Cavasinni v Camenzuli

District Court of NSW|2009-06-26

CITATION: Cavasinni v Camenzuli [2009] NSWDC 159

(1) Defendants' objections to form and capacity of the plaintiff's imputations dismissed. (2) Plaintiff file an Amended Statement of Claim correcting typing errors and identifying places of publication by 4pm 2 July 2009. DECISION: (3) These proceedings stood over to the Defamation List for further directions at 9:00am on Friday 3 July. (4) The defendants pay the plaintiff's costs of this application. (5) No order as to the costs thrown away by reason of the amendments to the Statement of Claim.

LEGISLATION CITED: Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bass v TCN Channel Nine Pty Ltd [2000] NSWSC 270 Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 34 Buckley v Newcastle Newspapers Pty Ltd (No 2) [2008] NSWDC 102 Coates v Harbour Radio Pty Ltd [2008] NSWSC 292 David v Abdishou [2007] NSWSC 1195 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Dix Gardner Pty Ltd v Strathfield Municipal Council [2003] NSWSC 597 Dobson v Macquarie Radio Network Ltd [2007] NSWSC 718 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Fakhoury v John Fairfax Publications Pty Ltd [2003] NSWSC 561 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 Gillespie v Nationwide News Pty Ltd [2002] NSWSC 553 CASES CITED: Greig v WIN Television NSW Pty Ltd [2007] NSWSC 1118 Hanneybel v Uniflex (Australia) Pty Ltd [2002] WASCA 349 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 John Fairfax Publications Pty Ltd v Blake; David Syme & Co v Blake (2001) 53 NSWLR 541 John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915; [2007] NSWCA 254 Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 Piggins v Denton [2006] NSWSC 954 SMEC Holdings v Boniface [2007] NSWSC 1402 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 Waterhouse v David Syme & Co Ltd [2000] NSWSC 817

Plaintiff: Vittorio Cavasinni PARTIES: First Defendant: Charles Camenzuli Second Defendant: Therese Camenzuli

COUNSEL: Plaintiff: Mr R Potter Defendants: Ms S Chrysanthou

SOLICITORS: Plaintiff: Antunes Lawyers and Advocates Defendants: UBK Lawyers

[1] The plaintiff commenced proceedings for defamation by Statement of Claim filed on 29 April 2009 concerning three publications alleged to have been published on the website www.catcam.com.au. These matters are attached as PDF files in a schedule to this judgment.

[2] The plaintiff pleads the following imputations arise from each of the matters complained of: First matter complained of

4(a) The plaintiff as the owner of Beechwood Homes is responsible for building defective and substandard homes; 4(b) The plaintiff as a master builder is so incompetent that he should not be chosen by anyone to build their home; 4(c) The plaintiff knowingly tried to deceive homeowners by falsely claiming that major building defects were no [more] than inconsequential and minor defects; 4(d) The plaintiff as the owner of Beechwood Homes and Cavasinni Constructions is a crook builder responsible for shonky and sub-standard workmanship.

6(a) The plaintiff knowingly tried to deceive homeowners by falsely claiming that major building defects were no [more] than inconsequential and minor defects.

8(a) The plaintiff knowingly tried to deceive homeowners by falsely claiming that major building defects were no [more] than inconsequential and minor defects; 8(b) The plaintiff sought [to] cover up serious building faults created by Beechwood Homes; 8(c) The plaintiff unreasonably refused to rectify serious building defects by homeowners. [3] This is an application by the defendants to strike out the Statement of Claim on the basis of lack of form and capacity of the imputations, failure to provide particulars of publication, and spelling errors.

[4] I have been provided with helpful written submissions and heard oral argument this morning. The application is for the court to determine these issues as separate questions of law pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW) and to strike out the imputations pursuant to r 14.28(1) Uniform Civil Procedure Rules 2005. The relevant Act is the Defamation Act 2005 (NSW).

[5] The principles applicable to arguments concerning the manner in which publications on the Internet are actionable and should be pleaded are explained by the High Court in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575.

