Sarina v Fairfax Digital Australia and New Zealand Pty Ltd

[2015] NSWDC 196

District Court

New South Wales

Medium Neutral Citation:	Sarina v Fairfax Digital Australia and New Zealand Pty Ltd [2015] NSWDC 196
Hearing dates:	26 March 2015
Date of orders:	26 March 2015
Decision date:	26 March 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Note the application is brought pursuant to rr 14.28 and 28.2 Uniform Civil Procedure Rules 2005 (NSW). (2) No objections taken to imputation 4(a), this imputation will go to the jury. (3) Imputation 4(b) struck out as being defective in form. The plaintiff is granted leave to replead. (4) Imputation 4(c) is struck out with leave to replead. The revised imputation must differ in substance from imputations 4(f) and 4(m). (5) Imputation 4(d) is withdrawn. (6) Imputations 4(e)(i) and 4(e)(ii) will go to the jury as alternatives. (7) Imputation 4(f) and 4(m) will go to the jury. (8) Imputation 4(g) as originally pleaded (“The plaintiff threatened Tim Xenos with death by drug overdose or by pushing him over the rails of a high rise tower”) will go to the jury. (9) Imputation 4(h) will go to the jury. (10) Imputation 4(i) will go to the jury. (11) Imputation 4(j) is struck out. (12) Imputation 4(k) will go to the jury. (13) Imputation 4(l) will go to the jury. (14) Imputation 4(n) is struck out with leave to replead. (15) Grant the plaintiff leave to replead imputations 4(o), 4(p) and 4(q) as one imputation, with imputation 4(r) as a fall back. (16) Imputation 4(s) is struck out. (17) Imputation 4(t) is struck out with leave to replead with extrinsic facts and strike out the words “close criminal associate”. (18) Costs to be costs in the cause. (19) Amended Statement of Claim in 7 days. (20) Objections to Amended Statement of Claim 7 days thereafter. (21) Matter stood over to the Defamation List on Thursday 16 April 2015 at 2:00pm. (22) Note the defendants will send the plaintiff particulars of downloads.
Catchwords:	TORT – defamation – imputations – form and capacity
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2
Cases Cited:	Aldridge v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 17 September 1985) Alex v Gridneff [2013] NSWSC 2025 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Berezovsky v Forbes [2001] EWCA Civ 1251 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Ell v Milne (No 8) [2014] NSWSC 175 Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Greek Herald Pty Ltd v Nikolopoulos & Ors (2001) 54 NSWLR 165 Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Milne v Ell [2014] NSWCA 407 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Singleton v Ffrench (1986) 5 NSWLR 425 Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) Toben v Milne [2014] NSWCA 200 Waller v Nationwide News Pty Ltd [2011] NSWSC 611
Texts Cited:	R Parkes QC; Professor A Mullis; G Busuttil; A Speker; A Scott; C Strong, Gatley On Libel and Slander (12th ed, 2013, Sweet & Maxwell)
Category:	Procedural and other rulings
Parties:	Plaintiff: Clinton Sarina First Defendant: Fairfax Digital Australia and New Zealand Pty Ltd Second Defendant: Vanda Carson
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendants: Mrs L Barnett Solicitors: Plaintiff: Sanford Legal Defendants: Banki Haddock Fiora
File Number(s):	2014/361937
Publication restriction:	None

Judgment

1. Pursuant to rr 14.28 and 28.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), the defendants seek a separate trial as to the capacity and defamatory meaning of imputations pleaded and to strike out imputations the form of which is embarrassing. These are my reasons for orders made on 26 March 2015.

The relevant principles

2. Where a separate trial of the capacity of imputations is sought, it must be sought pursuant to UCPR r 28.2: Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13.

3. The principles for determining objections to capacity are explained in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [6], Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 and Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 (“Corby”) at [135]-[136]. In Corby, the court held that the determination of capacity is a test of generosity, and not of parsimony, as well as being a “matter of impression”, in that “the impression is not of what the words mean but of what a jury could sensibly think they meant” (citing Berezovsky v Forbes [2001] EWCA Civ 1251 at [16]).

