New South Wales Supreme Court CITATION : Dodson v Nationwide News Pty Limited [1999] NSWSC 312 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20432 of 1998 HEARING DATE(S) : 19 March 1999 JUDGMENT DATE : 19 March 1999 PATRICK DODSON (Plaintiff) PARTIES : v NATIONWIDE NEWS PTY LIMITED (Defendant) JUDGMENT OF : Levine J COUNSEL : T Blackburn (Defendant) Gilbert & Tobin (Plaintiff) SOLICITORS : Blake Dawson Waldron (Defendant) CATCHWORDS : Imputations - capacity - difference in substance - Defamation Act, 1974 s7A(2) ACTS CITED : Defamation Act, 1974 (as amended) DECISION : See paragraphs 8-12 DLJ : 1 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20432 of 1998 JUSTICE DAVID LEVINE FRIDAY 19 MARCH 19999 PATRICK DODSON (Plaintiff) v NATIONWIDE NEWS Pty Limited ACN 008 438 828 (Defendant) JUDGMENT (Imputations - capacity - difference in substance - Defamation Act, 1974 s 7A(2)) 1 HIS HONOUR: Amendments have been made to the imputations pleaded in paragraphs 4 and 6 of the Statement of Claim which, I gather, to a great extent, have eliminated areas of dispute that hitherto existed. Imputation 4(d): delete the word " underprivileged" and insert " Aboriginal Community ". Imputations 6(a), (b), (c) and (d): substitute the word " organise " for " run ". Imputation 8(e): delete the word " underprivileged". 2 In relation to the imputations as pleaded in paragraph 4 arising from the first publication (Schedule A), I am not persuaded that the use in the imputations relevantly of the word " run " a two day conference, is incapable of arising merely because in the body of the matter complained of, there is reference to, amongst other things, 28 days of preparation (in line 23) and 20 days of post conference implementation (in lines 4 and 5). 3 On the capacity argument, the imputations in that respect are reasonably available by virtue of the reasonably arising sting as to the " fee" , vis a vis, a two day conference. The ordinary reasonable reader, on reading the whole of the matter in my view would not be induced by its totality to focus on " pre" and " post" periods to the elimination of that critical two day factor. 4 As to the second component in relation to the imputations pleaded in paragraph 4(a), that the matter is incapable of conveying anything to the effect that Mr Dodson charged " personally" the amount in dispute by reason of there being reference to his company, again, the ordinary reasonable reader could, on reading the matter complained of, with facility, come to the conclusion that it was personalised in terms of a payment of the $81,000 and the mention of the consultant " firm" in my view would not derogate from that. Imputations 4(a) to (e) will go to the jury. 5 In relation to the imputations pleaded in paragraph 6 arising from the second matter complained of, the objection is taken to imputations (b) and (e) in that they do not differ in substance. Those imputations read: "6(b) that the plaintiff overcharged for his consultancy services by having personally charged $81,000 to run a two day conference which had no agenda for the one of the two days other than a five hour dinner; (e) that the plaintiff is such a greedy person that he had overcharged by about $50,000 more than the standard applicable in the conference organisation industry". 6 Of this I am not persuaded. In relation to this matter complained of, by reason especially of the component in the latter imputation of the reference to conference organisation " industry standard" which can be contrasted with in (b) for example, the running of a two day conference which had no agenda for one day, other than a five hour dinner, there is the requisite difference. The imputations pleaded in paragraph 6 will go to the jury. 7 The remaining argument relates to imputations pleaded in paragraph 8 arising from the third matter complained of. That could be disposed of by the capacity argument in relation to imputation (f) where it is contended by the defendant that the component of " fraudulently " is incapable, on a reasonable basis, of arising notwithstanding the one reference to the word " fraud " in line 10 of Schedule C to the Statement of Claim. Whilst it might be arguably suggested for the plaintiff that it appears, or could appear, rather that lines 8 to 10 are irrelevant to the theme, the view available to that effect would not be sufficient in my view to sustain the component of " fraudulently" in imputation 8(f). Certainly that which is pleaded in paragraph 6 is capable of arising from the whole of the matter, not indeed excluding line 1 which refers to greed. But, in the instant article, notwithstanding its brevity, the use of the word " fraud " on a reasonable reading gives focus to the matter being dealt with by ICAC and it would not be a reasonable reading to extrapolate from that one reference, that quality to the plaintiff. 8 Imputation (f) as pleaded I find to be incapable of arising. 9 Imputations (a) to (e) will go to the jury. 10 This is the first occasion where, since a ruling in the trial I am hearing, the issue has arisen where I find that a pleaded imputation is incapable of being conveyed. Hitherto, it has been the usual practice that the order is made that the imputation does not go to the jury. Section 7A of the Defamation Act, subsection 2(a) says: "If the Court determines that the matter is not reasonably capable of carrying the imputation pleaded by the plaintiff, the Court is to enter a verdict for the defendant in relation to the imputation pleaded ". That is the view I have, unless someone persuades me otherwise. Accordingly I will enter a verdict for the defendant in relation to imputation 8(f). To make it clear, I accept the defendant's proposition in relation to " fraudulently " in relation to imputation 8(f) and I enter the verdict accordingly. 11 I am not however persuaded that the motion of " dishonestly" is incapable of arising. 12 The defendant in my view should pay the plaintiff's costs of today as it has predominantly failed. The parties have liberty to file by consent orders and directions in the Registry. Liberty to restore the matter to the defamation list on three days' notice. ********** Last Modified: 04/08/1999 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. 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