Gazecki v Stokes

Supreme Court of NSW|2022-04-04|Before: Rothman J

Solicitors: Brydens Lawyers Pty Ltd (Plaintiff) Makinson d'Apice Lawyers (Defendant) File Number(s): 2021/319290

JUDGMENT

HIS HONOUR: By Statement of Claim, filed 10 November 2021, the plaintiff, John Gazecki, seeks damages against the defendant, Robert Gordon Stokes, the Minister for Planning and Public Spaces for the State of New South Wales. The plaintiff seeks to amend the Statement of Claim at a time that is more than 28 days from the date of its filing and, as a consequence, requires leave of the Court. [1] The defendant opposes leave.
On 7 December 2021, the defendant wrote to the plaintiff, in accordance with the practice in the Defamation List, setting out the defendant's objections to the Statement of Claim and also requesting further and better particulars. On 8 February 2022, the plaintiff emailed the defendant's solicitor, advising that an Amended Statement of Claim would be sought to be filed and the plaintiff would be serving interrogatories, copies of which were sent by letter to the defendant on 24 February 2022.The defendant opposes the serving of the interrogatories.
The proposed Amended Statement of Claim (hereinafter "the ASOC") before the Court is not the same document as was sent to the defendant on 24 February 2022. The plaintiff, in submissions dated 30 March 2022, included further amendments to the Statement of Claim. It is those further amendments, in the Amended Statement of Claim, and the Interrogatories included in the Joint Court Book which the Court considers in these reasons.

Pleadings

The plaintiff is the operator of a business known as Polo Events. As an agent of Polo Events, the plaintiff prepared and lodged a proposal with Waverley Council for an "event" entitled "Amalfi Beach Club". The proposal was lodged on or about 15 May 2020 and proposed the operation of a "day club" between Thursday and Sunday each of the summer months in the middle of Bondi Beach - north of the central stairs and in front of the Bondi Pavilion - for which purpose part of the Beach would be cordoned off by fencing.
In short, the plaintiff alleges that the defendant, in his capacity as the New South Wales Minister for Planning and Public Spaces, provided comments to a journalist, Caitlin Fitzsimmons, relating to the plaintiff and/or the proposal (the first matter complained of, hereinafter referred to as "the Original Publication"). The Original Publication occurred on or about 28 November 2020.
On or about 29 November 2020, it is alleged that the Sydney Morning Herald, both through its newspaper and its online publication, re-published the Original Publication (hereinafter "the First Re-Publication"). The plaintiff alleges that there were at least nine further re-publications in other newspapers online.
Further, on 29 November 2020, the defendant published on his Facebook page a post (hereinafter "the Facebook Post") reiterating the defamatory comment by providing a link to a Sydney Morning Herald article containing the defamatory material. The Facebook Post named the plaintiff.
Also on 29 November 2020, the defendant published a post on his Twitter page (hereinafter "the Twitter Post"), which it is said was also defamatory in that it too contained a link to the online article in the Sydney Morning Herald about which the plaintiff complains. The plaintiff was also named in the Twitter Post.
It is suggested that the defendant said words in or to the following effect to Ms Fitzsimmons: "It's elitist and un-Australian and I will step in to stop it … Flogging off a bit of Bondi for his so-called beautiful people is one of the ugliest things that could be proposed. Our public spaces and beautiful beaches are to be enjoyed by all - not cordoned off like in the South of France or the United States for only those who can afford it."
As is required, the articles about which complaint is made, including the electronic postings, have been identified and are part of the Statement of Claim and proposed to be part of the ASOC.
In the original Statement of Claim, filed 10 November 2021, the plaintiff alleges that all of the matters complained of carry some or all of eight imputations, expressed as imputations (a) to (h).