Imputations of guilt and suspicion of guilt

4. Particular problems arise in publications where the defendant seeks to assert that the matter complained of connotes reasonable suspicion as opposed to guilt.

5. First, it should be noted that imputations that a person is reasonably suspected by the police or by some other investigatory organisation, such as the ICAC (Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632) are capable of being defamatory because the status and official role of that entity is enough in itself for the ordinary reasonable reader to conclude that the person is either guilty of the conduct alleged, or has at least conducted themselves in such a way as to warrant the suspicion: Alex v Gridneff [2013] NSWSC 2025 at [17].

6. The correct approach to capacity issues where the capacity of imputations of guilt is challenged, as explained in Corby at [135]-[136], requires careful examination of any assertion that the antidote (in this case, the fact that police had dropped the charges) could outweigh the bane, as this is generally a jury issue. An increasing number of Australian decisions refer, in this exercise, to what are commonly called Chase level 1 and Chase level 2 imputations (Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 (“Chase”) at [45]). Chase level 1 imputations of outright guilt are pleaded (see R Parkes QC; Professor A Mullis; G Busuttil; A Speker; A Scott; C Strong, Gatley On Libel and Slander (12th ed, 2013, Sweet & Maxwell) at [11.13]), and the question is whether they, or alternatively Chase level 2 imputations of reasonable grounds for suspicion, arise: see the discussion of such imputations at the capacity stage in Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 at [32].

Defamatory meaning

7. The relevant principles for the determination of defamatory meaning are set out in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 686 – 9 by Hutley JA. The imputation in those proceedings, where the plaintiff was a medical practitioner, was that the plaintiff was an abortionist. The legality of abortion was irrelevant to the defamatory meaning conveyed (at 686B), as the word could carry a defamatory meaning even to those uncommitted to any particular moral code which disapproved of abortion (at 686D).

8. I also note, on the question of form (which often overlaps with defamatory meaning) that a challenge to the imputation on the grounds that the precise act or condition were not identified, and that the defendant therefore did not know what it had to justify, was rejected by Hutley JA at 687 (Glass and Priestly JJA agreed, at 693 and 696 respectively).

9. The test for determining whether the antidote exceeds the bane is explained in Corby at [135] – [136].

Challenges to the form of imputations

10. The correctness of Hutley JA’s statement that “there are no forms of imputations” (Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 671A) has been affirmed in many recent decisions, including Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. Principles frequently referred to in imputations arguments include the following:

1. The plaintiff is obliged to identify for the defendant the act or condition which was understood by the ordinary reasonable reader as having been attributed to him or her, to assist the defendant in knowing the case to meet (Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [125]).

2. While imputations need not be more precise than the matter complained of (Drummoyne Municipal Council v Australian Broadcasting Corporation at 137A per Gleeson CJ – “X is disgusting”), they must be sufficiently clear so as to avoid the likelihood of confusion in relation to the meaning the plaintiff contends (Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 per McColl JA at [21]; Amalgamated Television v Marsden at 162). Confusion may arise from terms which have a dual meaning such as “breach of trust”: Singleton v Ffrench (1986) 5 NSWLR 425 per McHugh JA at 433 and 435. However, the English language contains many words with more than one meaning, and the actual meaning of the word used can generally be understood without difficulty from the context in which it is used. Claims by a publisher that the words he, she or it used are ambiguous and/or devoid of meaning should be viewed with some suspicion, for the reasons explained by Hutley JA in Hepburn v TCN Channel Nine Pty Ltd at 688B.

3. The actual words of the matter complained of may be used where their meaning is clear (Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 per McColl JA at [29]; Waller v Nationwide News Pty Ltd [2011] NSWSC 611 per McCallum J at [18]). There are cases where the actual sting of the imputation will not be conveyed merely by repeating the language of the publication (Toben v Milne [2014] NSWCA 200 per Beasley P and Ward JA at [21]). However, courts should be cautious not to “straitjacket” (Greek Herald Pty Ltd v Nikolopoulos & Ors (2001) 54 NSWLR 165 at [18]) a plaintiff into Thesaurus-based alternatives by an opponent who is hopeful of putting to the jury at the trial that the imputation does not refer to the actual words of the matter complained of.

