Purcell v Cruising Yacht Club of Australia

[2001] NSWSC 257

CITATION:	Purcell v Cruising Yacht Club of Australia [2001] NSWSC 257
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 20473/00
HEARING DATE(S):	20/3/01
JUDGMENT DATE:	10 April 2001
PARTIES :	Richard Gordon Purcell (First Plaintiff) Allure Marketing Pty Limitted (Second Plaintiff) Cruising Yacht Club of Australia Pty Ltd (First Defendant) Johanne Christian Hugo Van Kretschmar (Second Defendant) Peter Bush (Third Defendant)
JUDGMENT OF:	Newman AJ at 1

COUNSEL :	Mr T Tobin QC (Plaintiffs) Mr R McHugh (Plaintiffs) Ms L McCallum (Defendants)
SOLICITORS:	Hunt Partners (Plaintiffs) Corrs Chambers Westgarth (Defendants)
CATCHWORDS:	Defamation - Tort of Injurious Falsehood - Defamatory matter in broadcast and speech - Whether Plaintiffs' extrinsic facts manifestly incorrect
LEGISLATION CITED:	Trade Practices Act 1974 (Cth) Fair Trading Act 1987 (NSW)
CASES CITED:	Amalgamated Television Services Pty Limited v Marsden (1988) 43 NSWLR 158 Brown v Australian Broadcasting Corporation (Unreported, Hunt J, Supreme Court of NSW, 4 May 1987) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Giraffe World Australia Pty Limited v ACCC [1999] ATPR 41 Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Morosi v Broadcasting Station 2GB Pty Limited [1980] 2 NSWLR 418 Ratcliffe v Evans (1892) 2 QB 524 Riding v Smith (1876) 1 Ex D 91 Smith v Spooner (1810) 3 Taunt 246 Spautz v Williams (1983) 2 NSWLR 506
DECISION:	See Paragraph 49

- 23 -

1    HIS HONOUR: Essentially this is a motion nunc pro tunc brought by the defendants in the Defamation List that the plaintiff’s Statement of Claim, or certain parts of it, be struck out. The proceedings themselves arise as a consequence of the aftermath of the 1998 Sydney to Hobart Yacht Race.

2    The Statement of Claim identifies the first plaintiff as the owner and captain of a yacht known as “Margaret Rintoul II”. The second plaintiff, Allure Marketing Pty Limited, is a company in which the first plaintiff held some 45 per cent of the shares and was engaged, inter alia, in the business of selling marine safety clothing.

3    The alleged defamatory matter arose as a consequence of a press conference held at the premises of the first defendant, the Cruising Yacht Club of Australia Pty Ltd (hereinafter referred to as “CYC”), in which the participants were the second defendant, Mr Van Kretschmar (hereinafter referred to as “VK”) and Mr Bush, the third defendant (hereinafter referred to as “B”).

4    At the time when the conference was held, there was no issue that VK was a director of the first defendant, CYC, and indeed Commodore of it. Again there was no issue that, at the time when the press conference was held, B was the Chair of a Committee which had been established to investigate the circumstances of the race known as the Sydney to Hobart Race Review Committee (hereinafter referred to as the “SHRRC”).

5    There is no dispute that the press conference took place at the first defendant’s premises as alleged. Equally, there is no dispute that the first defendant is vicariously liable for the actions of VK and B at that conference. The conference, as is usual, took the form of statements being made by VK and B and then either or both of them answering questions asked by members of the media who were present.

6    The transcript of a videotape taken at the press conference is annexed to the Statement of Claim. The defamatory matter, which is alleged to arise as a consequence of the conference, is found between lines 149 and 239 of the transcript. In order to understand the arguments raised in these proceedings, I set out in full the transcript between those nominated lines, inclusive:-

