Eddy Younan & Anor v Nationwide News Pty Ltd & Ors

Judgment 1By notice of motion filed 27 November 2012 the defendants seek orders under UCPR Pt 28, r 28.2 that the issue of identification of the plaintiffs be decided as a separate question, and that, under r 28.4 the plaintiffs' claims be dismissed. 2By amended statement of claim filed 5 December 2012, the plaintiffs claim damages for defamation arising out of the publication by the defendants in the edition of the newspaper "The Daily Telegraph" of 13 March 2012 an article under the heading "Vile conditions in mouldy boarding house of death". The plaintiffs are not named in the article. The article describes the condition of the boarding house in which six residents died between June 2009 and 8 August 2010. It reports on the inquest into the six deaths, and includes the following statement: "The terrible conditions and lack of proper healthcare they shared at 300 Hostel may have contributed to the unexpected deaths, an inquest heard yesterday." 3The article includes a photograph of the house above the caption "Six people died in this Sydney boarding house". The house is described in the following terms: "It's the Marrickville hostel where six residents died in just 14 months; a den where residents lived among dirty sheets, mouldy walls and with ash and cigarette butts piled up in their rooms." 4In the pleading it is alleged (par 1) that the plaintiffs are the registered proprietors of the property at 300 Livingstone Road, Marrickville. It is also alleged (par 2) that the plaintiffs have, since, on or about 9 November 2010, operated the property as a boarding house. 5It is alleged (par 7) that the article in its natural and ordinary meaning conveys the following imputations defamatory of each plaintiff: "(a) The first plaintiff ran a boarding house in Marrickville with reckless disregard for the health of its residents. (b) The first plaintiff, who ran a boarding house in Marrickville, failed to ensure that residents were provided with proper healthcare, and thereby contributed to the death of some of the residents. (c) The first plaintiff conducted a boarding house in Marrickville which [sic] conditions were so filthy that it contributed to the death of 6 residents in 14 months." 6The particulars of identification required under r 15.19(1)(d) are pleaded as follows: "(a) The plaintiffs are the registered proprietors of the property. (b) The plaintiffs operate a boarding house in the property. (b1) The plaintiffs operate a boarding house in the property pictured in the matter complained of. (c) Readers of the first matter complained of, or some of them, were aware of the matters set out in (a) and/or (b) and/or (b1), above. (d) By reason of the matters set out in (a), (b), (b1) and (c) above, the plaintiffs were identifiable and identified in the first matter complained of and such identification was reasonable in the circumstances. (e) Further and in the alternative to (a) - (d) above, the plaintiffs were identified by the following persons who read the first matter complained of at the time of its publication: [names provided] (f) Further particulars will be provided as and when they become available, and after discovery and interrogatories." 7The defendants' claim for dismissal of the proceedings was on the ground that the matter complained of is incapable of identifying the plaintiffs. It was undisputed that the plaintiffs are the owners of the property, and, since about 9 November 2010, have operated it as a boarding house. 8To establish a cause of action for defamation under s 8 Defamation Act 2005 it is necessary for a plaintiff to prove the publication of defamatory matter about him or her. The principles were stated in Universal Communication Network Inc t/as New Tang Dynasty v Chinese Media Group (Aust) Pty Ltd & Anor (2008) Aust Tort Reports 81-932; [2008] NSWCA 1 by McColl JA (Mason P, Young CJ in Eq agreeing) as follows: "42 It is an essential element in the cause of action in defamation that the matter complained of be published of and concerning, that is to say that it identify, the plaintiff: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 (at 371) per Samuels JA; Gardener v Nationwide News Pty Limited [2007] NSWCA 10 (at [43]) per Bryson JA (Mason P and Tobias JA agreeing); Parras (at [29]) per Mason P (Handley JA and Ipp AJA agreeing). The test of whether words that do not specifically name the plaintiff refer to him or not is whether the words are "such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to": Steele (at 371) applying David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234 (at 238) per Isaacs J. 43 The question of identification was a matter for the jury to decide under s 7A of the 1974 Act: Cinevest Ltd v Yirandi Productions Ltd [2001] NSWCA 68; (2001) Aust Torts Reports 81-610 (at [16] - [27]) per Spigelman CJ (Meagher and Handley JJA agreeing). However it was a question for the judge 'to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff': Morgan v Odhams Press Ltd [1971] 1 WLR 1239 (at 1245) per Lord Reid. It was then for the jury to decide as a question of fact whether it actually identified the plaintiff: E Hulton & Co v Jones [1910] AC 20 (at 25)." 9In Nu-Tec v ABC [2010] NSWSC 711 McCallum J held it was necessary for a plaintiff who is not named in the matter complained of to establish that it identified him as the subject of any defamatory imputation it conveyed (par 16). She also said: "18 The test assumes that the identifying circumstances known to some readers or viewers are circumstances that in fact exist. A publisher is not liable for a defamatory meaning imputed to the plaintiff as a result of some erroneous belief on the part of a person to whom the matter is published. That proposition is well established in the context of true innuendo: Mirror Newspapers v World Hosts (1979) 53 ALJR at 246. The position is no different in respect of particulars of identification." 