The matter complained of

11. The language and layout of the matter complained of do not shrink from making allegations about the plaintiff. The manner of presentation, use of repetition and trenchant language are relevant to the determination of capacity of the imputations.

12. The text of the matter complained of is as follows:

“1 McGurk’s confidants have colourful pasts

2 Vanda Carson

3 [photograph of plaintiff and Mr Reddy]

4 Michael McGurk’s confidants – Clinton Sarina and Terrence Reddy

5 Michael McGurk's two closest confidants, who were last week named as part of an investigation into an alleged $150 million mortgage fraud, have colourful histories of their own.

6 Terrence Reddy and mortgage broker Clinton Sarina each have alleged connections to criminal groups police believe may be responsible for the massive bank frauds.

7 Mr Reddy is believed to be on the run because he allegedly owes $150,000 to a group of Lebanese gangsters from Bankstown, sources in the finance industry say.

8 The loan was arranged last year by Mr Sarina, his friend, and has blown out to three times its original size after high interest penalty charges have been added.

9 It is not the only money Mr Reddy is alleged to owe.

10 Mr Reddy, a renowned party-boy who has been dubbed "The Black Prince" for his lavish lifestyle, cannot return to any of Justin Hemmes's bars because he has a large outstanding bar tab, sources say.

11 He also owes money to several private Sydney lenders including Tommy Wayne Powers.

12 He also owes money that is the subject of legal proceedings.

13 Mr Reddy gave evidence to a court last month that he was afraid of a man called Alex Marcello, believed to be a member of the Hells Angels from South Australia.

14 Mr Reddy and Mr Sarina worked for Mr McGurk's company Bentley Smythe. They met him just hours before he was executed, allegedly by two hitmen, in September last year.

15 Mr Reddy recently had his dark green convertible Mercedes repossessed by car dealer Martin Cass at Alex Holland in Rushcutters Bay.

16 It was not the first time he has had a car repossessed, having lost a BMW in 2005 and several other cars since then.

17 "He's got people looking for him everywhere, he's not going home, he's not doing the usual things, he is definitely looking over his shoulder," one source said.

18 Mr Reddy told the NSW Supreme Court last month he was associated with the head of the Sydney chapter of the Hells Angels, Felix Lyle.

19 Mr Reddy has admitted he was involved in a scam to rip off $437,000 from Perpetual Trustees Victoria in 2005 after a lender's signature was forged. He blamed Mr Lyle for stealing the money.

20 He has not been charged with any offences, but admitted to the crimes during hearings.

21 Meanwhile, Mr Sarina was at one stage charged with kidnapping one of his clients, small-time criminal Tim Xenos, who failed to repay a loan of $180,000, which had come with a hefty 25 per cent interest.

22 Mr Sarina was accused of taking Mr Xenos to the ritzy Quay West apartments overlooking Circular Quay in 2002.

23 Grabbing a pair of scissors, Mr Sarina's alleged associate Richard Lawandos screamed: "I'll cut your kids' toes in front of you. I'll kill your kids, kill your mother, I dont care."

24 After allegedly threatening him with death by a drug overdose, or by pushing him over the rails of the high-rise tower unless he paid the money, Mr Sarina was then accused of handing Mr Xenos the hotel bill. The matter was eventually no-billed by the NSW Attorney-General and the charges against Mr Sarina dropped.

25 Mr Sarina continues to lend money although he is not an accredited broker with the Australian Securities and Investments Commission.

26 Both men are alleged to have boasted of connections to criminals in order to protect themselves from possible retribution over loans.

27 Several sources say they have exaggerated their connections, and on many occasions their "protection" has failed to materialise.

