Louise v DailyMail.com Australia Pty Ltd

District Court of NSW|2014-10-23|Before: Levine J

Judgment 1The plaintiff brings proceedings for defamation for two online publications dated 5 and 17 February 2014, the text of which is set out as a schedule to this judgment. These are my reasons for rulings in relation to challenges to certain of the imputations. 2The following imputations are pleaded (in paragraph 4 of the statement of claim) to arise from the first matter complained of. (a)The plaintiff is a stripper (paragraphs 1, 8, 9). (b)The plaintiff is an ex-stripper (paragraphs 8, 9). (c)The plaintiff is a women [sic] of loose morals (paragraphs 1, 8, 9). (d)The plaintiff is deluded because she believes convicted killer Simon Gittany is innocent (whole article). (e)The plaintiff is a ridiculous person (whole article). 3The imputations challenged in this publications are imputations 4(a), 4(b) and 4(e). 4The following imputations are pleaded to arise (in paragraph 6 of the statement of claim) from the second matter complained of. (a)The plaintiff is the world's most deluded woman (paragraphs 1, 7, 15, 20, 21, 22, 23, 24, 25, 26, 28, 33, 35, 36, 37, 43, 44, 45, 54, 55, 57, 58, 59). (b)The plaintiff is deluded because she believes convicted killer Simon Gittany is innocent (paragraphs 1, 2, 3, 7, 15, 20, 21, 22, 23, 24, 25, 26, 28, 33, 34, 35, 36, 37, 43, 44, 45, 54, 55, 57, 58, 59). (c)The plaintiff is a ridiculous person (paragraphs 1, 2, 3, 7, 15, 20, 21, 22, 23, 24, 25, 26, 28, 33, 34, 35, 36, 37, 43, 44, 45, 54, 55, 57, 58, 59). (d)The plaintiff is stupid (paragraphs 1, 2, 3, 7, 15, 20, 21, 22, 23, 24, 25, 26, 28, 33, 34, 35, 36, 37, 43, 44, 45, 54, 55, 57, 58, 59). 5The imputations the subject of challenge are imputations 6(c) (which is identical to imputation 4(e) and 6(d).

Imputations 4(a) and 4(b) 8Counsel for the defendants submits that these imputations cannot arise at the same time and should be permitted only as alternatives. Counsel for the plaintiff submits that these imputations are not mutually exclusive and not alternatives, in much the same way that a person who is a lawyer or doctor can still be called a lawyer or doctor, even after they have ceased to practise, or been struck off; similarly, it is argued, a person who is married will "not forever have the status of being married" (submissions, page 1). 9In Drummoyne Municipal Council v Australian Broadcasting Corporation at 148B - C Gleeson CJ noted the longstanding rule, set out in Feros v West Sydney Radio Pty Ltd (New South Wales Court of Appeal, 22 June 1982, unreported) that a plaintiff may not in pleading allege two inconsistent or contradictory imputations, affecting the capacity of the imputation pleaded to convey a defamatory meaning (see also Tingle & Anor v Harbour Radio Pty Ltd & Anor (No 2) [1999] NSWSC 414 at [17]). 10I am satisfied that the imputations are inconsistent, in that the jury cannot find that both imputations are conveyed. Either the plaintiff is a stripper, or she is a former stripper. Similarly, a person cannot be a doctor and a former doctor at the same time. While it is possible to marry more than once and to be both divorced and married to some other person at the same time, this analogy is of no assistance. Being a former stripper is inconsistent with being a stripper and, in accordance with the principles explained by Hunt A-JA in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [75], they must be pleaded as alternatives. 11Is being called a former stripper less defamatory than being called a stripper? Should the imputation of being a former stripper be pleaded as a fall-back imputation? There is still utility in having fall-back imputations of lesser severity: see the discussion of this issue in King v John Fairfax Media Publications at [15] - [16]. Although I raised this issue with Mr Rasmussen, there is no need for me to make such a ruling; I shall leave it to the plaintiff to determine which of these two imputations should be pleaded first, and whether one is a fall-back for the other or only an alternative. 12I have accordingly made orders for these imputations to be pleaded as alternatives to each other.

