Shore v Nationwide News Pty Ltd

[2016] NSWDC 270

District Court

New South Wales

Medium Neutral Citation:	Shore v Nationwide News Pty Ltd [2016] NSWDC 270
Hearing dates:	8 September 2016
Date of orders:	08 September 2016
Decision date:	28 October 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Imputation 4(a) is reasonably capable of being conveyed. (2) Grant leave to the first plaintiff to amend imputation 4(c) to read “The first plaintiff organised an elaborate plot to steal court documents”. (3) Imputation 4(d) is reasonably capable of being conveyed. (4) Imputations 4(e) and 6(e) are struck out. (5) Imputations 4(i) and 6(c) are struck out. (6) Imputations 6(a), 6(b) and 6(d) are reasonably capable of being conveyed. (7) Note the plaintiffs concede that paragraphs 3 and 5, which refer to “the defendants” as publishers, is pleaded contrary to the principles set out in Dank v Cronulla Sutherland District Rugby League Football club Ltd [2014] NSWCA 288. (8) The plaintiffs are to file an amended statement of claim in 14 days setting out the revised and amended imputations and revisions to paragraphs 3 and 5. (9) The plaintiffs are to pay the defendants’ costs of the imputations argument. (10) Defence to be filed and served 28 days after service of the amended statement of claim. (11) Reply to be filed and served 7 days thereafter. (12) Matter stood over to the Defamation List on Thursday 10 November 2016.
Catchwords:	TORT – defamation – imputations – form and capacity
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.30 and 28.2
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Capolingua v Nationwide News Pty Ltd [2016] WASC 156 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Corby v Network Ten Pty Ltd; Corby Junior v Network Ten Pty Ltd; Rose v Network Ten Pty Ltd; Kisina v Network Ten Pty Ltd [2014] NSWSC 1431 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 Galea v Amalgamated Television Services Pty Ltd (Supreme Court of New South Wales, Levine J, 20 February 1998) Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Jones v TCN Channel Nine Pty Limited (No 2) [2015] NSWSC 1854 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 Piggins v Denton [2006] NSWSC 954 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Toben v Milne [2014] NSWCA 200 Waller v Nationwide News Pty Ltd [2011] NSWSC 611 Waterhouse v David Syme & Co Ltd [2000] NSWSC 817 Young v Munro (Supreme Court of New South Wales, Levine J, 12 May 1995)
Texts Cited:	Don Watson, “The Dictionary of Weasel Words” (Knopf, Sydney, 2005)
Category:	Procedural and other rulings
Parties:	First Plaintiff: Rachel Shore Second Plaintiff: Tas Hatzopoulos First Defendant: Nationwide News Pty Ltd Second Defendant: Mark Harvey
Representation:	Counsel: Plaintiffs: Mr C A Evatt / Mr I Kirgiz First Defendant: Ms L Barnett Second Defendant: Mr M Richardson   Solicitors: Plaintiffs: Brendan Pigott First Defendant: News Limited Second Defendant: Simpson & Phillips Solicitors
File Number(s):	2016/184390
Publication restriction:	None

Judgment

1. These are my reasons for rulings on 8 September 2016 in relation to the form of certain of the imputations pleaded as arising from the matter complained of, an article published in the Daily Telegraph on 3 June 2016.

2. The matter complained of, appearing under the heading “Origin a tactic for invasion” and credited to Jack Houghton, is only five paragraphs long. I start the numbering at 3 to allow for the heading and byline to be numbered:

“3. POLICE are investigating if a scorned lover used the State of Origin as a distraction to mount a brutal home invasion against her ex-husband.

4. A 78-year old grandmother was found by police bound to a chair with cable ties after three men clad in balaclavas and gloves raided her northwest Sydney home. Her son, who lives with the elderly woman, told police a bitter custody dispute with his ex-wife had escalated to an elaborate plot to steal “court documents” while he took their children to the football on Wednesday night.

5. “She knows I’m there every night with Mum but (on the night) she knew I would be at the game because I had the kid,” he said. “(Mum) called me at 10.30 pm after (the men) left and I called the police who went and untied her.”

6. The Daily Telegraph understands the stolen documents directly relate to the custody dispute between the parents.

7. “She is capable of this but I just didn’t expect it,” the man said. “There is also a boyfriend in the picture who matches the description of one of the intruders.”