28 Mr Sarina did not return calls to his home and his Double Bay lawyer, Robert Shacklady.

29 Mr Reddy was unable to be contacted as his mobile phone has been seized by the NSW Supreme Court.

30 [email protected]”

The imputations

13. The imputations pleaded were substantially amended in correspondence. Further applications to amend were made at the hearing, which led to the proceedings being conducted with a degree of informality. The imputations pleaded at paragraph 4 of the statement of claim (namely, imputations (a) to (k)) are set out below, with appropriate notes of the changes.

14. Some of those changes were set out in the plaintiff’s letter of 14 March 2015, in response to the defendants’ objections dated 27 February 2015, where the plaintiff sought to amend imputations (b), (c), (e) and (g). In addition, the plaintiff sought to add imputations (l) to (t) at the commencement of the argument.

15. These imputations, and their amendments, are currently as follows:

1. The plaintiff was named as part of an investigation into an alleged $150 million mortgage fraud (paragraphs 1, 3, 4 and 5).

2. The plaintiff has alleged connections to criminal groups police believe may be responsible for massive bank frauds (paragraph 6) – In correspondence, the plaintiff amended this imputation to read “The police reasonably suspect the plaintiff of being connected with criminal groups that the police believe may be responsible for massive bank frauds.”

3. The plaintiff arranged a loan for his friend Terrence Reddy which has blown out to three times its original size because of high interest penalty charges (paragraphs 7 and 8) – In correspondence, the plaintiff amended this imputation to read “Whilst the plaintiff was not an accredited broker with the Australian Securities and Investments Commission, he arranged a loan for his friend Terrence Reddy which, because of high interest penalty charges, has blown out to 3 times its original size”.

4. The plaintiff was charged with kidnapping one of his clients (paragraph 21).

5. The plaintiff kidnapped Tim Xenos who failed to repay a loan of $180,000 which had come with a hefty 25% interest (paragraph 21) – In correspondence, the plaintiff amended this imputation to plead two imputations, which are pleaded in the alternative, namely: (e)(i) “The plaintiff kidnapped Tim Xenos”; and (e)(ii) “The plaintiff was reasonably suspected by police of having kidnapped Tim Xenos”.

6. The plaintiff lent money at exorbitant rates of interest and exorbitant penalty charges (paragraphs 7, 8 and 21).

7. The plaintiff threatened Tim Xenos with death by drug overdose or by pushing him over the rails of a high rise tower (paragraph 24) – In correspondence, the plaintiff amended this imputation to plead two imputations: (g)(i) “The plaintiff threatened Tim Xenos with death by drug overdose”; and (g)(ii) “The plaintiff threatened Tim Xenos with death by pushing him over the rails of a high-rise tower”.

8. The plaintiff boasted of connections to criminals in order to protect himself from possible retribution over loans (paragraph 26).

9. The plaintiff engages in criminal activities (whole article).

10. The plaintiff is dishonest (whole article).

11. The plaintiff is an usurer (whole article).

12. The plaintiff is a violent person (whole article).

13. The plaintiff continues to arrange loans even though he is not accredited by the Australian Securities and Investment Commission (paragraph 25).

14. The plaintiff arranged a loan for Tim Xenos which came with a hefty 25% interest rate (paragraph 21).

15. The plaintiff, in association with Richard Lawandos, threatened to chop the toes off of the children of Mr Xenos (paragraph 23).

16. The plaintiff, in association with Richard Lawandos, threatened to kill Mr Xenos’s [sic] children (paragraph 23).

17. The plaintiff, in association with Richard Lawandos, threatened to kill Mr Xenos’s [sic] mother (paragraph 23).

18. The plaintiff condoned the threatened violence of Richard Lawandos (paragraphs 1, 23, 24 and 26).

19. The plaintiff is a standover man (paragraphs 1, 4, 5, 6, 23, 24 and 26).

20. The plaintiff is a close criminal associate of notorious standover man, Michael McGurk (the whole article).

16. I shall now set out the basis for my ruling in relation to each of the imputations.

Imputation 4(a)

17. This imputation was not objected to and will go to the jury.

Imputation 4(b)

18. The defendants object to use of the words “connections to” (used without comment in Aldridge v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 17 September 1985)) and “may be” (rejected in Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258).

