New South Wales Supreme Court CITATION : MILLANE & ORS v NATIONWIDE NEWS [2002] NSWSC 805 FILE NUMBER(S) : SC 20213 OF 2002 HEARING DATE(S) : 2 September 2002 JUDGMENT DATE : 2 September 2002 JOHN MILLANE (First Plaintiff) ANDREW PARTRIDGE (Second Plaintiff) MATTHEW PARTRIDGE (Third Plaintiff) PARTIES : RELOCORP PTY LTD (t/a COUSINS & CO) (Fourth Plaintiff) v NATIONWIDE NEWS PTY LTD (t/a CUMBERLAND NEWSPAPER GROUP) (Defendant) JUDGMENT OF : Levine J C Evatt (Plaintiffs) COUNSEL : T Hale SC/A Henskens (Defendant) Peter R Murphy & Co (Plaintiffs) SOLICITORS : Cropper Parkhill (Defendant) CATCHWORDS : Imputations - form DECISION : See paragraph 11 - 4 - DLJT: 1 (Ex Tempore- Revised) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION list JUSTICE DAVID LEVINE MONDAY 2 SEPTEMBER 2002 20213 OF 2002 JOHN MILLANE (First Plaintiff) ANDREW PARTRIDGE (Second Plaintiff) MATTHEW PARTRIDGE (Third Plaintiff) RELOCORP PTY LTD (t/a COUSINS & CO) (Fourth Plaintiff) v NATIONWIDE NEWS PTY LTD (t/a CUMBERLAND NEWSPAPER GROUP) (Defendant) JUDGMENT (Imputations - form) 1 The plaintiffs have instituted proceedings in respect of two publications in the Mosman Daily on 2 and 9 May this year. The matters complained of concern a dispute that has arisen in relation to a residence in Avenue Road, above a real estate agency business conducted by the fourth plaintiff, the corporation. The first, second and third plaintiffs are described as estate agents and directors and shareholders of the fourth plaintiff which trades under the name Cousins & Co. That business name is clearly displayed in the photograph in the first matter complained of. 2 Imputations 5(a) to (e)(ii) and cognate imputations in respect of the other personal plaintiffs are challenged on the basis that they are improper in form by containing the word "through and by Cousins & Co". For example: 5(a) The first Plaintiff, through and by Cousins & Co caused a Mosman Couple with a six week old daughter to be prisoners in their own home. 3 The use of those words it is said, and I agree, give rise to uncertainty and ambiguity insofar as there could be a real quesiton as between the first plaintiff and "Cousins & Co" as to that which the first plaintiff did via, through or vis-à-vis "Cousins & Co" which caused the Mosman couple to be prisoners in their own home. A wide range of speculation would be available which could detach the bulk of the imputation from the requirement of asserting an act or condition in the person complained of, namely the first plaintiff. 4 By way of further example, in imputation (e): 5(e) The first Plaintiff through and by Cousins & Co deliberately made incorrect allegations about the access of a Mosman Couple with a six week old daughter to their flat. That situation is aggravated by reason of the imputation pointing to a state of mind. 5 I propose to accede to the application for the defendant and notionally strike out each of the imputations. I will come back to matters of practicality shortly. 6 The series of imputations commencing with (p) are imputations of the corporate plaintiff. The flaws I have referred to in the earlier imputations in my view are aggravated by those words being included in relation to a corporation. All of the flaws are to be viewed in the context where the personal plaintiffs and the corporation are not identified by name in the matter complained of. The characterisation of the imputations by the defendant as incorporating within them the notion of identification over and above meaning is a correct one. 7 The second principal matter in issue is that imputations e(i) and (ii) do not differ in substance: (e)(i) The first Plaintiff through and by Cousins & Co was untruthful when he said the Fairs had never been locked out. (e)(ii) The first Plaintiff through and by Cousins & Co was untruthful when he said he had always provided a key to the upstairs tenant (the Fairs) to avoid undue inconvenience to them. 8 The sting of each is that the relevant plaintiff was "untruthful" when he said the two matters referred to in the imputations, being that the relevant family had "never been locked out" and to the effect that the relevant family had always been provided with a key to avoid undue inconvenience. Whilst one might be attracted by a theoretical distinction, the sting of the imputations is the assertion of being untruthful in relation to what I will describe as the general subject, namely the access of the family to these premises. To bifurcate a fairly simple, straightforward proposition into these two imputations is artificial. 9 As a matter of practical justice in its administrative sense, the flaws and defects can be cured consequent upon these rulings by first, paragraph 1 of the amended statement of claim referring to the fourth "plaintiff" rather than the fourth "defendant". Secondly, imputations (a) down to (e) and cognate imputations are to be taken as amended by deleting the words "through and by Cousins & Co". Thirdly, the plaintiff is to elect between (e)(i) and (e)(ii). 10 I have made those orders to avoid the requirement that the plaintiff yet again file another document and so the defendant will know that, as between the parties, it has succeeded on its application. That will be taken to be the pleading in the hope to try to keep the costs down. 11 The plaintiffs will have to pay the defendant's costs of today. 1. Pursuant to Pt 31 r 2 I direct a trial by jury of the issues under 7A of the Defamation Act. 2. I direct the defendant within 14 days of today to file a defence as to the issues that are raised as issues under s 7A of the Defamation Act. 3. I direct the matter be placed in the call up to be conducted by the list judge on 27 September. Upon a date being allocated for the hearing by a jury, no later than 14 days prior to that date, the plaintiffs are to deliver outlines of evidence on any issue in which evidence is to be called at the 7A trial. ********** Last Modified: 09/11/2002 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.