Strasberg v Westfield Ltd [2002] NSWSC 340 | Case summary

JUDGMENT (Oral publications - imputations - capacity - form - difference in substance - false imprisonment - pleading requirements) 1 The plaintiff sues in respect of two oral publications on 27 September 2001 at the Hornsby Westfield Shopping Centre, and a written publication dated 2 October 2001. 2 By reference to a proposed Amended Statement of Claim the plaintiff seks leave to file, and in general terms, it would appear that on or about 27 September 2001 the plaintiff was at the Hornsby Westfield Shopping Centre and an "incident" occurred. 3 The first oral publication sued upon is in the following words attributed to one Rebecca Remoundis: "There have been complaints about you. You are dressed in a provocative manner. You are dressed inappropriately. It is offensive. Your skirt is too short". 4 From the Particulars of Publication it can be understood that the plaintiff is alleging that the words were spoken to her in a loud and audible voice in the hearing and/or sight of many other shoppers and persons present or passing by. The names or identity of such shoppers and passers by are not known to the plaintiff. It is alleged that while the words were spoken by Ms Remoundis, described as a security officer, that person pointed in the direction of the plaintiff and her mini skirt. The plaintiff says at the time she was "surrounded" by other security guards. 5 The plaintiff contends that the first matter complained of carries the following defamatory imputations of her: "4(a) The Plaintiff dressed in such an inappropriate manner that complaints were made against her and she was censured by Westfield Security Officers; (b) The Plaintiff dressed in such a provocative manner that complaints were made against her and she was censured by Westfield Security Officers; (c) The Plaintiff was not respectable because she wore a skirt which was too short; ( d) The Plaintiff is immoral; (e) The Plaintiff so conducted herself she was suspected by the staff of Westfield Hornsby of being a prostitute; (f) The Plaintiff so conducted herself she was suspected by the Westfield staff of soliciting; (g) By wearing a mini skirt the Plaintiff engaged in offensive conduct; (h) The Plaintiff is a shoplifter". 6 The second oral publication is said to have taken place "later on the same day", the words being uttered by the servant or agent of the defendant, Michael Beckworth, in the presence "and with the approval" of one Tony Poile. The words attributed to Mr Beckworth were: "You are wearing a short skirt. It is inappropriate dress. There have been complaints. Your skirt is too short". 7 It is to be understood from the Particulars of Publication that Mr Poile "indicated his approval of what was said" and that while the words were spoken the two persons, presumably Mr Beckworth and Mr Poile, pointed at the plaintiff's mini skirt. 8 The plaintiff says that this second oral publication carried the following defamatory imputations of her: "6(a) The Plaintiff dressed in such an inappropriate manner that she caused complaints and was censured by a Westfield Security Officer; (b) The Plaintiff was not respectable because she wore a skirt which was too short; (c) The Plaintiff is immoral; (d) The Plaintiff so conducted herself she was suspected by the staff of Westfield Hornsby of being a prostitute; (e) The Plaintiff so conducted herself she was suspected by the Westfield staff of soliciting". 9 The text of the third matter complained of, which on its face appears to be an internal memorandum from Westfield to retailers and bears the date 2 October 2001, is as follows: "Retailer Update A Current Affair This evening's edition of A Current Affair will feature Marianne Schwartz and her inappropriate dress standards. This bias (sic) account of Marianne's encounter with Westfield centre management neglects to explain her unfavourable intentions. Westfield has unwillingly been used by Marianne as a vehicle to promote her modeling and Cadillac advertising business. Marianne has pursued the story with 2UE, The Daily Telegraph and A Current Affair to publicise her business at Westfield's expense. The story also fails to mention that Westfield security at no time asked Marianne to leave the centre. She we simply informed that centre management had received five customer and three retailer complaints regarding her attire. Westfield Hornsby has chosen not to comment on this issue and will continue to adopt this stance with the media. Please refer all customer comments to Tasma Boyd at centre management on 9477 5111". The document is signed by Therese Keys, Centre Manager of Westfield Hornsby. 10 The plaintiff alleges that this publication was distributed to about 200 retailers in the shopping centre. 