New South Wales Supreme Court CITATION : Henry v Hill [2000] NSWSC 850 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20147 of 2000 HEARING DATE(S) : 25 August 2000 JUDGMENT DATE : 25 August 2000 JAMES HENRY (Plaintiff) PARTIES : v DAVID HILL (Defendant) JUDGMENT OF : Levine J J S Wheelhouse R Titterton COUNSEL : (Plaintiff) I R Duncan (Defendant) Middletons Moore & Bevins (Plaintiff) SOLICITORS : Lee, Hourigan & Brooks (Defendant) CATCHWORDS : Imputations - form - difference in substance - capacity - directions for s 7A jury trial CASES CITED : Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 DECISION : See paragraph 15 DLJ: 1 (Ex Tempore - Revised) [2000] NSWSC 850 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20147 of 2000 JUSTICE DAVID LEVINE FRIDAY 25 AUGUST 2000 JAMES HENRY (Plaintiff) v DAVID HILL (Defendant) JUDGMENT (Imputations - form - difference in substance - capacity - directions for s 7A jury trial) 1 HIS HONOUR: By a statement of claim filed on 20 April this year, Mr James Henry seeks damages for defamation from the defendant, Mr David Hill. The matter of which Mr Henry complains is a letter dated 31 October 1999 addressed to him as Chief Executive Officer of the North Sydney League's Club Limited written by Mr Hill on behalf of Save the Bears. 2 The first publication complained of is the distribution of that letter by the defendant to members of the Save the Bears committee. 3 Republication is also relied upon by reference to the attachment of the letter to a newsletter distributed in two states by Save the Bears together with an allegation of publication on the official Internet site of the Save The Bears Movement. 4 The imputations upon which the plaintiff relies as being carried in the natural and ordinary meaning of the letter are as follows: "a) That the plaintiff is a traitor to interests of supporters of the North Sydney District Rugby League Football Club Limited ("the Football Club"); b) That the plaintiff acted contrary to his duties and responsibilities as Chief Executive Officer of the League's club because he supported the Football Club no longer continuing in existence as an independent member of the competition conducted by the National Rugby League". 5 For the defendant it is contended, in relation to the first of those imputations, as I understand it, that it is unacceptable in form by reason of "vagueness" attending the word "traitor". I disagree with the submission that there is any vagueness, ambiguity or uncertainty in ordinary everyday English as to the meaning of the word "traitor". The imputation is good in form. 6 The second attack made upon it is that the matter complained of is incapable of conveying it. One foundation for that submission is the proposition that one must be either a member of, or closely associated with, the interests of an organisation in relation to which the allegation of treacherous behaviour has been made. In the context of this publication I am not concerned of course with the strict requirements of the law of treason but of the ordinarily understood meaning of the word. On a capacity basis it seems clear to me that the ordinary reasonable reader could not understand the first component, namely the "membership" component, if I could put it that way, as a requirement for the meaning of "traitor." 7 Secondly, the ordinary reasonable reader could understand the matter complained of clearly to be making the charge. That could arise and be understood from the theme of the letter as a whole and, in particular, for the disposition of the present application, from paragraph 15 of the latter. 8 In coming to that conclusion as to the availability as a matter of law of the first imputation, I have borne in mind the catalogue of considerations set out in the judgment of Hunt CJ at CL in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158. Particularly in the light of Mr Duncan's submission, I have borne in mind his Honour's adoption there, as his Honour has adopted elsewhere, the statement in Prosser on Torts, that "if reasonable persons may differ as to the conclusion to be drawn, the issue must be left to the jury" (at 164G). The submissions made by Mr Duncan conform with the application of that principle in the circumstances of this case. 9 The first imputation is good in form, as I have said. It is capable of arising, as I have ruled. For the purposes of another argument, in substance it makes a charge against the plaintiff of a personal nature, namely treason or being a traitor, but also being a traitor by reason of the fact that he was Chief Executive Officer of the North Sydney League's Club and in that capacity. 10 The second imputation is directed to the acts of the plaintiff (as described by the letter's author) in his capacity as Chief Executive Officer, in terms of his conduct contrary to his duties as such and responsibilities as explained by the second part of the imputation, namely "his supporting of the club no longer continuing to exist as an independent member of the competition conducted by the National Rugby League". I accept the submissions advanced by Mr Wheelhouse as to the difference in substance between (a) and (b). 11 The next issue is the capacity of the matter complained of to convey imputation 3(b). A fair and reasonable reading of Mr Hill's letter to Mr Henry as Chief Executive Officer could convey a meaning of the substance set out in imputation 3(b). Mr Hill could be understood as articulating quite clearly, and could be understood as a reasoning clearly, a course of conduct described by him as having been pursued by Mr Henry, as allocating a context for that course of conduct and certainly indicating the view he, Mr Hill, held of that course of conduct in that context. 12 The conduct and context are particularly available for consideration by a jury in paragraphs 5 6, 7, 8 to at least 12 of the matter complained of. No doubt when the matter is to be determined by the jury particular forensic attention will be given to imputation 3(b) by the representatives of the plaintiff and those of the defendant. Bearing in mind however the now well-known and well tested foundations for the consideration of capacity, the conclusion must be reached that this case is pre-eminently one for the determination of a jury. 13 Thus I hold, in respect of the argued imputations formally, first: each is good in form; second: they differ in substance; and third: each is capable of arising. 14 I grant leave to the plaintiff to file an Amended Statement of Claim within seven days pleading imputations (a) and (b), which I have found should go to the jury. 15 I make the following orders: 1. Pursuant to Pt 31 r 2 of the Supreme Court rules, I direct the separate trial on the issues of publication, whether in fact the matter complained of carries the imputations and whether the imputations found to have been carried out were defamatory, to be tried by a jury. 2. I place the matter in the Holding List. 3. No later than three weeks before the date fixed for the hearing of the Pt 31 r 2 separate trial by jury, the parties are to exchange outlines of evidence to be called by each side on any issues to be determined by the jury. 4. The parties will not, except with the leave of the trial judge, have liberty to call evidence outside the ambit of the exchanged outlines of witness statements. 5. Liberty to apply on three day's notice. 6. Within 14 days of the filing of the Amended Statement of Claim the defendant is to file a defence limited to the issues to be determined by the jury on the separate trial. 7. The plaintiff has leave to administer interrogatories, limited in total to no more than 30, in accordance with the Rules, on the defendant on the issue of publication and republication. Those interrogatories are to be delivered within 21 days of the service by the defendant of the limited defence to which I have made reference in the order above and are to be answered by the defendant with within 21 days. 8. The defendant is to pay the plaintiff's costs of today. *********** 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.