MALLIK v McGEOWN & ANOR [2007] NSWSC 438 | Case summary

1 HIS HONOUR: The plaintiff commenced proceedings by way of statement of claim filed on 27 June 2006 in which she claims damages from the defendants for alleged defamation. 2 The plaintiff alleges that on or about 25 October 2005, the defendants published an article concerning the plaintiff in what is described as the Cessnock Independent Newspaper (paragraph 2 of the statement of claim). 3 The article, reproduced in Schedule A to the statement of claim, was in the following terms:- "WITNESS SEES A GHOST OVER CREMATOR Therese Mallik of (sic) Nulkaba leader of the Nulkaba Residence Group against the cremator at St Patricks was one of a number of people who gave evidence at the Land and Environment Court held at Cessnock. In her evidence she claimed to have seen a ghostlike figure in the clouds. She said she was also concerned with issues raised in the site inspection on day one of the hearing which was part of the formal evidence given in court. Commissioner Stanford Watts after hearing all the evidence reserved his judgement (sic) which should be handed down in about three weeks as to whether the number of bodies burnt at St Patrick's cremator can be increased to 800. The owners of the cremator appealed against a decision by Cessnock City Council to reject an expansion application and to extend their operating hours and reduce the crematorium chamber from 900 degree to 700 degrees." 4 The plaintiff alleges that the matter complained of, in its natural and ordinary meaning, conveyed the following imputations:-

(c) The plaintiff was an irrational person whose word could not be believed in that she said she saw imaginary things. 5 On 23 April 2007, Ms L K Evans of counsel, who appeared on behalf of the defendants, requested the list judge to re-list the proceedings "… for the hearing of an interlocutory argument" (letter to the associate to the list judge dated 23 April 2007). The letter indicated that the defendants wished to argue "a capacity argument regarding the imputations". 6 There was no notice of motion filed, but the defendant relied upon a document entitled "defendants' Notice of Objections" which set out specific objections to the claimed imputations set out in paragraph 4 of the statement of claim. 7 The defendants' application was listed and heard before me on 2 May 2007. 8 Mr D A Caspersonn of counsel who appeared on behalf of the plaintiff, produced written submissions entitled "plaintiff's outline: general principles". Those submissions conveniently set out the relevant authorities including those that bear upon the question as to whether a matter complained of is capable of conveying relevant imputations to the ordinary reasonable reader. Mr Caspersonn, in that respect, relied in particular, upon the decision of the Court of Appeal in Ahmed v John Fairfax Publications Pty Limited [2006] NSWCA 6 at [12] to [13]. There, the Court of Appeal, set out the characteristics relevant to the concept of the "ordinary reasonable reader". Mr Caspersonn also relied upon the recent decision of the High Court in Favell v Queensland Newspapers Pty Limited (2005) 79 ALJR 1716. In particular, reference was made to the High Court's observations of two important principles based upon the decision in Lewis v Daily Telegraph Limited [1964] AC 234 to the following effect:- "Ordinary readers draw implications much more freely (than lawyers), especially when they are derogatory. That is an important reminder for judges …" 9 In addition, reference was made to the following:- "Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question." 10 Mr Caspersonn submitted that the approach at this stage of the proceedings is to allow for consideration of the jury, interpretations of the matter complained of provided that the interpretation is not so strained as to be unreasonable. He relied upon the observations of McColl JA in Ahmed (supra) at [62] wherein it was stated:- "It may not be a conclusion which all reader would reach, but that does not deprive the claimant of the opportunity of advancing it to a jury." 11 In relation to a decision to strike out imputations at this stage of the proceedings, Mr Caspersonn, relying upon relevant authorities (including Monte v Mirror Newspapers Limited (1979) 2 NSWLR 663 at 675), submitted that:- "This means for the imputation to be struck out it has to be 'so obviously untenable that it cannot possibly succeed' or be 'manifestly groundless' or 'doomed to failure'" (written submissions, paragraph 6). 12 It was further submitted on behalf of the plaintiff that a judge, in striking out imputations, should approach the exercise with "great caution". Mr. Caspersonn submitted:- "If reasonable minds might possibly differ about whether or not material was capable of a defamatory meaning, that would be 'a strong, perhaps an insuperable, reason for not exercising the discretion to strike out': Favell v Queensland Newspapers Pty Limited (supra) at [6]. Ahmed (supra) at [17]." 13 Following submissions by Ms Evans on behalf of the defendants, Mr Caspersonn concurred with my suggestion that the terms of paragraph [5] be reconsidered and that proposed amendments be drafted and sent to my associate. 14 By letter dated 3 May 2007, Mr Caspersonn confirmed that the plaintiff sought leave to amend the imputations in terms of proposed amendments attached to that letter, a copy which had been sent to Ms Evans. The document is in the following terms:- "PLAINTIFF'S PROPOSED AMENDED IMPUTATIONS (a) The Plaintiff was demented. (b) The Plaintiff gave false evidence in the Land and Environment Court that she saw a ghost in the clouds over the cremator. (c) The Plaintiff was an irrational person in that her word could not be believed because she said she saw imaginary things." 15 I have considered the proposed amended imputations in (a) and (c), and I am of the opinion that they appropriately meet the matters by way of objection raised by Ms Evans. In particular, the terms of proposed paragraph (a) remove any ambiguity that otherwise may have arisen. 16 In relation to proposed amendment (c), I am also of the opinion that the re-drafted paragraph appropriately expresses an imputation that is capable of being conveyed to the ordinary reasonable reader. The form in which it has been re-drafted, in my opinion, meets the particular objections that were taken and raised in relation to paragraph 4(c). 17 The proposed amended imputation set out in (b), however, raises particular problems. In particular, it raises the question as to whether or not the material complained of is capable of conveying to the ordinary reasonable reader a meaning that the plaintiff, in giving evidence to the Land and Environment Court, was a dishonest witness in the sense that her evidence was suggested as having been "false evidence". 18 In approaching this question, I bear in mind the full force of the principles which have been clearly and precisely expressed in Mr Caspersonn's written submissions. 19 The context and subject matter in which the alleged defamatory statements were said to have been made concerns a protest or objection by a resident action group against an application for the expansion of operations at the crematorium chamber referred to in the material set out in paragraph [3]. That objection was being heard in the context of formal proceedings in the Land and Environment Court. 20 The evidence referred to in the article which it is claimed was given to that Court by the plaintiff related, not to any suggested observations by her as to a factual matter or to any statement or representation which she claimed was made by some person or persons, but it concerned her alleged evidence of having seen "a ghost-like figure in the clouds". That reference is reflected in the headline to the article "Witness sees a ghost over cremator". By reference to the context, the headline and the subject matter of the article, I do not consider that it can be said that a reasonable reader would discern that the imputation was that the plaintiff gave false evidence as to the "ghost-like figure in the clouds" in the sense of dishonest or perjured evidence. I accept, however, the possibility of an allegation being pleaded that an imputation arises to the effect that the evidence the plaintiff is alleged to have given to the Land and Environment Court was worthless, absurd and/or lacking any credibility, in that, such evidence could not have been given by a rational or mentally competent person. 21 In the circumstances, I propose orders as follows:-

MALLIK v McGEOWN & ANOR

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Judgment (17 paragraphs)

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