11 The plaintiff contends that this publication carried the following defamatory imputations of her: "8(a) The Plaintiff's dress standards were so inappropriate that Centre Management received complaints regarding her attire; (b) The Plaintiff unjustifiably had unfavourable intentions towards the Westfield Hornsby Shopping Centre. (c) The Plaintiff deceitfully used Westfield Hornsby Shopping Centre as a vehicle to promote her modelling and Cadillac advertising business; (d) The plaintiff has unfairly pursued a story with 2UE, The Daily Telegraph and "A Current Affair" to publicise her business at Westfield's expense". 12 Paragraph 10 of the proposed Amended Statement of Claim contains a count said to be of false imprisonment. The plaintiff alleges that the defendant by itself, its servants and agents "falsely imprisoned the plaintiff and deprived her of her liberty". 13 The following Particulars are provided: "While the Plaintiff and her husband Joe were on the premises the security manager said to the Plaintiff words to the effect "stay here, wait and don't move". The security manager then went away leaving the Plaintiff surrounded by security guards who stood in an intimidating, menacing and harassing manner. The Plaintiff was forced to remain imprisoned". 14 A substantial number of objections has been taken by the defendant to various components of the Pleading. 15 The first easily can be dealt with: in paragraph 2 it is alleged that "on or about 27 September 2001 the Plaintiff was lawfully upon the premises of the Hornsby Westfield Shopping Centre". Thereafter there occur the words "…and was wearing a mini skirt and other clothing". I accept the submission for the defendant that the second component of the allegation is embarrassing and irrelevant. On its face it appears to have nothing to do with either cause of action in defamation or false imprisonment. It may be a matter of more detailed particularisation in relation to one or other or both counts. It should not be pleaded. 16 As to the imputations, the defendant approaches its objections and contentions, I assume, on the basis that the plaintiff can in fact prove the oral statements were published as particularised. Could the ordinary reasonable listener (and witness to the particularised event) understand what was heard to mean what is pleaded? 17 As to imputation 4(a), as a matter of form, it is said to be "rolled up". That is by reason of the phrase "…and she was censured…", the phrase involves an interpretation of what was "going on". Further, "censured" lacks precision. With these propositions I agree. 18 However (assuming the phrase was excluded), and considering the words said alone, clearly they are capable of carrying the meaning asserted. Also am I of the opinion that such a meaning is capable of being defamatory. 19 I have come to this conclusion upon the application of the usual tests which, in submissions, were usefully summarised and bear repetition. The standard for determining whether the imputation is capable of being conveyed is that of a reasonable person: Jones v Skelton (1963) 63 SR(NSW) 644 at 650-651; Lewis v Daily Telegraph Ltd [1964] AC 234 at 260 per Lord Reid ("ordinary man, not avid for scandal" ); and the early authority of Slatyer v Daily Telegraph Newspaper Co (1907) 7 SR(NSW) 488 at 504 ("reader of average intelligence"). In deciding whether any particular imputation is capable of being conveyed or is conveyed the question is whether it is "reasonably" so conveyed (see s 7A (1)): Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165B-C, 166F. Strained, forced or unreasonable interpretations must be rejected (Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165C) and ordinary words with a well-known meaning should not be twisted from their normal sense: Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 at 302. Extremes of suspicion and cynicism, on the one hand, or naivety and disbelief on the other, are excluded and irrelevant: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 531, 573. Speculation by the reader and "judgments or conclusions which he may reach as a result of his own beliefs and prejudices" do not bear on the meaning of the matter complained of: Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 at 301. Although the defendant will be liable for inferences which the ordinary reasonable listener reasonably draws from the matter complained of, any imputation which the listener derives only by a process of inference upon inference is not "reasonably" capable of arising: Marsden at 43 NSWLR 167E-F; Harrison at 149 CLR 299-300. 