New South Wales Supreme Court CITATION : HODGE v TCN CHANNEL NINE PTY LTD [2003] NSWSC 1075 revised - 25/02/2004 HEARING DATE(S) : Thursday 20 November 2003 JUDGMENT DATE : 20 November 2003 JUDGMENT OF : Levine J DECISION : 1. If the plaintiff is to exercise the leave to amend, he should do so by 5.00 pm on Monday 24 November.; 2. The defendant is, by 4.00 pm on Friday 28 November, to file its defence, limited to the issues to be determined by the Jury pursuant to s 7A of the Defamation Act, pursuant to Part 31 Rule 2 of the Supreme Court Rules.; 3. I direct a trial by Jury of the issues as joined between the parties.; 4. In relation to the first application, I confirm that I have ordered expedition. I grant leave to the parties forthwith to make arrangements to approach Bell J, the List Judge, to obtain a hearing date for the 7A trial.; 5. In relation to the imputations argument, the plaintiff has been predominantly successful and I order the defendant to pay its costs in that regard.; 6. In relation to the expedition application, I order the defendant to pay the plaintiff's costs thereof. CATCHWORDS : Imputations - capacity - form GREGORY HODGE (Plaintiff) PARTIES : v TCN CHANNEL NINE PTY LTD (Defendant) FILE NUMBER(S) : SC 20276 of 2003 B Connel / T Jowett (Plaintiff) COUNSEL : T Blackburn SC / S Dawson (Defendant) Blake Dawson Waldron (Plaintiff) SOLICITORS : Gilbert & Tobin (Defendant) Ex tempore: revised [2003] NSWSC 1075 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE THURSDAY 20 NOVEMBER 2003 20276 of 2003 GREGORY HODGE (Plaintiff) v TCN CHANNEL NINE PTY LTD (Defendant) JUDGMENT (Imputations – capacity – form) 1 Pursuant to SCR Part 31 r 2 there has been heard argument, so far as is relevant to that rule, on the separate issue of law in relation to "capacity". The emphasis however of the defendant's position with respect to the plaintiff's imputations is directed to form. 2 The plaintiff sues in respect of a publication on Channel Nine on 13 October 2003. The text of the spoken words and descriptions of other components of the program are to be found in annexure A to the statement of claim. 3 The plaintiff contends that this program carries eight imputations. 4 The first challenged imputation is: 4(a) The plaintiff had so sexually harassed Emma Fuller, who was a child under his care and protection, that he had caused her serious and permanent psychological trauma, and had caused her to abandon a career as a swimmer in which she could have been expected to represent Australia in the 2000 Olympics. 5 The objection taken by the defendant to this imputation is that it is a "rolled-up" or "composite" imputation containing two separate components. If an imputation is so flawed, it is struck out. I am not persuaded by Mr Connell that there is unity in this imputation. I am persuaded by the submissions for the defendant that it is clearly rolled up, containing the two separate components: psychological trauma and abandoning of career. I formally strike out imputation 4(a) and grant leave to the plaintiff to replead. 6 Imputation (b), I grant leave to the plaintiff to amend that imputation to read: 4(b) The plaintiff is a sexual predator who, having persuaded Emma Fuller's parents to let him look after her, had so abused her as to shatter her life and career. 7 I do not accept the submissions of the defendant in relation to any vagueness or imprecision with respect to the word "predator". I accept the submissions for the plaintiff that that word, combined with the word "sexual" will readily be understood as ordinary English by ordinary, reasonable people. The component of the imputation of the plaintiff having persuaded Emma Fuller's parents to let him look after her is reasonably founded in lines 158 and following in the matter complained of. I hold imputation (b) to be capable of being carried, capable of being defamatory and being proper in form. 8 Imputation 4(c) is: 4(c) The plaintiff was a pervert who had preyed upon Emma Fuller whilst she was a child under his care and protection. 9 Dealing first with what is contended to be vagueness and imprecision in relation to the words "pervert" and "preyed", I form the same view as to those words as I have indicated in relation to "sexual predator". 10 Before ruling on that imputation, however, it is appropriate to turn to imputation 4(d), given the submission that there is no difference in substance between 4(c) and 4(d). Imputation 4(d) is: 4 (d) The plaintiff had engaged in constant acts of physical contact of a sexual nature upon Emma Fuller, a child under his care and protection. 11 I am persuaded in relation to imputation (d) by reference to various parts of the program more recently identified and enumerated in submissions by Mr Connell, that there can be no question on a capacity basis of the availability of the notion of "constant". 12 I am not persuaded that the imputations are the same. 13 The first of them, the "pervert who preyed" in my view does connote conduct more general as opposed to the more distinct accusation in relation to physical contact in 4(d), insofar as it is, in my view, more of a generalised nature when contrasted with 4(d). The whole of the program and its opening line, "He had a sick obsession with me" and various other parts to which reference has been made in the written submissions, is capable of supporting it. 14 In relation to 4(c) and 4(d), I find that they differ in substance. Each is capable of being carried by the matter complained of; each is capable of being defamatory. 15 The next imputation is 4(g): 4(g) That the plaintiff had so misconducted himself in his sexual attentions towards Emma Fuller that he was unfit to hold his position in charge of the Australian Olympic swimmers. 16 The notified objection was founded upon a lack of difference in substance thus leading to a charge that it was rhetorical. I am not persuaded that it is rhetorical. There is sufficient in this program to isolate the question of the plaintiff's fitness to hold the position and the statement that he had misconducted himself is not an abstract one. It is described within the imputation as "in his sexual attentions". 17 I find imputation 4(g) to be proper in form, capable of being carried by the matter complained of and capable of being defamatory. 18 Imputation4 (h) is: 4(h) That the plaintiff had humiliated his wife by displaying sexual interest in Emma Fuller, a child living in his household and paying that child inappropriate attention in preference to her. 19 The seed for the growth of this imputation, leaving to one side for the moment the question of form, is in lines 272 to 273 and 287 to 289 of the transcript of the matter complained of. On a capacity basis, that material is capable of giving rise to an imputation of the substance of imputation 4(h) but omitting the words, "and paying that child inappropriate attention in preference to her", which I strike out. I strike out those words because they are, as a matter of English, meaningless and are capable of at least one construction that the inappropriate attention was being given to Emma Fuller instead of being given, as inappropriate attention, to the plaintiff's wife, which I am sure was not intended by the draftsman of the imputation. 20 I strike out that part of the imputation and the imputation as it remains I hold to be capable of being carried by the matter complained of and capable of being defamatory. 21 Thus it is that the plaintiff has been granted leave to replead in respect to imputation (a) only. 22 Before I deal with costs, I make some formal orders: 1. If the plaintiff is to exercise the leave to amend, he should do so by 5.00 pm on Monday 24 November. 2. The defendant is, by 4.00 pm on Friday 28 November, to file its defence, limited to the issues to be determined by the Jury pursuant to s 7A of the Defamation Act, pursuant to Part 31 Rule 2 of the Supreme Court Rules. 3. I direct a trial by Jury of the issues as joined between the parties. 4. In relation to the first application, I confirm that I have ordered expedition. I grant leave to the parties forthwith to make arrangements to approach Bell J, the List Judge, to obtain a hearing date for the 7A trial. 5. In relation to the imputations argument, the plaintiff has been predominantly successful and I order the defendant to pay its costs in that regard. 6. In relation to the expedition application, I order the defendant to pay the plaintiff's costs thereof. ********** Last Modified: 03/19/2004 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. 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