New South Wales Supreme Court CITATION : COLEMAN & ANOR V JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 564 HEARING DATE(S) : 19 March 2003 JUDGMENT DATE : 25 June 2003 JUDGMENT OF : Levine J DECISION : 1. I find the matter complained of incapable as a matter of law of defaming the plaintiffs in terms of the imputations pleaded in the statement of claim. ; 2. There will be a verdict for the defendant in respect of each of the imputations pleaded in the statement of claim.; 3. The plaintiffs are to pay the defendant's costs. CATCHWORDS : Imputations - capacity - matter complained of incapable of being understood otherwise than as humerous - no libel Anderson v Mirror Newspapers Ltd (1986) 6 NSWLR 99 Darbyshir v Daily Examiner Pty Ltd (Levine J, unreported, 29 August 1997) Donoghue v Hayes (1831) Hayes (Ir Ex) R 265 Falkenberg v John Fairfax & Sons Ltd (NSWSC, unreported, 16 December 1994) Galea v Amalgamated Television Services Pty Ltd (Levine J, unreported, 20 February 1998) Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 Graham Charles Evans v John Fairfax Group Pty Ltd [1993] ACTSC 7 CASES CITED : Greek Herald Pty Ltd v Nikolopoulos & Ors (2002) 54 NSWLR 165 Hepburn v TCN Channel Nine Pty Ltd (1983) 2 NSWLR 664 Livingstone-Thomas v Associated Newspapers (1969) 90 WN (NSW) Pt 1,223 in May Wan Khor v Nationwide News Pty Ltd [1999] VSC 38 McGuinness v J T Publishing Australia (Levine J, unreported, 21 May 1999) Ron Hodgson (Trading Pty Ltd) v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Waterhouse v Perkins & Ors (SCNSW, unreported, 10 October 1996) Wild v John Fairfax & Sons Ltd (Levine J, unreported 8 August 1997) Youssupoff v Metro Goldwyn Meyer Pictures Ltd (1934) 50 TLR 5A1 CRAIG COLEMAN (First plaintiff) CAROL COLEMAN (Second plaintiff) PARTIES : v JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720) (Defendant) FILE NUMBER(S) : SC 20456 OF 2002 M Richardson (Plaintiffs) COUNSEL : T Blackburn (Defendants) Gilbert & Tobin (Plaintiffs) SOLICITORS : Freehills (Defendant) [2003] NSWSC 564 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE WEDNESDAY 25 JUNE 2003 20456 OF 2002 CRAIG COLEMAN (First plaintiff) CAROL COLEMAN (Second plaintiff) v John Fairfax Publications Pty Ltd (ACN 003 357 720) (Defendant) JUDGMENT (Imputations – capacity – matter complained of incapable of being understood otherwise than as humerous – no libel) 1 The plaintiffs sue the defendant in relation to an article published in "The Sun Herald" on 29 September 2002. The text of the matter complained of as pleaded is Appendix A to these reasons. 2 It is contended that the matter complained of carries the following imputations of the respective plaintiffs: 5(a) that the First Plaintiff suffers ongoing psychological harm and mental problems; (b) that the First Plaintiff was an incompetent professional football coach in that he lacked communication skills; (c) that the First Plaintiff was incompetent as a professional football coach because of his inadequate upbringing; (d) that the First Plaintiff was the cause of the disastrous performance of the South Sydney Football Team in the 2002 NRL season because of his inadequate upbringing; (e) that the Second Plaintiff was so bad a mother that by neglect and abandonment of her son, she caused him to suffer ongoing psychological harm and mental problems; (f) that the Second Plaintiff was responsible for the disastrous performance of the South Sydney Football Team in the 2002 NRL season, as coached professionally by her son, because of her having a fractured relationship with her son; (g) that the Second Plaintiff was such a failure as a mother as to have caused her son to grow up without adequate communication skills; (h) that the Second Plaintiff was a neglectful mother in that she spent little time with her son during his childhood. 3 The material set out in Appendix A is that which was originally pleaded by the plaintiffs. Pursuant to agreement, however, further material can be taken to have been "struck in" (Ron Hodgson (Trading Pty Ltd) v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 at 477; Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413). 4 Appendix B to these reasons contains the whole of the matter complained of including the original part (Appendix A sued upon). 5 There are two components to the defendant's objection. I will take the second, which relates exclusively to the imputations, as if viewed as arising from the material in Appendix A exclusively. 6 For the defendant it is argued that imputation 5(a) (as corrected) connotes a level of mental illness which is simply incapable of being carried by the matter complained of. The first plaintiff's psychological handicap is that he is without "adequate communication and intimacy skills" in consequence of which he is said to lack the "necessary confidence to make himself understood". These matters are elevated to "psychological harm and mental problems" in the imputation which represents an extreme and strained construction of the matter complained of on a quite unreasonable basis. 7 To the contrary, it is argued for the first plaintiff, the psychologist having said those things about him permits the equating of those things to psychological harm and mental problems. 8 I would be persuaded by the argument advanced for the defendant. 