“ Question : Just another matter that has been referred to the Coroner. You speak about Rule 69 and the Rules of Racing and the Sword of Orion . Can you just outline what that Rule is that may have possible been breached:
Peter Bush: I might refer that to the Coron … Commodore, if I may? Could you speak about 69 Rules of Racing and Sword of Orion . Can you outline what the rule is? (Bush refers question to Commodore.)
Commodore : Rule 69 of the Racing Rules deals with an area called Gross Misconduct. Under the Racing Rules. It is historically the rule that has been used in the administration of the sport for resolving, among other things, allegations of not rendering assistance to yachts that are in distress.
Question : Can you put that in a context of the culture of yacht racing? What is it within that, the obligation to render assistance?
Commodore : The rules of yacht racing … and maritime law are quite specific in terms of the obligations to render whatever assistance they can safely provide to a yacht that is in distress. Not dissimilar at all to not stopping after a car accident.
Question : So … essentially we are talking about an allegation of ignoring a Mayday call.
Commodore : No, I don’t think that is actually correct.
Question : Can you tell us what the allegation is.
Commodore: Not even sure that it is an allegation as such. There is a report or there are reports that have been received from interviewing both Sword of Orion and Margaret Rintoul . They indicate that at some stage Sword of Orion sighted a yacht that passed fairly close by. That they let off various signals and flares to try to attract their attention. Our understanding is that at that stage they were not in radio communication. They were not sure whether the other boat had actually seen their flare or not. The conditions were atrocious. Visibility was very poor and the Margaret Rintoul did not stop or acknowledge the signals had been seen.
Question : So for this matter to have gone this far, you must have quite substantial evidence that perhaps a wrongdoing has happened.
Commodore: There is sufficient evidence there for us to refer it to the Protest Committee to consider under that rule and determine more fully whether there is in fact a basis to the evidence or not.
Question : If the owner of Margaret Rintoul II is found guilty of gross misconduct, what might be the consequences?
Commodore: Again I believe that, under the rules of racing, it is up to the Protest Committee to assign a penalty with respect to that. Historically, where similar situations have been found by Protest Committees, it has led to a ban from competing in yachting events for a period of time.
Question : Is it a criminal offence?
Commodore: I don’t know the answer to that.
Question : Could it potentially be that in light of the Coroner’s Enquiry?
Commodore: I don’t know the answer to that.
Question : The Protest Committee which will hear this protest - when is it going to happen?
Commodore: The Protest Committee, it was initially referred to the Protest Committee that was in place for the Sydney-Hobart race, but that Protest Committee comprised internationally accredited jurors from overseas who have indicated that they were unavailable to attend, so the Protest Committee now comprises some of the originals and others, and all the members of the Protest Committee presently are international jurors (accredited) by the AYF.
Question : Can you put it in the context of the conditions that the two boats were in at the time? One was, I understand that one was coming back and the other was still going forward. But the weather conditions as well.
Commodore: The Sword of Orion at the time had lost its mast and sometime earlier, a crewman over the side and was essentially disabled. The other yacht was still sailing and headed in the direction of Hobart.
Question : And the weather conditions at that particular time?
Commodore: At the peak of the storm. Atrocious.
Question : So would it have been safe and would it have been advisable to go round at the point like that to try and get close to a boat which was in distress?
Commodore: I would be speculating in terms of what the conditions were on Margaret Rintoul or the other boat as to whether that was an option that was available or in fact a safe prudent option that was available to them.
Question : When will the protest be heard then?
Commodore: I believe the protest has been set down for Wednesday 8 June. Next Wednesday.
Question : Has Margaret Rintoul been given an opportunity of putting its evidence?
Commodore: That is the purpose of the Protest Committee, to give both parties the opportunity to present evidence formally before the Protest Committee.
Question : (Has Margaret Rintoul made a statement so far?) (inaudible)
Commodore: They were involved in an interview with members of the Race Committee. Yes.
Question : And what have they said about their actions on the night in question?
Commodore: I do not believe it is appropriate for me to comment on that, you know, in an (helpful/useful/appropriate) manner, without having seen the actual documentation as to what was said.
Question : The owner of Margaret Rintoul II has admitted that he did speak at length with officials after the event when he got to Hobart. Did he speak to you in Hobart? And did he confirm to anyone that he did see the yacht, and did he explain why he may nor have turned back?
Commodore: Yes to some of the questions, no to others. Yes, he did speak to me briefly at one stage in Hobart. He had mentioned that there was some agitation with respect to the issue and asked me to endeavour to mediate with respect to it. Which I did, and I put the two parties in contact with each other. I did and I believe that at that stage it was resolved to let the matter take its proper course.
Question : Did he admit to you that he did see the yacht, and did he explain to you why they didn’t turn back?
Commodore: No, I didn’t have the discussion with him at that time.
Question : If there is a ban, is that only in Australian waters, or also in international waters?
Commodore: I believe that the International Sailing Federation has the power to make it an international ban.
Question : Has that been the case historically?
Commodore: I don’t know the answer to that.”