Amendment to Pleadings

The plaintiff seeks to amend the entirety of the Statement of Claim including, relevantly, replacing the wording of each imputation. Some aspects of the proposed ASOC confine that which is pleaded and/or sought in the Statement of Claim. For example, the ASOC deletes the claim for special damages.
The effect of the amendments is difficult to summarise, but the gist of it can be described in short terms. First, the plaintiff seeks to limit the dates of publication to between 29 November 2020 and 30 June 2021; secondly, the plaintiff seeks to replace imputations (a)-(h); and, thirdly, the plaintiff seeks to and add imputation (i).
The proposed imputations are in or to the following effect: "(a) By proposing that a piece of Bondi Beach should be flogged off for the exclusive use of the elite and beautiful people, the plaintiff justifiably exposed himself to public ridicule. (b) By proposing that a piece of Bondi Beach should be flogged off for the exclusive use of the elite and beautiful people, the plaintiff justifiably exposed himself to public derision. (c) By proposing that a piece of Bondi Beach should be flogged off for the exclusive use of the elite and beautiful people, the plaintiff is elitist and un-Australian. (d) The plaintiff is the type of person who is contemptuous of Australian values because he would have a bit of beautiful Bondi Beach sold to him so that he can cordon it off for the private use of the elite and beautiful, as has been done in the South of France and the United States. (e) The plaintiff is un-Australian in that he is contemptuous of Australian values because he would have a bit of beautiful Bondi Beach sold to him so that he can cordon it off for the private use of the elite and beautiful, as has been done in the South of France and the United States. (f) The plaintiff is the type of person who is contemptuous of Australian values because he would steal a bit of beautiful Bondi Beach so that he can cordon it off for the private use of the elite and beautiful, as has been done in the South of France and the United States. (g) The plaintiff is un-Australian in that he is contemptuous of Australian values because he would steal a bit of beautiful Bondi Beach so that he can cordon it off for the private use of the elite and beautiful, as has been done in the South of France and the United States. (h) The plaintiff is the type of person who would steal a bit of Bondi Beach so that he can cordon it off for the private use of the elite and beautiful, as has been done in the South of France and the United States. (i) The plaintiff's proposal to flog off a bit of Bondi Beach is elitist and un-Australian because he would cordon off an iconic and beautiful public space to be used only by the elite and beautiful."
The pleadings allege the eight amended imputations arise from each of the publications about which complaint is made.

Submissions

The primary issue between the parties is that of the amended imputations. Overall, the defendant opposes leave being granted to file the ASOC. The defendant submits that the imputations pleaded in the ASOC are defective in form and not reasonably capable of being conveyed by each of the publications, and could only emerge as the product of some strange, forced or utterly unreasonable interpretation of those matters. Further, the imputations are said to be ambiguous or imprecise.
The defendant says that the proposal to substitute "elite and beautiful" conflates the characterisation and description of the proposal. Further, the defendant submits that the imputations of "public ridicule" and "public derision" do not differ in substance.
The defendant also submits that the definitions relied upon by the plaintiff for the interpretation of "flogging off", used in imputations (e) and (f) should be disallowed because it overlooks the words as said in their context.
Further, the defendant submits that the third imputation is impermissibly rolled-up and that the term "un-Australian" has been decided to be impermissible as an imputation and should not be allowed.
Over and above the foregoing, the defendant submits that the ASOC is unclear in that it does not specify whether the plaintiff claims that, in respect of the online publication, the claim is for the date of the publication or the continuing publication of matters from that date. It is also unclear whether the plaintiff is seeking to hold the defendant liable for the re-publication, which the defendant did not control or to which he did not assent.
The defendant also relies upon the words that the plaintiff has attributed to the defendant being words that do not amount to "some unusual conduct" or "conduct outside the normal". The defendant submits that the defendant was merely expressing his opposition towards the proposal and his reasons for the opposition.
In response to the submissions of the defendant, the plaintiff has submitted that the principle requiring conduct outside of normal societal conduct only applies to imputations made of a photograph and is not applicable in the current proceedings. The plaintiff also submits that the phrase "flogging off" is capable of being understood by an ordinary reasonable reader as being either stealing or selling. The plaintiff submits that this imputation opens the plaintiff to public ridicule.
The phrase "un-Australian", on the plaintiff's submission, is defined in the imputations themselves and, therefore, is distinguishable from authority which has held it to be impermissible. As to the exercise of discretion, the plaintiff submits that this is the first attempt to re-plead his case and, therefore, ought to be allowed at this early stage. The pleadings have not yet closed.

Interrogatories

The interrogatories, sought to be served by the plaintiff, are relatively short and are in the following terms: "1 On or about 28 November 2020, did you have a conversation with, any person who identified themselves as speaking on behalf the Sydney Morning Herald or Sun Herald, concerning the plaintiff, the Amalfi Beach Club and/or a proposal for a beach club on Bondi Beach? 2 If the answer to interrogatory 1 is in the affirmative, when did you have the conversation? 3 If the answer to interrogatory 1 is in the affirmative, who was the person or persons with whom you had the conversation? 4 If the answer to interrogatory 1 is in the affirmative, was the conversation: A. By telephone; or B. In person? 5 If the answer to interrogatory 3A is in the affirmative: A. Who was present during the course of the telephone conversation? B. Who telephoned whom? 6 If the answer to interrogatory 1 is in the affirmative, as part of that conversation did you say the words attributed to you in quotes in the article annexed to these interrogatories at A, namely: a. 'It is elitist and un-Australian and I will step in to stop it' b. 'Flogging off a bit of Bondi for the so-called beautiful people is one of the ugliest things that could be proposed' c. 'Our public spaces and beautiful beaches are to be enjoyed by all - not cordoned off like in the South of France or the United States for only those who can afford it.' 7 If the answer to any part of interrogatory 6 is no, in each case, please state what you did say to that person if not the quoted material."
The defendant submits that the interrogatories are not "necessary" for the plaintiff to frame his case and are seeking to obtain admissions. Whereas, the plaintiff submits that they are fact-finding and are served to assist the plaintiff to find the precise words to frame his cause of action, which is otherwise arguable or good.