9 It was a further component of the defendant's position that the imputation as framed does not constitute an act or condition which would cause right thinking members of society to think less of the plaintiff. Mental illness is said to be a misfortune which may cause weak or ignorant people to think less of the sufferer, but ordinary decent people would not take such a narrow minded view. This position is the more so when one takes into account the use in the imputations of the words "mental problems". A comparison was made with my judgment in Waterhouse v Perkins & Ors (SCNSW, unreported, 10 October 1996) where I described as "an extremely borderline case" (at page 4) an imputation involving a lack of professional capacity in a solicitor on account of schizophrenia and left that matter to the jury. 10 I was referred by Mr Richardson to what Higgins J said in Graham Charles Evans v John Fairfax Group Pty Ltd [1993] ACTSC 7, 12 February 1993, where his Honour refers to Youssupoff v Metro Goldwyn Meyer Pictures Ltd (1934) 50 TLR 5A1 and Livingstone-Thomas v Associated Newspapers (1969) 90 WN (NSW) Pt 1,223 in support of the obvious proposition that is still good law that a person can be defamed without an allegation of misconduct. This naturally points to the area of a statement of a person that is likely to have the effect of that person being "shunned and avoided". See also Galea v Amalgamated Television Services Pty Ltd (Levine J, unreported, 20 February 1998). 11 Insofar as the defendant suggests that there is no difference in substance between imputation (a) and imputation (c) I would not sustain that objection. There is quite clearly a difference in the imputations, the one relating to a condition, and a separate allegation in (c) as to his competence by reason of another attribute. 12 Be all that as it may, the first component of this leg of the defendant's submissions would succeed. 13 In this context I do not understand any submissions to have been made by the defendant in relation to imputation (b). 14 In relation to imputation (c) the defendant contended that it was incapable of being defamatory. It was argued that while it may be defamatory to impute professional incompetence to a football coach, that incompetence is here referred to as deriving from the first plaintiff's "inadequate upbringing". Again on the basis of the "right thinking member of the community", it is argued that the imputation would not have the requisite quality. No right thinking person would think the less of the first plaintiff for professional incompetence when that incompetence is expressly said to arise on account of factors beyond his control, namely the inadequacy of his upbringing. With that proposition I would be in agreement. 15 A similar submission is made in relation to imputation (d). This submission I would also accept. 16 Mr Richardson sought, as it were, to warrant the imputations by reference to s4 Defamation Act 1889 (Qld) by reference to an imputation by which the reputation of the plaintiff "is likely to be injured or by which the person is likely to be injured in the person's profession or trade". 17 This proposition would not save the plaintiffs discretely (publication in New South Wales only is relied upon) or as a matter of principle in relation to the structure of the s9 cause of action. 18 In relation to the imputation concerning the second plaintiff, that is, Mr Coleman's mother, the defendant says in relation to imputation (e) that it is incapable of arising. The matter complained of does state that the first plaintiff had grown up "feeling abandoned and rejected". There is, however, nothing in the matter complained of that is capable of supporting the notion that the plaintiff's mother was a "bad mother" or that she neglected or abandoned her son. All the matter complained of says is that the first plaintiff was put into child care as a toddler and spent "four days every week in child care between the ages of two and five". It is then argued that there can be no adverse reflection on the plaintiff's mother merely by reason of the first plaintiff having "abandonment and attachment issues" and "a somewhat fractured relationship" with his mother as a consequence of being placed in child care. Child care, it is argued, is a fact of present day life, and if the first plaintiff suffered some psychological difficulty in consequence of being put in child care when young, "as so many children are" then such a problem derives from the way in which the first plaintiff himself reacted to what is described as that "unexceptionable treatment". The only charge made against the second plaintiff is that she put the first plaintiff in child care. The first plaintiff's reaction cannot reasonably be held against the second plaintiff, nor can the peculiar reaction of the first plaintiff convey any imputation of blameworthiness in the second plaintiff when all that she did was to put her son into child care. This is a difficult one. This is "minds might differ" imputation which I would otherwise be inclined to leave to the jury. 19 Imputation (f) is in my view extraordinarily far fetched and cannot be saved even by reference to the context (Greek Herald Pty Ltd v Nikolopoulos & Ors (2002) 54 NSWLR 165). 