7    It is alleged that some sixteen imputations defamatory of the first plaintiff arise as a consequence of the words there spoken. Again, in order to understand the argument presented here, it is important to set out the imputations as pleaded. They are:-

“(a) the First Plaintiff bore a responsibility for the death of a sailor in the 1998 Sydney to Hobart Yacht Race, in that he failed to respond to flares which he had seen launched by the sailor’s crewmates after the sailor was swept overboard;
(b) having interviewed the First Plaintiff … about his failure to stop when the crew of a disabled yacht let off flares to attract his addition , the committee investigating the 1998 Sydney to Hobart Yacht Race reasonably suspected him of bearing a responsibility for the death of a sailor in that race, in that the First Plaintiff had failed to respond to flares which he had seen launched by the sailor’s crewmates after the sailor was swept overboard;
(c) the First Plaintiff had so seriously misconducted himself in the 1998 Sydney to Hobart Yacht Race as to warrant investigation by the Coroner and the Cruising Yacht Club of Australia to determine whether he bore a responsibility for the death of a sailor in that race, in that the First Plaintiff had failed to respond to flares which he had seen launched by the sailor’s crewmates after the sailor was swept overboard;
(d) the First Plaintiff behaved in a disgraceful manner in the 1998 Sydney to Hobart Yacht Race;
(e) having interviewed the First Plaintiff … about his failure to stop when the crew of a disabled yacht let off flares to attract his attention , the committee investigating the 1998 Sydney to Hobart Yacht Race reasonably suspected that the First Plaintiff had behaved in a disgraceful manner in the 1998 Sydney to Hobart Yacht Race;
(f) the First Plaintiff had so seriously misconducted himself in the 1998 Sydney to Hobart Yacht Race as to warrant investigation by the Coroner and the Cruising Yacht Club of Australia to determine whether he had behaved in a disgraceful manner in the 1998 Sydney to Hobart Yacht Race;
(g) the First Plaintiff had grossly misconducted himself in the 1998 Sydney to Hobart Yacht Race;
(h) having interviewed the First Plaintiff … about his failure to stop when the crew of a disabled yacht let off flares to attract his attention , the committee investigating the 1998 Sydney to Hobart Yacht Race reasonably suspected that the First Plaintiff had grossly misconducted himself in the 1998 Sydney to Hobart Yacht Race;
(i) the First Plaintiff had so seriously misconducted himself in the 1998 Sydney to Hobart Yacht Race as to warrant investigation by the Coroner and the Cruising Yacht Club of Australia to determine whether he had grossly misconducted himself in the 1998 Sydney to Hobart Yacht Race;
(j) the First Plaintiff deliberately … contravened the rules of yacht racing … and maritime law … by failing to render assistance to a yacht in distress during the 1998 Sydney to Hobart Yacht Race;
(k) having interviewed the First Plaintiff … about his failure to stop when the crew of a disabled yacht let off flares to attract his attention , the committee investigating the 1998 Sydney to Hobart Yacht Race reasonably suspected that he had deliberately … contravened the rules of yacht racing … and maritime law … by failing to render assistance to a yacht in distress during the race;
(l) the First Plaintiff had so seriously misconducted himself in the 1998 Sydney to Hobart Yacht Race as to warrant investigation by the Coroner and the Cruising Yacht Club of Australia to determine whether he had deliberately … contravened the rules of yacht racing … and maritime law … by failing to render assistance to a yacht in distress during the 1998 Sydney to Hobart Yacht Race;
(m) the First Plaintiff was guilty of gross misconduct under rule 69 of the rules of yacht racing … and maritime law, which was a rule not dissimilar to the law requiring drivers to stop after a car accident;
(n) having interviewed the First Plaintiff … about his failure to stop when the crew of a disabled yacht let off flares to attract his attention , the committee investigating the 1998 Sydney to Hobart Yacht Race reasonably suspected that the First Plaintiff was guilty of gross misconduct under rule 69 of the rules of yacht racing … and maritime law, which was a rule not dissimilar to the law requiring drivers to stop after a car accident;
(o) the First Plaintiff had so seriously misconducted himself in the 1998 Sydney to Hobart Yacht Race as to warrant investigation by the Coroner and the Cruising Yacht Club of Australia to determine whether he was guilty of gross misconduct under rule 69 of the rules of yacht racing … and maritime law, which was a rule not dissimilar to the law requiring drivers to stop after a car accident.
(p) The First Plaintiff, by reason of his conduct as owner of the yacht Margaret Rintoul II during the 1998 Sydney to Hobart Yacht Race, was facing an international ban from competing in yachting.”

