Brown v Nationwide News Pty Ltd & Anor

[9]

First matter complained of 8. The text of Annexure A is set out as an annexure to this judgment. The plaintiff in paragraph 4 of the Corrected Further Amended Statement of Claim pleads that this publication conveyed the following imputations: (a) The plaintiff was ejected from the sale grounds because he attempted to engage in auction rorts (paragraphs 1, 4, 14, 18, 19, 20, 21 and 22). (b) The plaintiff was ejected from the sale grounds because Reg Inglis suspected him of attempting to engage in auction rorts (paragraphs 1, 4, 14, 18, 19, 20, 21 and 22). (c) The plaintiff was frogmarched from the sale grounds by the second defendant's security people because he gatecrashed the sale (paragraphs 1, 4, 20, 21 and 22). (d) The plaintiff behaved so badly at the sale that the second defendant's security people frogmarched him from the sale grounds in the presence of the who's who of the bloodstock world and leading buyers (paragraphs 1, 4, 20, 21, 22, 28, 31, 32 and 38). (e) The plaintiff trespassed on private property (paragraphs 20, 21 and 22). (f) The plaintiff gatecrashed the sale grounds when he knew he was not welcome and had not been invited (paragraphs 1, 4, 20, 21 and 22). (g) The plaintiff was frogmarched from the sale grounds by the Inglis people (paragraph 20). Second matter complained of 9. The publication which is Annexure B to the Correct Further Amended Statement of Claim consists of extracts from Annexure A for which solely the second defendant has been sued. The plaintiff pleads that the following imputations are capable of being conveyed: (a) The plaintiff was ejected from the sale grounds because he attempted to engage in auction rorts (paragraphs 1, 2 and 3). (b) The plaintiff was ejected from the sale grounds because Reg Inglis suspected him of attempting to engage in auction rorts (paragraphs 1, 2 and 3). (c) The plaintiff was frogmarched from the sale grounds by the second defendant's security people because he gatecrashed the sale (paragraphs 3, 4 and 5). (d) The plaintiff behaved so badly at the sale that the second defendant's security people frogmarched him from the sale grounds in the presence of the who's who of the bloodstock world and leading buyers (paragraphs 3, 4, 5, 6 and 7). (e) The plaintiff trespassed on private property (paragraphs 3, 4 and 5). (f) The plaintiff gatecrashed the sale grounds when he knew he was not welcome and had not been invited (paragraphs 3, 4 and 5). 10. In its somewhat confusing pleading the plaintiff goes on to set out a second set of imputations as arising from the alleged republication (as opposed to the mere publication) of these words spoken by the second defendant or its servant or agent Reg Inglis. These imputations which are set out in paragraph 8 of the Corrected Further Amended Statement of Claim, are as follows: (a) The plaintiff was ejected from the sale grounds because he attempted to engage in auction rorts (paragraphs 1, 4, 14, 18, 19, 20, 21 and 22). (b) The plaintiff was ejected from the sale grounds because Reg Inglis suspected him of attempting to engage in auction rorts (paragraphs 1, 4, 14, 18, 19, 20, 21 and 22). (c) The plaintiff was frogmarched from the sale grounds by the second defendant's security people because he gatecrashed the sale (paragraphs 1, 4, 20, 21 and 22). (d) The plaintiff behaved so badly at the sale that the second defendant's security people frogmarched him from the sale grounds in the presence of the who's who of the bloodstock world and leading buyers (paragraphs 1, 4, 20, 21, 22, 28, 31, 32 and 38). (e) The plaintiff trespassed on private property (paragraphs 20, 21 and 22). (f) The plaintiff gatecrashed the sale grounds when he knew he was not welcome and had not been invited (paragraphs 1, 4, 20, 21 and 22). Third matter complained of - the slander by conduct claim 11. The conduct and words set out in the slander by conduct claim, which is Annexure C to the Corrected Further Amended Statement of Claim, is set out in the schedule to this judgment. The plaintiff pleads in paragraph 8B of the Corrected Further Amended Statement of Claim that the words and conduct give rise to four imputations which are as follows: (a) The plaintiff behaved so badly that he deserved to be removed from the sale grounds. (b) The plaintiff so conducted himself that he deserved to be removed from the sale grounds. (c) The plaintiff is unfit to remain upon the sale grounds. (d) The plaintiff is so undesirable that he should be removed from the sale grounds.

