Palavi v Radio 2UE Sydney Pty Ltd

[2009] NSWDC 238

CITATION:	Palavi v Radio 2UE Sydney Pty Ltd [2009] NSWDC 238
HEARING DATE(S):	10 September 2009
EX TEMPORE JUDGMENT DATE:	10 September 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Dismiss the application to strike out imputations (b), (c) and (d). (2) Defendant is to pay the plaintiff’s costs. (3) Matter stood over for further directions to Friday 13 November 2009 at 9:00am.
CATCHWORDS:	TORT - defamation - application to strike out imputations - challenges to form and capacity
LEGISLATION CITED:	Defamation Act 2005 (NSW)
CASES CITED:	Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Maitland v Nationwide News Pty Ltd [2001] NSWSC 376
PARTIES:	Plaintiff: Charmyne Palavi Defendant: Radio 2UE Sydney Pty Ltd
FILE NUMBER(S):	3303 of 2009
COUNSEL:	Plaintiff: Mr C A Evatt Defendant: Mr A T S Dawson
SOLICITORS:	Plaintiff: D C Balog & Associates Defendant: Banki Haddock Fiora

Judgment

[1] This morning I heard argument as to the form, capacity and defamatory meaning of three of the four imputations pleaded by the plaintiff and dismissed the application to strike them out. As I have a number of matters in the list this morning, the parties kindly agreed that I could hand down my reasons for decision later today.

[2] The plaintiff by way of Statement of Claim brings proceedings for defamation under the Defamation Act 2005 (NSW) for a broadcast on 14 May 2009 on the Steve Price programme when Steve Price and Peter Ford had the conversation set out in Annexure A to the Statement of Claim. The relevant extract of the conversation is as follows:

12	Peter Ford	… But can I just make one other point that I think is being lost in the wash here. What I think is actually quite an incredible and serious story. Now this apparently wasn’t used on Four Corners on Monday night simply for time reasons I imagine, but that lady Charamine Pahlavi (*) [sic]…
13	Steve Price	Yes.
14	Peter Ford	… who sets herself up as some kind of match maker or madam or something. Now she claims that…
15	Steve Price	Can I use another word?
16	Peter Ford	Yeah.
17	Steve Price	Slut.
18	Peter Ford	Yeah. She sets herself up to do this stuff and to put people together, presumably all willing participants, except she’s claiming that there are NRL players who are seeking out underage girls, and one particular player’s house is where they meet and where the underage sex takes place. Now if she has this information, well for a start the media should be onto it, and secondly the police ought to be onto it as well because she’s claiming she has knowledge of NRL players having sex with underage girls in a very organised fashion.
19	Steve Price	Yeah well the police ought to investigate that. Thanks, Peter.

[3] The plaintiff has pleaded the following imputations:

(a) The Plaintiff is a slut (paragraph 17).

(b) (i) The Plaintiff is a Madam (14).
OR
(ii) The Plaintiff runs a brothel (14).


(c) The Plaintiff puts NRL players and underage girls together for sex (18).

(d) The Plaintiff condones NRL players having sex with underage girls in a very organised fashion (18).

[4] The context in which the matter complained of was published is the circumstances in which a football player, named Matthew Johns, had been the subject of a Four Corners programme. It is evident, particularly from the comments made at paragraph 11 by Steve Price, that there is considerable sympathy for Mr Johns, Mr O’Keefe, Mr Newman and other footballers who had been disciplined, in the context of it being unusual for a free to air TV network to sack a major star as opposed to cover up the indiscretion.

[5] Mr Ford then goes on to say that he wants to make another point which he thinks is being “lost in the wash” and that is the “incredible and serious story” that was not used on Four Corners for time reasons, namely the story about the plaintiff who is setting herself up as a match maker or madam (or as a slut, according to Steve Price) to put people together including underage girls. Both Mr Ford and Mr Price say that this matter ought to be investigated by the police.

[6] The defendant’s application is to challenge the form and capacity of imputations (b), (c) and (d).

