New South Wales Supreme Court CITATION : Gary Ezzo v Robin Grille [2004] NSWSC 670 HEARING DATE(S) : 14/07/2004 JUDGMENT DATE : 29 July 2004 JUDGMENT OF : Nicholas J DECISION : para 19 CATCHWORDS : DEFAMATION - imputations - capacity - form - whether imputations differ in substance LEGISLATION CITED : Defamation Act 1974 (NSW) s 7A(3) Supreme Court Rules 1970 (NSW) Pt 31 r 2, Pt 67 r 11(3) Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 CASES CITED : Feros v West Sydney Radio Pty Limited (Unreported, NSWCA, 22 June 1982) Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 Singleton v Ffrench (1986) 5 NSWLR 425 PARTIES : Gary Ezzo - Plaintiff Robin Grille - Defendant FILE NUMBER(S) : SC 20137/03 COUNSEL : T K Tobin QC - Plaintiff S Wheelhouse SC - Defendant SOLICITORS : Freehills - Plaintiff Corrs Chambers Westgarth - Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST Nicholas J 29 July 2004 20137/03 Gary Ezzo v Robin Grille JUDGMENT 1 His Honour: Pursuant to SCR Pt 31 r 2, and by consent, there has been a separate trial of questions concerning some of the imputations pleaded in para 8 of the Second Amended Statement of Claim. 2 The pleading was filed pursuant to leave granted by Levine, J on 18 June 2004. In his judgment of that date His Honour made rulings in respect of the imputations pleaded in para 8 of the Amended Statement of Claim, some of which were struck out with liberty to replead. The imputations subject to argument before me were pleaded with regard to His Honour's reasons and rulings. 3 In the current pleading the Plaintiff contends that the matter complained of, being the article published in the August 2002 edition of the magazine "Sydney's Child" under the heading "Fundamentalism: A War Against Children", in its natural and ordinary meaning conveyed imputations defamatory of him, including the following: "8(1) The plaintiff has caused the deaths of numerous infants in that but for the parenting methods advocated by the plaintiff, which are outdated, hostile toward children and pathologically obsessed with obedience, those infants would not have died. (2) The plaintiff has caused numerous infants to suffer serious injuries in that but for the parenting methods advocated by the plaintiff, which are outdated, hostile toward children and pathologically obsessed with obedience, those infants would not have suffered serious injuries. (3) The plaintiff is morally responsible for the deaths of numerous infants in that but for the parenting methods advocated by the plaintiff, which are outdated, hostile toward children and pathologically obsessed with obedience, those infants would not have died. (4) The plaintiff is morally responsible for the fact that numerous infants have suffered serious injuries in that but for the parenting methods advocated by the plaintiff, which are outdated, hostile toward children and pathologically obsessed with obedience, those infants would not have suffered serious injuries. … (6) The plaintiff was reasonably suspected of having himself engaged in child maltreatment. … (12) The plaintiff causes the creation of abusive family environments in which he publicly advocates fundamentalist religion which engenders abusive family environments; (13) The plaintiff causes the creating of oppressive family environments in that he advocates fundamentalist religion which engenders oppressive family environments;". 4 The Defendant sought orders that imputations 8(1), (2), (3), (4), (12,) and (13) be struck out on grounds that each is incapable of arising and/or was defective in form and/or did not differ in substance from others. Also sought was an order that 8(6) be struck out on the ground that it does not differ in substance from imputation 8(6) pleaded in the Amended Statement of Claim which Levine, J struck out as incapable of being conveyed (para 24) without leave to replead. 5 It is convenient to turn first to the question concerning imputation 8(6). The imputation struck out by Levine, J was: "8(6) The plaintiff has so conducted himself as to give rise to the reasonable suspicion on the part of an official body that he has engaged in child maltreatment". At para 24 of his judgment he held that: "There is simply no basis for an assertion that the plaintiff was under the reasonable suspicion on the part of an official body of his having engaged in child maltreatment". 6 In my opinion it is plain from its terms that the new imputation differs in substance from the old in that it contends that the suspicion was general whereas the other referred to suspicion on the part of an official body. The new imputation 8(6) is not affected by the ruling and should go to the jury. It may be noted that Mr Tobin, QC, for the Plaintiff informed the court (T p 20) that this imputation was pleaded as an alternative to imputation 8(5) namely: "The plaintiff has engaged in child maltreatment". 