Imputations 4(e) and 6(c): "the plaintiff is a ridiculous person" 13The defendants do not challenge the concept of ridicule as not being actionable (as to which see the line of authority running from Villers v Monsley (1769) 2 Wils 403, 95 ER 886 to Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449), but object to the form of the imputation, in that its imprecision is such that no act or condition is identified. 14Both parties referred to Scali v John Fairfax Group Pty Ltd (Supreme Court of NSW, Levine J, 15 July 1993), where the matter complained of made a derisive reference to a particularly garish interior design as being "like Nick Scali on acid". The plaintiff, a respected manufacturer of furniture of an Italianate style, brought proceedings for defamation and pleaded the following imputation: "(e) That the First Plaintiff, by reason of his lacking in good taste in respect to furniture and interior decorations, is deserving of being held up to public ridicule." 15Levine J struck out the imputation, stating that the phrase "is deserving of being held up to public ridicule" was, absent clear words in the publication, an unwarranted "appendage" (at page 2) as well as a rhetorical flourish (at page 3). 16Contrary to the plaintiff's submissions, his Honour did not consider that an imputation that the plaintiff was ridiculous, absent the appendage of "deserving", could arise. His Honour's complaint (which he illustrated by referring to a similar attempt to avoid pleading the facts of the publication), was: "... I was referred to a recent decision of Mathews J in George Polatidis v John Fairfax Group Pty Ltd, Friday, 4 June 1993, in which her Honour was dealing with, inter alia, an imputation in relation to a comment upon a restaurant, "the plaintiff conducts a cafe which is unfit to be patronised" in which her Honour, with respect correctly in my view, held that it was a far cry from saying that the plaintiff's establishment serves sub-standard food, or that some of the cutlery it supplies is grubby, to saying that it is in the general sense unfit or undeserving to be patronised (p4). 17The imputation does not "reflect" the stings in the article, as claimed by the plaintiff in her counsel's submissions (page 2), but seeks to hide from them, in much the same was that the restaurant owner referred to above sought to avoid the factual allegations of serving sub-standard food, or having grubby cutlery, by an imputation that his café was unfit to be patronised. 18Mr Rasmussen also referred to Hanson-Young v Bauer Media Pty Ltd [2012] NSWSC 1850 at [13] - [25] where McCallum J allowed an imputation "the plaintiff is a joke" to go to the jury, but in the "unique circumstances" where the matter complained of was clearly constructed as an attempt at humour. 19That is not the case here. The first matter complained of is a news report on the murder trial in which the plaintiff's boyfriend was convicted and her "bizarre protest" outside the sentencing in which she and others held up placards outside the court protesting his innocence and questioning evidence in the trial; it is illustrated with photographs of the plaintiff holding up those signs. The second matter complained of is an account of the plaintiff visiting her former boyfriend in prison after his conviction and describes statements she had made in a media interview, as well as to how she "bizarrely" re-enacted the crime for the media cameras. 20Each of the matters complained of contains a series of factual statements or opinions about the plaintiff. For the reasons explained by Levine J in Scali v John Fairfax Group Pty Ltd, the plaintiff should distil the sting of this imputation from the contents of the matter complained of rather than avoid them by pleading what both Levine J and Mathews J called a rhetorical imputation. Additionally, as the Court pointed out in Toben v Milne [2014] NSWCA 200 at [31] (set out below), the defendants should not be called upon to defend such an imprecise and wide imputation. 21It is easy to demonstrate how a factual statement in the matter complained of can import ridiculousness and how the imputation to that effect should be pleaded. For example, in Boyd v Mirror Newspapers Ltd (where the plaintiff was a well-known footballer), the article, headed "BOYD IS FAT, SLOW AND PREDICTABLE", describes the journalist's astonishment as the portly plaintiff "waddled into the sunshine" to play for the Sea Eagles against South Sydney. The imputation pleaded was that the plaintiff, a footballer, was so fat as to appear ridiculous when he came onto the field to play, which imputation arose from the word "waddled" and the incredulity of the author at the plaintiff's appearance. 22Whether the plaintiff is able to extract such an imputation from either of the matters complained of in these proceedings is a matter for the pleader. 23Imputations 4(e) and 6 (c) are struck out. Leave to replead is not appropriate, as any imputation that some act or condition of the plaintiff made her appear ridiculous will be so different in form and content as to be an entirely new imputation.

