Tagg v Pickering

[2015] NSWSC 1301

Supreme Court

New South Wales

Medium Neutral Citation:	Tagg v Pickering [2015] NSWSC 1301
Hearing dates:	21 August 2015
Date of orders:	21 August 2015
Decision date:	21 August 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Rulings on imputations. The plaintiff is granted leave to file an amended statement of claim in accordance with these reasons within 7 days. I order the plaintiff to pay the defendant's costs of today.
Catchwords:	DEFAMATION – pleadings – imputations – form and capacity
Cases Cited:	Mirror Newspapers v World Hosts Pty Ltd (1979) 141 CLR 632
Category:	Procedural and other rulings
Parties:	Victor Tagg William Pickering
Representation:	Counsel: R Weaver (plaintiff) B Kelleher (defendant)   Solicitors: G Walsh & Co (plaintiff) Pikes & Verekers Lawyers (defendant)
File Number(s):	2015/188378
Publication restriction:	None

Judgment – ex tempore

1. HER HONOUR: These are proceedings for defamation arising out of an electoral pamphlet published by Mr William Pickering and two conversations alleged to have been engaged in by him on the date of the by-election in the Council of Ryde, East Ward.

2. The proceedings come before the Court today for first listing in accordance with the Practice Note (SC CL 4). The defendant has taken a number of objections to the form of the plaintiff's pleading. The first objection is to imputation (a) which is that:

“The plaintiff was found by the ICAC to be corrupt.”

3. The plaintiff is not named in the matter complained of. The pamphlet takes the form of a discursive reference to a recent ICAC inquiry and report with quotes from that report, followed by two references which might be understood to be in the nature of footnotes; one to the website of the ICAC findings and one to The Sydney Morning Herald website. Imputation (a) is alleged to arise from the latter, which is in the following terms:

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The plaintiff brings his case as one based on particulars of identification (that he is a former Ryde Mayor and a former independent councillor). The action is based on the contention that a number of persons who knew those particulars of identification read the matter complained of and understood it to refer to the plaintiff. In fact, if one were to go to the article cited, I am informed one would read that the “former Ryde Mayor suspended after a finding of corruption by the ICAC" was not the plaintiff but that would not be known to the ordinary reasonable reader of the flyer.

The defendant objects that the matter complained of could only be defamatory on the strength of a true innuendo that the plaintiff was the former Mayor who was suspended after a finding of corruption. On that premise, it was submitted that the imputation is incapable of being conveyed, since it would be based on an erroneous belief as to the existence of the extrinsic fact: see Mirror Newspapers v World Hosts Pty Ltd (1979) 141 CLR 632 at 642. The correctness of that principle is not in doubt.

In my view, however, the matter complained of is reasonably capable of conveying the imputation of suspension following a finding of corruption by the ICAC in respect of any person known to a reader to be a former Ryde Mayor and a former independent councillor. The thrust of the flyer is to launch an attack on the integrity of a number of independent councillors and a former independent councillor. The question whether the imputation is carried in respect of the plaintiff would, I think, be one of fact properly left to the jury rather than one for strike out at this stage of the proceedings. Imputation (a) will go to the tribunal of fact.

The next objection is to imputation (b), which is that:

“The plaintiff is justifiably suspected of criminal behaviour.”

8. The plaintiff acceded to the defendant's submission that greater specificity could be given to the form of that imputation, having regard to the content of the opening passages of the matter complained of and, on that basis, it was indicated that I need not rule on the form objection (the plaintiff seeking leave to replead that imputation).

9. The same position arises in respect of imputation (c) as to which the plaintiff also seeks leave to replead.

10. Imputation (d) was also objected to on the grounds of form. That imputation is that:

“The plaintiff is unfit to be elected as a councillor in the Ryde City by-election.”

11. The plaintiff proposed to cure the objection as to inadequate specificity by indicating he would add the words "because of the findings by ICAC" at the end of the imputation. I do not think that would cure the objection. Part of the difficulty is the lack of clarity as to what act or condition is allegedly attributed to a person said to be "unfit to be elected". That might refer to a broad range of conditions, some of which would not cast any negative light on the person in question. The plaintiff indicated that what was, in substance, sought to be captured in the attribution is that the plaintiff was unfit to hold office as a councillor and ought not be elected for that reason because of the findings of ICAC. The plaintiff should have leave to replead on that basis.

12. The only remaining objections relate to the two conversations, each alleged to have occurred on election day. In one, the defendant is alleged to have referred to the plaintiff as a "criminal and crook". The plaintiff has pleaded an imputation that he is a "criminal" and separately an imputation that he is a "crook". The objection is that those imputations do not differ in substance.

13. Mr Keleher, who appears for the defendant, submitted that the use of the conjunctive in the circumstances alleged (noting that the conversation is denied by the plaintiff) is to create a collocation, that is, an expression such as "cease and desist" or "shun and avoid" (to which might be added “Country and Western”). He submitted that, in the mind of an ordinary reader, that form of “conjunctive redundancy” would be seen as a matter of emphasis rather than any separate attribution. In my view, there is force in that submission in each case.

14. In the third matter complained of, the phrase allegedly stated by the defendant (denied by him) is that the plaintiff is "crooked and corrupt". Again the plaintiff has pleaded one imputation that he is "corrupt" and one that he is "crooked". In each case, in my view, the plaintiff should distil the imputation to a single one, since those words have the same meaning.

15. The plaintiff is granted leave to file an amended statement of claim in accordance with these reasons within 7 days. I order the plaintiff to pay the defendant's costs of today.

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Decision last updated: 07 September 2015