3. The plaintiffs assert, by reasons of extrinsic identification facts, that each of them is identifiable as the “ex-wife” and “boyfriend” respectively. The first plaintiff pleads ten imputations, and the second plaintiff pleads six imputations. In the course of exchange of correspondence a series of alterations has resulted in so many proposed amendments that I do not propose to set out the imputations as pleaded in the statement of claim. I have simply made rulings on the imputations which I have been asked to rule on.

4. Prior to the argument a number of imputations were the subject of agreed amendment. The five remaining imputations the subject of challenge for the first plaintiff (the ex-wife of the second defendant) are:

• The first plaintiff mounted a brutal home invasion against her ex-husband (imputation 4(a)).

• The first plaintiff fabricated an elaborate plot to steal court documents from the home of her ex-husband while he took their children to a football match (imputation 4(c)).

• The first plaintiff caused a 78-year old grandmother to be bound to a chair with cable ties in a home invasion (imputation 4(d);

• The first plaintiff is the sort of person who would have a home invader as a boyfriend (Imputation 4(e));

• The first plaintiff is a criminal (imputation 4(i)).

5. The four imputations the subject of challenge for the second plaintiff (the person alleged to be the first plaintiff’s boyfriend) are:

• The second plaintiff was one of three men who carries out a brutal home invasion (imputation 6(a));

• The second plaintiff was one of three men who invaded the home of a 78-year old grandmother and bound her to a chair with cable ties (imputation 6(b));

• The second plaintiff is a criminal (imputation 6(c)).

• The second plaintiff was the boyfriend of the first plaintiff who organised a home invasion (imputation 6(e)).

6. Given the similarity between certain of the imputations pleaded for both plaintiffs, this reduces to five challenges to the imputations pleaded.

7. The principles relevant to capacity are set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136] as being an exercise in generosity not parsimony, and as a matter of impression. The relevant principles concerning challenges to the form of imputations are set out in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137. The observations of Gleeson CJ concerning the need for practical justice rather than philology when determining objections to form are particularly apt in these proceedings, given the brevity of the matter complained of.

Imputation 4(a)

8. This is a significant imputation for the first plaintiff, because the words in this paragraph, commencing with the word “POLICE” in capital letters, are in slightly larger type and distil the meaning of the story. The defendants’ solicitors wrote making objection is to the word “mount”, on the basis that this word is ambiguous and could mean organised, authorised and/or actively participated in the home invasion. The first plaintiff initially sought to accommodate this objection by pleading three separate imputations containing each of these words, only to be met by a submission that, although the defendants had previously asserted these meanings were different, the three imputations did not differ in substance, and only an imputation that the first plaintiff “organised” the home invasion should be permitted.

9. The objections of the defendants were:

1. The word “mount” was itself ambiguous in itself, in that it had more than one meaning; and

2. Whether the word had more than one meaning or not, the use of “mount” was impermissible as it appears in the matter complained of.

10. Plaintiffs are keen to use the precise words in the publication in their imputations, becaus it is perceived as being more difficult for a defendant to submit to the tribunal of fact that the imputation is not conveyed. Objections from defendants are generally expressed as being uncertainty as to what to justify to claims that the meaning is obscure, but the underlying problem is always that, as Hutley JA noted in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688:

“Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable hearer would make of it.”

Ambiguity

11. There is a long history of challenge to the form of imputations on the basis that words in the matter complained of are asserted to be ambiguous:

1. Words can be ambiguous where the level of meaning is extremely general (such as “wrongly” and “improper”).

2. There is a genuine double meaning (such as “corrupt”, which can mean different kinds of dishonest behaviour).

3. The word used is a “weasel word”: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 163 (see Don Watson, “The Dictionary of Weasel Words” (Knopf, Sydney, 2005)).

4. There is an alternative specialist legal meaning (such as “breach of trust”).

5. The word is slang. However, what is “slang” may change from case to case. In Jones v TCN Channel Nine Pty Limited (No 2) [2015] NSWSC 1854 no objection was taken to “conman”, whereas its appropriateness in an imputation was the subject of challenge in Young v Munro (Supreme Court of New South Wales, Levine J, 12 May 1995).

6. The imputation uses the words of the matter complained of: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255; Waller v Nationwide News Pty Ltd [2011] NSWSC 611.

7. The imputation uses words which are a mere rhetorical flourish which do not add to the sting of the imputation and are thus impermissible: Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 at 420; Waterhouse v David Syme & Co Ltd [2000] NSWSC 817 at [22].