Imputation 6(d) 24The objection to this imputation is that it does not arise, as well as being defective in form. 25The matter complained of clearly conveys the imputation that the plaintiff is deluded in her belief in Simon Gittany's innocence (imputations 6(a) and 6(b)). Mr Rasmussen's written submissions state that an imputation of stupidity is also conveyed because "[a]ny person who believes in the innocence of Gittany in the face of those assertions must be stupid", adding that a person can "wake up" from a delusion, while "stupid is forever" (plaintiff's submissions, page 2). 26The statement of claim reveals that the same passages in the matter complained of are asserted to give rise to the imputations of being deluded as well as stupid. Judging by Mr Rasmussen's submissions, he considers "stupid" is a more permanent state of being "deluded". 27This argument suffers from two vices. First, this is contrary to the dictionary definition of "stupid", which generally connotes intellectual limitations rather than being deluded on a permanent basis. Secondly, if what is intended is a form of delusion rather than the plaintiff's intellectual imputations, the imputation is ambiguous. 28The plaintiff relies upon Toben v Milne in support of his entitlement to plead this imputation. However, the careful analysis of potentially ambiguous imputations by the Court of Appeal in Toben v Milne supports the defendants' contentions, and not those of the plaintiff. The imputation the Court found to be ambiguous in Toben v Milne was that the plaintiff "fabricated history". This was because, as the Court noted at [31], the imputation was "too vague and imprecise": "In our view, imputation (a) in its present form is too vague and imprecise. The comment, "people like [the appellant] engage in fabrication of history" was made in the context of a condemnation of "holocaust denials", or anti-Semitism, or both. It was not made in the broad and general sense that imputation (a) presently conveys. The respondent should not be required to defend such an imprecise and wide imputation. If the appellant wishes to rely on an imputation relating to the fabrication of history, he ought to be required to plead the imputation having regard to the context of the article as a whole." 29The ambiguity of "fabricated history" arose in Toben v Milne because of the potential to include holocaust denials and/or anti-Semitism (or both). The broad and general sense of the imputation meant that it could connote other historical fabrications, such as a false history of a war (at [28]) or of other holocausts (although I note, in passing, that the similar facts of other holocausts must present a conceptual problems to holocaust deniers generally). 30That same ambiguity is present here. The matter complained of does not convey an imputation that the plaintiff is stupid in the sense of having intellectual limitations, and any imputation that her continued belief in Simon Gittany's innocence is deluded is caught up by imputations 6(a) and 6(b). Conformably with my findings concerning imputations 4(e) and 6(c), imputation 6(d) is struck out.

Orders (1)Imputations 4(a) and 4(b) are to be pleaded in the alternative and will go to the jury. (2)Imputations 4(c), 4(d), 6(a) and 6(b) will go to the jury. (3)Imputations 4(e), 6(c) and 6 (d) are struck out. (4)Plaintiff to file and serve Amended Statement of Claim in 14 days. (5)Matter stood over to the Defamation List on Friday 21 November 2014. (6)Plaintiff pay defendant's costs of the argument.

