Williams v David Syme & C Ltd

[2000] VSC 143

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

No. 6566 of 1999

LLOYD WILLIAMS	Plaintiff
v
DAVID SYME & CO. LIMITED	Defendant

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JUDGE:	HEDIGAN, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	5 April 2000
DATE OF JUDGMENT:	5 April 2000
CASE MAY BE CITED AS:	Williams v. David Syme & Co.Ltd.
MEDIUM NEUTRAL CITATION:	[2000] VSC 143

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Defamation – Plaintiff pleading single imputation that words meant that he caused the suicide – Defendant request for particulars of words or conduct – Plaintiff's refusal upheld.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M. Wheelahan	Arnold Bloch Liebler
For the Defendant	Mr. D. Beach	Minter Ellison

HIS HONOUR:

1. The point in the present application is quite discrete.  It arises out of the preceding events in the management of this case.  The plaintiff's case really runs a singular point - that the defendant's publication concerning him imputed that he was a cause of the death by suicide of the late Mr Burton.

1. There was a previous hearing before me in which it was argued that it was not capable of being defamatory of a person simply to say that that person was the cause of another person's suicide, without some accompanying words which reasonably denoted discreditable conduct.  I rejected this submission.  My ruling was challenged in the Court of Appeal which refused leave to appeal.

1. The dispute there previously was whether the words were capable of being defamatory.  In the course of my reasons, I raised the question whether the published statement, without any words or conduct being identified, could amount to defamation, although it is clear enough from the decision itself that my view was that it might.  The plaintiff suggested that particulars of any alleged conduct might be sought.  They were but, the plaintiff denied the defendant's right to seek them.  The defendant has challenged by summons the plaintiff's refusal to give particulars.

1. Let me say at the outset that I regard the plaintiff's ambivalence as bordering on the misleading.  If the plaintiff's position , as his defence to this application would indicate, is that particulars were and are not appropriate because the plaintiff has chosen to identify the imputation in the publication on which he sues, it was sheer persiflage for to be said to me that a request for particulars would be considered on the usual principles.  In a managed list, my expectations are that the court, as well as the opposite party, will be dealt with in a frank and reliable manner.

1. That being said, the issue here is nevertheless to be dealt with on correct legal principles.  There is no estoppel arising from what was said in that way.

1. In addition, I do not accept the statement of Mr Wheelahan for the plaintiff that I had decided the point here raised.  I had previously decided that the publication was capable of being defamatory, no more.  This issue is as to whether particulars should be ordered was not decided, as no formal request had then been made.  The defendant's point was short and in part founded on my previous remark.  It argues that it was and is entitled to know what are the words or conduct which constitute the "cause" of the suicide.  This seems logical enough but this is not a tribunal pronouncing philosophical niceties at this point; it seeks to deliver practical solutions.

1. The Courts have already considered from time to time the issue of "cause" in the defamation context.  Indeed, I referred to some aspects of this in my reasons in this case, on the occasion previously referred to.  It is I believe, unproductive to return to, or even consider in these reasons, the issues involved in the differences or similarities between "caused" and "was responsible for".[1]  The parties in argument before me referred to the New South Wales decisions and opinions, including John Fairfax & Sons Ltd v. Foord[2], in particular the judgments of Mahoney JA and Clarke JA.  The plaintiff relied on statements in those judgments as pointing to the right of the plaintiff to select for himself or herself the meaning contended for with the attendant risk of failure if the jury did not accept it.

   [1]See Amalgamated Television Services Pty Ltd v. Marsden (1998) 43 NSWLR 158.

   [2](1988) 12 NSWLR 706.

1. I should re-iterate, what has already been stated by me in other cases, and is virtually in the "every school boy knows" category, that in the State of New South Wales the defamation must by statute be found in the imputation pleaded and argued for, whereas in the State of Victoria the defamation is in the publication of the words.  Whilst the Court is careful, once the issue is raised pre-trial, to consider whether a particular meaning contended for is arguably open, the decisive matter is whether or not the tribunal of fact considers that the published words are defamatory.  This is, and always has been, the issue in this case.

1. Mr Wheelahan contended that the plaintiff was entitled to select the meaning (imputation) for which he wished to argue and that it was impossible to deny his right to do so, as the pleading employs the very words which appeared in the article. I note, however that those words in the article attributed to Mrs Burton, referred to the Casino, not the plaintiff.  Mr Beach accepted all of this but argued that the imputation pleaded lacked meaning without particularisation.

1. I note that Mahony JA[3] stated:

"A judge should in my opinion interfere with the form in which a plaintiff chooses to present his case only if there be … a tendency to cause prejudice, embarrassment or delay in the proceeding ... And where a judge is dealing with the pleading at an interlocutory stage, he would not necessarily restrict the flexibility of the proceedings."

[3]In Foord at 712.

1. I bear in mind that the trial judge is capable of dealing with the difficulties presently imagined by the defendant.

1. I have reached the conclusion that no particulars should be ordered in this case.  Essentially, the plaintiff's case is founded on the photograph of the plaintiff, juxtaposed next to the headline and the photograph of the vault, the work on which by the deceased Burton was a feature of the text of the article.

1. Moreover, as I have earlier indicated, whilst strict logic might require definition of words or conduct, ordinary members of the community might have no difficulty in deciding that to publish of a person, in the circumstances here prevailing, that he caused another person to commit suicide, is defamatory.  This is a matter for them.

1. As a matter of argument, the defendant is not prevented at trial from attacking the plaintiff's failure to identify the conduct said to amount to "cause" in the context.  But to put the point in that way isolates the essential weakness of the defendant's argument i.e. that it seeks particulars of words or conduct on which the plaintiff does not rely.  It has already been held by me (and the Court of Appeal) that the imputation is open on the article, particularly the photograph in conjunction with the headline.  The defendant is likely the one who knows why the photograph of the plaintiff was so prominently (and arguably irrelevantly) annexed to the article published.  It hardly seems feasible that the Court should require the plaintiff to identify what words or conduct of Mr Williams are relied on.  They are, as the plaintiff argues, not relied on.  What the plaintiff relies on is the claimed damaging introduction of him into a chapter of events dealt with in the text, described without mention of any words or conduct of him.  Moreover, if the complaint is that the imputation lacks clarity, or is ambiguous, that is a consequence of the way in which the defendant presented and published the article and photograph.[4]  It also seems absurd to suggest that particulars must be given of words or conduct of the plaintiff causing the suicide when the fact is that the plaintiff's case is that he did not cause it, and when the defendant did not specify any such words or conduct.  The plaintiff's case is that there was none, but notwithstanding that, the defendant, by its publication and the photograph, have imputed that he did.

   [4]See Clarke JA in Foord at 726.

1. This is a relatively simple, one-point case, ideal for jury determination.  I dismiss the application.  I make by consent the orders agreed on as to witnesses and mediation.  The interlocutory steps having been completed, I refer the proceeding to the Listing Master for fixing.  If mediation is successful, then the Listing Master may make necessary orders.

1. The defendant must pay the plaintiff's costs of the application. 

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