20 As to imputation 4(b). This imputation is bad in form, it is "rolled up", for the same reason as stated in respect of imputation 4(a). I do not consider however that this imputation is the same in substance as imputation 4(a). Different words were used by the speaker and could in my view be understood reasonably as differing in import and separately could be justified; Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36 at 41F per Hunt J. As to any lack of specificity, each word is contained in the manner complained of and is in my view a classic instance of the application of the principles in Drummoyne Municipal Council v The Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137A-138F per Gleeson CJ. 21 Imputation 4(c) is an imputation made up of an allegation of misconduct in general terms; it appears to be based upon a single incident. A description of one specific incident is incapable of supporting any imputation expressed in terms of general application: Boyd v Mirror Newspapers Ltd (1980) 2 NSWLR 449 at 455F (see also Singleton v John Fairfax and Sons Ltd, unreported, Hunt J, 20 February 1980 at 6-7). This imputation is not available to the plaintiff. 22 Imputation 4(d) is not available to the plaintiff for the reasons set out in relation to imputation 4(c). 23 Imputation 4(e) is simply not capable of arising from the matter complained of because, in the light of the way the plaintiff has pleaded her case, the spoken words are critical and are incapable of carrying such a meaning. The publication pleaded cannot lend itself to such an unreasonable, strained and forced meaning. 24 Imputation 4(f) suffers from the same vice that impugns imputation 4(e) and does not in my view differ in substance from it. If by "soliciting" something other than conduct in the ordinary way associated with being a prostitute is intended, it has not been specified. 25 As to imputation 4(g), I am of the opinion that it does not differ from either (a) or (b) even though it is "incident specific" and is otherwise, in my view, capable of being defamatory. 26 As to imputation 4(h) this simply cannot arise. The words of the imputation point to a perception of events as distinct from the words used. That perception of events might arise from the plaintiff having been surrounded by security officers in the shopping complex; the imputation cannot arise from the spoken words relied upon. I add that I have difficulty in reconciling a charge of in effect being scantily clothed and being a shoplifter, but nothing turns on that. 27 I turn to the second oral publication in respect of which the general observations I made in relation to the first also apply. However in the second oral publication the word "inappropriate" only is used. Save for the same defect in form, imputation 6(a) would otherwise be available and would otherwise be defamatory. 28 As to imputation 6(b) and 6(c) these are generalised allegations arising from a specific incident and are not available to the plaintiff for the reasons stated in respect of imputations 4(c) and (d). 29 In relation to imputations 6(d) and (e) the same consideration apply as referred to in 4(e) and (f). The imputations do not differ in substance, one from the other, but I am not persuaded either that they are capable of being carried to the ordinary reasonable listener. 30 The third matter complained of is the written communication of 2 October 2001. 31 The first difficulty confronting the plaintiff is the question of identification. The plaintiff in the action is not named in the matter complained of; there is a coincidence between the given name of the plaintiff and the given name of the person referred to in the publication but not the surname. Presumably the plaintiff is to rely upon extrinsic facts to identify her in the usual way. Particulars of those facts, especially given the pleaded limited nature of publication and subject to the grapevine effect to which I will return below, are required. The plaintiff must nominate the persons to whom the relevant facts were known and (by name and address) or by reference to a class with an example of that class (Moore v Australian Broadcasting Commission (1985) A Def R 50010). 32 The plaintiff is also relying, as I have said, on the "grapevine effect" on the extent of publication. The first two publications are extremely limited in nature and indeed the plaintiff is unable to particularise the number of people who are said to have heard the words spoken. As to the third publication the plaintiff has particularised approximately 200 original recipients. It is incumbent upon the plaintiff, the more so in these circumstances, to provide particulars of the basis upon which reliance is placed upon the "grapevine effect": Williams v Radio 2UE Sydney Pty Ltd, Levine J, unreported 3 December 1993; see also Nugawela v Crampton, Levine J, unreported, 31 January 1996 and 6 February 1996.

