"We want to make it clear that Fred Cox runs only the Craftsman Homes Northern Rivers New South Wales. We are certainly not casting doubt on any other Craftsman Homes' franchises".
4 A multiplicity of objections has been taken by the defendants to the manner of pleading in respect of each program sued upon.
5 In the first program, that is, the "promo", none of the plaintiffs are identified by name. The third plaintiff, Mr Cox, is certainly visually portrayed. The "promo" however contains at one point a visual image of what I will describe as the "Craftsman Homes" logo. In this regard it is my view that it would be highly desirable and prudent for the plaintiffs to provide particulars of identification. Insofar as I understood it, one of the contentions for the defendants in relation to both programs is that there is no basis upon which the first plaintiff could be capable in any event of being identified. This point is made specifically in relation to the second matter complained of however, in my view, in the light of the deficiencies in pleading matters going to identification, it is not irrelevant to the first program.
6 Attention is drawn to the first plaintiff being described in paragraph 1 of the Statement of Claim as being in "the business of franchising the construction of residential homes". The second plaintiff is described in paragraph 2 of the pleading as being in the business of "construction of residential homes trading as Craftsman Homes Northern Rivers and Craftsman Homes South-West Sydney". Of critical importance however is what is averred in the third paragraph of the Statement of Claim namely that the third plaintiff, Mr Cox, is the managing director of both the first and second plaintiffs. No doubt account will be taken of this in relation to the identification particulars.
7 The next objection taken by the defendants arises from the plaintiff's decision to sue the fourth to ninth defendants. These are persons recorded as making complaints, to put it generally. What the plaintiff has failed to do in relation to the first and second program is to plead and particularise a basis for which each of those defendants could be held to be liable for the whole of the matter published by the first second and third defendants (which I will compositely describe as Channel Nine) or as liable for what each of the other of the fourth to ninth defendants published to Channel Nine and its republication. In respect of both the first and second matters complained of, as was suggested by Mr McClintock SC, this component of the pleading will require "major surgery" if the three plaintiffs persist in having the fourth to ninth defendants remain as defendants. I can only suggest that the most serious consideration be given by the plaintiffs to the question of whether or not these persons should be maintained on the record.
8 The next complaint made by the defendants in relation to the first matter complained of relates to the imputations. The imputations pleaded are:
"6(a) that the Plaintiffs were guilty of shoddy building practices;
(b) that the Plaintiffs were incompetent as building contractors;
(c) that the Plaintiffs were unfit to remain in the business of building residential houses".
9 No objection was taken to imputations (a) and (b). The objection taken to (c) is that it is incapable of arising from the matter complained of (the "promo"). Alternatively, the imputation is a "rhetorical" imputation which does not differ in substance from (a) and (b), and thus should be struck out as contravening SCR Pt 67 r11(3). To the extent that the question of law as to capacity to carry a given imputation was raised in connection with both programs, pursuant to SCR Pt 31 r 2 and by consent, a trial of that issue was conducted.
10 The plaintiffs assert that imputation 6(c) is capable of being carried by the matter complained of by reference to line 6: "I cannot believe that anyone can build something like this and remain in business" in particular, as well as the whole of the body of the "promo". I accept this proposition. Does it however differ in substance from (a) and (b)? It is not suggested by the plaintiffs that imputation 6(c) is merely a "rhetorical flourish". It is anchored in the words identified in the matter complained of. For the defendants it is contended that it falls foul of the statement of principle in Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at 272E-G. I am of the opinion that there is no uncertainty of import in the imputation itself, founded as it is in the matter complained of and that it does differ in substance from the specific charges in imputation 6(a) and (b).
11 I turn to the second matter complained of. The same objections are taken by the defendants with respect to pleading, or the failure to plead, the bases on which the liability of the fourth to the ninth defendants is sought to be established. That objection is well founded.
