New South Wales Supreme Court CITATION : CROSS & ANOR v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD [2003] NSWSC 1236 HEARING DATE(S) : 18 December 2003 JUDGMENT DATE : 18 December 2003 JUDGMENT OF : Levine J DECISION : 1. The action by the first plaintiff against the defendant is dismissed. The first plaintiff is to pay the defendant's costs of the action.; 2. Imputations 3(d)(i), 3(e), 3(f), 3(h)(i) and 3(h)(ii) are incapable of being carried by the matter complained of and a verdict is entered for the defendant on each. ; 3. Note that imputation 3(g) has been abandoned; 4. The second plaintiff has leave to file an amended statement of claim by no later than 31 January 2004.; 5. The second plaintiff is to pay the defendant's costs of this application.; 6. Stand the matter over for directions in the Registrar's Defamation Directions List on 13 February 2004. CATCHWORDS : Imputations - capacity - form RENE CROSS (First plaintiff) RON CROSS PARTIES : (Second plaintiff) v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD (Defendant) FILE NUMBER(S) : SC 20190 OF 2003 M Rollinson (Plaintiffs) COUNSEL : P Menadue (Defendant) Richard Licardy & Co (Plaintiffs) SOLICITORS : R Coleman (Defendant) - 1 - Ex tempore: revised [2003] NSWSC 1236 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE THURSDAY 18 DECEMBER 2003 20190 OF 2003 RENE CROSS (First plaintiff) RON CROSS (Second plaintiff) v ILLAWARRA NEWSPAPER HOLDINGS PTY LTD (Defendant) JUDGMENT (Imputations – capacity – form) 1 As originally constituted, this action was brought by two plaintiffs against the defendant with respect to a publication in the "Illawarra Mercury" of 22 March this year. That publication bears the headline, "Companies in hot water: $2mil debt" and the sub-headline, "Links with failed businessman". It is accompanied by a photograph of the two plaintiffs, being father and daughter, the caption to which commences with the word "Failed". 2 There is another photograph that is inconsequential for the purposes of the disposition of this argument. 3 The text of the matter complained of is appended to these reasons. 4 The action brought by the first plaintiff, Rene Cross, has been abandoned and I will strike it out. 5 The view to which I have come, and can state shortly and at the outset, is that none of the imputations pleaded by the second plaintiff, leaving aside any fine points as to form, is capable of being carried by this matter complained of and in respect of each there will be entered a verdict for the defendant. 6 It cannot be stated that this article would be understood as completely harmless and anodyne. The ordinary reasonable reader might, understand something about, for example, the use of the words "in hot water". The ordinary reasonable reader might understand something about the repeated use of the word "failed". But even if that concession is made, it is insufficient to warrant any one of the imputations for which the second plaintiff presently contends. 7 The first of the relevant imputations is 3(d)(i), "The second plaintiff was unfit to be a director in the company because he was a failed businessman". I accept the submission that, logically, there is nothing in this matter complained of, in relation to the companies referred to as having been put into voluntary administration, that connects directly, or by reasonable inference, anything that the second plaintiff did, merely by his occupation of the office of director, with the companies being put into voluntary administration or that thereby the inference can be drawn that he was a failed businessman. 8 Imputation 3(e)(i) is: "The second plaintiff directed a company in such manner that it and another company with which he was linked were put into voluntary administration with large debts". Nothing is exposed as to give any clear understanding to, for example, the expression "in such manner". It is somewhat vague and therefore embarrassing on its face but the real vice is that, merely having been identified as a director could not, to the ordinary reasonable reader, in my view indicate that he directed - being the verb used in the imputation - in any managerial or executive sense, the two businesses referred to. The matter complained of is incapable of carrying that imputation. 9 Imputation 3(f)(i): "The second plaintiff is reasonably suspected by creditors (or the "Illawarra Mercury") of putting a company of which he was a director into voluntary administration owing debts to the Tax Department, Wollongong small businesses and employees superannuation entitlements". It is incapable of being carried by the matter complained of. Nothing in the matter complained of, merely by reference to the fact that there was a meeting of creditors, could give rise to any notion or reasonable suspicion by the creditors first and second, that the second plaintiff, who is no more than a director, put the company into voluntary administration. The alternative of being suspected by the Illawarra Mercury has no basis in the article sued upon and cannot rationally arise merely from the fact that the events are reported in the newspaper, the Illawarra Mercury. 