8    Not only does the first plaintiff allege that the words spoken at the conference were defamatory of him, but also he claims that they constitute the tort of injurious falsehood. The second plaintiff brings its action in injurious falsehood on the same imputations.

9    The sixteen imputations may be seen to be pleaded in five sets of three and one additional imputation. The defendants contend, and there is no real issue about this contention, that each of the sets of three comprise the following:-

(a) a “guilt” imputation;

(b) a “reasonably suspected” imputation; and

(c) a “so seriously misconducted himself as to warrant investigation” imputation.

10    The defendants argue that all of the alleged imputations should be struck out.

11    In relation to imputations (a), (b) and (c), the defendants argue that an ordinary reasonable listener could not fairly understand the alleged imputation to mean that any conduct on the part of the captain of the “Margaret Rintoul” was in any way causative of the sailor’s death there referred to.

12    In relation to the leading imputations (d), (g), (j) and (m), the defendants argued that the statements made at the press conference did not go so far as to convey any imputation of guilt of the matter to be investigated by the Sydney to Hobart Yacht Race Protest Committee under rule 69.

13 As to imputations (e), (f), (h), (i), (k), (l), (n) and (o), the defendants submit that these imputations are shades and gradations of a substantially similar meaning and should be distilled to a single imputation. The defendants submit that this is the requirement of Pt67 r 11(3) of the Supreme Court Rules.

14    As to imputations (f), (i), (l) and (o), the defendants contend that they are not capable of arising because the matter complained of does not allege that the first plaintiff had in fact “seriously misconducted himself”.

15    Finally, in relation to the last imputation, the defendants contend that imputation (p) is not capable of arising.

16    The defendants challenge to the plaintiff’s Statement of Claim is not limited to a submission that the alleged defamatory material is not capable of bearing the imputations pleaded. CYC denies that by providing premises in which the press conference was held it, by dint of that fact alone, is not a publisher with direct joint or several liability as a tortfeasor in its own right. VK and B submit that it is not open to contend that each is liable for words said by the other.

17 Furthermore, all defendants seek to have the words (or some of them) which are contained in the prefatory words of paragraph 7 of the Statement of Claim struck out as vexatious and embarrassing and in breach of Pt 67 r 12(1)(c) of the Supreme Court Rules. Additionally, all defendants seek to have particular (vi) of the extrinsic facts struck out on the basis that it is a separate publication rather than an extrinsic fact or matter which can support any true innuendo conveyed by the matters contained in Schedule A to the Statement of Claim. Schedule A to the Statement of Claim contains the transcript of the videotape, part of which I have set out above.

18    Not only that but all defendants seek to have particular (v) of the extrinsic facts struck out on the basis that it is not an extrinsic fact. That particular reads as follows:-

“(v) It was generally known and believed by members of the press and the general public that, as a result of having been swept overboard, such crewman was deceased.”

19    Also all defendants contend that the pleadings disclose that the second plaintiff has no cause of action in injurious falsehood.

20    Penultimately, all defendants contend that the particulars of malice, which are relevant both to the first plaintiff’s claim for aggravated damages and both plaintiffs’ claims for injurious falsehood, contravene the principles of law applicable to what a plaintiff must establish which alleging malice. Those particulars of malice take up no less than sixteen pages of the Statement of Claim and, for obvious reasons, I do not propose to reproduce them in these reasons.

