New South Wales Supreme Court CITATION : Blake v John Fairfax Publications Limited & Anor [2000] NSWSC 883 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20279 of 2000 HEARING DATE(S) : 1 September 2000 JUDGMENT DATE : 1 September 2000 DOMINIC BLAKE (Plaintiff) v PARTIES : JOHN FAIRFAX PUBLICATIONS LIMITED (First Defendant) DAVID SYME & CO LIMITED (Second Defendant) JUDGMENT OF : Levine J R A Campbell (Plaintiff) COUNSEL : W H Nicholas Q.C. (Defendants) Gallagher de Reszke (Plaintiff) SOLICITORS : Freehills (First Defendant) Minter Ellison (Second Defendant) CATCHWORDS : Imputations - form - capacity - coincidence with words in matter complained of DECISION : See paragraphs 9 - 17 DLJ: 1 (Ex Tempore - Revised) [2000] NSWSC 883 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20279 of 2000 JUSTICE DAVID LEVINE FRIDAY 1 SEPTEMBER 2000 DOMINIC BLAKE (Plaintiff) v John Fairfax Publications Limited (First Defendant) DAVID SYME & CO LIMITED (Second Defendant) JUDGMENT (Imputations - form - capacity - coincidence with words in matter complained of) 1 HIS HONOUR: Mr Dominic Blake has instituted proceedings against John Fairfax Publications Pty Limited and David Syme & Co Limited in respect of a publication in what I will describe as the weekend supplement to the publishers' respective newspapers on 17 October 1999. 2 The article upon which Mr Blake sues bears a headline "Help yourself" and its theme, in very general terms, is citizens' arrests. 3 It is the paragraph numbered 3 at the end of the second column that specifically, as part of the whole article as I understand it, is relied upon as giving rise to the pleaded imputations. That paragraph is in the following terms: "Stunned. This is the citizen that went too far. Dominic Blake, of Woolloomooloo, Sydney, caught a 12-year-old boy throwing rocks at his house. He called the police, then used a stun-gun to give the boy electric shocks. Blake, 32, was found guilty of assault, causing actual bodily harm and possessing a prohibited weapon". 4 It can be taken that the imputations pleaded by the plaintiff are as follows: "(a) the plaintiff broke the law by the manner of his performing a citizen's arrest on a twelve year old boy. (b) the plaintiff caused actual bodily harm to a twelve year old boy and was convicted of that offence. (c) the plaintiff possessed a prohibited weapon and was convicted of that offence. (d) the plaintiff is a cruel person in that he inflicted electric shocks on a twelve year old boy; (e) the plaintiff was guilty of high-handed behaviour towards a twelve year old boy in the manner of his arresting the child for throwing rocks at his house". 5 This case is unusual in that it is, to my mind, one of those rare cases where the language of the matter complained of provides, in two respects especially, with precision, the imputations which could arise. Those imputations are (b) and (c), reworded, as follows, or to the following effect: "(b) the plaintiff was convicted of the offence of causing actual bodily harm to a twelve year old boy. (c) the plaintiff was convicted of the offence of possessing a prohibited weapon". 6 Unarguably, imputations in that form are capable of being carried by these publications. Imputations in those forms capture, if they need to be captured, the two matters that were of concern to the plaintiff; namely, the conduct and conviction for it. It is inevitably to be inferred from a conviction that the conduct in fact occurred. 7 The remaining three imputations (a), (d) and (e), I accept do not differ in substance, so that the three cannot survive. That there is available a third imputation I am persuaded arises from the chronology of the events, as stated in the subject paragraph in the article: the catching of the boy throwing rocks; then the police are called; then the stun gun is employed. To do what? To give the boy electric shocks. 8 On a capacity argument I am of the view that the presently pleaded imputation (d) is capable of being carried. Neither (a) nor (e) fairly or reasonably, in a substance sense, add anything more to what is in (d). 9 Accordingly, I strike out imputations (a) and (e) as not differing in substance to (d). I hold that imputation (d) is capable of being carried by the matter complained of and differs in substance from the imputations (b) and (c), as I have suggested they be redrawn. 10 Thus, the plaintiff has leave to file an amended statement of claim pleading, if he is so advised, imputations (b) and (c) in the suggested amended form, and the present imputation (d). That leave is to be exercised within seven days. 11 Within seven days of the filing by the plaintiff of an amended statement of claim, the defendants are directed to file their defences as to the issues to be determined by the jury pursuant to the orders I will shortly make under Pt 31 r 2. 12 It is to be noted, of course, that the requirement that those defences be filed is without prejudice to the right of the defendants in due course to file substantive defences consequent upon any jury's finding. 13 Pursuant to Pt 31 r 2, I direct that there be tried by a jury, the separate issues of fact as joined on the pleadings upon the filing of the amended statement of claim and the defences. 14 I place the matter in the holding list. 15 I note that the defendants admit publication of the matters complained of. 16 The defendants have succeeded, substantially and substantively, in their application, even if the outcome does not coincide with precision with matters that might have been the subject of correspondence. The glaring defect in the use of the word "grievous" was cured this morning and the defendants' application has, in effect, resulted in a proper and fair structuring of the plaintiff's pleading now for determination by the next tribunal. 17 The plaintiff is to pay the defendants' costs. *********** Last Modified: 09/27/2000 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.