12. In the present case, the defendants’ submissions are that the ambiguity falls within categories (b) and (f).

13. This is a eight-sentence publication. How precise does a plaintiff have to be in such circumstances?

14. In Drummoyne Municipal Council v Australian Broadcasting Corporation Gleeson CJ, explaining why an imputation “X is disgusting” might be permitted where that was all that was said, went on to state (at 137):

“The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances.”

15. Gleeson CJ illustrated this point by noting (at 148) that the imputation “the plaintiff was an abortionist” had been wrongly struck out by the first instance judge in Hepburn v TCN Channel Nine Pty Ltd “because it forced the plaintiff into pleading with greater precision” than the actual publication.

16. Although Gleeson CJ said in Drummoyne Municipal Council v Australian Broadcasting Corporation, in the clearest of terms, that Hepburn v TCN Channel Nine Pty Ltd remained the law, arguments about lack of specificity have been a continuing feature of defamation practice notwithstanding Hutley JA pointing out (in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 671, concerning imputations in the passive voice) that “there are no forms of imputations”.

17. The defendants draw my attention to Harvey v John Fairfax Publications Pty Ltd, where Hunt AJA explained that merely pleading the words of the matter complained of as the imputation for which the party contends – where those words do not adequately distil the act or condition attributed to the plaintiff – does not comply with the requirements of the rules of pleading. Hunt AJA said:

“Justification for pleading the imputations in the words of the matter complained of is sought in a statement by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (at 137), that the requirement placed by r 11(2) on the plaintiff to specify the act or condition which he claims was attributed to him cannot go beyond doing the best that can reasonably be done in the circumstances. It is said that, as the plaintiff does not know the precise sense the defendant intended to convey, the most he can reasonably do in the circumstances is to use the defendant’s own words in his imputations. This is a complete misinterpretation as to what the Chief Justice said in Drummoyne.

Gleeson CJ said (at 137) that the requirement that the plaintiff specify the act or condition he claims was attributed to him raises questions of degree, and that the satisfaction of that requirement depends on the circumstances of the particular case, as the attribution of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. Therefore, the Chief Justice said, the requirement placed on the plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances, and the appropriate degree of specificity needs to be related to the nature and content of the defamatory matter. Those statements do not justify this new method of pleading imputations.

To start with, the issue is not what the defendant intended to convey; the issue is how the ordinary reasonable reader interpreted what the defendant said. What the Chief Justice made clear when he commenced his remarks on this subject was that the plaintiff must specify the act or condition ‘which he claims was attributed to him’ and he concluded his remarks by accepting the test formulated at first instance (already quoted in para [124] supra) that the issue which has to be decided in the particular case is ‘whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends’. The plaintiff is required to specify the act or condition which he contends was understood by the ordinary reasonable reader as being attributed to him by the matter complained of. Unless his imputation identifies that act or condition, the defendant has no way of knowing whether he can plead various defences to the publication. He is entitled to have that identification made before pleading. The trial judge who has to decide the defences pleaded is also entitled to have identified the act or condition found by the jury to have been understood by the ordinary reasonable reader as being attributed to the plaintiff by the matter complained of [127–129].”

18. However, in the present case, the word “mount” makes sense in the matter complained of, just as it does in the imputation, in the way that Hutley JA considered in Sergi v Australian Broadcasting Commission was permissible.

19. The next submission was that the defendants did not know the case they had to meet. In Piggins v Denton [2006] NSWSC 954, Simpson J criticised the practice of defendants asserting that they did not know what evidence to lead to plead a defence of justification to an imputation that the plaintiff was responsible for a particular event. The word used in the imputation challenged in those proceedings was the word “responsible”:

“[21] One of the objections taken to the form of this imputation concerned the use of the expression “is responsible for”. The complaint is that the imputation fails to specify in what respect the plaintiff is said to bear responsibility for the failure of the club; it fails to identify any act or condition which made him so responsible.

[22] This is a familiar refrain in the submissions of defendants concerning the formulation of imputations. It is frequently, as in this case, attached to a further argument about the difficulty a defendant would experience in attempting to justify the imputations. Underlying this is a notion that, in my opinion, ought to be exploded. It is that plaintiffs ought to be required to frame imputations in such a way as to facilitate the defence of the plaintiff’s claim. This is not so.”

