EZZO v GRILLE [2004] NSWSC 522 | Case summary

JUDGMENT (Defamation - internet publication - particulars of uploading - imputations - capacity - form) 1 By a statement of claim filed on 30 May 2003 the plaintiff instituted against the defendant his claim for damages for defamation arising from certain publications in August of 2002. 2 The plaintiff is described in the pleading as "an author and educator and the executive director of Growing Families International". The defendant is described as a "psychologist and writer". 3 Consequent upon the filing of the statement of claim the defendant delivered a notice pursuant to SCR Pt 67 r 12A on 3 October 2003 and the plaintiff delivered a notice in response on 11 December 2003. 4 On 4 December, in the meantime however, pursuant to SCR Pt 20 r 2, the plaintiff filed an amended statement of claim. 5 It is to be observed that appended to the original statement of claim was a series of schedules of matters by way of publication referred to in that pleading. I accept that by oversight the bundle of schedules was not attached to the amended statement of claim. The bundle was in fact used by me and the parties during the course of the litigation of the various matters that came before the Court. 6 By the amended statement of claim ("ASC") the plaintiff pleads that the defendant published in or about August 2002 in New South Wales material in an edition of "Sydney's Child". This matter is described as "the matter complained of". 7 In September 2002 the defendant published in the State of Victoria the matter complained of in the September edition of "Melbourne's Child". 8 In paragraph 7 of the ASC it is alleged that the defendant "published of and concerning the plaintiff the matter complained of by publishing it in New South Wales on the world wide web ("the internet"). Particulars of that publication are as follows: 7(a) The matter complained of was published by the defendant (i) on the internet site www.nospank.net; and also (ii) on the internet site www.godlessgeeks.com. (b) A copy of a print out of the matter complained of, as published on the internet on www.nospank.net and as downloaded in New South Wales, is annexed as "Schedule D". (c) The natural and probable result of the publication by the defendant of the matter complained of on the internet was that it would be downloaded in New South Wales. (d) The matter complained of was downloaded in the State of New South Wales. (e) Further particulars will be provided in relation to the circulation of the matter complained of on the internet as will be disclosed in response to subpoenas and interrogatories, and the plaintiff will also rely on the grapevine effect in relation to the publication of the matter complained of on the internet. 9 For the purpose of disposing of arguments in relation to imputations I append to these reasons what I will describe as the substantial text of the material alleged to have been published. I use the word "substantial" by reason of there being a question of the Melbourne publication containing what are known as "break out quotations" which are not reproduced. I gather that they will form part of the publication the jury will have to determine but the format of the evidence that goes before that tribunal can be finalised no doubt by agreement between the parties in due course. 10 Before turning to the principal matter in dispute, namely the imputations, a matter was raised by the defendant in relation to the alleged publication on the internet. 11 As I understand it, the defendant's complaint is that the allegation of publication by the defendant (in New South Wales) on the internet has not sufficiently been particularised. Whilst one leg of "publication" on or by means of the internet has been particularised, namely that the matter was "downloaded" in New South Wales, the defendant's role, if any, in the matter being "uploaded" onto the websites has not been particularised. 12 As was pointed out, in the original statement of claim the allegation was made that the defendant "authorised" that the matter complained of be published throughout the world on the internet. Further, in the original statement of claim it was alleged that it was a natural and probable result of the publication by the defendant of the printed material that it would be published throughout the world on the internet. These allegations have been abandoned. 13 In my view the defendant's point is well taken. It is insufficient particularisation of an allegation of publication by a defendant "on the internet" to assert that the material was on a website and was "downloaded" or otherwise accessed in New South Wales. It is the defendant's role in the matter being uploaded to the website that is critical. As Mr McHugh remarked in the course of submissions, the abandonment of the allegations from the first pleading means the defendant has "less of an allegation" than he had before. 14 Accordingly, the plaintiff will be directed to provide particulars of the facts, matters and circumstances upon which he relies in asserting that the defendant "published" the matter on the internet in accordance with the reasons and matters to which I have just referred. 15 The matter complained of is said by the plaintiff to carry in its natural and ordinary meaning the following imputations: 8(1) The plaintiff by his child-rearing methods has caused the deaths of numerous infants. (2) The plaintiff by his child-rearing methods has caused numerous infants to suffer serious injuries. (3) The plaintiff by his child-rearing methods is responsible for the deaths of numerous infants. (4) The plaintiff by his child-rearing methods is responsible for serious injuries which have been suffered by numerous infants.

