MARKOU & ANOR v NATIONWIDE NEWS PTY LTD [2002] NSWSC 1055

New South Wales Supreme Court

CITATION : MARKOU & ANOR v NATIONWIDE NEWS PTY LTD [2002] NSWSC 1055 FILE NUMBER(S) : SC 20348 OF 2002 HEARING DATE(S) : 4 November 2002 JUDGMENT DATE : 4 November 2002

BILLY MARKOU (First Plaintiff)

SAM MARKOU (Second Plaintiff) PARTIES : v

NATIONWIDE NEWS PTY LTD (Defendant)

JUDGMENT OF : Levine J

C Evatt (Plaintiffs) COUNSEL : T Blackburn (Defendant) Paris J Carr & Associates (Plaintiffs) SOLICITORS : Blake Dawson Waldron (Defendant) CATCHWORDS : Imputations - rhetorical - s7A trial orders DECISION : See paragraphs 10-16

- 1 - DLJ:1 Ex tempore revised IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUSTICE DAVID LEVINE

MONDAY 4 NOVEMBER 2002

20348 OF 2002

BILLY MARKOU (First Plaintiff)

SAM MARKOU (Second Plaintiff)

v

NATIONWIDE NEWS PTY LTD (Defendant)

JUDGMENT (Imputations – rhetorical – s7A trial orders) 1 The plaintiffs sue in respect of a publication of 3 May 2002 by the defendant's Daily Telegraph newspaper. The article, which appeared on a page numbered 7, appears to bear a headline, "The top ten scandals in relation to the sport of Rugby League"; this is relied upon by the plaintiffs. 2 The balance of the matter complained of is paragraph 6, which bears a photograph of Bob Fulton and a caption identifying him. 3 The entry in relation to item 6 in "The Top Ten Scandals" is: "Entrenched as one of the game's immortals and making his way in the coaching ranks, Fulton was bashed by brothers Billy and Wayne Markou outside Sydney East's Leagues Club. The club had earlier cut the pair from the squad. Fulton got a severe hiding, needing medical attention. Charges were later laid". 4 The plaintiffs plead four imputations in relation to each of them. They are: (a) The first Plaintiff is a thug. (b) The first Plaintiff bashed Bob Fulton outside the Easts Leagues Club in 1980. (c) The first Plaintiff gave Fulton a severe hiding. (d) The first Plaintiff caused one of the top ten scandals in Rugby League. (f) The second Plaintiff is a thug. (g) The second Plaintiff bashed Bob Fulton outside the Easts Leagues Club in 1980. (h) The second Plaintiff gave Fulton a severe hiding. (i) The second Plaintiff caused one of the top ten scandals in Rugby League. 5 Imputations (a) and (c) have been abandoned. 6 In respect of imputation (b), I do not understand now the defendant to be advancing any proposition that it is either incapable of arising or incapable of being defamatory in respect of both clients. 7 Imputation (d), it is contended by Mr Evatt, differs in substance from imputation (b) in some way because by its terms it involves the notion of that which is clearly asserted in (b) and what is clearly asserted in the matter complained of, namely one of the top ten scandals. 8 Two matters are raised to defeat that proposition in my view. First, the imputation in each case, (d) (and (i)), is rhetorical and restates the essential sting, namely (b), in a way that adds nothing to that which would found any vindication to which the plaintiffs are entitled. 9 Second, the scandal is constituted by the events referred to in paragraph 6, and not in a way that elevates the precise event in some competitive or comparative way. 10 Accordingly the only imputation which will go to the jury and which I formally find as capable of being carried and capable of being defamatory is imputation 3(b) in relation to the first plaintiff and 3(g) in relation to the second plaintiff, with the additional words to be added. 11 I hold imputations (d) and (i) incapable of arising, and again note the abandonment of (a) and (c). 12 I direct the defendant within fourteen days to file a defence to the issues to be tried by a jury under s7A of the Defamation Act. 13 I direct the defendant to inform the plaintiffs within fourteen days whether or not it places in issue the fact that it published the relevant issue of The Daily Telegraph of 3 May 2002 containing the matter complained of. 14 Pursuant to Pt 31 r 2 I order a separate trial of the issues joined between the parties on those pleadings by a jury pursuant to s 7A of the Defamation Act. 15 The matter will be placed in the list for call up for the fixing of a s 7A trial at the expiry of fourteen days from today. 16 The plaintiffs are to pay the defendant's costs. **********