7 In relation to imputations 8(1) and (2) I find them capable of being conveyed by the matter complained of particularly the passages at lines 1-48 and lines 182-208. I make a similar finding as to imputations 8(12) and (13) with particular regard to the passage at lines 1-14. I also find that each of these four imputations are permissible in form and differ in substance one from the other. 8 Although imputations 8(1) and (2) are pleaded with sufficient specificity to withstand an attack as to form, the manner in which the charges are formulated warrants revision along the lines discussed during argument (T p 11) for the more succinct expression of their sting and of the conduct attributed to the Plaintiff. 9 In relation to imputations 8(3) and (4) problems of form and substance arise. As I understand them, the allegations are that the Plaintiff is morally responsible for infants' deaths or injuries which were caused by his conduct identical to the conduct alleged in imputations 8(1) and (2) respectively. I fail to see the difference in substance between the defamatory sting of imputation 8(1) which is that the Plaintiff, by advocating parenting methods which are outdated, hostile toward children and pathologically obsessed with obedience caused the deaths of numerous infants, and the defamatory sting of 8(3) which is that the Plaintiff is morally responsible for causing the deaths of numerous infants by advocating such parenting methods. Likewise with the difference in substance between the defamatory sting of imputations 8(2) and (4). 10 SCR Pt 67 r 11(3) precludes pleading of shades and gradations of substantially similar imputations. An imputation specified in a statement of claim must be taken to include all imputations which do not differ in substance (Morosi v Mirror Newspapers Limited (1977) 2 NSWLR 749 at p 771). Thus, at trial, the jury is ordinarily asked whether the publication has conveyed the specified imputation or an imputation which does not differ in substance from it. 11 It is the defamatory thrust or sting of an imputation which will distinguish it from another (Singleton v Ffrench (1986) 5 NSWLR 425 per Mahoney, JA pp 428-429). If the sense in which a pleaded imputation is to be understood is not substantially different from the sense in which another is to be understood it will be struck out under r 11(3). 12 Usually it is necessary to resolve questions of form and sense before considering whether an imputation is capable of arising and whether or not it might breach r 11(3) and whether or not it should be pleaded as an alternative (Singleton per McHugh, JA p 435). 13 Mr Tobin QC submitted that imputations 8(3) and (4) should be understood as alleging a degree of culpability for the Plaintiff's conduct different from that alleged in imputations 8(1) and (2) in that the former convey a sense of intention or recklessness and something more than the Plaintiff being, as it were, a mechanical cause of something (T p 16). So understood, it is put, that there is a relevant difference in substance. 14 In my opinion it is far from clear that the imputations 8(3) and (4) in their present form would be likely to be understood in the sense suggested so as to distinguish them from 8(1) and (2). If the Plaintiff proposes to rely upon imputations intended to be so understood it is necessary that they be formulated so that the sense is clear and the problems of imprecision, uncertainty, and ambiguity often generated by the use of words such as "caused" and "responsible for" are avoided. (Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 pp 162-163; Feros v West Sydney Radio Pty Limited (Unreported, NSWCA, 22 June 1982); cf: Singleton p 436 ("morally blameworthy"). 15 Absent refinement, I find that imputation 8(3) does not differ in substance from 8(1), and 8(4) does not differ in substance from 8(2). I also find that they are defective in form and in that the sense in which "morally responsible" is used and is to be understood is ambiguous. In the circumstances, it is appropriate that 8(3) and (4) be struck out with leave to replead. 16 If the Plaintiff proposes to file a further amended statement of claim that pleading should make clear that imputation 8(6) is an alternative to (5) as noted earlier. 17 With regard to the costs of these proceedings, it seems that the outcome for each party is evenly balanced. In the circumstances the appropriate order is that each party pay his/her own costs. 18 It is appropriate to defer ruling as required by s 7A(3) Defamation Act 1974 (NSW) in respect of the remaining imputations (including 8(6), (12), and (13)) until all outstanding issues concerning imputations have been resolved and the matter is ready for inclusion in the call-up list for fixing the 7A trial. 19 Accordingly, the formal orders are: (1) Imputations 8(3), and (4) are struck out with leave to replead. (2) Each party is to pay his/her own costs. (3) The matter is stood over for inclusion in the defamation directions list at 9.30am 16 August 2004. ********** Last Modified: 08/03/2004 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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