Second matter complained of
4A number of the matters complained of relate to an occasion when the plaintiff and the first defendant were apparently on a gambling trip together. The statements suggest that the first defendant believed that the plaintiff had taken $2000 of his money. The statements sued on reveal that the incident generated great bitterness and recrimination, the first defendant accusing the plaintiff of either dishonesty or, at the very least, discreditable carelessness.
5The defendants' first objection relates to the second matter complained of, which is one of the Facebook publications. In most cases, the Facebook publications are alleged to have been published by one of the defendants to 18 people including the other defendants. (The pleading requires some clarification in that respect. A list of persons is defined in the pleading as "the Facebook Recipients" but the pleading has not grappled with the fact that the audience necessarily shifts according to which defendant is alleged to have been the publisher on each separate occasion.)
6The second matter complained of is a lengthy message posted on Facebook by the first defendant. The message is in the second person, evidently addressed directly to the plaintiff. The relevant publication for the purpose of these proceedings consists in its allegedly being accessible to other Facebook users as well.
7The first three imputations relied upon by the plaintiff as arising from that message relate to the plaintiff's conduct in denying that he is a thief. The first defendant raises no objection to those imputations. The objections relate to imputations 6(d) and 6(e), as follows:
6(d) Mr Polias is an odious person.
6(e) Mr Polias is a person who deserves not to have any friends.
8Imputation 6(d) is alleged to arise from the following lines in the second matter complained of:
And I never spread any rumours about you. I told people the story exactly how it happened. I even left out events that occurred that would show just how bad of (sic) a person you truly are.
9Imputation 6(e) is alleged to arise from the conclusion of the matter complained of, as follows:
You are a lying, cheating, stealing, selfish, incredibly negative, self-pitying, bad person. Susan deserves better than you and you deserve to have no friends.
10The first objection was as to both form and capacity. Mr Rollinson submitted that imputations 6(d) and 6(e) identify no specific defamatory act or condition allegedly attributed to the plaintiff. He further submitted that the passages relied upon and indeed most of the matter complained of amounts to mere vulgar abuse. In that context, Mr Rollinson reminded me of the Court of Appeal's decision in Mundey v Askin [1982] 2 NSWLR 369.
11It is interesting to revisit that decision two days before the next Federal election. Sir Robert Askin was Premier of New South Wales and a member of the Liberal Party. When the Party opened its campaign in the general election which took place later that year, Sir Askin made a speech which included the following remarks (at 370B):
The 'real masters' of the Labor Party are Messrs Hawke, Mundey, Carmichael, Halfpenny and Crawford and all the rest of the left-wingers with a good sprinkling of commos. Fancy leaving the running of Australia - even if they do it behind the scenes - to that happy bunch.
But don't under-estimate some of these vermin.
Mr Mundey is the trade union official who is generally credited with having pressured Mr Whitlam into putting into his policy speech last Monday an undertaking to remove the penal clause from the Arbitration Act.
Is this the kind of person you want having a say in the running of Australia?
Because, make no mistake, it is abundantly clear that these are the kind of people who would be standing at the elbow of any Labor prime minister prompting and urging and threatening industrial turmoil and violence unless their demands were granted.
Don't let the public say they haven't had a full warning of the dangers of electing a Labor Government. It might seem innocuous on the surface, but it would be a prisoner and obey the dictates of the extreme left-wing.
12Mundey sued.
13At trial, the judge directed the jury that, if they thought any of the words complained of amounted to no more than vulgar abuse, it was open to them to take the view that the words were not defamatory of Mr Mundey. The jury evidently acceded to that proposition, expressly finding that the words were not defamatory. The plaintiff's appeal against the verdict was dismissed. The Court of Appeal held that there was no error in his Honour's direction to the jury that words might be abusive, vulgar or objectionable without being defamatory. The Court specifically endorsed the trial judge's remark that such words "might injure a man's pride without injuring his reputation" (at 372C).
14It must be recalled that Mr Mundey's action went to trial. On a preliminary capacity objection, the characterisation of words sued on in a defamation action as being "mere vulgar abuse" cannot supplant the test as to whether the matter complained of is capable of conveying the imputation in question. As noted in Bennette v Cohen, there is not a dichotomy between vulgar abuse and matter which is defamatory: [2005] NSWCA 341; (2005) 64 NSWLR 81 at [51] per Bryson JA; Beazley JA and Brownie A-JA agreeing at [1] and [60] respectively. Ultimately, the question is whether the jury could reasonably understand the matter complained of in the defamatory sense contended for: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52.
15Conversely, it does not follow that a capacity argument could never succeed in such a case. There will be instances in which the position is clear enough to conclude that abusive words are incapable of conveying any defamatory meaning. The Frenchman's taunt in the well-known Monty Python film may afford an example ("your mother was a hamster and your father smelled of elderberries").
16However, I do think there is a difficulty with the form of both imputations in the present case. The term "odious" means deserving to be hated or despised; the second imputation expressly rests on deserving a different fate (that of having no friends). Each is a conclusion; the imputation failing in each case to distil what act or condition of the plaintiff sustains it. An imputation that rests on saying what the plaintiff deserves without saying why is inherently problematic. The difficulty is revealed by a consideration as to what would be required to be proved in order to justify either imputation. I am satisfied that imputations 6(d) and 6(e) should be struck out as being bad in form.