[6] The principles applicable to arguments concerning the form and capacity of imputations have been outlined by the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [6] and [20]-[22], by the Court of Appeal in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 at [6]-[7], [29] and [106]-[109] and Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [7]-[8] and by the Supreme Court in a number of helpful practice decisions by Nicholas J and Simpson J.

[7] The defendants complain that the publication on the Internet pleads publication not only in New South Wales but in other States and Territories identified only as "and elsewhere" in paragraphs 3, 5 and 7 of the Statement of Claim. It is submitted that it is necessary for there to be evidence that the publication was downloaded for it to be actionable as a defamation: Dow Jones at 605-607.

[8] The plaintiff has now provided particulars that publication is only to be asserted in New South Wales, Victoria and Queensland and accordingly it is not necessary for me to deal with this matter further.

[9] However, I should note that the reason for the requirement of downloading in Dow Jones was because the publication in question was one obtainable only on subscription, and not freely available to everyone on the Internet. The requirement that the plaintiff must establish that the matter was downloaded in each State and Territory in order to establish a cause of action should, in my view, be read subject to this special fact, which is not applicable to the publication in these proceedings.

[10] By analogy, it could just as easily be said that publication in the newspaper could not be proved without evidence of the names of persons who proffered the appropriate sum to a newsagent.

[11] The warnings of Kirby J in Dow Jones at 630-633 that rules should be technology-neutral should be borne in mind on this issue as well as the other issues to which this principle was applied in those proceedings.

[12] Mr Potter has indicated that as his client will be filing an amended statement of claim to correct typing errors, he will replace "and elsewhere" with references to Victoria and Queensland, so I have made an order to this effect, but this is not an order I would otherwise have made, as the defendants know from answers to particulars the case they have to meet.

[13] The defendants' objections to form fall into the following categories: (a) Objection is taken to words such as "responsible" on the basis that they are "weasel words": Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 163. (b) The defendants also complain that imputations repeat the words of the matter complained of (as opposed to distilling the defamatory act or condition), which is not permitted: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [1], [118]-[132]. (c) The defendants also complain that one of the imputations contains a rhetorical flourish, which does not add to the sting of the imputation and is 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]. (d) There are typographical errors in several of the imputations and the defendants say this renders the meaning obscure. (e) The imputations lack the requisite precision. (f) Some of the words used are ambiguous (e.g. "cover up", "crook"). (g) Some imputations are rolled-up and contain more than one sting. [14] One of the objects of the enactment of uniform defamation legislation was to do away with these sterile arguments by removing (in New South Wales) the imputation as the cause of action. However, this goal still appears to be out of reach.

[15] The defendants submit that this imputation suffers a defect in form in that the defamatory act or condition is unclear because of the use of the word "responsible" which, it is submitted, is "an impermissible weasel word" (written submissions, paragraph 15, referring to Amalgamated Television Services Pty Ltd v Marsden at 163).

[16] What is a "weasel word"? This is a word often used in applications to strike out imputations, but never explained, so I have checked its meaning in Wikipedia. The phrase "weasel word", referring to a word which sucks the meaning out of a sentence the way a weasel sucks an egg but leaves the empty shell, is an adaptation of Shakespeare's metaphor in As You Like It: "I can suck melancholy out of a song as a weasel sucks eggs" (Act II, scene v).

[17] The term was popularised by Theodore Roosevelt in speeches during the First World War, where he used it to deride political doublespeak, but its first modern use is attributed to the American political commentator Stewart Chaplin, who in his short story "Stained Glass Political Platform" (published in 1900) used the line "Why, weasel words are words that suck the life out of the words next to them, just as a weasel sucks the egg and leaves the shell."

[18] Don Watson's book "The Dictionary of Weasel Words" (Knopf, Sydney, 2005) gives examples from "journalese" and political slogans such as "closure" and "border protection". Watson defines weasel words as words which have been sucked dry of meaning and are "shells of words: words from which life has gone, facsimiles, frauds, corpses".

[19] The defendants submit that "responsible" is a weasel word. They complain they do not know the sense in which the word "responsible" is used and that if the imputation is allowed to be pleaded as is, they would be unsure how to defend it.