10To prove that a defamatory publication was published about, or "of and concerning", the plaintiff it must be shown that some one or more of those to whom the publication was made had knowledge of extrinsic facts which identified the plaintiff with the matter complained of (Morgan v Odhams Press Ltd [1971] 1 WLR 1239). 11The criteria which must be satisfied if the plaintiff is to get to the jury was set out in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, pp 373-374 by Samuels JA as follows: "First, there must be evidence capable of satisfying the jury that persons with particular knowledge of the plaintiff believe that the article referred to her ... Secondly, there must be evidence capable of satisfying the jury that the witnesses did possess the particular knowledge of the plaintiff which enabled them to make the identification they asserted: and, thirdly, that those who did identify the plaintiff were ordinary sensible readers ... Finally, there must be evidence capable of satisfying the jury that those with particular knowledge of the plaintiff who, as ordinary sensible readers read the article with the degree of latitude permitted, and who honestly identified the plaintiff as the person referred to, could reasonably come to that conclusion." 12Part 15, r 15.19(1)(d) requires that particulars of identification of the plaintiff be included in a statement of claim. 13The crucial question for determination in the present application is whether the matter complained of is capable of being defamatory of the plaintiffs to a reader with knowledge of the facts pleaded in the particulars. In other words, it is whether a reader with the special knowledge could reasonably identify the plaintiffs as the persons who are the subject of the defamatory imputations (Channel 7 Sydney Pty Ltd v Parras (2002) Aust Tort Reports 81-675; [2002] NSWCA 202, pars 33, 34, 45, 48, per Mason P). 14With regard to the applicable principles, I turn to the question in this case. 15The article is a report of an inquest into the deaths of six residents who died between June 2009 and 8 August 2010 to which the conditions of the boarding house, and the lack of proper health care there, may have contributed. The imputations are allegations that each plaintiff ran and conducted the boarding house in such a way that he and she is culpable for the deaths of the residents. It is clear from the article that it refers to events which occurred within a specific period over about 14 months. 16For the plaintiffs to succeed it is necessary that they establish that the article identified them as the subject of the defamatory imputations said to have been conveyed. As the imputations raise a temporal issue it is therefore necessary for the plaintiffs to establish that they were identified as involved in the operation of the boarding house at the times when, or for the period during which, these deaths were said to have occurred. 17According to the particulars of identification, the plaintiffs' evidence will be that at the time of publication the nominated readers knew that the plaintiffs are the registered proprietors of the property, and operate on it the boarding house which was pictured in the article, and that, by reason of these facts, the plaintiffs were identifiable, and identified, by these readers. The plaintiffs submitted that it was reasonable for readers with such knowledge to identify the plaintiffs as the subject of the imputations taking into account the photograph of the boarding house, the reference to it as "300 Hostel", the fact that the deaths occurred within a relatively short period prior to the date of publication, and the absence in the article of an indication that the plaintiffs were not involved in the boarding house at the times of the deaths. Thus it was put that is arguably open for a reader with the special knowledge to conclude that the plaintiffs were the owners and operators at the time of the deaths, and to reasonably identify them as the persons referred to. 18In my opinion the plaintiffs submissions must be rejected. Fatal to the plaintiffs' claim that the defamatory imputations were published about them is the undisputed, pleaded fact that since about 9 November 2010 they operated the property as a boarding house. The case proceeded on the basis that the plaintiffs were not the owners and operators at the times of the deaths. The imputations are specific in time, and are of and concerning the operators of the boarding house at the times of the deaths. Absent proof of knowledge of a reader of extrinsic facts capable of linking the plaintiffs to the operation of the boarding house in the relevant period it is inevitable that their claim must fail. The fact that it was not until 9 November 2010 that the plaintiffs became the operators negates the existence of evidence capable of supporting the conclusion by an ordinary reasonable reader that the article, and its defamatory imputations, referred to the plaintiffs. 19Furthermore, I am satisfied that no ordinary reader with knowledge of the facts and matters provided in the particulars could reasonably understand that any of the imputations referred to the plaintiff. In my opinion, any such understanding would be no more than the product of supposition or guesswork without any factual support, which was arrived at in ignorance of the truth. 20Accordingly, the proceedings should be dismissed.