[7] The way in which applications to strike out imputations should be dealt with has been explained by the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [10] – [12]. In particular, imputations need to be considered in the context of the article: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [14]. That is particularly important in a case such as this, which is redolent with innuendo.

Imputation (b)

[8] On the issue of form, the defendant submits that the way in which imputations (b)(i) and (b)(ii) are pleaded in the alternative, is impermissible and that the plaintiff should elect one imputation or the other. The defendant further submits that these imputations are incapable of being defamatory and also that imputation (b)(ii) is incapable of arising.

[9] The entitlement of a plaintiff to plead a “fallback imputation” of lesser seriousness is well-established. An imputation of guilt, for example, may have as a “fallback” an imputation of suspicion: a typical example is Maitland v Nationwide News Pty Ltd [2001] NSWSC 376.

[10] A brothel “madam”, according to Merriam-Webster’s Online Dictionary, means “the female head of a house of prostitution”. It connotes not simply ownership of a brothel, but active, indeed enthusiastic, participation in its daily activities. It is an imputation of greater seriousness than merely conducting a business which operates a brothel. Whether the matter complained of conveys one or the other should be a matter for the jury.

[11] Mr Dawson next argued that it was not defamatory to say of a person that they operated a brothel or worked as a prostitute, as such conduct is not illegal.

[12] By analogy, it is not illegal, in New South Wales, to carry on business as an abortionist, but that does not mean that the allegation of being an abortionist cannot be defamatory. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 686 Hutley JA explained:

“The fact that some reasonable members of the public may regard the defamatory aura which surrounds any abortion as the result of prejudice does not mean that when the word is used, the publisher is not uttering it with its defamatory meaning. It may carry the defamatory imputation even to those uncommitted to the particular moral code.

There are words which carry overtones of disapproval though the activity is perfectly legal; for example, “kept woman”: Gatley on Libel and Slander 7th ed (1974), s 187, at 93, 94.

To support fascism was probably not illegal, at least until laws prohibiting the advocacy of racial superiority were enacted, but to call a man a fascist could have been defamatory unless justifiable. Similarly with “abortionist”, it may be defamatory even of a person who only performs legal abortions. Indeed, Hunt J notes that the Macquarie Dictionary labels the word as being usually pejorative, surely of itself sufficient to require the imputation to be left to the jury for their determination as to how the word was understood by the ordinary reasonable hearer.”

[13] The law of defamation accommodates discrepant attitudes by use of the test “right thinking people generally”, as Glass JA points out in Hepburn at 693, and in such circumstances these are matters which should be left to the jury.

Imputations (c) and (d)

[14] The defendant also submits that imputations (c) and (d) are incapable of arising.

[15] The matter complained of paints a picture of the plaintiff as running a highly organized operation to provide sexual services to persons including footballers, who by implication are telling her what services they require, namely underaged girls. Imputation (c) clearly is capable of arising and will go to the jury.

[16] Imputation (d) is an unwieldy piece of wording, but this is because it is a direct quotation from the matter complained of. One of the difficulties, when attempting to distil imputations from statements which are inarticulate or ungrammatical, is how to produce an imputation which encapsulates what was said.

[17] The entitlement of a plaintiff to use the words in the matter complained of now appears to be an accepted course: Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688 per Hutley JA; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148 per Gleeson CJ; John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 at [52] – [54] per Hodgson JA; Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213. In my view the pleader has adopted the sensible course of repeating the words without attempting to parse and analyse them.

[18] Mr Dawson challenged whether the matter complained of asserts the plaintiff actually condones this behaviour. Mr Price and his guest make it clear that if she has this information, it ought to be brought to the attention of the police. Whether or not that conveys an imputation that she condones such conduct is a matter upon which reasonable minds may differ, and will be an issue for determination by the jury.

[19] The defendant has been entirely unsuccessful in all of its complaints, and should pay the plaintiff’s costs.

Orders

(1) Dismiss the application to strike out imputations (b), (c) and (d).

(2) Defendant is to pay the plaintiff’s costs.

(3) Matter stood over for further directions to Friday 13 November 2009 at 9:00am.

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