Russell v The State of New South Wales

[2003] NSWSC 769

CITATION:	Russell & Anor v The State of New South Wales [2003] NSWSC 769
HEARING DATE(S):	18 August 2003
JUDGMENT DATE:	18 August 2003
JUDGMENT OF:	Simpson J
DECISION:	strike out imputations; grant leave to the plaintiffs to replead, firstly, by pleading separate imputations in relation to each plaintiff individually, and secondly, by pleading imputations (c) and (d) as alternatives
CATCHWORDS:	defamation - imputations
LEGISLATION CITED:	Defamation Act 1974 (NSW), s7A
PARTIES :	Kristen Louise Russell - 1st Plaintiff William John Russell - 2nd Plaintiff The State of New South Wales - Defendant
FILE NUMBER(S):	SC 20098/03
COUNSEL:	S Littlemore SC with J Soars - 1st and 2nd Plaintiffs M Lynch - Defendant
SOLICITORS:	Carroll & Associates - 1st and 2nd Plaintiffs IV Knight - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Monday 18 August 2003

20098/03 Kristen Louise RUSSELL & Anor v the STATE OF NEW SOUTH WALES

JUDGMENT

1 HER HONOUR: In these proceedings the plaintiffs, Kristen Louise Russell and William John Russell, sue the State of New South Wales as a result of a publication allegedly made by a Sydney high school in its annual magazine and, in particular, in a short article entitled "Growing Up", published over the name of their daughter, who is, it seems, a pupil of the school.

2 It is unnecessary to set out the whole of the terms of the article. It is a painful article concerning the author's brother who, she wrote, left home at the age of 14 to live with his father and who has suffered from schizophrenia, some form of trauma which is not identified, and drug abuse.

3 In essence, the author accused her "parents" of not doing enough to help her brother and of not caring about his condition. She finished by hypothesising that he would not survive another five years and that her "parents" would not miss him.

4 The terms of the article are such that it could, in my opinion, be read as suggesting that the second plaintiff, the male plaintiff, is the natural father of the author and that the first plaintiff is her natural mother; and that the first plaintiff is the mother of the author's brother but the second plaintiff is not his natural father.

5 The plaintiffs plead that four imputations are conveyed of each of them, they being framed in the following terms:

"(a) that they were guilty of child abuse of their son;

(b) that they had, by abusing their son, caused him to turn to drugs;

(c) that they were uncaring about the welfare of their son who suffered from schizophrenia;

(d) that they are so uncaring about the welfare of their schizophrenic son that they would not care if he died."

6 After having heard argument on one of the issues raised by the defendant I advised counsel of my view that the imputations should be reframed so that they are pleaded individually in relation to each plaintiff. The main reason for this was to meet an objection, which I considered to be a valid one, to the use of the words "their son" which appear in each imputation, although in the last of the imputations the word "schizophrenic" is also inserted.

7 Having regard to the family relationships which the article conveys, I was of the view, and remain of the view, that the use of the words "their son" is confusing and requires clarification.

8 I accept, as was submitted on behalf of the plaintiffs, that the word "son" is probably not pleaded as a legal relationship or a blood relationship and that in modern times the word may well be taken to refer to a stepson as well as a natural son, but I perceive potential confusion at the time of a trial pursuant to s7A of the Defamation Act 1974 if this matter is not clarified.

9 Having indicated that that was my view, and senior counsel for the plaintiff having accepted that the imputations should be repleaded, it is strictly unnecessary and even premature to proceed to deal with the other matters raised on behalf of the defendant and it is probably not appropriate to make any firm rulings in that regard before the imputations are redrafted. However, in the interests of saving time and hopefully costs, I should indicate the views I have reached in relation to the capacity arguments raised in relation to each imputation.

10 Imputation (a) is that the plaintiffs were guilty of child abuse. It was argued on behalf of the defendant that there was nothing in the article that could reasonably convey that that was so. I reject this argument. The second paragraph of the article referred to the author's parents and a little later she wrote:

"An abused child turns to drugs to deal with his stress and depression. How was this his fault?"

11 In the context of the article as a whole I am satisfied that an imputation which accuses the plaintiffs of child abuse is reasonably capable of being conveyed.

12 The second imputation is that the plaintiffs had, by abusing the author's brother, caused him to turn to drugs. A similar complaint was made about this imputation and meets a similar fate. I am satisfied, reading the article as a whole, that it is capable of conveying that imputation.

13 I pause to note that the final two imputations, that the plaintiffs were uncaring about the welfare of the author's brother who suffered from schizophrenia and that they were so uncaring about his welfare that they would not care if he died, have been the subject of a complaint that they do not differ in substance.

14 Senior counsel for the plaintiffs made it clear that the two imputations were put as differing in degree. That being so, I stated my view that they should be pleaded or should go to the jury in the alternative. That was accepted and the imputations will be repleaded to accommodate that finding.

15 However, there was also a capacity argument about those imputations.

16 The last passage in the article recounts the author's fears that her brother would, in five years’ time, be dead, and that she would be the only one missing him. I am satisfied that that alone, when taken in the context of what earlier appears, is capable of conveying imputation (d). Similarly, imputation (c) is capable of being conveyed both by that passage and by the passage which earlier appears in the second paragraph of the article. Accordingly, without making any rulings about the capacity of the article to convey imputations which have not yet been put in final form, I express those views.

17 I strike out each of the imputations and grant leave to the plaintiffs to replead firstly by pleading separate imputations in relation to each plaintiff individually; and secondly, by pleading imputations (c) and (d) as alternatives.

18 I make no order as to costs.

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Last Modified: 08/28/2003