Kapandritis v Nationwide News Pty Ltd

Principles relevant to challenges to capacity

1. The relevant principles in relation to capacity of imputations are set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], namely that the determination of capacity is "an issue of generosity and not of parsimony", and that the imputation is a "matter of impression ... the impression is not of what the words mean but of what a jury could sensibly think they meant" (citing Berezovsky v Forbes [2001] EWCA Civ 1251 at [16]).

The defendant's challenge to the capacity of the imputations

1. Ms Cowden challenges the capacity of each of imputations 4(i) to 4(v) on the same four bases: 1. The test of the ordinary reasonable reader as applied in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at [17] must particularly be borne in mind when reading an account of court proceedings. As a result, courts should consider the position of the ordinary reasonable reader as a layman and not as a lawyer. 2. The reference to the "history of violence" is to the generalised total of the events listed, namely the making of the threatening phone calls, domestic violence, malicious damage and extortion. While Ms Cowden does not challenge imputation 4(vi) (concerning the apprehended violence orders), it is a strained interpretation to suggest that "history of violence" refers to each and every matter in circumstances where these are prior convictions, as opposed to matters which may not even have led to charges. 3. The court's caution on this issue is evidenced by the rejection of a similar imputation by McCallum J in Mohareb v Fairfax Media Publications Pty Ltd (No 2) [2017] NSWSC 546 at [12]. McCallum J held that a description in an anonymous poster of the plaintiff as a man who was "known to police" in terms of being "a highly volatile individual, prone to maniac outbursts… often abusive and threatening" did not give rise to imputations he had actually been convicted for these acts. 4. A mere statement that "the court heard" the plaintiff had a history of violence did not indicate how or from whom the court received this information. The reader would not believe that the information received by the court from an unknown source could relate to the plaintiff's convictions. The ordinary reasonable reader is a layman, not a lawyer, and thus does not interpret a court report along the lines of known legal practice.
2. I first note that, although each of the imputations essentially arises from paragraphs 13 and 14, the ordinary reasonable reader must be taken to have read the whole of the matter complained of. The following may be noted about the context in which paragraphs 1 to 12 flavour paragraphs 13 and 14: 1. It is clear from the opening paragraph that there are court proceedings in which the plaintiff has "pleaded guilty to terrorising a council employee collecting rubbish". 2. The description of this event, set out in paragraphs 2 to 6, is followed by repetition of the fact that the plaintiff was pleading guilty at Sutherland Local Court and being sentenced. 3. The references to "police facts" and "police said" make it clear that this is an account of those proceedings in Sutherland Local Court, including a description of the evidence (CCTV footage). 4. It is in this context that "the court heard" that the plaintiff "had a history of violence which included threatening phone calls, domestic violence, malicious damage and extortion". The words "history" and "included" are significant, as they suggest not only wider criminality, but some kind of list or other method of documentation of these matters. 5. Of particular relevance is the reference, in the final paragraph of the matter complained of, to the plaintiff being "the subject of several apprehended violence orders in the past". This is part of what is "included", and clearly relates to some kind of court order.
3. Taking all of the above factors into account, this is a clear example, when the relevant principles set out in Corby v Allen & Unwin Pty Ltd are applied, of the ordinary reasonable reader first appreciating that he is reading a report of court proceedings where the plaintiff had pleaded guilty to an offence of intimidation intending to cause fear in circumstances where the police had "provided evidence and information to the court".
4. In relation to each of the imputations, the ordinary reasonable reader would infer, from the material in paragraphs 9, 12, 13 and 14, that all of this material was put before the court by some official capable of being described as the "police" (in other words, by some form of prosecuting authority) as part of his or her role in providing the magistrate with the information necessary to sentence the plaintiff.
5. In such circumstances, the distinction between the plaintiff's "history of violence" (paragraph 13) and the "apprehended violence orders" which are "also" in the mix (paragraph 14), in a court sentencing context, is a wholly different situation to an anonymous poster of the kind the subject of McCallum J's rulings in Mohareb v Fairfax Media Publications Pty Ltd (No 2).
6. Three factors particularly favour the capacity of these imputations to arise: 1. The description of the apprehended violence orders as "also" having been made is strongly suggestive of these offences referred to in the previous paragraph (which by use of the word "also" appear worse) being criminal charges. 2. The plaintiff is being sentenced for a criminal offence of this kind to which he has pleaded guilty, and for which these prior acts are relevant. 3. The prominence of the opening words and the strong language throughout, which includes "terrorising" (paragraph 1), "traumatised" (paragraph 4), "terrifying" (paragraph 5), "alarming attack" (paragraph 9) and "terrified" (paragraph 12) suggest serious wrongdoing is being examined by the court.
7. Imputations 4(ii), 4(iii), 4(iv) and 4(v), all of which are couched in terms of convictions, are thus each individually reasonably capable of arising.
8. Imputation 4(i) is reasonably capable of arising, not merely from the reference to the "several apprehended violence orders in the past", but also by reason of the use of the word "included" in paragraph 13, which is suggestive of the history of violence including more than the nominated actions set out in paragraph 13.
9. For the above reasons, each of the imputations challenged is reasonably capable of being conveyed.
10. It is appropriate to include a formal finding in relation to imputation 4(vi) to this effect as well.

The particulars of aggravated damages

1. The particulars of aggravated damages set out at paragraph 8 are as follows: 1. The defendant's failure to give the plaintiff any reasonable opportunity to respond to the allegations before they were published. 2. The defendant's failure to publish an apology or retraction when requested by the plaintiff. 3. The defendant's conduct in publishing the matter complained of to a wide and extensive audience despite its knowledge of the falsity of the imputations complained of by the plaintiff.
2. Ms Cowden acknowledged that, if the imputations were held to be reasonably capable of being conveyed, these objections would fall away, so no further ruling is necessary. I have formally made an order for the challenge to these particulars to be dismissed.

Costs

1. The plaintiff has been entirely successful and is entitled to an order for costs. However, while it was not necessary for me to call upon Mr Rasmussen to answer Ms Cowden's submissions, the defendant's application was not so hopeless as to warrant the awarding of those costs on an indemnity basis. An award of indemnity costs should be made only in very clear cases in relation to a claim of hopeless applications or pleadings (Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397).
2. In particular, courts should be cautious about the making of indemnity costs orders in relation to interlocutory proceedings such as imputation arguments. The application made by the defendant was well within the parameters of reasonableness, as well as being well-presented and argued (in the form of written submissions). An order for costs on the ordinary basis appropriately reflects the plaintiff's success.

Orders 1. Defendant's challenge to imputations 4(i) to 4(v) is dismissed. 2. Pursuant to r 28.2 Uniform Civil Procedure Rules 2005 (NSW), each of the imputations pleaded (including imputation 4(vi)) is reasonably capable of being conveyed. 3. Defendant's challenge to plaintiff's particulars of aggravation is dismissed (noting grapevine effect argument not pressed). 4. Plaintiff to provide particulars of republication in 14 days. 5. Defendant to pay plaintiff's costs on the ordinary basis; application for indemnity costs refused. 6. Defendant's defence by 5 December 2019. 7. Matter stood over to the Defamation List on Thursday 12 December 2019 for further directions.

Matter Complained of in Kapandritis v Nationwide News Pty Ltd (631 KB, pdf) 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: 20 November 2019