Amendment to Pleadings

The reasons have already outlined, in brief, the proposed amendments in the pleading. Pleadings are required to be brief; state all material facts, but not the evidence upon which those facts rely; may raise and plead causes of action and points of law; and may not to be internally inconsistent. [2]
In relation to defamation proceedings, apart from some limitations prohibiting certain pleadings, the plaintiff is required to specify each imputation upon which the plaintiff is to rely; allege that the imputation was defamatory; and, allege damage, or the likelihood of damage, that is serious and affects the reputation of the plaintiff.
As a consequence of the requirement to plead each imputation upon which a plaintiff relies, the practice has developed of pleading nuanced imputations in a manner which covers each of the possible meanings of the publication that is said to be defamatory. The pleadings in these proceedings reflect this practice.
Thus, the plaintiff has alleged, as separate imputations, that the publications are defamatory of the plaintiff in that they impute that the plaintiff justifiably exposed himself to public ridicule and, separately, justifiably exposed himself to public derision.
One of the requirements on pleading imputations in defamation proceedings is that the imputations from each publication must be substantially different from each other imputation. Further, the pleading must be expressed in a manner which is sufficiently certain so that a defendant knows that which is put and that which requires defending. The last two requirements determine the outcome of the issues between the parties in these proceedings, insofar as they deal with the nature of the pleadings.
In context, there may be a nuanced difference between ridicule and derision, but I do not consider that they are substantially different in that they are not other than insignificantly different. Each imputation (a) and (b) allege that the published material defames the plaintiff by alleging or imputing that, by his conduct in "flogging off" part of the Beach, the plaintiff was a person who acted in a way that exposed himself to public ridicule or derision, respectively. If the meanings of "ridicule" and "derision" are, in that context, different, they are not substantially so. Nevertheless, to the extent that the plaintiff considers such a nuance may impact upon the fact-finder, and given that, in my view, the two words are substantially the same and are of the same class, one imputation that referred to "public ridicule or derision" would be allowed. Two separate imputations would not be allowed.
As to certainty, the defendant refers to authority as to the inappropriateness of the use of the term "un-Australian". I bear in mind the alleged use of that term by the defendant in the Original Publication
Every judgment depends on its facts and on its context. However, the plaintiff's submission that the term should be used, or could be used, because it is internally defined fails for two reasons. First, if the term is internally defined, then the pleadings should be confined to that definition and not utilise the definition, as well as the term, "un-Australian", which may lead to uncertainty.
Secondly, who is to say which Australian values and aspects are said to be inconsistent or are alleged to be inconsistent with the proposal of the plaintiff? Is it un-Australian because it is inconsistent with multiculturalism? Is it un-Australian because it is inconsistent with democracy? Is it un-Australian because it is inconsistent with the rule of law? Or egalitarianism? Thus, if it is said that Australian values are against elites, then that would require appropriate pleading, without the term "un-Australian".
If the imputation in (c) is alleging that the publication defames the plaintiff because he is elitist and, as a consequence, is acting inconsistently with Australian norms and values, then a pleading of the term "elitist" is sufficient for that purpose. Similarly, if the term "un-Australian" as used in imputations (d) and (e) is confined to the plaintiff's contempt of Australian values insofar as he would "flog" part of Bondi Beach in the circumstances alleged, then a sufficient and certain pleading would be so confined.
Lastly, I deal with the difference between imputations (d), (e), (f), (g) and (h). Essentially, the defendant submits that the term "flogging off" does not, and cannot, give rise to a meaning that the part of the Beach would be stolen.
The ordinary meaning of an English word - if "flog" in this context is an English word - in my view, does not, and cannot, stretch to mean to steal. While the ordinary meaning of the term flog, although a matter for the jury, must be understood in its context, there is no suggestion in the publication, or by use of the term, that the part of Bondi Beach was to be obtained without payment, or stolen. To flog something, other than in the whipping sense, is to sell it or "get rid of it"; not to steal it. It may mean to advertise, particularly if the advertising is heavy. Indeed, it would seem that imputation (i), apart from its use of "un-Australian", embodies much of that which is otherwise said to be imputed and described previously.
As a consequence of the approach taken and outlined above, I would allow one of imputations (a) or (b) and, in so doing, allow an amendment which said "ridicule or derision". Further, I would disallow the term "un-Australian" in imputations (c), (e), (g) and (i). I would also disallow otherwise imputations (f), (g) and (h). I consider the term "beautiful" in the context of these imputations not to have its ordinary meaning, where utilised to describe "people". As a consequence, the reference to "elite and beautiful" people is a composite expression and I would allow it.
As to the issue of that which is outside normal conduct or "normal societal conduct", the principle is one that does not generally apply to words spoken or written. Of course, the foregoing does not suggest that there is not, at least indirectly, some place for such a concept.
At this stage, the Court is not considering any defences. As earlier stated, no Defence has been filed. Nevertheless, some of the submissions of the defendant seem more apposite to a defence of comment, if that be ultimately alleged, or to political debate issues.