[20] Mr Potter points out, in his submissions in reply, that in Marsden Hunt A-JA described the word "caused" as a weasel word, but held that this defect could be cured by an amendment to add the words "bore a responsibility for". In other words, words connoting responsibility for something may in fact cure a weasel word problem, rather than cause it.

[21] In Piggins v Denton [2006] NSWSC 954 Simpson J deplored 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, once again, was "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." [22] Similarly, in Dobson v Macquarie Radio Network Ltd [2007] NSWSC 718 Nicholas J noted at [13]-[18] in relation to another attack on "responsible": "[13] On the issue of form, the defendant submitted that "responsible" is a weasel word which has a variety of meanings, so that the use of the phrase "... bore a responsibility for ..." is ambiguous or equivocal. It was put that the imputation itself does not make clear the sense in which the phrase is to be understood in that it fails to specify in what respect the plaintiff is said to bear responsibility for the incidents. It was put that in failing to identify any act or condition on the part of the plaintiff which he claims was attributed to him, the imputation is likely to lead to confusion either at the pleading stage or at the trial in relation to the question for which the plaintiff contends, contrary to the principles considered in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, p 155; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, para 119ff).

[14] Ordinarily, the sense in which an imputation is to be understood will be clear from its terms considered with regard to the context provided by the publication. Relevantly, in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28, Callinan, Heydon, JJ said:

"194. ... To say that because the words of an imputation may reasonably convey more than one defamatory meaning or impression, or that because implications, inferences and imputations suggest more than one meaning or successive meanings, they must be rejected, would be to introduce unnatural and excessive refinement to the basic factual question whether the words (or the imputation) have defamed the plaintiff. Published matter may well convey a duality of meanings and impressions, not necessarily exclusive of one another, and sometimes with one leading to another, successive, inevitable or almost inevitable one."

[15] In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson, CJ (p 137) held that the degree of specificity required in the formulation of a defamatory imputation must be related to the nature and content of the defamatory matter. He said (p 137):

"Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology ...

Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person 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 ... The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances."

[16] In Jackson & Ors v TCN Channel Nine Pty Ltd [Unreported, NSWSC, 17 October 1996] Levine, J accepted that where the tenor and thrust of the disparagement in the publication is in general terms, and nothing is said of a specific activity, it is not required that the imputation specify some precise act or condition. (See also Vella v John Fairfax Publications Pty Ltd [2000] NSWSC 615, para 10; Piggins v Denton [2006] NSWSC 954, paras 18, 25, 26.)

[17] Consistently with the emphasis given in the cases to the relationship between the terms of the pleaded imputation and the matter complained of, Ipp, JA in Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175 in a passage approved of by the High Court of Australia in John Fairfax Publications Pty Ltd [2007] HCA 28 (para 174) said:

"119. ... The question as to the meaning that the words convey to the ordinary person should be a simple and straightforward one, as befits a law that governs the everyday life and actions of all levels of persons in the community. The question should not be obscured by overly complex and subtle metaphysical distinctions that stand as a formidably esoteric barrier to what should be an easily comprehensible reasoning process akin to common sense."

[18] I am unpersuaded that, having regard to the general tenor and language of the matter complained of referable to the plaintiff, the imputation lacks precision. The attack upon the plaintiff is directed, in general terms, to his conduct whilst in charge of the Goulburn Police Academy between 2002 and 2005. Its general tenor and language is to demand that he be held to account for the incidents which took place on his watch. I accept the plaintiff's submissions that the smear is couched in general terms, without specification of his conduct other than that he was the person in charge for the relevant period." [23] While each use of the word must depend on the context, as long as the sense of the word is clear, use of words such as "responsible" should cause no difficulty in imputations, particularly under the new Act, where the imputation is no longer the cause of action.

[24] The matter complained of sets out the plaintiff is the "director or owner" of Beechwood Homes and seeks to blame him in that capacity. There is no confusion or imprecision about this imputation and I decline to strike it out.

