MA CHING KWAN v JOHN FAIRFAX PUBLICATIONS PTY LTD [1998] NSWCA 282

MA CHING KWAN v JOHN FAIRFAX PUBLICATIONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and HANDLEY JJA

14 July 1998, 30 July 1998

DEFAMATION — PLEADINGS — IMPUTATIONS — AMBIGUITY — "WRONGFUL" — CAPACITY OF PUBLICATION COMPLAINED OF TO CONVEY PLEADED IMPUTATIONS

The defendant appealed by leave from a decision pursuant to SCR Pt31 that imputations pleaded by the plaintiffs were capable of being conveyed by the matter complained of.

HELD: (1) Imputations containing the word "wrongfully" should be struck out under SCR Pt15, r26(1)(b). Amalgamated Television Services Ltd v Marsden (1998) 43 NSWLR 158; Drummoyne MC vy Australian Broadcasting Corporation (1990) 21 NSWLR 135; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 applied. (2) An imputation that the first plaintiff was "the kind of person" who would act for a certain purpose did not differ in substance from an imputation that he had already acted for that purpose where the matter complained of stated unequivocally that this had already occurred. Accordingly it should be struck out under SCR Pt67, r11(3). (3) An imputation that the second plaintiff, a company controlled by the first plaintiff, "was prepared to assist" the first plaintiff was not reasonably capable of being conveyed by the matter complained of where this made it clear that the first plaintiff controlled the second plaintiff.

Mason P I agree with Handley JA. Meagher JA I agree with Handley JA.

Handley JA These are appeals by leave of this Court from two decisions of Levine J that imputations did not disclose causes of action reasonably capable of arising from the article complained of in the Financial Review of 17 January 1994.

In the first decision on 30 November 1995 the Judge held that imputations in the amended statement of claim did not arise but he granted leave to amend. The further amended statement of claim of 14 December 1995 was then filed but the Judge held that the re-pleaded imputations had not overcome the difficulties identified in his earlier decision and still did not disclose causes of action which could go to the jury. The appellants obtained leave to appeal against this decision, and presumably to avoid a res judicata objection sought and obtained leave to appeal out of time from the earlier decision. This was not necessary because the issues were not the same and the earlier decision was interlocutory.