12 The second objection more particularly relevant to the second program is that it is incapable of identifying, that is being found to be published of and concerning the first plaintiff. The defendants seek to have the action dismissed against the first plaintiff. I am not prepared to take that course at this stage nor to rule that the second matter complained of is capable of being held to be published of and concerning the first plaintiff. The matter complained of on two occasions shows the logo of Craftsman Homes; at the point referred to as paragraph 16 and at the point referred to as paragraph 51. Further, the opening line of Mr Munro about "a builder who's won several awards during his twenty years in the business" could be available for the embracing of the first plaintiff by any defamatory imputation given the fact that Mr Cox is said to be the Managing Director of both the first and second plaintiffs. Further, what is described as the "disclaimer" as Mr Shand QC argued, does not embrace the first plaintiff (of which the third plaintiff is the Managing Director) but rather other franchise holders.
13 Therefore I am not prepared presently to hold as a matter of law that the second program is incapable of being found to be published of and concerning the first plaintiff. At this stage clearly again, as I have remarked, the plaintiffs must properly particularise their case on identification.
14 The plaintiffs plead the following imputations as arising from the second matter complained of.
"8(a) that the Plaintiffs construct homes that are riddled with faults;
(b) that the Plaintiffs are not competent in the business of building residential homes;
(c) that the Plaintiffs unjustifiably ignored reasonable complaints by clients about poor construction work;
(d) that the Plaintiffs were guilty of disgraceful conduct and work in relation to the construction of a house for the Fourth and Fifth Defendants;
(e) that the Plaintiffs were guilty of fraudulently overcharging clients".
15 The defendants contend that imputations 8(a) and (b) are not capable of being defamatory and "should be struck out". That would not be the appropriate order. No argument as to capacity to be carried is raised but if they are found not to be capable of being defamatory the defendants would be entitled to a verdict in respect of those causes of action.
16 The defendants rest this submission on the decision of the Court of Appeal in Sarma v The Federal Capital Press of Australia Pty Ltd [2002] NSWCA 93. There the Court was concerned with whether or not a jury's finding that an imputation "that the plaintiff as a dancer is incompetent as a dance performer" was not defamatory was perverse. For the reasons each stated, their Honours (Stein, Santow JJA and Ipp AJA) held that the verdict was not perverse. It is simply not authority for the position that "incompetent" (imputation (b)) can never be held to be defamatory. This must be so when account is taken of the peculiar circumstances attending the imputation with which their Honours were concerned, the medium namely a newspaper article, the availability of context (Greek Herald Pty Ltd v Nickolopoulos [2000] NSWCA 4) and the medium with which I am concerned here namely a television program with its visual images of the "workmanship" or lack of it. I hold that imputations 8(a) and (b) capable of being defamatory.
17 The objection taken to imputation 8(c) was based upon the failure of the plaintiffs (now to be cured) to plead the disclaimer. It is contended by the defendants that the inclusion of those words exonerate, as it were, the first plaintiff. For the reasons stated above, of that I am not persuaded and would hold that the matter complained of is capable of carrying that imputation of the first plaintiff. Similarly I would hold in relation to imputation 8(d) and (e).
18 This is a matter in which the plaintiffs will be required to undertake that "major surgery" to which I have referred. It is also a matter, as I have mentioned, where the plaintiffs should give the most profound consideration as to whether to continue the proceedings against the fourth to the ninth defendants. If the plaintiffs choose to take the last mentioned course then further "major surgery" will be required to the Statement of Claim.
19 It thus appears to me to be inappropriate at this stage formally to rule in relation to the imputations, that is, the causes of action, until the basis on which the publication of them in relation to the plaintiffs and by all the defendants is clarified.
20 The defendants succeeded in what I shall describe as their "pleading points" which in the end were not really addressed during submissions for the plaintiffs; the plaintiffs however have succeeded generally in relation to the imputations and the capacity of the matter to be understood as being published of them. It is appropriate therefore that each party bear its own costs.
21 In the circumstances I consider the following orders appropriate:
- The Plaintiffs have leave to file an Amended Statement of Claim in accordance with these reasons within 21 days.
- Each of the plaintiffs and defendants are to pay its and their own costs.
- The matter is stood over for further directions in the Registrar's Defamation List on 26 July 2002.
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APPENDIX A