Imputation 4(b) and use of words from the matter complained of

[25] The defendants objections to imputation 4(b) are to the use of the word "incompetent" as a repetition of the words of the matter complained of (Harvey at [118]-[132]) and to the words "so incompetent that he should not be chosen by anyone to build their home" as a rhetorical flourish. These objections to form require careful analysis.

[26] Objections to imputations which adopt the words of the matter complained of were commonly made when the imputation was the cause of action, but are of increasingly less weight under the new legislation, particularly in light of a series of Court of Appeal decisions permitting such imputations where the use of the word clearly captures the sting of the meaning.

[27] Ever since Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, when Hutley JA commented that it was "strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used" the Court of Appeal has repeatedly affirmed the entitlement of a party to plead an imputation using the language of the matter complained of provided that this accurately encapsulated the sting of the imputation rather than merely repeating the words. Gleeson CJ reiterated the correctness of Hepburn in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148 as did Hodgson JA in John Fairfax Publications Pty Ltd v Blake; David Syme & Co v Blake (2001) 53 NSWLR 541 at [52]-[54]. More recently, McColl JA in Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 noted the use of the words of the matter complained of is permissible.

[28] There is no defect in the adoption of words used by the defendants in the matter complained of where the meaning of the imputation is clear from the context of the publication.

[29] The defendants also complains that the second half of the imputation is a "rhetorical flourish" which does not add to the sting of the imputation: Mayfield-Smith v Mirror Newspapers Ltd [1982] 2 NSWLR 419 at 420; Waterhouse v David Syme & Co Ltd [2000] NSWSC 817 at [22].

[30] In Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 Simpson J at [24] deplored this practice: "If that is what is meant by "a rhetorical imputation", a complaint to that effect merely duplicates a complaint that the imputations in question fall foul of the rule. In my opinion, the time has come for defendants' counsel to bury the practice of attacking imputations pleaded by plaintiffs on the basis that they are "rhetorical"; alternatively to specify precisely what they mean by the epithet. Otherwise, the complaint is, itself, mere rhetoric." [31] In Buckley v Newcastle Newspapers Pty Ltd (No 2) [2008] NSWDC 102 I took into account, on the issue of costs, the fact that a defendant brought such an application in the face of Simpson J's warnings.

[32] Even if there were a prohibition on rhetorical imputations, it would be ridiculous to impose it where the matter complained of itself asks rhetorical questions such as the question posed in the matter complained of from which this imputation arises: "Would you want this Master Builder to build your home, I sure would not."

[33] The second half of the imputation is not rhetorical. It is a clause of degree, in that the degree of incompetence is spelled out. It is descriptive rather than rhetorical.

[34] The defendants' complaints about this imputation are dismissed.

Imputations 4(c), 6(a) and 8(a) and lack of precision

[35] The defendants submit that these three imputations lack precision because the plaintiff does not identify the persons to whom the false claims are made. Ms Chrysanthou relied upon two decisions concerning imputations of suspicion. In Greig v WIN Television NSW Pty Ltd [2007] NSWSC 1118 Nicholas J refused to strike out an imputation that the plaintiff conducted herself in such a way "so as to give rise to a reasonable suspicion" of misconduct, but without identifying who suspected her. In David v Abdishou [2007] NSWSC 1195 an imputation that the plaintiff "was the subject of legal proceedings against him for insider trading" was struck out because it contained no statement of reasonable grounds for the proceedings, or that the plaintiff's conduct was such as to warrant the proceedings against him, in circumstances where the proceedings could just as easily have been commenced by an irresponsible person as a responsible person (Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 680F).

[36] Imputations about a person whose conduct gives rise to a reasonable suspicion often, although not always, have to have the person who suspects them identified, because that is part of the sting. These imputations are different kinds of imputations. The sting is that the plaintiff knowingly tried to deceive homeowners by false claims that major problems were in fact minor ones. The imputation clearly identifies the persons who are deceived, namely the homeowners.

[37] I accept the plaintiff's submission that this is an excessive refinement. The persons the plaintiff was trying to deceive were homeowners, so it is unnecessary to add the words "to them".

[38] The word "more" was omitted from these imputations. This is the first of several typographical errors which the defendants complain about. These are matters that should be raised in correspondence between the parties and not in submissions before the court. Typographical errors are easily made, and just as easily corrected, by correspondence between the parties, and are not appropriate matters for complaint to the court.