First matter complained of (7)Stripper girlfriend stages bizarre protest as her killer boyfriend is sentenced for hurling ballerina fiancee from balcony (8)- Girlfriend who is lookalike of murdered Lisa Harnum stages bizarre protest outside sentencing of killer Simon Gittany- Former stripper Rachelle Louise and murderer's family protest at Sydney courthouse- Placards outside court where judge could give killer life without parole- Gittany about to be sentenced for throwing his fiance from their luxury Sydney apartment after she threatened to leave him- New girlfriend is 'dead ringer' for Canadian-born Harnum murdered in 2011- Rachelle Louise takes court stand to declare killer 'best boyfriend I ever had' (9)By Candace SuttonPUBLISHED: 03:25 GMT, 5 February 2014 | UPDATED: 05:00 GMT, 5 February 2014 (10)The girlfriend of convicted murdered Simon Gittany has staged a bizarre protest outside a Sydney courthouse where a Supreme Court judge is preparing to sentence him for throwing his fiancee to her death from the balcony of their luxury Sydney apartment. (11)Rachelle Louise, who bears a striking resemblance to Gittany's murdered financee, Canadian-born ballerina Lisa Harnum, stood among the killer's supporters and family members as they held up placards protesting his innocence and questioning evidence heard in his murder trial last November. (12)After the protest, Louise took to the stand inside the court to pronounce her love for 'romantic' and 'caring' Gittany, declaring the killer is 'the best boyfriend I have ever had'. (13)And in a further twist, a last minute witness has given evidence inside the sentencing, saying Gittany had threatened to kill Harnum 'and make it look like suicide' (14)[Picture] (15)Bizarre protest: ex stripper Rachelle Louise outside the Sydney court where her convicted murderer boyfriend, Simon Gittanty [sic], was about to be sentenced to up to 20 years prison for murdering his fiancee, Lisa Harnum (16)[Picture] (17)Dead ringer: Rachelle Louise (right) who resembles the fiancee murdered by her boyfriend, Simon Gittany, stages a strange protest outside the Sydney court where a judge was about to pass sentence on the convicted killer (18)[Picture] (19)Lookalike: Rachelle Louise last year arriving with boyfriend Simon Gittany at the trial which convicted him for murdering fiancee Lisa Harnum, who Louise closely resembles (20)Louise began a dramatic day arriving at court amid a group carrying protest placards. (21)She was heavily made up, sporting a new shoulder length haircut and wearing a close-fitting black dress. (22)One of the placards read 'Why didn't the police examine the awning?', a reference to Gitanny's [sic] defence that Harnum, 30, fell from the balcony in a state of 'distress' rather than having been flung by him, which is what Justice Lucy McCallum ruled had happened. (23)Louise personally held up a placard which read, 'How do you render some1 unconscious in 65 sec without any sign of trauma to body'. (24)One placard questioned the evidence of the murdered girl's psychologist, Michelle Redmond. (25)Another listed Australians - including Lindy Chamberlain, of the infamous 'the dingo's got my baby' case - who have been found guilty of murder, only to have their convictions overturned. (26)Justice McCallum convicted Gittany after a judge-only trial last year which heard evidence of his violent temper and controlling nature. (27)The onetime Australian businessman has been incarcerated in the nation's largest remand prison, the Metropolitan Remand and Reception Centre, in Sydney's western suburbs awaiting today's hearing. (28)It is understood Ms Louise and Gitanny's [sic] family have visited him at the jail, where for at least some of his imprisonment he has been held under suicide watch. (29)Gittany, 40, has always denied murdering Harnum, an aspiring model, following a bitter row during which a security camera showed him dragging her back into the apartment with his hand across her mouth. (30)Evidence given at his murder trial showed that just over a minute after the video footage was recorded, Harnum plunged to her death. (31)During the trial, in a damning assessment of Gittany's character, Justice McCallum said she did not believe his account of how his fiancee had fallen from the balcony. (32)Following delivery of the verdict in the New South Wales Supreme Court, Rachelle Louise put on a public display of her distress. (33)She screamed at the judge, burst into tears and was taken from the court while Ms Harnum's family members, who had flown out from Canada for the trial, smiled and embraced. (34)Outside, standing amid a crowd of press photographers and television cameras, Louise smoked a cigarette and continued weeping. (35)Ten weeks later, it has emerged Louise has allegedly accepted a six-figure sum for a television interview in which she will protest Gittany's innocence, to be aired on the Seven Network this Sunday. (36)Gittany's four-week-long trial, which gripped the nation, heard he was 'controlling, dominating and, at times, abusive' of Ms Harnum. (37)Gittany lied 'with telling ease' and distorted the truth, Justice McCallum found. (38)'At many times in his evidence the accused struck me as being a person playing a role, telling a story which fit with the objective evidence but which did no more than that,' Justice McCallum said in her judgement [sic]. (39)'His account of what happened appeared to exist on borrowed detail.

