ZUNTER v JOHN FAIRFAX PUBLICATIONS PTY LTD [2002] NSWSC 1054

New South Wales Supreme Court

CITATION : ZUNTER v JOHN FAIRFAX PUBLICATIONS PTY LTD [2002] NSWSC 1054 FILE NUMBER(S) : SC 20316 OF 2002 HEARING DATE(S) : 4 November 2002 JUDGMENT DATE : 4 November 2002

JOHN ZUNTER (Plaintiff)

PARTIES : v

JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant) JUDGMENT OF : Levine J

C Evatt (Plaintiff) COUNSEL : T Blackburn (Defendant) Russell McLelland Brown (Plaintiff) SOLICITORS : Freehills (Defendant) CATCHWORDS : Imputations - capacity - form LEGISLATION CITED : Defamation Act 1974 CASES CITED : Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Drummoyne Municipal Council v Australian Broadcasting Commission (1990) 21 NSWLR 135 DECISION : See paragraphs 8-13

- 3 - 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

20316 OF 2002 JOHN ZUNTER (Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant)

JUDGMENT (Imputations – capacity – form) 1 The plaintiff has instituted proceedings against the defendant claiming damages for defamation. The matter complained of is an article published in The Sydney Morning Herald on 5/6 January 2002 bearing the headline, "Illegal back burn that went wrong. Ruined our strategy, fire fighters say". There is a photograph of the plaintiff, described as a caravan park owner, the caption to which additionally says, "Lost control of a back burn". 2 The plaintiff contends that the matter complained of, which deals in general terms with events at the Rustic Caravan Park and bushfires in the Shoalhaven Area, carries the following imputations defamatory of him: (a) The Plaintiff lost control of his own back burn. (b) The Plaintiff wrecked the main strategy of the Shoalhaven Fire Control. (c) The Plaintiff lit a back burn that went wrong. (d) The Plaintiff is irresponsible. (e) The Plaintiff lit a back burn fire without good reason. (f) The Plaintiff unreasonably refused to evacuate his premises. 3 Except with respect to imputations (d) and (e), I am unpersuaded by submissions for the defendant that the matter complained of is incapable of carrying imputations (a), (b) and (f). 4 In relation to imputation (b), the point was validly made by the defendant that the present structure of the imputation, insofar as it contains the words "Shoalhaven Fire Control" cannot be supported by a fair reading of the article. The imputation can be reframed by a better identification of the "strategy" which might be, and this will be a matter for the pleader, by reference to the "fire control officer's strategy" or "fire control officers' strategy". 5 This article, with its headline, photograph and caption, and the essence of its contents being paragraphs 1 to 9 inclusive, is of a kind by reason of its language which operates to some extent as a constraint upon the ambit of what a plaintiff can plead (see Drummoyne Municipal Council v Australian Broadcasting Commission (1990) 21 NSWLR 135) and as such, in accordance with current authority, certainly to the extent of determining capacity to defame, is available as a backdrop against which its effect in relation to the imputation can be judged. 6 Imputation (d) I am persuaded is rhetorical by reason of it being pleaded with imputation (a) especially, and possibly imputation (b). 7 Imputation (e) is one that, on a capacity argument, immediately strikes me, in considering that question on the basis of reasonableness (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158) as simply being incapable of being carried. 8 I am not persuaded by the more refined submissions for the defendant, given the theme, tenor and structure of this matter complained of, that there is any uncertainty as to form and thus meaning of the imputations themselves. Imputation (a) is capable of being defamatory and arising, I will so rule, as I do in relation to (b) subject to the amendment suggested, and (f). 9 Given the plaintiff's abandonment of one imputation and otherwise the balance of success, each party is to pay his and its own costs of this application. 10 The plaintiff is to file an amended statement of claim within fourteen days. Within fourteen days thereafter the defendant is to file its 7A defence. 11 As to the s7A jury trial, pursuant to SCR Pt 31 r 2 of the, I order the separate trial by jury of those issues reserved to that tribunal under s 7A of the Defamation Act. 12 I direct the defendant at the time of filing its defence to notify the plaintiff – I assume it has not done so – whether or not it will place in issue that it is the publisher of The Sydney Morning Herald of the edition of 5/6 January 2002. By giving that direction I do not impose upon the defendant any requirement otherwise to make any admissions in relation to s7A issues. 13 At the expiry of twenty eight days from today the matter may be placed in the list for call up for a s 7A jury trial. **********