21 Finally, all defendants contend that the claim made by both plaintiffs, that the representations encapsulated in the imputations pleaded constitute a breach of s 52 of the Trade Practices Act, 1974 (Cth) and s 42 of the Fair Trading Act, 1987 (NSW), are incapable of arising for the same reasons as the defendants contend that the imputations cannot be borne out.

22    In dealing with the various contentions raised by the defendants, I must do so in accordance with the principles discussed in General Steel Industries Inc. v Commissioner For Railways (NSW) (1964) 112 CLR 125. The principles there discussed may be shortly stated in relation to this case. The plaintiffs’ proceedings should not be summarily terminated unless their claims are so obviously untenable that they could not possible succeed. If the defendants’ submissions are not manifestly correct and the plaintiffs therefore have an arguable case, then, in relation to any matters where the plaintiffs have an arguable case, the defendants’ application should be refused.

23    Because the challenge made to the imputations pleaded is central to the determination of a number of other issues which arose in the application, I shall deal with the question of imputations first.

24    Imputations (a) to (c) are founded upon the answer given in line 199 of the transcript of the video recording by the defendant, VK. His answer reads: -

“The Sword of Orion at the time had lost its mast and sometime earlier, a crewman over the side and was essentially disabled. The other yacht was still sailing and headed in the direction of Hobart.”

25    Where alleged defamatory matter occurs during the course of a broadcast or a speech, different considerations apply in determining whether or not that matter is capable of bearing a pleaded imputation to that which applies to the situation which arises when the defamatory material is contained in either a newspaper or a book. In Amalgamated Television Services Pty Ltd v Marsden (1988) 43 NSWLR 158 at 166, Hunt CJ at CL said:-

“… Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity: Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particular, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article ( Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420), and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413.
The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case: Brown v Australian Broadcasting Corporation (at 12-13).”

26    It is entirely true, as the plaintiff submits that the ordinary reasonable listener or viewer is allowed a certain amount of loose thinking in understanding the matter complained of (see Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641). In determining whether alleged defamatory matter bears the imputation alleged, the test is not one involving a careful passing and analysing of what was said but one involving a question of broad impression (see Mirror Newspapers v World Hosts at 641; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 304).

27    Applying these principles to the imputations (a) to (c), I am of the view that the matter complained of is not capable of bearing the imputation that the first plaintiff bore a responsibility for the death of a sailor. Not only do I hold that the answer found at line 199 of the transcript cannot bear such imputation, but also any other statement made by VK, or for that matter B, recorded in that transcript. Accordingly, I would strike out imputations (a) to (c).

28    As I have already mentioned, the format of the imputations as pleaded is to group those imputations into sets of three. The exception to that setting out is imputation (p). I therefore propose to deal with imputations (d), (g), (j) and (m), which I have described above as the leading imputations in the various sets of imputations. These are the imputations categorised by the defendants as guilt imputations to which I have made reference above. In Mirror Newspapers v Harrison (supra), the High Court held that a newspaper report which goes no more than state that a person has been arrested and charged with a criminal offence is not capable of bearing the imputation that he is guilty or probably guilty of that offence. At p 301, Mason J observed as follows:-

“In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. It is importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.”

29    The plaintiff contended that Mirror Newspapers v Harrison can be distinguished here because the matter complained of here does not involve a criminal offence. In Harrison, the fact that the plaintiff there had a presumption of innocence in his favour under the criminal law distinguishes, so the plaintiff contended, the case from the present one. Furthermore, the plaintiff contended that certain statements made in answer to a number of questions by VK were indicative of the plaintiff’s guilt. I disagree. The answers given at lines 167 to 173, 176-178 and 213-214 by VK, which are reproduced above, would not in my view be taken by the ordinary reasonable listener or viewer as indicating guilt on the part of the first plaintiff. Even taking into account the principles I have discussed in dealing with imputations (a) to (c), I am of the opinion that, on the contrary, what VK would be taken as saying by an ordinary reasonable listener is no more than that the matter had been referred for determination by a committee. In my view, the concept of the presumption of innocence found in the criminal law does not obviate the application of the principles discussed by the High Court in Mirror Newspapers v Harrison to the present case. I am thus of the view that imputations (d), (g), (j) and (m) are not capable of conveying the imputations of guilt as pleaded. Accordingly, I would strike them out.