Interrogatories

Interrogatories are a common feature of defamation pre-trial procedures, but - notwithstanding the regularity with which interrogatories are served and answered - a party that seeks to have the Court order another party to answer interrogatories must do so in accordance with UCPR, Pt 22. Once a party serves interrogatories, the interrogated party is, without an order of the Court, free not to answer the interrogatories. Prior to the operation of the UCPR, the service of interrogatories required the interrogated party to answer the interrogatories, unless the Court set them aside.
On one view of the terms of UCPR, r 22.1(4), once a party has refused to answer interrogatories served on them, then an order of the court is always "necessary". However, that, in my view, is not the construction of the rule.
Nevertheless, there was, at one stage, debate about the requirements and proper construction of the term "necessary", being the requirement in the relevant law. In Boyle v Downs, [3] Cross J confirmed that the word "necessary" was to be interpreted as meaning "necessary for a fair trial". His Honour said: "In considering the meaning of the word 'necessary' in Pt. 23, r. 14 - a rule relating to discovery and inspection similar to r. 5 in Pt. 24 relating to interrogatories - Rath J. in Percy v. General Motors-Holden's Pty. Ltd. [1975] 1 NSWLR 28 interpreted it as 'necessary in the interests of a fair trial'. This definition is similar to the one I have suggested; for in Griebart v. Morris [1920] 1 KB 659, Scrutton L.J. interpreted 'necessary for disposing fairly of the cause or matter' (under the English rules relating to interrogatories) as (under the English rules relating to interrogatories) as 'necessary for the fair trial of the action'."
The Court of Appeal has referred, with authority, to the passage extracted above [4] and utilised the test in the following words: "The answers which are sought are material in the sense that they may enable the claimant either to maintain her own case or to destroy the case put against her (see Griebart v Morris [1920] 1 KB 659 at 664)."
The word "necessary" when used in relation to a requirement on the exercise of a power granted to a court should generally, and does here, mean "reasonably required or legally ancillary" to the achievement of the goal, in this case, of a just, quick and cheap resolution of the issues between the parties. [5] In referring to the term "necessary", where used in relation to the jurisdiction of a court or the test on the issuing of an order, the High Court has said: "The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in The Attorney-General v Walker (1849) 3 Ex 242, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided …. In this setting, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness'." [6] (Citations omitted and emphasis added.)
The defendant seems to have utilised the term "necessary" as meaning essential. The fact, if it were the fact, that the interrogatories seek admissions, does not, in and of itself, preclude the interrogatory being served. Nor does it preclude the Court from issuing orders for the answering of interrogatories.
The answers to the interrogatories that have been served, and which are set out earlier in these reasons, are material to the proceedings before the Court. They would, to paraphrase the President of the Court of Appeal, "enable the claimant either to maintain his own case or to destroy the case put against him". [7]
At this stage, no Defence has been filed. The defendant maintains that, as a consequence, the request for interrogatories is premature. I do not consider that to be the case. If the interrogatories are not served and answered, then the pleadings and the proceedings may not concern that which the parties accept is the publication that was made and from which the re-publication is said to have occurred or that which is truly in issue between them. The Court issues an order for the answers to the interrogatories, which are marked Annexure F to the Affidavit of Ms Sian-Louise Perez, sworn 11 March 2022.

Conclusion

The plaintiff shall clarify, in the Amended Statement of Claim to be filed, the date from which he claims damages, and the basis for the claim of damages from the defendant for the pleaded re-publications.
Otherwise, I would allow an amendment to the Statement of Claim, subject to the foregoing comments.
The Court makes the following orders: 1. The plaintiff has leave to amend the Statement of Claim to include further imputations, subject to the qualifications set forth in the reasons for judgment; 2. Order that the defendant answer the interrogatories extracted in the reasons for judgment herein; 3. Costs will be costs in the cause.

Endnotes

Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 19.1.
UCPR, Pt 14.
Boyle v Downs [1979] 1 NSWLR 192.
Schutt v Queenan [2000] NSWCA 341 at [11]-[15].
Civil Procedure Act 2005 (NSW), s 56.
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19 (Gaudron, Gummow and Callinan JJ).
Schutt v Queenan, supra, at [11]-[15]. 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. Decision last updated: 15 September 2022

At a glance

Court

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Before

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Judgment (10 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)