Sarma v The Federal Capital Press of Australia Pty Limited

DLJ: 1 (Ex Tempore - Revised) [2000] NSWSC 1010

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20390 of 2000

THE FEDERAL CAPITAL PRESS OF AUSTRALIA Pty Limited (Defendant)

JUDGMENT (Imputations - capacity - difference in substance - review of dance performance - particulars of aggravated damages) 1 HIS HONOUR: On 3 August this year the plaintiff instituted proceedings against the defendant claiming damages for defamation. 2 The publication upon which the proceedings are founded is a review of a dance performance. The review is by Michelle Potter entitled, "Works illustrating theme lacks spark and passion.". The subject line is, "Dance." The text is appended hereto. 3 The matter complained of is unarguably disparaging of the plaintiff. 4 In the imputations originally pleaded in paragraph 3 of the Statement of Claim, namely imputations 3 (a), (b) and (c) have been abandoned: "(a) The plaintiff as a dancer is a failure as a dance performer. (b) The plaintiff as a dancer has very little sense of rhythm. (c) The plaintiff as a dancer is not able to co-ordinate the various parts of her body so that they will all move rhythmically together". 5 The remaining imputation is: "3(d) The plaintiff as a dancer is incompetent as a dance performer". 6 The plaintiff seeks to rely upon a further imputation 3(e), namely: "The plaintiff failed as a dance performer because she did not display a capacity to communicate with the audience." 7 There are two objections to the proposed imputation 3 (e). The first is that it does not differ in substance from 3 (d); the second is the uncertainty of what is to be understood by the words of the imputation, "capacity to communicate with the audience." The better basis of complaint is the first. 8 It is not common that the court finds itself confronted with a publication in respect of which it can be said, as I have said earlier, that it is unarguably disparaging of the plaintiff. It is not common that such an article is capable of giving rise essentially, ultimately, fundamentally and globally, to one straightforward imputation. This is such a case. The imputation remaining of those originally pleaded captures, in my view, everything that is to be captured from the publication complained of. 9 I am not persuaded that the proposed imputation 3 (e) does anything more than in effect, on a realistic basis of English, leaving aside fine definitional questions or matters of uncertainty, than state what is in 3 (d). 10 Insofar as the plaintiff seeks leave to amend to add 3 (e), that application is refused. 11 The second component arising from this stark case, relates to the particularisation of the plaintiff's claim for aggravated damages. Of the particulars originally pleaded, particulars 2, 3, 4 and 5 have been abandoned: "2. The defendant's knowledge that the imputations were false. 3. The reckless indifference of the defendant to the truth or falsity of the imputations. 4. The excessive language, sensationalism and tone of the matter complained of. 5. The manner in which the defendant has treated the plaintiff which has caused her hurt or injury to be increased". 12 The remaining particular is, "Particular 6": "6. The conduct of the author of the article (Michelle Potter) who wrote the article set out in Annexure 'A' under the circumstances where she saw only the first half of the performance and did not see or attend the second half". 13 It is proposed to add an additional particular: "The headline and the setting out of the material complained of and its position in the newspaper together with the words of paragraphs 1 and 4-9." 14 The source for the proposed additional particular is, first, statements made by Hunt J in Waterhouse v 2GB Pty Ltd (1985) 1 NSWLR 58 at 79E. There his Honour was dealing with a particular in the following terms and said in relation to it: "(g) Unfair, extravagant and over-sensational manner of publication as evidenced by tone of voice, position and prominence in programme and timing of broadcast. Such matters are, in my view, capable of aggravating the injury to the plaintiff, in the sense of making that injury worse, and so are relevant to aggravated compensatory damages rather than limited to merely ordinary compensatory damages. Whether there is any evidence in this particular case which is fit to be considered by the jury cannot be determined in these proceedings. As they relate to the defendant's conduct (by the very terms of the particular), these matters - in order to qualify as material upon which an award of such aggravated compensatory damages might be awarded - must be capable of being regarded as unjustifiable, improper or lacking in bona fides. I decline to strike out this particular" 15 What his Honour there said was considered by myself in Harrigan v Jones [2000] NSWSC 814 (18 August 2000) in relation to the particulars set out in paragraph 63. What I said in paragraph 64 constitutes the second source for the proposed particular: "Particular 4: The excessive language, sensationalism and tone of the matter complained of. What does this particular inform the defendant about in relation to its conduct, the nature of that conduct in the relevant sense and the effect of that conduct upon the "relevant harm"? The answer must be "nothing". If the plaintiff is capable of particularising in a proper way this allegation to make it relevant and a matter of substance on the issue of aggravated damages he should do so and the matter will ultimately be determined at trial". 16 The particular with which I was concerned in Harrigan in its language and theme, as it were, was not dissimilar to that with which Hunt J was concerned in Waterhouse, but there I expressed the view as set out in paragraph 64, to the effect that as a particular it tells the defendant nothing. 17 Here, as I understand it, for the plaintiff it is said that these are the matters of fact in relation to the publication complained of itself in respect of which the conduct of the defendant in so publishing it in that way, it would be argued, was improper, unjustifiable and lacking in bona fides, thus entitling the plaintiff to aggravated compensatory damages claim on the assumption, of course, that she herself gives relevant evidence in that regard. 18 I accept the submission for the plaintiff that the form of this particular accords with what is I said in Harrigan. 19 A further submission was made by the defendant to the effect that there is a circularity to the proposition inherent in a particularised allegation of this kind. How does the "publication" of the article aggravate the damages flowing from the publication of the matter complained of? The plaintiff's cause of action is the imputation carried by whatever it is that the defendant has published, in this case, the review. Assuming all the usual things, the plaintiff would be entitled to compensatory damages. What the plaintiff is here asserting, as I understand it, is: I was injured in my feelings by the publication of the defamatory imputation conveyed by the matter complained of; my hurt feelings arising from that cause of action, or flowing from that publication, were made the worse, not by the fact that the publication carried the cause of action - which would be the circularity of which Mr Connell complains - but by those aspects of the publication which hurt my feelings, namely the headline, the position in the newspaper and the wording. 20 It is one thing to publish a defamatory imputation about which the plaintiff can complain as to her feelings being hurt, as Mr Evatt argued, on page 40 buried in a column somewhere. It is another to publish the matter carrying the same imputation on the front page with screaming headlines and other attributes which attract language often heard in relation to the tabloid publication or the yellow press. 21 Assuming that the use of the headline, et cetera, is improper, unjustifiable and lacking in bona fides, what the plaintiff is saying is: my feeling are the more hurt because of the way it was published. If this was a "strike out" application, I would decline to strike out particular 7. 22 I grant leave to amend the particulars to add it. 23 As to paragraph 6, that represents a matter that would no doubt receive much forensic attention in the event of this case being litigated. I assume for the moment that the position is that the reviewer only stayed for part of the plaintiff's performance and not the whole of it. As to why that is so, if it be so, is a matter of conjecture. 24 What the plaintiff is here particularising is conduct of the identified servant or agent of the defendant, Michelle Potter, in publishing the review which carries the imputation, (if it in fact found to be carried) in this way, as I understand it: my feelings were hurt by the publication of that imputation, and they were the more hurt by the conduct of the defendant, through that servant or agent, which properly can be characterised, by her not having stayed for the whole performance. I would not strike that particular out. I decline to do so. It seems to me it is a matter which, upon proof, could attract aggravated damages and it clearly, in my view, informs the defendant of the case it has to meet on that issue. 25 I make the following orders:

