New South Wales Supreme Court CITATION : Horner & Anor v Goulburn City Council & Anor [2000] NSWSC 1012 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 21287 of 1996 HEARING DATE(S) : 27 October 2000 JUDGMENT DATE : 27 October 2000 RONALD DEAN HORNER (First Plainiff) NEVILLE ROY USHER (Second Plaintiff) PARTIES : v GOULBURN CITY COUNCIL (First Plaintiff) HAROLD ROSEVEAR (Second Defendant) JUDGMENT OF : Levine J A Leopold (Plaintiffs) COUNSEL : M Lynch (Defendants) Erlington Boardman Allport (Plaintiffs) SOLICITORS : Cowley Hearne (Defendants) CATCHWORDS : Capacity to defame - oral publication - true innuendo - SCR Pt 31 application refused - transfer to District Court DECISION : See paragraphs 15 to 18 DLJ: 1 (Ex Tempore - Revised) [2000] NSWSC 1012 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 21287 of 1996 JUSTICE DAVID LEVINE FRIDAY 27 OCTOBER 2000 RONALD DEANE HORNER (First Plaintiff) NEVILLE ROY USHER (Second Plaintiff) v GOULBURN CITY COUNCIL (First Defendant) HAROLD ROSEVEAR (Second Defendant) JUDGMENT (Capacity to defame - oral publication - true innuendo - SCR Pt 31 application refused - transfer to District Court) 1 HIS HONOUR: It was on 5 December 1997 that I dealt with an imputation and capacity argument in this matter, making the orders set out on page 7 of that judgment. 2 In a document in respect of which orders will be made, namely a Second Further Amended Statement of Claim, the plaintiffs, by Schedule C thereto, set out a publication constituted as pleaded, which I emphasise, by the words, "What is your relationship with the Human Resources Manager?" 3 The publication, which was oral, took place at a Performance Review Committee meeting and is said to be defamatory by reason of the recipients of the published words having knowledge of certain extrinsic material. That material is Schedule A to the pleading, which schedule has, as one of its components, a document headed, "Morale". That document, headed "Morale," is also Schedule B of the proposed pleading. That document was the document with which I was concerned in my judgment of 5 December 1997. 4 What is sought to be done by the defendant today is to have separately determined, pursuant to SCR Pt 31, the question of law as to whether the imputation set out in the proposed pleading is capable of arising from Schedule C, the oral publication to which I have referred. The plaintiff does not consent to that separate trial. 5 The use of separate trials Pursuant to SCR Pt 31 has been quite liberal over the last 20 or so years in dealing with cases where certain facts are assumed for the sake of the argument. This more often than not arises in relation to identification or, more appositely, to true innuendo cases. 6 To my recollection this is the first time a question has arisen as to whether there should be a Pt 31 separate trial in relation to a publication that is, (1), oral and, (2), the cause of action is founded upon a true innuendo. 7 The words pleaded are certainly capable of being understood in one of the ways Mr Lynch has argued, namely, as being "quite neutral". 8 Be that as it may, in relation to an oral publication of such brevity, in a context affected by extrinsic facts constituted by other publications complained of, it seems to me that the determination of the capacity question, if there was an order made under Pt 31, would be in a context that could not lend itself to a fair or reasonable disposition of that question of law. 9 This is a case in which there would be perils in making assumptions about the utterances of the publication and inappropriate at this stage openly to embark upon that assumption making course to that end. 10 I decline, therefore, to make an order under Pt 31 for separate determination of that matter. 11 The plaintiff seeks to further interrogate the second defendant consequentially upon the new wording of an old imputation. It seems to me appropriate and necessary for the plaintiffs to deliver this interrogatory to the second defendant and for him to be required to answer it. 12 As to the interrogatories on behalf of the plaintiffs sought to be answered by the first defendant, interrogatories 1, 2 and 3 relate to what are described as new publications. In regard to interrogatories 5 and following, leave is sought, as a result of an objection taken to past interrogatories of the same substance to re-administer with the opening words in interrogatory 5 now constituted by the words, "On or before 5 June 1996." 13 Mr Lynch has succinctly stated: "Enough is enough," a submission in opposition, which would in the normal course attract immediate sympathy and attention. The formal basis for the leave being sought to deliver these interrogatories, however, is sufficient to warrant the grant of leave and I grant that leave. 14 For reasons I have already indicated, the court is now in a position to deal with the short minutes of order handed up at the beginning of these proceedings. 15 I make orders 1, 2, 3, 4, 5, 6 and 7. I vary orders 6 and 8 by substituting for 24 November, 15 December, 2000. 16 I make order 10. 17 I make an order that otherwise costs be costs in the cause. 18 The final order I make is that set out in paragraph 9 that these proceedings be transferred to the District Court. *********** 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.