New South Wales District Court CITATION: Lassanah v State of New South Wales (No. 2) [2009] NSWDC 100 HEARING DATE(S): 21 May 2009 JUDGMENT DATE: 21 May 2009 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ (1) Application by first defendant to strike out imputations 3(a)(i) and 6(a)(i) and for verified answers to particulars refused. DECISION: (2) First defendant pay plaintiffs' costs of the application. (3) Orders in accordance with the Short Minutes of Order filed in court. (4) Stood over for further directions to Friday 11 September 2009 at 9:00am. CATCHWORDS: Tort - defamation - "fall-back" imputations Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 CASES CITED: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Lassanah v State of NSW [2009] NSWDC 73 First Plaintiff: Michael Lassanah PARTIES: Second Plaintiff: Aaron Oddie (an intellectually disabled person) by his tutor Michelle Pearson First Defendant: State of New South Wales Second Defendant: LVMH Watch & Jewellery Australia Pty Ltd FILE NUMBER(S): 5370 of 2008 COUNSEL: Plaintiffs: Mr C J Dibb First Defendant: Mr D A Caspersonn SOLICITORS: Plaintiffs: Friend & Co Lawyers First Defendant: Henry Davis York Lawyers JUDGMENT 1. The first defendant challenges the form and capacity of imputations 3(a)(i) and 6(a)(i) as pleaded in paragraphs 3 and 6 of the Statement of Claim and seeks orders for verification of particulars of publication. The claim for defamation is brought only against the first defendant and the second defendant did not participate in the argument. 2. The text of the two matters complained of is set out in my previous judgment (Lassanah v State of NSW [2009] NSWDC 73). 3. The imputations pleaded in paragraph 3 are: (a) (i) The first plaintiff is a thief. OR (a) (ii) The first plaintiff is an attempted thief. (b) The first plaintiff intended to steal from the Tag Heuer Boutique Shop. (c) (i) The second plaintiff is a thief. OR (c) (ii) The second plaintiff is an attempted thief. (d) The second plaintiff intended to steal from the Tag Heuer Boutique Shop. 4. The imputations pleaded in paragraph 6 are: (a) (i) The first plaintiff is a thief. OR (a) (ii) The first plaintiff is an attempted thief. (b) The first plaintiff intended to steal from the Tag Heuer Boutique Shop. (c) (i) The second plaintiff is a thief. OR (c) (ii) The second plaintiff is an attempted thief. (d) The second plaintiff intended to steal from the Tag Heuer Boutique Shop. 5. Mr Caspersonn submitted that neither of the matters complained of state the plaintiffs are thieves, but only that they are being stopped before they attempt to steal. 6. Courts must approach the task of striking out imputations with great caution. If reasonable minds may differ as to whether or not the matter complained of is capable of conveying a defamatory meaning, then the application should be refused: Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186. 7. The first imputation is pleaded with the alternative, lesser imputation as a "fall-back". The pleader has clearly heeded the warning of Hunt A-JA in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [78]: " [78] If a plaintiff chooses to plead an imputation which is by no means assured of success without the alternative of a fall-back imputation, and if the jury does not accept it, there is much to be said — in compliance with Pt 1 r 3 — for the exercise of the discretion to refuse to allow the plaintiff to mend his hand at a second trial by pleading what should have been a fall-back imputation at the first trial and taking the chance that the defendant will not succeed in a plea of truth." 8. Given the context and language of this oral publication, whether the words convey the imputation that each of the plaintiffs is a thief, or only an attempted thief, is a matter for the jury. The first defendant's application to strike out imputations 3(a)(i) and 6(a)(i) is refused. 9. The plaintiffs supplied particulars of publication in paragraphs 2 and 5. These were that the words were spoken by police officers to the plaintiffs within the hearing of each other and within the hearing of unnamed passers by who stopped to watch. The first defendant has sought further particulars but the plaintiffs are unable to name these persons. The first defendant seeks an order that these answers to particulars be verified. 10. For reasons that I have set out in more detail in Moses v State of New South Wales (No. 2) [2009] NSWDC 99, in which the same counsel have appeared today, this application is rejected. 11. The plaintiffs have been entirely successful in this application and a costs order will be made in the plaintiffs' favour. Orders (1) Application by first defendant to strike out imputations 3(a)(i) and 6(a)(i) and for verified answers to particulars refused. (2) First defendant pay plaintiffs' costs of the application. (3) Orders in accordance with the Short Minutes of Order filed in court. (4) Stood over for further directions to Friday 11 September 2009 at 9:00am. ****** 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.