JAMOO v NATIONWIDE NEWS PTY LTD [2002] NSWSC 1062

New South Wales Supreme Court

CITATION : JAMOO v NATIONWIDE NEWS PTY LTD [2002] NSWSC 1062 FILE NUMBER(S) : SC 20338 OF 2002 HEARING DATE(S) : 4 November 2002 JUDGMENT DATE : 4 November 2002

GEORGE JAMOO (Plaintiff)

PARTIES : v

NATIONWIDE NEWS PTY LTD (Defendant)

JUDGMENT OF : Levine J

T Molomby SC (Plaintiff) COUNSEL : T Blackburn (Defendant) John McEnroe & Co (Plaintiff) SOLICITORS : Gallagher De Reszke (Defendants) CATCHWORDS : Imputations - capacity LEGISLATION CITED : Defamation Act 1974 DECISION : See paragraphs 13-18

- 5 - 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

20338 OF 2002

GEORGE JAMOO (Plaintiff)

v

NATIONWIDE NEWS PTY LTD (Defendant)

JUDGMENT (Imputations - capacity) 1 Mr George Jamoo has instituted proceedings against Naionwide News Pty Ltd claiming damages for defamation. The article of which he complains was published in The Daily Telegraph on 18 June this year. The text of the article will be appended to these reasons when published. 2 Annexed to the statement of claim is the text, together with a photocopy of the article as published. It is apparent that the article was published on a business page in The Daily Telegraph. It is clear that its text is underneath what I will describe as a general headline, namely "Bottom of the Harbour", with a graphic of the bridge and deep waters beneath it, and the byline of the journalist. The article's more direct headline "Karl's Clobber had its Price" is, as Mr Molomby suggested, enigmatic. 3 The article in very general terms deals with the relationship between the plaintiff, Mr Suleman, and a business "Karl for Men", which was a clothing business. The plaintiff contends that the matter complained of in its natural and ordinary meaning carries the following imputations: (a) That he was so greedy that he agreed to run "Karl for Men" clothing, a business he knew nothing about, because he was offered $4250 a week for five years. (b) That he took part in removing large sums of money from the "Karl for Men" account, shortly before that business went into liquidation, to prevent those funds falling into the hands of the liquidator. (c) That he was so influenced by generous financial arrangements made for his benefit by Karl Suleman that he paid $40,000 from the "Karl for Men" account, which should have been paid to the liquidators of the business of Karl Suleman. (d) That he paid $40,000 from the "Karl for Men" account, which should have been paid to the liquidator of the business to Karl Suleman. 4 The defendant contends that the matter is incapable of carrying any of them. 5 It is fair to observe, on a capacity argument such as this, and as has been submitted in effect by the plaintiff, that the general headline in particular conveys a theme, a theme that would be understood by the ordinary, reasonable reader as referring to murky aspects of the collapse of businesses in circumstances akin to those the subject of the Costigan inquiry. The colour for the copy is provided by that generalised headline. 6 In relation to the first imputation, it is submitted for the defendant that this article is incapable of denoting anything to do with agreed. It is capable of denoting of the plaintiff that he does not look a gift horse in the mouth. It is capable of denoting, I suppose, that any person would be foolish, irrespective of want of experience in the clothing trade, to reject so generous an offer. It is not incapable of carrying an additional component of greed. This is one of those imputations to which the differing minds principle applies. I add that the context to which I have referred at the beginning of these reasons is important in permitting this matter to be resolved by the tribunal of fact. 7 As to imputations (b), (c) and (d), in relation specially to (b), it is submitted that the ordinary, reasonable reader has been assumed by the pleader to have knowledge of the law of preference payments in the context of company liquidations. I am not persuaded that that can be said of the ordinary reasonable reader, nor that it necessarily follows that it was in the mind of the pleader. 8 The thrust of this article is the haemorrhaging of money - and that is my word - from this business at some time within a month prior to the company being put into liquidation, an event which brought about, according to the article, the impoverishment of several thousand investors. That is a theme arguably stark, available to colour that which deals with the $40,000 (which a reader must understand, I would have thought, to be in cash in a safe), and the assertion that suppliers had to be paid. 9 On the capacity argument I am not persuaded, first as I have said, that the ordinary reasonable reader is to be taken to have understood the intricacies of preference payments in corporate collapses. Nor am I persuaded that the ordinary reasonable reader with the well known attributes would go through such an article, in respect of which such a theme has been set, with such refinement, as to distinguish events that might be reported as having occurred before the liquidator was appointed, or being understood as having occurred at some other time. 10 Imputation (b), as I have said, is capable of arising for the reasons I have outlined. 11 I am persuaded that the same can be said of imputations (c) and (d) on a capacity argument. Whether the tribunal of fact in the end will be persuaded by the submission advanced for the plaintiff today as to the relationship between the price to be paid, or the favour to be returned in relation to (c) and (d), will be a matter of fact to be determined in due course. 12 This in the end is one of those cases where it cannot be said on a capacity basis that anything is so strained, unreasonable or simply not rationally available for the consideration of the tribunal of fact. 13 All imputations I find as a matter of law are capable of being carried by this matter complained of. 14 I direct the defendant within 14 days to file a defence in relation to issues to be tried by a jury under section 7A of the Defamation Act. 15 Pursuant to SCR Pt 31 r 2 I direct the trial by jury of issues joined by the parties on the pleadings pursuant to section 7A of the Defamation Act. 16 I further direct the defendant at the time of filing its 7A defence, to indicate to the plaintiff in writing whether there will be any issue that the defendant, Nationwide News Pty Ltd published the Daily Telegraph on 18 June 2002, which contained the matter complained of. 17 By directing the defendant to do that, I am not to be understood as directing the defendant otherwise to be making any admissions in respect of the issues to be tried by the jury. 18 I place the matter in the list to be called up for section 7A trial. The defendant is to pay the plaintiff's costs of today.