I direct that Practice Note 114 apply to this action.

I direct the plaintiff within 21 days to file an amended Statement of Claim.

The plaintiff is it pay any costs occasioned by the amendment.

I will the add that the amended Statement of Claim to which I have referred is to be filed and served by 5 pm on 9 November; the plaintiff is to deliver any affidavits in opposition to the defendant's motion to have the action cross-vested by no later than 5 pm on 9 November 2000.

The matter is fixed for argument on 10 November, 2000. ***********

Headline: Works illustrating theme of love lack spark and passion

Lead: Shringara, Vimala Sarma, Hawker College, April 30

Vimala Sarma's Shringara is the most " undancerly " dance performance I have ever had to review.

There are several reasons why this is so, but to the fore is that fact that Sarma has very little sense of rhythm in her body. Not only does she not move with the music, not frequently anyway, nor does she seem able to co-ordinate the various parts of her body so that they all move rhythmically together.

There isn't even a sense of being able to move rhythmically from one step or episode to another. Shringara , a program of works designed to illustrate the theme of love, was the work of someone who has some intellectual understanding of dance but who is unable to transfer that knowledge to the body. And dance is, quite simply, a physical art. Without the physicality it is non-existent.

More specifically, Sarma dances in the Kuchipudi tradition, the Indian dance style Canberra audiences became familiar with while Padma Menon lived and worked here. It is a vibrant form, passionately theatrical, seductive and extroverted.

Sarma did not display a capacity to communicate with the audience in this way. And again it comes back to the body. There was no precision in her hands and feet, no power in the trunk, no direction in the way the body moved around the stage, no sense of focus in the face, especially the eyes.

Just a softness, a weakness if you like, and an incredibly frustrating mannerism where the tongue kept flicking in and out.

Kuchipudi or ballet, Kuchipudi or tap, Kuchipudi or break dancing, it doesn't matter in the end what the style is.

If only the mind dances and not the body, it isn't dancing.

Last Modified: 11/08/2000 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.