New South Wales Supreme Court CITATION : LOO v RURAL PRESS PTY LTD [2003] NSWSC 107 HEARING DATE(S) : 20 February 2003 JUDGMENT DATE : 20 February 2003 JUDGMENT OF : Levine J DECISION : 1. I hold that the sets of imputations to which reference has been made about, do differ in substance, and I also hold the same having been raised by consent pursuant to SCR Pt 31 r 2, that each of the imputations is capable of being carried by the matters complained of and is capable of being defamatory.; 2. It thus seems to me appropriate that this matter forthwith be referred to the list to be called up for a 7A trial.; 3. I direct the defendant within 14 days to file its defence to those issues to be determined by the jury in the trial pursuant to s 7A of the Defamation Act.; 4. Pursuant to Pt 31 r 2, I order that there be a trial by jury of the issues of fact to be determined by that tribunal under s7A of the Defamation Act.; 5. I direct that the matter be placed in the list for calling up for fixing of the date for that trial, and I direct that upon such date being fixed, no later than 14 days prior thereto, the parties have exchanged outlines of evidence in relation to the two innuendo cases.; 6. I also direct that no later than 14 days prior to the date fixed for the 7A trial, the defendant inform the plaintiff whether or not there will be in issue the fact that the defendant published the four publications relied upon. Any such admission as to publication of the articles will not be an admission by the defendant that the material it published carried the pleaded imputations or that they were defamatory.; 7. The defendant is to pay the plaintiff's costs. CATCHWORDS : Imputations - difference in substance - test - "suspicion" imputations - identity of holders of suspicion CASES CITED : Singleton v John Fairfax & Sons Limited, (unreported, 20 February 1980) RONALD LOO (Plaintiff) PARTIES : v RURAL PRESS PTY LTD (Defendant) FILE NUMBER(S) : SC 20458 OF 2002 M Richardson (Plaintiff) COUNSEL : T Hale SC (Defendant) Margiotta Solicitors (Plaintiff) SOLICITORS : Gilbert & Tobin (Defendant) - 5 - Ex tempore: revised IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE THURSDAY 20 FEBRUARY 2003 20458 OF 2002 RONALD LOO (Plaintiff) v RURAL PRESS PTY LTD (Defendant) JUDGMENT (Imputations - difference in substance – test – "suspicion" imputations - identity of holders of suspicion) 1 The plaintiff has instituted proceedings against the defendant in relation to four publications. The first publication was in the Northern Daily Leader on 25 August 2002, the second is in the same newspaper on 30 August 2002, the third publication on 30 August 2002 is constituted by a poster, and the fourth publication also was on 30 August 2002. 2 The relevant imputations in dispute pleaded in respect of the first matter complained of are: 4(a) That the plaintiff as a pharmacist in Moree unscrupulously took advantage of the lack of competition in Moree by charging inflated prices for prescription drugs. (b) That the plaintiff, as a pharmacist, was ripping off the people of Moree by overcharging them for prescription drugs. (c) That the plaintiff as the owner and operator of the only two pharmacies in Moree had abused the lack of competition by charging inflated prices for prescription drugs to such an extent that Moree residents were mounting a campaign to attract an additional chemist to the town to provide competition. (d) That the plaintiff as a pharmacist in Moree was reasonably suspected of unscrupulously taking advantage of the lack of competition in Moree by charging inflated prices for prescription drugs. (e) That the plaintiff, as a pharmacist, was reasonably suspected of ripping off the people of Moree by overcharging for prescription drugs. 3 The imputations pleaded in respect of the second matter complained of are as follows: 6(a) That the plaintiff as the owner of the only two pharmacies in Moree unjustifiably banned a Moree diabetic from entering his pharmacies to have prescriptions filled to control his diabetes. (b) That the conduct of the plaintiff in sending a pseudo-legal notice to a Moree diabetic truck driver banning him from the plaintiff's pharmacies warranted reporting to the Australian Competition and Consumer Commission. (c) That the plaintiff as a pharmacist in Moree unscrupulously took advantage of the lack of competition in Moree by charging inflated prices for prescription drugs. (d) That the plaintiff, as a pharmacist, was ripping off the people of Moree by overcharging them for prescription drugs. (e) That the plaintiff as a pharmacist in Moree was reasonably suspected of unscrupulously taking advantage of the lack of competition in Moree by charging inflated prices for prescription drugs. (f) That the plaintiff, as a pharmacist, was reasonably suspected of ripping off the people of Moree by overcharging for prescription drugs. 4 Two issues have arisen; the question as to whether or not there is a difference in substance between what I will describe as "sets of imputations", and the second in relation to what I will describe as "the suspicion imputations". 