New South Wales Supreme Court CITATION : Younan v Nationwide News Pty Ltd [2004] NSWSC 740 HEARING DATE(S) : 11/08/04 12/08/04 JUDGMENT DATE : 19 August 2004 JURISDICTION: Common Law Division Defamation List JUDGMENT OF : Kirby J DECISION : Plaintiff's argument accepted re two imputations being different in substance, and not alternatives. CATCHWORDS : DEFAMATION - s7A hearing - capacity to give rise to imputations - whether imputations were alternatives. Younan v Nationwide News P/L [2003] NSWSC 1211 CASES CITED : Trade Practices Commission v Allied Mills Industries P/L (1980) 32 ALR 570 Ward v Lewis [1995] 1 WLR 9 R v Wasson [2004] NSWCCA 200 PARTIES : Raymond Mitchell Younan (Pl) Nationwide News Pty Limited (Def) FILE NUMBER(S) : SC 20232/03 S Littlemore QC/M W Sneddon (Pl) G Reynolds SC/D Sibtain (Def) COUNSEL : SOLICITORS : Ryan & Bosscher (Pl) Blake Dawson Waldron (Def) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID KIRBY Thursday 19 August 2004 20232/03 RAYMOND MITCHELL YOUNAN v NATIONWIDE NEWS PTY LIMITED JUDGMENT (on capacity) 1 KIRBY J: On 2 September 2003 a Statement of Claim was issued on behalf of Mr Raymond Mitchell Younan (the plaintiff) against Nationwide News Pty Limited (the defendant). There was a challenge to a number of imputations by the defendant. That challenge was heard by Levine J on 16 December 2003 ([2003] NSWSC 1211). Some imputations were struck out, and others survived. 2 In March 2004 the plaintiff's solicitors furnished the defendant's solicitors with a proposed Amended Statement of Claim. A number of imputations which had survived before Levine J were abandoned. New imputations were added. The Amended Statement of Claim was filed on 5 May 2004. It included the following imputations (only the first of which appeared in the original Statement of Claim): "(a) That he stole $340,000 which had been entrusted to him by police; (b) That he was involved in the illegal drug trade, and for that reason was used by police as an informant on his criminal associates; (c) That he conspired with corrupt police to steal $340,000." 3 No objection to the imputations was made by the defendants. The matter had, by that time, been set down for a s7A hearing on 11 August 2004. 4 On 11 August 2004, before the jury was sworn, Mr Reynolds SC, for the defendant, submitted that the imputations were not capable of arising. He also sought leave to file an Amended Defence to the s7A proceedings. A Defence had been filed to the original Statement of Claim. The Amended Defence, however, admitted that the imputation (a) was conveyed and was defamatory. Mr Reynolds further submitted that, in truth, imputation (c) was an alternative or fall-back imputation to (a), being a less serious version of the same crime. 5 Having reminded counsel that a week is set aside each month to sort out preliminary issues in defamation proceedings, and that it was not satisfactory to raise such issues when a jury is in waiting, I then gave a number of rulings. I ruled that the imputations (b) and (c) were capable of arising and that (c) was not, in substance, an alternative to (a). It was, in my view, a discrete imputation, different in substance from imputation (a). The trial proceeded. I undertook to provide short reasons for my view in the event that the plaintiff succeeded on imputation (c). On 12 August 2004 the jury found that imputation (c) was conveyed and was defamatory. I therefore now furnish my reasons for the ruling that imputations (a) and (c) should not be viewed as alternatives. 6 Mr Reynolds submitted that the primary crime was the theft of $340,000. Imputation (c) simply alleged a subsidiary and antecedent crime of conspiracy to steal the same amount. The principle, according to Mr Reynolds, was that, where the substance of the imputation was simply a less serious version of another imputation, it can only go to the jury as an alternative. Hence you cannot, except as alternatives, put variations of possible criminal charges, from more serious to less serious, to obtain a number of separate and cumulative imputations. He relied upon a passage from Trade Practices Commission v Allied Mills Industries Pty Ltd (1980) 32 ALR 570 at 579. The Court in that case referred to a judgment by Denning LJ in Ward v Lewis ([1995] 1 WLR 9) where the issue was whether, in an action for defamation against two or more defendants, it was permissible to add a count of conspiracy to defame the plaintiff. Denning LJ said this: (at 11) "It is important to remember (and we had a case only last week on this point) that when a tort has been committed by two or more persons an allegation of a prior conspiracy to commit the tort adds nothing . The prior agreement merges in the tort. A party is not allowed to gain an added advantage by charging conspiracy when the agreement has become merged in the tort. It is sometimes sought, by charging conspiracy, to get an added advantage, for instance in proceedings for discovery, or by getting in evidence which would not be admissible in a straight action in tort, or to overcome substantive rules of law, such as here, the rules about republication of slanders. When the court sees attempts of that kind being made, it will discourage them by striking out the allegation of conspiracy, on the simple ground that the conspiracy adds nothing when the tort has in fact been committed." (emphasis added) 7 Mr Littlemore QC, for the plaintiff, acknowledged the principle. However, the imputations were not alternatives. They each charged a separate act or condition. To say of someone that he conspired with corrupt police to steal $340,000 is different in substance, and in terms of criminality, than saying that someone stole $340,000 which had been entrusted to them by the police (cf Bryson JA in R v Wasson [2004] NSWCCA 200, para 21). The passage from Lord Denning, according to Mr Littlemore, was of no assistance. The allegation in that case concerned two persons who had defamed the plaintiff. In that context, an allegation of an antecedent conspiracy added nothing. However, here the imputation which arose directly from the words published was that Mr Younan stole money entrusted to him by the police. There was also a further and more subtle message which the ordinary reasonable reader would receive, reading between the lines. The money was stolen under the noses of police who were carrying out surveillance. The Royal Commission had been told that the police may have been involved in the theft. The message was, according to the plaintiff, that Mr Younan had conspired with corrupt police to steal the money. The theft could not have been carried out without their co-operation. The words, therefore, carried a different and additional meaning. 8 I accepted the plaintiff's argument. In my view the two imputations are different in substance. They are not alternatives. There is a real difference in the defamatory sting of each. Whilst there is a point of intersection, the evidence which would be required to justify each would be quite different. ********** Last Modified: 08/19/2004 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.