Second matter complained of (1)A day in the life of world's 'most deluded' woman. Visiting her killer boyfriend in jail and playing dead to prove he didn't murder look alike fiancée... but can she REALLY believe balcony killer is innocent? (2)Rachelle Louise visits boyfriend Simon Gittany in Parklea Prison, Sydney- He has been sentenced to 26 years for murder of fiancee Lisa Harnum- CCTV footage showed him dragging her back into flat before death- Ballerina was hurled from the balcony of their luxury flat - Ms Louise played dead on TV and challenged interviewer to lift her- Claimed this proved that Gittany would have been unable to kill Ms Harnum (3)By CANDACE SUTTONPUBLISHED: 06:43 GMT, 17 February 2014 | UPDATED: 09:01 GMT, 17 February 2014 (4)With her hair pulled back and dressed for a workout, Rachelle Louise visited her murderer boyfriend in prison on Monday, a day after declaring she would only wait five years for him. (5)It has been less than a week since Simon Gittany was sentenced to a maximum 26 years behind bars for throwing former girlfriend Lisa Harnum off a high-rise balcony in 2011. (6)The MailOnline was at the prison gates of Sydney's Parklea Maximum Security jail when Ms Louise arrived just after midday on Monday for a scheduled visit to the killer. (7)Despite overwhelming evidence that 40-year-old Gittany had killed his fiancee, she continues to protest his innocence and has given two TV interviews in which she claimed there is no way he could have murdered Ms Harnum. Her actions have sparked a torrent of debate in the media and among the Australian public. (8)Scroll down for video (9)[Picture] (10)The girlfriend of Simon Gittany, Rachelle Louise, visits him at Parklea Jail the day after her television interview aired. Gittany was jailed for a minimum 18 years after throwing Lisa Harnum from the balcony of his Sydney apartment in 2011 (11)[Picture] (12)Supportive: Despite overwhelming evidence that Gittany had killed his fiancee, Ms Louise still maintains his innocence (13)Dressed all in black, Ms Louise wore her hair up in a demure style, reminiscent of the strict hair and dress rules Gittany had made for the girlfriend he murdered. (14)At his trial, the court heard he had ordered Ms Harnum to dress and wear her hair in a way that would not attract undue attention from men. (15)Ms Louise passed through metal detectors to spend 90 minutes inside the prison with her lover in a visits room with other convicted inmates and men accused of crimes like robbery and rape. (16)Their visit was observed by prison officers in a room lined with security cameras. (17)Gittany was dressed in a white prison jumpsuit, which is backzipped to reduce the chance of visitors smuggling in drugs and other contraband to loved ones behind bars. (18)Accused Simon Gittany proposes to balcony-fall victim Lisa Harnum (19)[Picture] (20)[Picture] (21)Robust: Ms Louise had been at court throughout the trial but did not attend on the day that Gittany was sentenced (22)[Picture] (23)Composed: She has also denied having a similar appearance to Gittany's victim (24)Gittany was moved from Silverwater remand centre to Parklea last week following his sentence. Ms Louise declined to attend court on the day Gittany learned his fate. (25)'I think he will be so upset that I didn't go,' she told Channel Seven's Sunday Night programme. 