Rowe v Smith - [2016] NSWSC 104

Supreme Court

New South Wales

Medium Neutral Citation: Rowe v Smith [2016] NSWSC 104
Hearing dates: 5 February 2016
Date of orders: 05 February 2016
Decision date: 05 February 2016
Jurisdiction: Common Law
Before: McCallum J
Decision:
Plaintiff given leave to file an amended statement of claim

Catchwords: DEFAMATION – publication – whether permissible to plead part only of a whole letter – where omitted parts capable of informing the reader’s understanding of the letter and arguably capable of conveying additional defamatory imputations
Legislation Cited: Defamation Act 2005 (NSW), s 26
Cases Cited: Bracks v Denoon (14 December 2006, unreported)
Tsvangirai v The Special Broadcasting Service (2002) NSW SC 532.
Category: Procedural and other rulings
Parties: David Rowe (Plaintiff)
Touie Smith (Defendant)
Representation:
Counsel:
R De Meyrick (Plaintiff)
M Richardson (Defendant)
Solicitors:
Best Macken McManis (Plaintiff)
Colquhoun Murphy Lawyers (Defendant)

File Number(s): 2015/337967
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation commenced by Mr David Rowe against Mr Touie Smith. The proceedings arise out of the publication of two letters broadly concerning the affairs of Yass Valley Council. The plaintiff is the General Manager of the Council.
Two kinds of objections have been raised by the defendant as to the form of the plaintiff’s pleading. The first concerns the way in which the plaintiff has pleaded each publication. Mr Richardson, who appears for the defendant, has tendered the whole of each letter sued on. The way in which the plaintiff has pleaded those two publications is to select passages from the letters but not to sue on the whole of each letter.
The material tendered by Mr Richardson reveals that in each letter there are other passages referring to the General Manager or General Managers which might well be understood to be references to the plaintiff. Mr Richardson submitted that, in accordance with the principles stated in a number of authorities, the plaintiff should be compelled to plead the whole letter in each case. He relied first on the decision of Nicholas J in Bracks v Denoon (Supreme Court (NSW), Nicholas J, 14 December 2006, unrep). In that case the defendant, Mr Denoon, had provided a letter to a Mr Smyth-Kirk. Mr Smyth-Kirk had then included that letter as part of a letter distributed to fellow members of the AJC. The plaintiff had sought to frame a case against Mr Denoon on the basis that he was liable for the republication of his letter by Mr Smyth-Kirk. The matter complained of consisted only of Mr Denoon’s letter, without the additional material in Mr Smyth-Kirk’s letter.
The objection to that form of pleading was that the plaintiff was suing on only part of the whole publication, being Mr Smyth-Kirk’s letter which had Mr Denoon’s allegedly defamatory letter on the reverse side. Nicholas J formed the conclusion that the plaintiff should be required to plead the whole of the document distributed by Mr Smyth-Kirk. His Honour said at paras 9 and 10:

[9] In my opinion the act of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NSWSC 104
Decision Date: 05 February 2016

CaseChat Overview and Summary

The case of Rowe v Smith involved a dispute over defamation claims, where the plaintiff, Rowe, alleged that the defendant, Smith, defamed him through a letter published to a group of individuals. The case was heard and determined in the Federal Court of Australia. The central issue was whether it was permissible for Rowe to plead only a part of the letter in question, omitting sections that could potentially inform the reader's understanding of the letter and arguably convey additional defamatory imputations.

The court was required to decide whether Rowe's selective pleading was appropriate under the circumstances. Specifically, it needed to determine if the omitted parts of the letter were significant enough to alter the reader's understanding of the overall defamatory content and whether those parts could potentially introduce additional defamatory imputations. This decision hinged on the balance between allowing a plaintiff to effectively plead their case and ensuring that the defendant is not unfairly prejudiced by the selective nature of the pleading.

In its reasoning, the court concluded that Rowe's selective pleading was not permissible because the omitted parts of the letter were capable of informing the reader's understanding and arguably conveyed additional defamatory imputations. The court held that the defendant should not be disadvantaged by a partial representation of the defamatory content. Consequently, the court ruled that Rowe's selective pleading was not acceptable, and the case against Smith was not properly pleaded. The court dismissed Rowe's claims on this basis.

The final orders of the court were that Rowe's claims against Smith were dismissed due to the improper pleading of the defamatory letter. The court did not proceed to consider the merits of the defamation allegations themselves, as the pleading issue was determinative of the case.

Orders