30 The defendants submit that imputations (e) and (f), (h) and (i), (k) and (l) and (n) and (o) are shades and gradations of a substantially similar meaning and should be distilled to a single imputation. In this regard, the defendants rely upon Pt 67 r 11(3). That rule is in the following terms:-

(3) A plaintiff shall not rely on two or more imputations alleged to be made by the defendant by means of the same publication of the same report, article, letter, note, picture, oral utterance or thing, unless the imputations differ in substance.

31    Indeed, the plaintiffs concede that the pair (e) and (f) do not differ in substance from pair (h) and (i) and have sought leave to amend the Statement of Claim accordingly. In my view, the defendants have made out their contention in relation to (k) and (l) and (n) and (o) and would strike them out.

32    The final imputation challenged by the defendants is imputation (p). The defendants’ submission here is that the phrase “was facing an international ban” can only be understood to mean “was guilty of an offence for which the penalty was an international ban”. The plaintiffs do not take issue with that construction but rely upon their submission that the decision in Mirror Newspapers v Harrison is not applicable here. As I have found that Harrison’s case is applicable here, the defendants will succeed in their contention and, accordingly, I would strike out imputation (p).

33    The upshot of these findings is that I would strike out all the plaintiffs’ imputations as pleaded. I would grant the plaintiffs leave to replead.

34    I turn then to the matter of publication. While I entertain a doubt as to whether the mere provision of a forum can constitute publication, an argument does exist that the CYC’s action in allowing its premises to be used evidences authorisation of what was to be said at the meeting and thus publication by CYC. Applying the General Steel test I decline the defendants’ application in this regard.

35    The question of whether UK and B can be jointly liable for each others statements at the press conference is one not free from doubt. However the circumstances in which the meeting was held were such as to give rise to an argument that they were adopting each others statements. Again, applying the General Steel test I would dismiss this part of the defendants’ application

36    Next, the defendants complain that the words “or some of them” found in the prefatory words of paragraph 7 of the Statement of Claim should be struck out as being vexatious and embarrassing in breach of Pt 67 r 12(1)(c) of the Supreme Court Rules. I agree with the plaintiffs’ submission that the words signify merely that if recourse to extrinsic facts is required, the extrinsic facts are particularised in the alternative. There is, in my view, nothing in Pt67 r 12(1)(c) to prevent should a pleading technique. I would decline the defendants’ application in this regard.

37    It appears that the plaintiffs concede an objection taken to particular (vi) of paragraph 7 of the Statement of Claim. The plaintiffs seek leave to amend the Statement of Claim by inserting in lieu the following words,

“The First and Third Defendants published the Report of the 1998 Sydney to Hobart Race Review Committee May 1999 at the press conference”.

I would strike out particular (vi) of paragraph 7 in its original form and grant leave to the plaintiffs to amend as they seek to do.”

38    The defendants objected to particular (v) of paragraph 7 which is in the following terms: -

“It was generally known and believed by members of the press and the general public that as a result of having been swept overboard, such crewman was deceased”.

39    Of itself, the defendants’ contention that particular (v) of paragraph 7 is not an extrinsic fact, has some force. However, I accept the plaintiffs’ submission that reliance is placed upon this fact as part of the general knowledge of the community and is thus a matter for the trial judge to determine. That is, if the trial judge rules that the facts particularised are, in fact, part of the general knowledge of the community. Accordingly, I allow particular (v) of paragraph 7 to remain.

40    Both plaintiffs have, as I have said, brought an action for injurious falsehood against the defendants. The defendants seek to have the second plaintiff’s claim for this tort struck out. In this regard, the defendants contend that there is no allegation of any statement at the subject press conference about the second plaintiff and no allegation of any malice concerning the second plaintiff raised in the particulars supplied with the Statement of Claim.

41    Injurious falsehood is a general action in respect of false words maliciously published of a plaintiff causing that plaintiff actual damage (see Ratcliffe v Evans (1892) 2 QB 524). At common law, developed by a process of generalisation from the tort of slander of title, that is, words denying the title of a person to property causing him loss (eg, by causing the withdrawal of a prospective purchaser) (see Smith v Spooner (1810) 3 Taunt 246).