19. The vice of the imputation is not so much the use of these actual words (both of these occurred in the matter complained of), but that the matter complained of does in fact give very clear specificity to the nature of the connection between the plaintiff and the criminal groups and, for that matter, his role in relation to the “massive bank frauds”. The key to the capacity of this imputation is the repeated links between the references to the plaintiff and Mr Reddy as Mr McGurk’s “confidants” in the headline, the photograph caption and paragraph 5. This leads into paragraph 6 where “the massive bank frauds” is clearly a reference to the “alleged $150 million mortgage fraud” in paragraph 5. The matter complained of goes on to identify the plaintiff not only as a person working for the late Mr McGurk but as a person who arranged the following loans:

1. the loan to his friend Mr Reddy of $150,000 (at paragraph 7);

2. the loan to Mr Xenos of $180,000 (at paragraph 21); and

3. other loans identified at paragraph 25 as being made in circumstances where he is not an accredited broker with the Australian Securities and Investment Commission.

20. These references make clear, principally by reference to what is stated to be “the” massive bank frauds in paragraph 6, that the “massive” bank frauds are the $150 million mortgage fraud referred to in paragraph 5.

21. The matter complained of does not suggest, even to a reader at the bottom of the “ordinary reasonable reader” scale of carelessness, that the plaintiff is involved in two frauds. The matter complained of identifies one very big fraud, namely the massive $150 million mortgage fraud for which “criminal groups” are believed by police to be responsible, and not two separate transactions.

22. Imputation 4(b), both in its original and in its redrafted form, seeks to isolate a second and separate fraud, using the language of the matter complained of to encapsulate the sting. However, I am satisfied that the clear meaning of these paragraphs identifies the plaintiff’s connection with this transaction as the mortgage broker who organised the loan that is the massive fraud, namely the $150 million mortgage fraud, and not a separate transaction. This imputation is struck out, but with leave to replead in the event that it can capture the aspect of the one massive fraud that Mr Rasmussen is seeking.

23. A second objection made by the defendants is, however, of less merit. This is the submission that there is no reference in the matter complained of attributing the reasonable suspicion to the police as to the plaintiff’s involvement. Mrs Barnett submits that the police suspicion relates to the involvement of a criminal group and the fact that a massive fraud has been perpetrated, not to the plaintiff’s involvement. She submits that there is no evidence that the investigation in question is carried out by the police as opposed to some other body.

24. I do not accept this submission. The plaintiff is identified as the person who is named in an investigation for his role in a fraud under investigation where the police suspect criminal groups are involved. This allegation occurs as one of a series of matters involving the plaintiff and his fellow confidant in police investigations. Applying the test set out by the Court of Appeal in Corby v Allen & Unwin Pty Ltd of generosity rather than parsimony, I am satisfied that an imputation that the plaintiff is reasonably suspected by police is conveyed, and should be included in the repleaded imputation.

Imputation 4(c)

25. Both the original and redrafted imputations struggle to come to terms with the sting of the libel, namely that the interest penalty charges were so high that the loan had increased from $150,000 to three times its original size. The redrafted imputation, which imports a reference to whether or not the plaintiff is licensed, is both rolled up and strained in meaning.

26. This imputation is struck out with leave to replead. The revised imputation 4(c) must differ in substance from imputations 4(f) and 4(m).

Imputation 4(d)

27. This imputation was withdrawn during argument.

Imputations 4(e)(i) and 4(e)(ii)

28. These are Chase level 1 and Chase level 2 imputations in their redrafted form. Mrs Barnett submitted that the reference to the charges being “eventually no billed by the NSW Attorney General”, resulting in the charges being dropped (paragraph 24) is sufficient antidote to render neither imputation conveyed.

29. This submission overlooks both the structure and tone of the matter complained of which recites, between paragraphs 21 and 24, a series of criminal acts by the plaintiff in terms strongly suggestive of culpability. The reference to the charges being no billed is followed by references to the plaintiff continuing to lend money without accreditation and boasting of connections to criminals to protect himself from possible retribution over loans.