'But, you know what, I supported him every single day I went. Just today was for me. I didn't want to go.' (26)Ms Louise also said that while she wanted to support Gittany, she would not wait around forever. (27)'I do want to start a family of my own one day, so I mean I'm not going to wait that long,' she said. (28)Asked how long she would wait before moving on she said: 'Right now I said he's got five years. Because 29, you know, going into 30s ... ' (29)[Picture] (30)Supplied camera footage obtained Monday, Oct. 21, 2013 of Simon Gittany holding a hand over Lisa Harnum's mouth moments before he threw her off an apartment balcony in Liverpool Street in Sydney on July 30, 2011. (31)[Picture] (32)Lisa Harnum, who died after being thrown from the 15th floor of Simon Gittany's Sydney apartment. (33)[Picture] (34)Extreme measures: Ms Louise plays dead during a television interview after challenging a reporter to lift her and prove her partner could not have throw Lisa Harnum off the balcony (35)[Picture] (36)Simon Gittany leaves the Supreme Court in Sydney in March 2013. Gittany was sentenced to 26 years in prison on February 10, 2014 for throwing Lisa Harnum to her death from a balcony. (37)'Simon would be the best father ever. He really would. He would be such a brilliant father,' she said. (38)The prison, surrounded by razor wire and patrolled by sniffer dogs, houses more than 800 adult male inmates. (39)Ms Louise made the visit along with Gittany's father, mother and two sisters. (40)She arrived in a green four wheel drive, the Gittanys driving up in two separate cars. (41)One of Gittany's sisters emerged first from the visit, followed by Gittany's parents, and lastly Ms Louise and another of the murderer's sisters. (42)The visit comes the day after Ms Louise's second paid interview was aired on Channel Seven, for a reported $150,000. (43)In Sunday's program, Ms Louise dismissed as 'rubbish' an eyewitness account of Ms Harnum's fall from the balcony of the luxury apartment she shared with Gittany. (44)She bizarrely re-enacted for the cameras how she believed would not have been possible for Gittany to throw her over the railing. (45)Ms Louise is allowed to visit Gittany at Parklea only twice a week, compared with the relative luxury of every day visits when he was awaiting sentence at Silverwater. (46)Gittany is unpopular among his fellow inmates, according to a Triple M radio report, in which an unidentified prison guard is recorded as describing the killer as 'a very disliked inmate'. (47)'He walks around like he didn't do it, ' the guard said. (48)The guard said that on the night Channel Seven played its first interview with Ms Louise protesting Gittany's innocence, maximum security prisoners in cells near Gittany's had hurled abuse at him. (49)Gittany 'kept to himself' in prison and is being held in a protection wing of Parklea, away from the main jail population where he might be at risk of being attacked because of the current publicity over Ms Louise's interviews. (50)Comments (18) (51)boredmummy wigan, United Kingdom, 3 days agoshe's the double of the girl he killed......this woman needs to wake up and realise that it's never going to end up happy with him.... (52)Carp01 Donacarney Co Meath, 3 days agoShe will b eviction no2 leave her to it (53)Kezza85 Uk, United Kingdom, 3 days agoJailed for 20+ years, yet you'll wait only 5, what on earth is the point in that? Move on, you're as good as saying you've got no future together. (54)Blitzkriea California, United States, 3 days ago...and here I thought the world's most deluded woman was Kim KarTrashian. (55)Samscott Brighton, 3 days agoShe's deluded (56)Bonny Argyll & Bute, 3 days agoshe's loving the media attention and furore (57)silversurfer Earth, United Kingdom, 3 days agoDoesn't matter what she believes. He's in there, locked up, where he belongs. (58)Pauline Liverpool, 3 days agoDeluded nincompoop (59)Hana K Sheffield, England, 3 days agoShe's probably been abused and doesn't want to accept that's he's actually a murder. Better run before he gets hold of you. (60)TheFoolOnTheHill Darlington, United Kingdom, 3 days ago(Raised Roger Moore-esque eyebrow) .... hmmm.... curious....

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: 24 October 2014

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