33 In relation to imputation 8(a) the defendant simply contends that it is incapable of being defamatory. The argument must fail on any test of reasonableness. When one takes into account the context, Greek Herald Pty Ltd v Nikolopoulos & Ors [2002] NSWCA 41 at paragraphs 19-26 per Mason P, the non-availability of this submission is the more compelling. 34 As to imputation 8(b): with respect to this imputation and indeed imputations 8(c) and 8(d) in which the words "deceitfully" and "unfairly" are respectively used, the defendant argues that each is ambiguous in the same sense as "improperly", 'wrongly" and "wrongfully" and that this is not a case in which the context in which they are used makes clear the intended meaning (and the degree of wrongfulness involved): McCormick v John Fairfax and Sons Ltd (1989) 16 NSWLR 485 at 494F. 35 The written publication is curiously worded and indeed could be taken as quite "opaque" in parts. Certainly the words "unfavourable intentions" are used and reference is made to Westfield having been "unwillingly" used by the person referred to in the matter complained of to promote her modelling and Cadillac advertising business. None of the adverbs used in the imputations is in fact contained in the matter complained of. That does not preclude their employment provided that the meaning is otherwise clear from the context. 36 I have come to the view in relation to imputation 8(b) that there is no warrant on the application of the reasonableness test to state that the having of unfavourable intentions was "unjustifiable". One might ask when unfavourable intentions might be "justifiable". It is a meaningless qualification to the words in fact employed in the communication. There is no reference in the communication and I do not consider it capable of being inferred that the "intentions" were necessarily directed towards Westfield Centre. I am of the view that the plaintiff has been at pains to strain to get a meaning as encapsulated in imputation 8(b) and this is incapable of arising. 37 I am not persuaded however that similar considerations apply in relation to 8(c). The communication refers to Westfield having "unwillingly" been used. That is capable of giving rise to a suggestion of a trick having been played upon it by the plaintiff. This imputation is "close to the line" but on a capacity basis I am not prepared to hold that it would be incapable of being carried. Insofar as it was suggested that in some way the notion of "at large" applies to the employment of the word "deceitfully" or anything else in relation to the imputation the relevant part of the matter complained of to which I have referred provides a reasonable constraint upon that notion. 38 As to imputation 8(d) the use of the word "unfairly" does create a problem. Certainly the person referred to in the matter complained of has pursued the "story" with the instruments of the media to publicise her business at Westfield's expense. Whence comes the notion of "unfair"? Insofar as there is a reference to "bias" that can only be clearly understood to be that of the producers of A Current Affair because the account in that programme neglects to mention the unfavourable intentions. It does not on an ordinary reasonable reading to my mind, give rise to the notion of any "unfairness" in the plaintiff in pursuing the story. 39 Accordingly, imputations 8(b) and 8(d) are incapable of being carried by this rather odd communication. 40 The plaintiff also sues the defendant for the tort of "false imprisonment". 41 As the defendant has submitted the tort purportedly sued upon is an intentional tort being a species of trespass to the person and intention to detain is a necessary element of the cause of action: see Cowell v Corrective Services Commission (1988) 13 NSWLR 714 at 743E-744B per Clarke JA. The plaintiff has not pleaded this and to that extent the formulation of the material facts is deficient. Further in the absence of "physical barriers" to the plaintiff's "escape", the plaintiff can only succeed if she can establish an honest and "reasonable" belief that her "rights" of movement had been taken away: Lippl v Haines (1989) 18 NSWLR 620 at 638D per Hope A-JA. 42 The complaint that the plaintiff has failed to aver the material facts that would give rise to a finding of intentional imprisonment is well merited. If the plaintiff proposes further to rely upon the "reasonable belief" to which I have referred above this should be specified as well. 43 A further deficiency in the pleading of the material part of the tort of false imprisonment is an inherent ambiguity in the reference to "at the time abovementioned". There are two times "abovementioned" as I understand from the counts in defamation. Neither time is specified with any exactitude nor is location. Paragraph 3 refers to the first oral publication but, more significantly, paragraph 5 refers to a publication "later on the same day". In the context of the opening words of paragraph 10 (where false imprisonment is purportedly pleaded) the ambiguity is stark. 44 The defendant in my view is entitled to have properly pleaded the material allegations to found the tort and to have particularised the matters of the kind to which I have just referred. It is unhelpful to the defendant, for example, to include in the particulars an expression "that the plaintiff was forced to remain imprisoned". That is a conclusion that might be found upon a relevant series of particularised facts being established on the evidence. 45 The context in which these all matters was argued was the plaintiff's desire to file an amended Statement of Claim and it is to the body of that document that these observations have been directed. 46 The defendant clearly has succeeded in the bulk of the matter. 47 Accordingly, the formal orders are:

The plaintiff has leave to file an Amended Statement of Claim within 21 days of today in accordance with these reasons.
The plaintiff is to pay the defendant's costs.
The matter is stood over to the Registrars Defamation Directions List on 31 May 2002. **********

Strasberg v Westfield Ltd

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Judgment (10 paragraphs)

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