[13]

The Court of Appeal has recently handed down a helpful decision which has explained the correct approach to imputations: Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254. Although Malcolm deals with a publication brought under the Defamation Act 1974, Beazley JA pointed out that "the authorities have placed particular emphasis on the role of the jury in determining whether a pleaded imputation is conveyed by the matter complained of" (at [19]). Beazley JA went on to note at [20]: "Thus, in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669, Glass JA at 674 stated that the question whether the imputation was conveyed should go to the jury unless it was blindingly obvious that no other conclusion was reasonably open. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ at CL (Mason P and Handley JA agreeing) stated at 164-165 that if reasonable persons may differ as to the conclusion to be drawn from the matter complained of, the issue as to whether the imputation was in fact conveyed must be left to the jury."
The question of the appropriate test for the form and capacity of imputations under the 2005 Act is the first issue I must determine. Should the meaning of defamatory publications governed by the 2005 Act be pleaded with the more liberal approach taken in actions brought in jurisdictions outside New South Wales where the common law applies (as suggested by P George in Defamation Law in Australia LexisNexis 2006 at paragraph 9.6), or does the use of the word "specify" in Part 14.30 Uniform Civil Procedure Rules 2005 (NSW) mean that the same principles about specificity, including striking out imputations because of asserted errors in form should be applied? In addition, the provisions of ss.56-62 Civil Procedure Act 2005 and s.40 Defamation Act 2005 may require the proceedings to be approached with the view of achieving a "just, quick and cheap" resolution rather than the lengthy interlocutory applications so deplored by Kirby J in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [21]-[22], and in Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294 at [144] (at [21] Brennan CJ and McHugh J concurred). In a number of unreported decisions of the Supreme Court such as John Finnin v John Fairfax Publications Pty Ltd and Anor (Supreme Court of New South Wales, Nicholas J, 18 April 2007, unreported), arguments on form, capacity and defamatory meaning have proceeded without any change, because the approach in the Supreme Court is that the reference to the need to "specify" the imputations in Part 14.30 Uniform Civil Procedure Rules overrides ss.56-62 Civil Procedure Act 2005 and the provisions of the Defamation Act 2005.

Parties

Applicant/Plaintiff:

Brown

Respondent/Defendant:

Nationwide News Pty Ltd & Anor

Legislation Cited (7)

Defamation Act 1974(NSW)

Trade Practices Act 1974(Cth)

Civil Procedure Act 2005(NSW)

Defamation Act 2005(NSW)

District Court Rules 1973(NSW)

Fair Trading Act 1987(NSW)

Uniform Civil Procedure Rules 2005(NSW)

Cases Cited (19)

CITATION: Brown v Nationwide News Pty Ltd & Anor [2008] NSWDC 26 This decision has been amended. Please see the end of the judgment for a list of the amendments.

Aboriginal Nations Pty Ltd v John Fairfax Publications Pty Ltd and Anor [1998] ACTSC 125 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bishop v New South Wales (Supreme Court of New South Wales, Levine J, 12 March 1998, unreported) Bishop v New South Wales [2000] NSWSC 842 Bishop v New South Wales [2000] NSWSC 1042 Bracks v Denoon (Supreme Court of New South Wales, Nicholas J, 14 December 2006) Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294 Clarke & Anor v Melbourne University Publishing Ltd trading as Melbourne University Press [2007] NSWDC 189 Cook v Cox [1812] 105 ER 552 Cutler v McPhail [1962] 2 QB 292 Dare v Pulham (1982) 148 CLR 658 David v Abdishou [2007] NSWSC 1195 CASES CITED: Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Finnin v John Fairfax Publications Pty Ltd and Anor (Supreme Court of New South Wales, Nicholas J, 18 April 2007, unreported) General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hanrahan v Ainsworth and Anor (1985) 1 NSWLR 370 Icon International Communications Pty Ltd v Nationwide News Pty Ltd [2005] ACTSC 110 John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 Rigby v John Fairfax Group Pty Ltd and Ors (New South Wales Court of Appeal, 1 February 1996, unreported) Robinson v Brighton [2007] NSWSC 1125 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 Tumbarella v Kroger Co 85 Mich App 482, 271 NW 2d 284 (1978) Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212

[2005] ACTSC 110

(1998) 43 NSWLR 158

(1998) 154 ALR 294

(1982) 148 CLR 658

(2005) 221 ALR 186

(1964) 112 CLR 125

(1985) 1 NSWLR 370

(2001) 53 NSWLR 541

(1985) 1 NSWLR 173

[2000] NSWSC 842

[2000] NSWSC 1042

[2007] NSWSC 1125