(17) The plaintiff is a danger to humanity. 16 Imputations 1- 4 conveniently can be dealt with together. 17 The insertion of the phrase "his child-rearing methods" was purportedly curative of an earlier defect. However the problem arises by the employment of "caused" in imputations 1 and 2, and "responsible for" in imputations 3 and 4. The use of the words referred to will more often than not give rise to problems as to specificity: see Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 162F - 164A. 18 The fundamental contention for the plaintiff is that each of the pleaded imputations must be considered in the light of the content and context of the actual matter complained of published by the defendant, reliance being placed upon Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at 172-3 and John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77. Further, it is argued that the defendant is not entitled to complain that a pleaded imputation lacks clarity or specificity if that lack flows "naturally" from the matter complained of: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137B - 138D per Gleeson CJ. 19 I am of the opinion that Nikolopoulos cannot be called in aid to permit context to provide a meaning for the imputation itself. This would in effect overturn the decision of the Court of Appeal in Drummoyne Municipal Council and earlier decisions as to the content of the rule requiring that a plaintiff "must specify" each imputation upon which it relies: see Gleeson CJ in Drummoyne at 138B-B and in particular the case to which his Honour refers, namely Feros v West Sydney Radio Pty Ltd (Court of Appeal, 27 June 1982, unreported); see also Whelan v John Fairfax Publications & Sons Ltd (1988) 12 NSWLR 148 at 155 per Hunt J. 20 It is the ambiguity and want of specificity in the words referred to that render each of these imputations defective in form; capacity therefore cannot be considered. 21 Each of imputations 1, 2, 3 and 4 is struck out with leave to replead. 22 Imputations 5, 6 and 7 also can be dealt with as a group. 23 In relation to imputation 5, this is arguably capable of being carried by the matter complained of as a whole, but particularly from the passage from line 182 to line 208. I find the matter complained of capable of carrying this imputation and that it is capable of being defamatory. 24 Imputation 6 I find to be incapable of being carried by the matter complained of and will enter a verdict for the defendant in relation thereto. There is simply no basis for an assertion that the plaintiff was under the reasonable suspicion on the part of an official body of his having engaged in child maltreatment. 25 Imputation 7 is bad in form in my view by reason of its containing the phrase "so conducted himself that" and it is struck out with leave to replead. An imputation in terms "the plaintiff was under investigation for child maltreatment" I would have thought would be unexceptionable. 26 In relation to imputations 8, 9 and 10, these in my view are clearly capable of being carried by the matter complained of and capable of being defamatory. 27 Imputation 11 is in my view rhetorical, strained and is incapable of being carried by the matter complained of in terms of "cruelty" vis-à-vis the plaintiff. I enter a verdict for the defendant in relation to imputation 11. 28 Imputation 12 I find to be capable of being carried by the matter complained of - just. I think it appropriate that the jury determine this issue. I accordingly hold that imputation 12 is capable of being carried and capable of being defamatory. 29 As to imputation 13, the use of the phrase "pathologically obsessed" in line 194 and "warped idea" in line 211 are sufficient to permit imputation 13 to go to the jury. I hold imputation 13 to be capable of being carried and capable of being defamatory. 30 In relation to imputation 14 (and others) the plaintiff argues that the matter complained of is "sensationalist". It could be hardly argued to the contrary in my view. But even that quality, and the headline "Fundamentalism: a war against children", cannot, on a reasonable basis, give rise to so rhetorical an imputation. I find that the matter complained of is incapable of carrying imputation 14 and enter a verdict for the defendant in regard thereto. 31 Imputations 15 and 16 insofar as each uses the word "causes" are infected by the flaws attending imputations 1-4. Each is bad in form and I strike imputations 15 and 16 out with leave to replead. 32 Imputation 17 might on its face appear to be rhetorical but it is not unreasonably extreme in the way that I have found imputation 14 to be. There is arguably something about the tenor of the whole of this matter complained of that could give rise to a defamatory imputation such as 17. I hold the matter complained of capable of carrying imputation 17 and that it is capable of being defamatory. 33 I consider it appropriate that the defendant have his costs occasioned by and thrown away by reason of the amendment made on 4 December. Otherwise, when one considered the balance at the end of the application with which I have been concerned the outcome favours each side equally. Each party will otherwise pay its own costs. 34 The formal orders are:

The plaintiff, in accordance with these reasons, is to provide particulars of the facts, matters and circumstances upon which he relies in asserting that the defendant published the matter on the internet.
Imputations 1, 2, 3, 4, 7, 15 and 16 are struck out with leave to replead.
Imputations 5, 8, 9, 10, 12, 13 and 17 are capable of being carried by the matter complained of and capable of being defamatory.
Imputations 6, 11 and 14 I find to be incapable of being carried by the matter complained of and enter a verdict for the defendant in respect of those causes of action.
The plaintiff has leave to file an amended statement of claim in accordance with these reasons within 14 days of today.
The plaintiff is to pay the defendant's costs thrown away by the amendment of 14 December, otherwise each party is to pay his own costs.
I place the matter in the Registrar's List for directions on Wednesday 7 July 2004.

EZZO v GRILLE

At a glance

Court

Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cases Cited (5)

Cited By (1)