20. The word or words used 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]). It should be as broad, or as narrow, as the matter complained of, but does not need to be more specific than the language of the matter complained of itself.

Use of the words in the matter complained of

21. 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 per McCallum J at [18]).

22. However, an imputation is not necessarily conveyed merely by repeating the language of the publication: Toben v Milne [2014] NSWCA 200 per Beazley P and Ward JA at [21].

23. In Capolingua v Nationwide News Pty Ltd [2016] WASC 156, Le Miere J struck out as ambiguous a contextual imputation in the form of the words of the matter complained of. The language which was copied referred to the plaintiff behaving “inconsistently with her obligation to be scrupulous in the use of public resources”:

“[14]The defendant complains that its imputation is no more uncertain than the plaintiff’s imputation pleaded at par 6.1 of the statement of claim. There are two answers to that submission. First, I am not dealing with an application to strike out the plaintiff’s imputation. Secondly, the addition of the phrase ‘and inconsistently with her obligation to be scrupulous in the use of public resources’ to the imputation that the plaintiff had wrongfully obtained the tickets renders the imputation uncertain and embarrassing. The adverb ‘wrongfully’ in pleading imputations should be avoided unless the context in which it is used makes clear its intended meaning and the degree of wrongfulness involved: McCormick v John Fairfax &Sons Ltd(1989) NSWLR 485 494 (Hunt J). In the plaintiff’s imputation, the word ‘wrongfully’ is qualified or elaborated upon by the word ‘deliberately’. The defendant’s imputation qualifies or elaborates upon the notion that the plaintiff obtained the tickets ‘wrongfully’ by adding that she did so ‘inconsistently with her obligation to be scrupulous in the use of public resources’ which, as I have said, is relevantly ambiguous. What is the plaintiff said to have done? Is it that she deliberately obtained the tickets wrongfully, in which case the imputation does not differ from the plaintiff’s. Or is it that the plaintiff wrongfully obtained the tickets recklessly, negligently, carelessly or without sufficient diligence?”

24. No such problem occurs here. The word “mount”, when read in context, has a clear meaning. The dictionary or “vertical” meaning of the word is not the only meaning; the real meaning comes from the horizontal flow of language forming the sentence in which it appears.

25. The defendants complained that “mount” had three meanings (organise, authorise and actively participated) but when the first plaintiff proposed three imputations setting this out, the defendants objected to that course, and sought to bind the first plaintiff to the word “organise” on the basis that this was the only way the imputation could be distilled to give its actual meaning.

24. In additional submissions in support of the word “organise”, Ms Barnett referred to Fairfax Media Publications Pty Ltd v Alex at [23]-[24]. She submitted that the ambiguity arose because it was clear the first plaintiff was not actually at the premises and that the word “mount” (which included not merely authorising but participating) did not accurately distil the meaning. Ms Barnet submitted that it was clear from the matter complained of that “the first plaintiff was the one who was at home using the State of Origin as a ploy” and that “she was not there” (meaning she was not at the scene of the home invasion).

25. That is not what the matter complained of says. The first plaintiff used the State of Origin as a ploy because she knew her ex-husband would be taking the children to the football and that her ex-husband’s mother would be at home alone. There is no statement in the matter complained of that the first plaintiff was “at home” somewhere else, or “not there”. I am not prepared to read this into the text. Nor am I prepared to order Mr Evatt to adhere to the word “organised” because he suggested this as one of the three alternative meanings. A party is entitled to change his or her position during argument.

26. This is a clear case of the sting of the libel being captured by the use of the word in the matter complained of. Courts should be cautious not to “straitjacket” a plaintiff into Thesaurus-based alternatives: Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 at [18]. I am satisfied that the word “mount” is not ambiguous and that it encapsulates the sting of the libel.

27. Accordingly I reject the defendants’ submissions that the form of this imputation is defective.

Imputation 4(c)

30. This was amended by agreement during submissions to replace “fabricated” with “organised”.

Imputations 4(a) and 4(d), 6(a) and (b) and 6(d)

31. Mr Richardson acknowledged that imputation 4(d) arose. The submission was that these imputations did not differ in substance, as imputation 4(d) specified the brutality in the home invasion in imputation 4(a).

32. The acts of mounting a home invasion and directing the tying up of a 78-year-old woman with cable ties are two separate acts. The first plaintiff is entitled to plead an imputation arising from such conduct.