20 Imputation (g) it is argued for the defendant shares the same vices as imputation (e). It is an arguable matter and I would otherwise leave it to the jury. 21 Notwithstanding the protestations of the defendant, I would have to take the same view about imputation (h) and leave it to the jury. 22 However, I have come to the view, which I will state now, that this matter complained of is incapable of defaming either plaintiff in the way pleaded (or indeed, in my view, at all). My reason for so stating is that this could not, in my view, be a clearer case where the ordinary reasonable reader would understand from reading whole of the material that none of its contents was to be taken seriously. If a reader took the whole of this material, or any part of it, as a joke but nonetheless felt there was something "beyond a joke", in my view that reader would be neither ordinary nor reasonable. In the course of submissions I was referred to standard authorities in the areas of "jesting" and "at one's peril", that line of authority commencing with Donoghue v Hayes (1831) Hayes (Ir Ex) R 265 at 266. Reference has also been made to Hepburn v TCN Channel Nine Pty Ltd (1983) 2 NSWLR 664 at 667; Anderson v Mirror Newspapers Ltd (1986) 6 NSWLR 99; Darbyshir v Daily Examiner Pty Ltd (Levine J, unreported, 29 August 1997); McGuinness v J T Publishing Australia (Levine J, unreported, 21 May 1999); Wild v John Fairfax & Sons Ltd (Levine J, unreported 8 August 1997). The last three mentioned cases have had various outcomes. What became of them, as a matter of history, is unknown to me. A further case of my own, Falkenberg v John Fairfax & Sons Ltd (NSWSC, unreported, 16 December 1994) was one in which the case did not go to the jury on the basis of absurdity. 23 Of course, each case is determined on its merits in accordance with principle. I have come to the view that this article itself, and the more so by reference to the surrounding material, is self-evidently absurd. The ordinary reasonable reader would understand that what was being published was to be understood only as an absurd joke. That reader, if ordinary and reasonable, simply could not draw from the matter complained of imputations of the kind pleaded here. No ordinary reasonable reader would understand this article to convey anything disparaging of the plaintiffs and thereby hold them up to hatred, ridicule or contempt, or by its mere publication, or any reference at best to psychological deficiencies or incidents of upbringing, to bring about them being shunned and avoided. A fortiori, in my respectful view, do these considerations apply to the second plaintiff. 24 Indeed I note that in paragraph 7 of the statement of claim it is contended that the publication of the matter complained of each plaintiff had the result of each being "greatly injured and their reputation has been and will be brought into public disrepute, scandal, odium and contempt". There is no reference to ridicule or to being shunned and avoided. 25 This is fundamentally a matter of impression. I might respectfully adopt what was stated by Hedigan J in May Wan Khor v Nationwide News Pty Ltd [1999] VSC 38: "I do not intend to write extended reasons on this application. The debate is to be found in the transcript". So are the notices under SCR Pt 67 r 12A. I repeat that this is a matter of impression. The impression that it has made for the purposes of the determination of the issue of law argued by consent pursuant to SCR Pt 31 r 2 is such as to bring about the result to which I have clearly adverted. 26 I find the matter complained of incapable as a matter of law of defaming the plaintiffs in terms of the imputations pleaded in the statement of claim. 27 There will be a verdict for the defendant in respect of each of the imputations pleaded in the statement of claim. 28 The plaintiffs are to pay the defendant's costs. APPENDIX A Coleman's mother blamed for Souths' disastrous year Redfern: South Sydney's poor showing in the 2002 NRL season may be linked to coach Craig Coleman being put in child care as a toddler, according to a psychologist. Asked by Club officials to assess Coleman's performance this year, a psychologist concluded that the Souths' disappointing 5-19 record stems from "abandonment and attachment issues" Coleman harbours after spending 4 days every week in childcare between the ages of 2 and 5. In making his finding, the psychologist dismissed suggestions that Souths finished second last simply because they didn't have any decent players. "It's my belief that Craig's somewhat fractured relationship with his mother as a child hasn't provided him with adequate communication and intimacy skills", the psychologist said." He has grown up feeling abandoned and rejected and lacks the necessary confidence to make himself understood, which isn't something you want in a football coach". The psychologist said placing Coleman in childcare could explain big losses in rounds 19, 21, 22 and 23". APPENDIX B PAUL CONNOLLY DROP KICK PHOTO PAUL CONNOLLY YOU WOULDN'T READ ABOUT IT With the grand final seven days away Drop Kick brings you the big stories from the penultimate week of the 2002 NRL season. An NRL advertising campaign in Auckland which refers to the New Zealand Warriors as a bunch of "sheep-shagging dullards with funny accents and how about that crap New Zealand weather?" has failed to ruffle feathers across the Tasman. Warriors coach Daniel Anderson said yesterday he will not use the advertisement, placed in Sydney newspapers on Wednesday, to motivate his team