Gilbert v Catholic Education Office & 2 Ors [2002] NSWSC 214 | Case summary

JUDGMENT (Defamation - imputations - capacity - difference in substance - particulars of aggravated damages - identification) 1 HIS HONOUR: By a statement of claim filed on 5 November 2001, the plaintiff seeks damages for defamation said to arise from the publication on or about 25 May 2001 by the defendants of a letter the text of which is be appended to these reasons. 2 The plaintiff pleads the following causes of action: "( a) the plaintiff is a paedophile; (b) the plaintiff is a child molester; (c) the plaintiff has attempted to entire school children to go with him for a wrongful purpose; (d) the plaintiff stalked a primary school boy on the way home from school; (e) the plaintiff invited a secondary school boy to be involved with some of his mates in a sexual photo shoot which would involve some girls; (f) the plaintiff provides girls for improper purposes". 3 Pursuant to SCR Pt 31 r 2, the question of law as to the capacity of the letter sued upon to carry the imputations has been argued. Additionally, objection has been taken to the form of certain of the imputations. 4 It is argued for the defendant that, on the capacity issue, the fair reading of the communication (leaving to one side for the moment matters of form and difference in substance), could not lead to a view that what is being imputed is conduct which actually occurred as distinct from conduct suspected of having occurred. Some comfort in that regard is sought to be taken by the employment in the communication of the word "alleged". 5 Dealing with that general proposition first, I am not persuaded by it. A fair reading of the communication could lead to the description of it as both alarming and alarmist. It is headed "Catholic Education Office Sydney", bears the heading "for urgent attention of the principal staff and school community". It makes statements as to the fact that over the past four days reports had been received regarding two vehicles loitering near a number of primary and secondary schools, and a man having tried to entice children to go with him. There follows a description of the vehicles and of one man believed to have been the driver of one of them. 6 The text continues, "On one occasion the man allegedly identified himself as being from Motor Cross Magazine". The text then goes on to assert in a way that could be understood as not embraced by the word "allegedly" at all, that he invited a secondary school boy to be involved with some of his mates in a photo shoot which also involved some girls to be provided by the man. 7 The word "allegedly" next occurs as follows, "On another occasion he allegedly followed a primary school boy on the way home from school". The document states that it is believed that several men were involved, but that this man was the only one clearly seen and described. Further information is sought relating to these and any similar incidents unqualified by any notion o suggestion or allegation or suspicion, and there is a direction that the Sutherland Police be informed. 8 As I have said, the communication in its overall tenor precludes the basic argument advanced by the defendant. 9 I turn to the imputations. The first is that the plaintiff is a paedophile. The second is the plaintiff is a child molester. I am of the view that the ordinary reader's understanding of the word 'paedophile" amongst reasonable people in today's community would connote that that person is a child molester. The imputations do not in my view differ in substance, and subject to whatever else falls from me in relation to the future of this action, the plaintiff will be obliged to elect between (a) and (b). 10 Imputations (a) and (b), notwithstanding what I have just ruled, together with imputation (e), expressly contain a sexual connotation. It is argued for the defendant as I understood it, by reference to old hallowed and recent and still respected authority, namely Capital and Counties Bank Ltd v Henty [1882] AC 741; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, and the encyclopedic pronunciation on all the relevant principles in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, that a reasonable reading of this document would not bring forth the sexual connotations otherwise than in the mind of a reader avid for scandal. (See Henty at 744-745, per Selborne L;. Mirror v Harrison at 301 per Mason J). I am not persuaded by that submission either. 11 The document as I have characterised it, in terms of "alarming" and "alarmist" - words that might be applied to it in its totality - reasonably on its face points to the sexual connotation. This is not an anonymous document dropped in letterboxes. It is a formal communication from the Catholic Education Office authorised by its professional officer to the Principal, Staff and School Communities, and the relevant geographical area, which is couched in language that reasonably could lead to the sexual element. That, on a capacity question, is clearly its import and its availability as such is not dependent upon notions of avidity for scandal. 12 Taking that into account and having disposed of the imputations (a) and (b) in the sense that they do not differ in substance, I am satisfied in relation to imputations (a) or (b) that either is capable of being carried by the matter complained of. 13 I am satisfied that imputation (e) is capable of being carried by the matter complained of. The paragraph highlighted above is clearly a reasonable source for the material captured in imputation (e), and this, notwithstanding any ambiguity as to whose "mates" are being referred to. 14 Imputations (c) and (f) are bad in form. The use of the word "wrongful" within the imputation is vague and ambiguous. The matter complained of is in both general and particular terms, and it may be that in exercise of the liberty to replead, the pleader will consider whether that defect can be cured by incorporating in those impugned imputations, a notion of sexuality, "for a wrongful sexual purpose", by way of example. 15 Imputation (d), the plaintiff stalked a primary school boy on the way home from school I find incapable as a matter of law of being carried by the matter complained of, and in respect of that cause of action I enter a verdict for the defendant. Here the meaning of "stalk" could not be understood, as advanced for the plaintiff, as the hunter/prey situation. Rather it is the more than once intrusion in the life of another inducing fear. 16 Thus with respect to the imputations rulings, the plaintiff is to elect as between (a) and (b). Imputations (c) and (f) are struck out by reason of being bad in form with leave to replead, imputation (d) is incapable of arising as I have said, and imputation (e) as I have ruled is capable of arising. 17 Complaint is made also in respect of the particulars of identification. 18 The first particular of identification is that the plaintiff fitted the description of the man described in the letter. I strike out that particular. It begs the question in a sense, and in so far as the letter contains details of the description of the man the plaintiff contends himself to have been identified as, the plaintiff should specify in what respects the description in the matter complained of are said to fit him. In other respects the particulars of identification are satisfactory. 19 Complaint is made also in relation to particulars of aggravated damages. Whilst the rules and practice provide for a defendant prior to a 7A trial giving notice of complaint as to a part of the statement of claim relating to aggravated damages, a practice is developing whereby that is usually deferred until after the 7A trial. Here however the particulars of aggravated damages in one respect are so deficient they can immediately be dealt with, with a view, if the occasion arises, for them more properly being attended to. 20 It is said, "the conduct of the defendants in publishing the matter complained of is improper, unjustifying and lacking in bona fides". On no basis can that be said to be a proper particular. In the normal course of events, a defendant is entitled to detailed and clear particulars of the conduct and of the bases upon which it is contended that the conduct was improper, unjustifiable and lacking in bona fides. The plaintiff has leave to amend in that respect also. 21 I grant leave to the plaintiff to file an amended statement of claim within 14 days. 22 I stand the matter over to the next Registrar's directions list on 5 April. 23 In respect of the current application each party is to pay its own costs.

Gilbert v Catholic Education Office & 2 Ors

At a glance

Court

Decision date

Before

Source

Judgment (20 paragraphs)

Parties

Cases Cited (2)

Cited By (1)