[39] The defendants submit that this imputation rolls up imputations of dishonesty and incompetency into one.

[40] Somewhat inconsistently, there is no objection to the use of the actual words "shonky" and "crook", probably because they have been permitted in other proceedings (Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 34; Dix Gardner Pty Ltd v Strathfield Municipal Council [2003] NSWSC 597 at [4]-[6] (endorsing Dunford J's decision in Bass v TCN Channel Nine Pty Ltd [2000] NSWSC 270 at [6]).

[41] "Crook" is a word with a number of meanings, as the dictionary shows. It can function as a noun, adjective or verb. As a noun, its meanings can include dishonesty (eg "corporate crook": Gillespie v Nationwide News Pty Ltd [2002] NSWSC 553) or illness. As part of a verb ("to go crook") it can mean to express anger. As an adjective, "crook" or "crooked" can mean dishonesty or bad workmanship.

[42] However, the sting of an imputation needs more than a list of meanings from a dictionary. Language is not a vertical list of dictionary words, not is it a horizontal grammatical sentence structure; to obtain meaning we look behind the words and grammar, as Chomsky demonstrated with his sample sentence "colourless green ideas sleep furiously" ("Syntactic Structures", Paris, 1957, p. 15).

[43] The matter complained of is a litany of complaints about the buildings erected by Beechwood Homes. The use of "crook" to describe the builder is a reference to the kind of builder he is, namely a bad builder. "Bad" or "inferior" are in the list of definitions given for "crook" in the Macquarie Dictionary, and when the allegation underlying the words is looked at, this is the sting of the imputation. The semantic (as opposed to the dictionary) meaning of the word "crook" can be obtained from the context of the publication.

[44] Further, the fact that a word or phrase used by the defendant in the matter complained of is capable of more than one meaning is something that can no longer be the subject of complaint by a defendant. In John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at [194] the High Court explained: "It is too categorical to say that imputations must be scrutinized for a duality of inferences, and, if a duality is found, rejected. We certainly do not think that their Lordships went nearly so far in Lewis . We take Lord Hodson, in referring to the drawing of an inference from an inference, to be saying no more than that in the circumstances of the case, to allege that suspicion implied or meant actual guilt was unreasonable. Lord Devlin stated that "two fences have to be taken instead of one," and that to impute guilt would be to "take the second in the same stride". In this case both the trial judge initially and Ipp JA in the Court of Appeal were sceptical about such a far-reaching proposition, and, in our opinion, rightly so. The real question is as to the impression that the words are likely to make upon the reasonable reader. The way in which the trial judge put that issue to the jury in this case initially, was substantially correct. To say that because the words of an imputation may reasonably convey more than one defamatory meaning or impression, or that because implications, inferences and imputations suggest more than one meaning or successive meanings, they must be rejected, would be to introduce unnatural and excessive refinement to the basic factual question whether the words (or the imputation) have defamed the plaintiff. Published matter may well convey a duality of meanings and impressions, not necessarily exclusive of one another, and sometimes with one leading to another, successive, inevitable or almost inevitable one." [45] In the context of this publication, the meaning of the word "crook" does not contain the meaning asserted by the defendants, and the imputation is consequently not a rolled up imputation. I reject the defendants' objections to the form of this imputation.

[46] An objection was also taken to the word "responsible" and I reject this submission for the same reasons as for imputation 4(a).

[47] This is another imputation where there is a typographical error; the imputation should read "the plaintiff sought to cover up".

[48] The defendants submit that the words "cover up" lack specificity and are ambiguous, and that the imputation should plead how it is alleged that the plaintiff covered up serious building defects.