5 Dealing with the second aspect, there is a defect in form by reason of the non inclusion of the identity of those who held the suspicion. This second aspect of the matter has in my view been resolved by the plaintiff proposing to add the words "reasonably suspected by Moree residents". On my reading of the matters complained of, the identity of the suspicion holders is clear, that is so notwithstanding that in some of the articles, individual people or local community organizations are expressly stated as having expressed concern. When one bears in mind the publication sued upon and the subject matter of the articles which for the present purposes I will describe as "over charging", no other conclusion is reasonably available than that to which I have referred and which the plaintiff proposes to adopt. 6 I return to the first matter, the issue of difference in substance, and shall take imputations 4(a): That the plaintiff as a pharmacist in Moree unscrupulously took advantage of the lack of competition in Moree by charging inflated prices for prescription drugs. and 4(b): That the plaintiff, as a pharmacist, was ripping off the people of Moree by overcharging them for prescription drugs. as the example to permit the determination of the issue. 7 On a first reading of those imputations, an eyebrow may well be raised as to whether they do differ in substance, if the focus is understood to be nothing more than charging inflated prices for prescription drugs. However, imputation 4(a) I am satisfied, does contain an element additional to that set out in imputation 4(b), namely what is said to be the plaintiffs unscrupulously taking advantage of the lack of competition in Moree as a pharmacist by charging inflated prices. 8 Imputation 4(b) focuses on the act of ripping off by over charging for prescription drugs by the plaintiff as a pharmacist simpliciter, without reference to the apparent monopoly Mr Loo enjoys, or enjoyed, at the time in his ownership of the two pharmacies. 9 Clearly what would be involved in the proof of the substantial truth of the two imputations if found, would be to some extent the same, but to an important extent, different in that the monopoly requirement, as I will call it, in relation to 4(a) would involve additional factors. 10 The forensic consequences are not necessarily determinative. The test referred to by Hunt J in Singleton v John Fairfax & Sons Limited, (unreported, 20 February 1980) are in my view applicable to where it can be said that one imputation is not a particular instance of the other which is a general one. 11 I would interpolate that his Honour in that judgment makes it quite clear that looking at what has to be proved in support of a plea under s15 may be a way of resolving a difference in substance issue. His Honour as I understand it, never suggested that that test was the only test, nor suggested that that test if applied would always be determinative. It is only a test. 12 I add that insofar as I understand some question to be raised as to capacity in relation to the second matter complained of, whether dependent upon its natural meaning or by way of innuendo, that this is one of the clearest cases where the application of the test of reasonableness would only lead to a finding that the matter is capable of carrying the imputations. 13 Accordingly, I hold that the sets of imputations to which reference has been made about, do differ in substance, and I also hold the same having been raised by consent pursuant to SCR Pt 31 r 2, that each of the imputations is capable of being carried by the matters complained of and is capable of being defamatory. 14 It thus seems to me appropriate that this matter forthwith be referred to the list to be called up for a 7A trial. 15 I will not require the plaintiff to file an amended statement of claim provided it is made clear by an appropriate document at the 7A trial that the suspicion imputations have been amended in accordance with what I have referred to above. 16 I direct the defendant within 14 days to file its defence to those issues to be determined by the jury in the trial pursuant to s 7A of the Defamation Act. 17 Pursuant to Pt 31 r 2, I order that there be a trial by jury of the issues of fact to be determined by that tribunal under s7A of the Defamation Act. 18 I direct that the matter be placed in the list for calling up for fixing of the date for that trial, and I direct that upon such date being fixed, no later than 14 days prior thereto, the parties have exchanged outlines of evidence in relation to the two innuendo cases. 19 I also direct that no later than 14 days prior to the date fixed for the 7A trial, the defendant inform the plaintiff whether or not there will be in issue the fact that the defendant published the four publications relied upon. Any such admission as to publication of the articles will not be an admission by the defendant that the material it published carried the pleaded imputations or that they were defamatory. 20 The defendant is to pay the plaintiff's costs. ********** Last Modified: 02/28/2003 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.