30. Having regard to the test identified in Corby v Allen & Unwin Pty Ltd, I am satisfied that it is appropriate for the jury to determine whether the Chase level 1 or Chase level 2 meaning is conveyed, and that on a capacity basis, each imputation is capable of being conveyed.

31. These imputations will go to the jury as alternatives.

Imputations 4(f) and 4(m)

32. Mrs Barnett submitted that neither of these imputations is conveyed and that, if conveyed, were not capable of being defamatory.

33. The matter complained of clearly identifies the plaintiff as carrying out each of these activities, and I am satisfied that each of these imputations is conveyed.

34. As to imputation 4(m), conformably with the principles explained by Hutley JA in Hepburn, it is irrelevant whether or not arranging these transactions without the appropriate licence is illegal. As to imputation 4(f), whether lending money at “exorbitant” rates is capable of defamatory meaning should be, for the reasons explained in Corby, a matter for the jury. To say of any person (such as, for example, a member of the legal profession) that their rates are “exorbitant” would be capable of defamatory meaning.

35. These imputations will go to the jury.

Imputation 4(g)

36. After complaint by the defendants that this imputation is rolled up because of the reference to death threats, the plaintiff sought to split this imputation in two. The defendants then objected to the splitting of the allegation to two imputations, and submitted that only an imputation of making a death threat should be permissible.

37. Mrs Barnett defined the test relevant to an imputation in terms of form as being whether an imputation is capable of being further precision in light of what is contained in the matter complained of. This is a clear example where the precise nature of the threats were spelled out. The fact that Mr Xenos was threatened in that specific manner, namely with two alternatives of his manner of death, is an appropriate issue in terms of the sting and seriousness of the libel.

38. In the course of argument Mr Rasmussen reverted to the original imputation. I am satisfied that it is appropriate for the sting of the imputation to include the fact that alternative methods of death were offered. This is the kind of precision in imputations that defendants generally seek, and it encapsulates the sting as well as the seriousness of the imputation for both methods to be identified in this clear fashion.

39. The originally pleaded imputation 4(g) (“The plaintiff threatened Tim Xenos with death by drug overdose or by pushing him over the rails of a high rise tower”) will go to the jury.

Imputation 4(h)

40. The defendants submitted that an imputation of boasting of connections to criminals was not capable of being defamatory. It is submitted that the ordinary reasonable reader would not think less of a person who retained an “enforcer” to recover sums of money owed by borrowers.

41. The imputation is defamatory on several levels. First of all, any imputation of boasting is capable of being defamatory (Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194). Secondly, connections to criminals (which Mr Rasmussen pointed out of itself could be a criminal offence) is itself capable of a defamatory meaning.

42. The use of the word “connections” is drawn from the matter complained of and despite its lack of specificity will, in the specific parameters of this imputation, be acceptable.

43. This imputation will go to the jury.

Imputations 4(i), 4(j), 4(k) and 4(l)

44. Mrs Barnett submitted that these imputations do not differ in substance from the imputations of acts already pleaded.

45. The entitlement of a plaintiff to plead a “condition” imputation, as well as and in addition to, or in addition to an “act” imputation, is well established (Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)). In the present case, the plaintiff is accused of a series of acts of dishonesty, charging excessively high interest and using or threatening to use violence, or retaining other persons to commit violence on his behalf. Each of these imputations is capable of being conveyed and will go to the jury. However, there is one exception, namely imputation 4(j).

46. This is an unusual case of an imputation not being conveyed because it is too weak. The imputations conveyed in relation to the plaintiff are so serious that an imputation of mere dishonesty is, in my view, not capable of being conveyed.

47. Imputations 4(i), 4(k) and 4(l) will go to the jury. Imputation 4(j) is struck out.

Imputation 4(n)

48. Mrs Barnett submitted that this imputation is not capable of being defamatory, in that charging a “hefty” interest rate is not capable of defamatory meaning.