10 Imputation 3(g)(i) is abandoned. 11 Imputation 3(h)(i) is that "The second plaintiff is unfit to be a businessman". I will return to that in a moment. 12 Imputation 3(h)(ii), "The second plaintiff was reasonably suspected by creditors (or the "Illawarra Mercury") of being unfit to be a businessman" is incapable of being carried for the reasons in relation to imputation 3(f)(i). Notions of reasonable suspicion by creditors or, more bizarrely, by the "Illawarra Mercury", are not available. 13 I return to "Unfit to be a businessman". "Unfit", as used in the imputation, is vague and uncertain and I would otherwise strike the imputation out. However, the second plaintiff should be given an opportunity, which will no doubt be his final opportunity, to plead an imputation appropriate in form and capable of being carried, founded upon the notion of want of business capacity in some way, as reflected in the history referred to in the matter complained of. Even if that is done, it cannot be warranted, not least by me, that such an imputation would survive an attack. But an opportunity to plead it should be available, as there is in the article those matters to which I referred at the outset of these reasons. 14 No doubt the pleader will bear in mind the paragraphs dealing with the businesses in 1988 or the 1980s which, on one view of the matter complained of, failed, not by reason of want of business acumen or capacity but by reason of an acrimonious divorce and a downturn in the market. 15 I grant leave to the second plaintiff to file an amended statement of claim by no later than 31 January 2004. The first plaintiff is to pay the defendant's costs of the action brought by her against it. The second plaintiff is to pay the defendant's costs of this application. APPENDIX A The "Illawarra Mercury" 22 March 2003 1. Companies in hot water: $2mil debt 2. Links with failed businessman 3. By Lisa Carty 4. Two companies connected to failed Wollongong businessman Ron Cross have been put into voluntary administration with debts of more than $2 million. 5. The bulk of the money owed by Park Trent Investments Pty Ltd, of which Mr Cross is a director, and the Everest Marketing Company Pty Ltd, of which his daughter Rene is a director, is to the tax department. 6. However, thousands of dollars are owed in employee superannuation entitlements. 7. Australian Services Union organiser Rudi Oppitz said about 30 of the companies' 130 staff, who work out of a joint office in Fairy Meadow, were union members. 8. The unpaid superannuation ranged from $250 to several thousand dollars, Mr Oppitz said. 9. "People are told they have to plan for their futures and take responsibility for their retirement and this sort of thing impacts directly on their futures," he said. 10. "At the moment the administrator is just trying to sort out the company structure, which is like a spiderweb." 11. It is understood $1.5 million is owed in tax with the balance being unpaid super and debts to a range of Wollongong small businesses. 12. A creditors' meeting in Wollongong yesterday confirmed Ferrier Hodgson as the administrators and scheduled another meeting on April 10. 13. Administrator Terry Rose did not return the Mercury's calls and Mr Cross refused to comment. 14. Both businesses are telemarketing companies selling real estate through phone calls and seminars. 15. The licensee of Park Trent Real Estate said the agency was unaffected. 16. Tricia Markwort said the real estate agency was a separate entity and it was business as usual for its seven staff. She refused to detail Mr Cross' connection to Park Trent Real Estate. 17. "He has a bit to do with us," she said. 18. "He has a part to do with it but not a major concern." 19. "I am not going to give you any more information." 20. Mr Cross suffered the loss of his car dealership in 1988, blaming a bitter legal battle with his ex-wife for the demise of the business and the loss of 110 jobs. 21. He was one of the region's most prominent businessmen in the 1980s, with an empire that in its heyday was Australia's largest privately owned motor dealership. 22. As well as selling Fords, Nissans, Suzukis and Ladas, his business extended to wrecking, spare parts, panelbeating and even caravans. In 1987 an industry downturn meant that a $50 million turnover saw him break even. 23. Photograph and caption: Mr Oppitz. 24. Caption to photograph: Failed: Ron Cross with his daughter Rene, a director of Everest Marketing, about to enter the Illawarra Business chamber in Wollongong for a creditor's meeting. 25. Photograph of Ron Cross and Rene Cross. ********** Last Modified: 12/22/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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