33. The same is the case in relation to imputations 6(a) and 6(b).

34. The parties had conflicting submissions about whether there would be objection to imputation 6(d), but Ms Barnett withdrew her objections during the argument. Mr Richardson had already acknowledged imputation 6(d) (“the second plaintiff was one of three men who invaded a home in North West Sydney in order to steal court documents”) was reasonably capable of being conveyed. I will note in the orders that this imputation, as well as the others set out under this heading, are reasonably capable of being conveyed.

Imputation 4(e) and 6(e)

35. The fact that a person is a relative or spouse of a criminal – even a notorious criminal – has been held not to be capable (without more) of conveying a defamatory imputation: Galea v Amalgamated Television Services Pty Ltd (Supreme Court of New South Wales, Levine J, 20 February 1998).

36. The publication in Galea v Amalgamated Television Services Pty Ltd was described by Levine J as:

“…reprehensible in the sense, as I understand it, that the photograph of [the plaintiff] and the attribution of a family relationship is a gratuitous falsity. It does not however amount to an actionable defamation and accordingly I summarily dismiss the action striking out the Statement of Claim as disclosing no reasonable cause of action in defamation.”

37. Mr Evatt sought to argue that being a boyfriend or girlfriend imputed more than being a relative, in that one cannot choose one’s relatives. However, unless the imputation goes on to assert that the relationship results in the plaintiff turning a blind eye to, or benefiting from, the criminal acts (as to which see Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536), it is not capable of being defamatory.

38. An additional problem, in the present case, is that the matter complained of makes it clear that the plaintiffs conspired with each other to commit the crimes described. In those circumstances, this imputation misses the point entirely, as Mr Richardson noted in his opening observations.

39. These imputations are not reasonably capable of being conveyed and, for the reasons expressed in Galea v Amalgamated Television Services Pty Ltd, not capable of being defamatory.

Imputations 4(i) and 6(c)

40. In Corby v Network Ten Pty Ltd; Corby Junior v Network Ten Pty Ltd; Rose v Network Ten Pty Ltd; Kisina v Network Ten Pty Ltd [2014] NSWSC 1431, the plaintiffs each pleaded an imputation that “the plaintiff is a criminal in that he/she runs illegal drugs to Indonesia”. The defendants’ objections are that, if such words were to be added here, this would effectively mean that an imputation “the plaintiff is a criminal” could not differ in substance from the conduct described in the other imputations. There is no suggestion that other forms of criminality are imputed.

41. Mr Evatt submitted that the reference to “criminal” was “the general” rather than “the specific”. Mr Richardson submitted that the criminal conduct was set out in no less than four imputations. In those circumstances, it was a rolled-up claim without sufficient refinement.

42. I accept the defendants’ submission that this imputation, for each of the plaintiffs, does not differ in substance from other imputations of criminality pleaded and should be struck out.

Costs

43. The plaintiffs have had to make major amendments before and during the argument, and must now file an amended statement of claim. The defendants have been substantially successful and the appropriate order is for the plaintiffs to pay their costs.

Orders

44. The orders made in relation to capacity set out in the orders below are all made pursuant to a separate trial under r 28.2 Uniform Civil Procedure Rules 2005 (NSW). The orders made in relation to objections as to form are similarly all made pursuant to r 14.30.

1. Imputation 4(a) is reasonably capable of being conveyed.

2. Grant leave to the first plaintiff to amend imputation 4(c) to read “The first plaintiff organised an elaborate plot to steal court documents”.

3. Imputation 4(d) is reasonably capable of being conveyed.

4. Imputations 4(e) and 6(e) are struck out.

5. Imputations 4(i) and 6(c) are struck out.

6. Imputations 6(a), 6(b) and 6(d) are reasonably capable of being conveyed.

7. Note the plaintiffs concede that paragraphs 3 and 5, which refer to “the defendants” as publishers, is pleaded contrary to the principles set out in Dank v Cronulla Sutherland District Rugby League Football club Ltd [2014] NSWCA 288.

8. The plaintiffs are to file an amended statement of claim in 14 days setting out the revised and amended imputations and revisions to paragraphs 3 and 5.

9. The plaintiffs are to pay the defendants’ costs of the imputations argument.

10. Defence to be filed and served 28 days after service of the amended statement of claim.

11. Reply to be filed and served 7 days thereafter.

12. Matter stood over to the Defamation List on Thursday 10 November 2016.

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