[49] Imputations of a cover up have been permitted in many defamation actions, of which Coates v Harbour Radio Pty Ltd [2008] NSWSC 292 (covering up an Olympic controversy), SMEC Holdings v Boniface [2007] NSWSC 1402 (covering up criminal activities), Dobson v Macquarie Radio Network Ltd [2007] NSWSC 718 (covering up a sex scandal), Fakhoury v John Fairfax Publications Pty Ltd [2003] NSWSC 561 (covering up corrupt payments), Hanneybel v Uniflex (Australia) Pty Ltd [2002] WASCA 349 (cover up failure to comply with fire standards) are some of the most recent. In none of these cases where the "cover up" imputation was challenged was the challenge accepted.

[50] A further objection is that this imputation does not differ in substance from imputation 8(a); this was developed in oral submissions as a claim that this is a "fallback" imputation.

[51] These two imputations clearly differ in substance. Pretending serious defects are inconsequential is quite different to denying they exist. Nor is it the case that one is an alternative to, or more serious than, the other, and thus a fallback.

[52] The objections to form of this imputation are rejected.

[53] This is another imputation where there is a typographical error. The word "reported" is missing. The defendants have now withdrawn their objection to it.

Conclusions concerning the submissions on the form of the imputations

[54] The defendants' objections to the form of the imputations are all rejected. This brings me to the issue of the capacity of certain imputations that are the subject of challenge by the defendants.

[55] The principles governing the issue of capacity are set out in Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915; [2007] NSWCA 254 at [14]. Mr Potter draws my attention to the following factors as relevant to these publications: (a) if reasonable persons may differ as to whether the matter complained of was capable of carrying the imputation pleaded, then the issue must be left to the jury; (b) the ordinary reasonable meaning of the matter complained of may be either its literal meaning or what is inferred from it. In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable; (c) the ordinary reasonable reader is prone to a certain amount of loose thinking; and, (d) a wide degree of latitude is given where (as is the case here) the words published are imprecise, ambiguous, loose, fanciful or unusual. [56] The context of the matter complained of, and its manner of presentation, with bold headings, capital letters and exclamation marks (e.g. "HELP remove crook builders!"), strong terms such as "shonky" and the general tone of high drama are relevant to (c) and (d).

[57] The matters complained of are not publications that shrink from striking at the plaintiff. Only three of the imputations are challenged on the basis of capacity; I will consider each one in turn.

[58] The defendants submit there is nothing to suggest knowledge by the plaintiff, but I consider that lines 39 and following make it clear that this "minor 'defective' work" was referred to the plaintiff clearly infers that the plaintiff knew about the problems and also, because of the use of quotations, made representations about them (about which the defendants are being sarcastic). The whole of the matter complained of, with its constant pejorative refrain, is to the effect that the plaintiff knows his obligations but chooses to lie or deny instead of agreeing with the defendants concerning their many complaints.

[60] The defendants' submission that an imputation of being a "crook builder" is incapable of arising is hard to reconcile with the fact that the most eye-catching part of the matter complained of states in bold type : "HELP remove crook builders!" This clearly is a reference to the plaintiff, who is described elsewhere as the owner of the business and as a Master Builder.

[62] The defendants submit that "unreasonably refused" is not capable of arising. However, there are many references to the plaintiff's unreasonable conduct, notably the assertion that he refused even to attend a meeting to discuss the defects (lines 74 - 9).

[64] The defendants seek an order for costs on the basis that even if they are wholly unsuccessful, the plaintiff must file an Amended Statement of Claim because of typing errors in some of the imputations.

[65] Counsel for the plaintiff has indicated he is happy to file an Amended Statement of Claim to correct these errors. It will also give the plaintiff an opportunity to add the references to publication in Victoria and Queensland in lieu of "and elsewhere".

[66] However, I do not consider the defendants should be entitled to any costs. They have been entirely unsuccessful on every issue. Complaints about typing errors are not matters that should be brought before the court at any time. They should be resolved in correspondence between the solicitors.

(1) Defendants' objections to form and capacity of the plaintiff's imputations dismissed. (2) Plaintiff file an Amended Statement of Claim correcting typing errors and identifying places of publication by 4pm 2 July 2009. (3) These proceedings stood over to the Defamation List for further directions at 9:00am on Friday 3 July. (4) The defendants pay the plaintiff's costs of this application. (5) No order as to the costs thrown away by reason of the amendments to the Statement of Claim.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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