42    Recently, Lindgren J in Giraffe World Australia Pty Limited v ACCC [1999] ATPR 41-669 considered the elements of the tort. He found: -

(a) that the statement was made of and concerning the plaintiff’s goods or business;

(b) that the statement was false;

(c) that the defendant published the statement to a third person;

(d) the publication of the statement was malicious (ie malefide or the lack of good faith); and

(e) the publication caused the plaintiff particular and identifiable loss or damage.

43    It is entirely true that no mention of the second defendant, Allure, was made at the subject press conference. The plaintiff contends that one of the assets of Allure was the use of the goodwill attached to the first plaintiff’s reputation as an experienced and self-successful blue water yachtsman. The Statement of Claim then goes on to allege that, by reason of the damage done to his goodwill by the publication of falsehoods, Allure was damaged in its business. The plaintiff relies upon the decision of the exchequer division in Riding v Smith (1876) 1 Ex D 91. In that case, a husband claimed that he had lost general custom in his shop because of a false statement made that his wife had been guilty of adultery. At pp 91-92, the Court held:-

“Here the statement was that the wife of the plaintiff was guilty of adultery, and it is the natural consequence of such a statement that persons should cease to resort to the shop. Supposing the statement made not be slander, but something else calculated to injure the shopkeeper in the way of his trade, as for instance a statement that one of his shopmen was suffering from an infectious disease, such as scarlet fever, this would operate to prevent people coming to the shop; and whether it be slander or some other statement which has the effect I have mentioned, an action can, in my opinion, be maintained on the ground that it is a statement made to the public which would have the effect of preventing their resorting to the shop and buying goods of the owner.”

44    Again, the plaintiffs rely upon the concepts adumbrated in General Steel in support of its contention that the tort should remain on foot in relation to the second plaintiff. As I have struck out all of the imputations pleaded, there in fact would be no foundation for the claim of the first and second defendants in injurious falsehood, reliance having been placed upon those imputations in support of both plaintiffs’ claims. However, I have granted leave to the plaintiffs to replead, so I will not determine the matter on that basis.

45    However, in my view, there is nothing, even if the imputations as presently pleaded had survived, which identifies in any way the second plaintiff’s business. Even allowing for the wide ambit given to the tort in Riding v Smith, I am of the view that it is simply not arguable that the second plaintiff can maintain an action in injurious falsehood in the circumstances of this case. Accordingly, I would strike out the second plaintiff’s Statement of Claim and direct entry of judgment for the defendants in the matter.

46    Next the defendants contend that the particulars of malice supplied by the plaintiffs, extending as they do over some sixteen pages, misconceive the requirements which need to be established by a plaintiff who alleges malice. Reliance is placed by the defendants on what fell from Hunt J in Spautz v Williams (1983) 2 NSWLR 506 at 520-521. It is true that as the plaintiffs contend that his Honour was there dealing with malice in the context of a defence of qualified privilege. However, having said that, his Honour, in my view, was in fact summarising the concept of malice in relation to civil defamation law generally.

47    However, I have formed the view, having read through the particulars supplied, that much of the matter contained is not properly described as particulars but rather as argumentative material. In my view of the fact that I propose to give the plaintiff leave to replead in the matter, I would extend that order to include a reshaping of the particulars of malice. What I would suggest to the plaintiff is that the matter upon which he relies should be stated more pithily than is the present situation.

48    Finally, I turn to the plaintiff’s claim for relief under the Trade Practices Act and the Fair Trading Act. The plaintiff’s case here relies upon the imputations raised in relation to the claim for defamation. As I am of the view that those imputations should be struck out in toto, the plaintiff’s claim under either the Fair Trading Act or the Trade Practices Act is presently not maintainable. However, as I have granted the plaintiff leave to replead, it is, in my view, premature to strike out those claims at present. The final determination of the application in relation to these matters must await the plaintiff’s Amended Statement of Claim.

49    I summarise the orders that I have made as follows:-

1. That the plaintiff’s imputations 7(a) to (p) be struck out.

2. That the second plaintiff’s claim of injurious falsehood be dismissed and judgment be entered for the defendants.

3. The plaintiff is granted leave to file an amended statement of claim within 14 days.

4. The plaintiffs are to pay the defendants’ costs of this application.

Last Modified: 04/12/2001