49. This is a good example of an imputation the sting of which is not captured by the matter complained of. This imputation is struck out with leave to replead.

Imputations 4(o), 4(p), 4(q) and 4(r)

50. In the course of argument, Mr Rasmussen agreed that these imputations should be redrafted to become one imputation.

51. Imputations 4(o), 4(p) and 4(q) are to be pleaded as one imputation, with imputation 4(r) to be pleaded as a fall back imputation.

Imputation 4(s)

52. The defamatory meaning imputed by being a “standover man” is helpfully set out in the first instance and appeal decisions Ell v Milne (No 8) [2014] NSWSC 175 and Milne v Ell [2014] NSWCA 407, albeit in the context of being pleaded as a true innuendo rather than in the imputation pleaded.

53. The allegations concerning the plaintiff are that he boasts of connections to criminals in order to protect himself from possible retribution, and that he took an associate with him who threatened Mr Xenos in the manner set out in the matter complained of at paragraph 23. While the matter complained of says that the plaintiff made similar threats to Mr Xenos, they were in his capacity as the outraged lender, not as a standover man or “enforcer”. The allegation in the matter complained of is that he took an enforcer (or “standover man”) with him to do his bidding, not that he himself is a standover man.

54. While many allegations are laid by the defendants at the door of the plaintiff, this is not one of them. This imputation is struck out.

Imputation 4(t)

55. The reference to “close criminal associate” appears to be a rare attempt by the pleader to use language other than that contained in the matter complained of, which identifies him as a “confidant”. The matter complained of does not identify the plaintiff as having performed any criminal activities on behalf of the late Mr McGurk; he is identified as an employee of Mr McGurk’s company Bentley Smythe (paragraph 14), but there is no suggestion that this is a criminal organisation. Nor is there any suggestion that the plaintiff is himself a person with a criminal record (the charges against him having been no billed); what is said is that he himself has “connections to criminals”. The word “confidant” contains the sting the plaintiff should be seeking to convey.

56. This imputation is struck out with leave to repleaded with, if considered necessary, extrinsic facts.

Costs

57. While the plaintiff has substantially repleaded his case, many of the objections taken by the defendant (particularly as to defamatory meaning) were without merit. Each party has had a degree of success and failure and the appropriate costs order is for the costs to be the parties’ costs in the cause.

Orders

1. Note the application is brought pursuant to rr 14.28 and 28.2 Uniform Civil Procedure Rules 2005 (NSW).

2. No objections taken to imputation 4(a), this imputation will go to the jury.

3. Imputation 4(b) struck out as being defective in form. The plaintiff is granted leave to replead.

4. Imputation 4(c) is struck out with leave to replead. The revised imputation must differ in substance from imputations 4(f) and 4(m).

5. Imputation 4(d) is withdrawn.

6. Imputations 4(e)(i) and 4(e)(ii) will go to the jury as alternatives.

7. Imputation 4(f) and 4(m) will go to the jury.

8. Imputation 4(g) as originally pleaded (“The plaintiff threatened Tim Xenos with death by drug overdose or by pushing him over the rails of a high rise tower”) will go to the jury.

9. Imputation 4(h) will go to the jury.

10. Imputation 4(i) will go to the jury.

11. Imputation 4(j) is struck out.

12. Imputation 4(k) will go to the jury.

13. Imputation 4(l) will go to the jury.

14. Imputation 4(n) is struck out with leave to replead.

15. Grant the plaintiff leave to replead imputations 4(o), 4(p) and 4(q) as one imputation, with imputation 4(r) as a fall back.

16. Imputation 4(s) is struck out.

17. Imputation 4(t) is struck out with leave to replead with extrinsic facts and strike out the words “close criminal associate”.

18. Costs to be costs in the cause.

19. Amended Statement of Claim in 7 days.

20. Objections to Amended Statement of Claim 7 days thereafter.

21. Matter stood over to the Defamation List on Thursday 16 April 2015 at 2:00pm.

22. Note the defendants will send the plaintiff particulars of downloads.

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