before their Showdown with the Sharks on Sunday. "My guys are playing in the preliminary final. If that's not enough to motivate them then they can just go back to their farms," Anderson said. "Besides we're smart enough to realise that the NRL is merely trying to promote the game. We'd be absolute grade A morons to take it too seriously." Populist New Zealand newspaper columnists and radio shock jocks have taken the same view, with the NRL campaign barely rating a mention across the Tasman. Only one complaint was taken by the NRL from a Christchurch man who said the weather in New Zealand "wasn't all that bad". Coleman's mother blamed for South's disastrous year Redfern: South Sydney's poor showing in the 2002 NRL season may be linked to coach Craig Coleman being put in child care as a toddler, according to a psychologist. Asked by club officials to assess Coleman's performance this year, a psychologist concluded that South's disappointing 5-19 record stemmed from "abandonment and attachment Issues" Coleman harbours after spending four days every week in child care between the ages of two and five. In making this finding, the psychologist dismissed suggestions that South's finished second last simply because they didn't have any decent players. "It's my belief that Craig's somewhat fractured relationship with his mother as a child hasn't provided him with adequate communication and intimacy skills'" the psychologist said. "He has grown up feeling abandoned and rejected and lacks the necessary confidence to make himself understood, which isn't something you want in a football coach." The psychologist said placing Coleman in child care could explain big losses in rounds 19, 21,22 and 23. Roosters fans fire up Bondi: long-time Roosters fan Tarqin Rhys-Jones says that if he does not have anything else on he will attend his first–ever Roosters match should the tricolours make the grand final. Rhys-Jones who has been "passionately" following the Roosters ever since his family moved to Bondi Junction in 1965, says he's "pretty sure" he'll make the big one if the Roosters can overcome the Broncos in the preliminary final. "I guess you never know what's going to come up between now and then but I'm almost definite I'll be able to make it", Rhys-Jones said. "I know I'm meant to be going down the coast around about that time and I have to go with my wife to a christening or something sometime in October but if things work out I'll be cheering on my beloved red, white and blues to premiership glory. Go the Roosters!" Bailey strikes again Newcastle: Andrew and Mathew John's parents have been admitted to a Newcastle hospital after a freak accident involving St George Illawarra's Luke Bailey. According to witnesses, Gary and Gayle Johns were about to enter popular Newcastle chicken chain the Dirty Bird around 6.45 last night when the restaurant's heavy entrance door swung out at them, hitting them in the face. The pair were sent crashing to the footpath. Witnesses said Bailey, who had just finished dining, had accidentally exited the restaurant through the wrong door at the precise time the Johnses were attempting to enter. Their injuries were exacerbated when Bailey, in rushing to help, slipped on a discarded giblet and landed knees first into the stricken pair. Both were taken to hospital suffering broken noses and rib cartilage injuries. Bailey, who in the past two weeks has been involved in heavy on-field collisions which have ended the seasons of Andrew and Matthew Johns, was unharmed. Though he wondered "what the hell Bailey was doing in Newcastle in the first place?", Cronulla's Matthew Johns reluctantly put it down to freakish coincidence. "First Joey, then me, now me mum and dad. You wouldn't read about it." Photo Jason Cloke OH, THE PAIN: Jason Cloke contemplates a fate far worse than death-suspension from the AFL grand final. Picture: Michael Clayton-Jones Cloke gets a start In the crying game Sports stories rarely take you through the gamut of emotions but an interview with the mother of Collingwood's Jason Cloke in Thursday's Herald Sun newspaper took me through an entire box of tissues and three packets of Tim Tams: it was like Beaches, The Champ and On Golden Ponds rolled into one. On first perusal of the piece I thought that Cloke had been killed in an accident or, at the very least, seriously maimed by a combine harvester. With tears cascading down my face, I read, with quivering lips, of the, "devastation" and "heartache" suffered by his "tight-knit" family who were receiving so many supportive calls that a "condolence book" had been left near the phone. As it turned out, it was worse than death of disabling injury. Cloke, who is just 20 (practically an innocent babe in swaddling clothes, for God's sake), had been suspended from the AFL grand final! That poor bloke! His poor family! Starving people in Malawi can only Imagine their pain! But from the pit of Tearful despair I was thrown a bone. For "valiant" and "brave" Jason managed to summon the courage to take his eight- year-old sister to see Stuart Little 2 during the week! When this sunk in I was furious. As if a man sensitive enough to take his little sister to see Stuart Little 2 would deliberately break the nose of an opponent! Have the AFL judiciary no hearts ********** Last Modified: 06/26/2003 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.