed' to him for two years. 

‘I had no idea he wanted some sort of relationship,' Ms Chandler told Gold Coast Bulletin, and added that the 36-year-old would follow her everywhere.

She informed security who contacted police on her behalf, and she left early the following day on a ferry.

[Picture]

[Caption] Upon arriving on October 16, Mr Otto allegedly told her she would instead be calling more young women to book them into his next 'island tour'[Picture]

[Caption] Mr Otto frequently posts job listings on his Facebook page, with one in October specifying that he wanted women who are 'happy not to interact with anyone outside the group romantically, physically or emotionally' and 'happy to live by normal rules of a relationship only there's a group of us'

Mr Otto frequently posts job listings on his Facebook page, with one in October specifying that he wanted women who are 'happy not to interact with anyone outside the group romantically, physically or emotionally' and 'happy to live by normal rules of a relationship only there's a group of us'.

'Island Girlfriend Application!' the listing reads.

It specifies that the women would be paid $1500 a month to live on the island, plus bonus 'pocket money' if they chose to help out 'in the office 9am - 12pm'. It also said there would be a 'large trust fund for loyalty'.

Mr Otto reportedly told Gold Coast Bulletin that Ms Chandler was unhappy with them because she wanted to associate with others outside of the group.

Police confirmed that she had made a complaint but that it was not taken further.

The resort told Gold Coast Bulletin they had 'no ties' with Mr Otto and denied any involvement with the incident. Daily Mail Australia has also contacted Tangalooma Island Resort.

DMA has also reached out to David Otto and Shayla Chandler for comment.

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