Styles v Izzo & Ors [2010] NSWSC 464

New South Wales Supreme Court

CITATION : Styles v Izzo & Ors [2010] NSWSC 464

HEARING DATE(S) : 3 May 2010

JUDGMENT DATE : 7 June 2010

JURISDICTION : Common Law

JUDGMENT OF : Simpson J

DECISION : Leave granted to the plaintiff to file an amended statement of claim

CATCHWORDS : DEFAMATION – actions for defamation – pleading – whether proposed amended statement of claim defective – leave granted to file amended statement of claim

LEGISLATION CITED : Uniform Civil Procedure Rules 2005

CATEGORY : Procedural and other rulings

CASES CITED : Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364 Webb v Bloch (1928) 41 CLR 331

Bridgette Rebecca Styles (Plaintiff) PARTIES : Luis Anthony Izzo (First Defendant) Joseph John Catanzariti & Ors trading as Clayton Utz (Second to Two Hundred Sixteenth Defendants)

FILE NUMBER(S) : SC 2009/297774

COUNSEL : S T Chrysanthou (Plaintiff) M Richardson (Defendants)

SOLICITORS : N/A (Plaintiff) Clayton Utz (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

SIMPSON J

7 June 2010

2009/297774 Bridgette Rebecca Styles v Luis Anthony Izzo & Ors

JUDGMENT 1 HER HONOUR: By statement of claim filed on 18 September 2009, the plaintiff, Ms Bridgette Styles, claims damages for defamation arising out of two alleged publications. She names 217 defendants, of whom all except the first are pleaded to have been partners in a firm of solicitors ("the Partnership"). The first defendant, Mr Luis Izzo, is pleaded to have been a solicitor employed by the Partnership. 2 The first publication was pleaded in paragraph 4 as an oral publication by Mr Izzo to the second defendant, Mr Joseph Catanzariti, on 20 September 2008. The second publication was pleaded in paragraph 6 as a file note published in or about September or October 2008 by all defendants to various individuals, some of whom are named in particulars subscribed to paragraph 6. 3 After correspondence between the parties Ms Styles gave notice of her intention to file an amended statement of claim. By UCPR 19.1(1), by reason of the time that has elapsed since the statement of claim was filed, she needs leave to do so. The defendants object to leave being granted. The reason for the objection is that, in a number of respects, the proposed amended statement of claim is defective. The proposed amended statement of claim is the subject of the present proceedings. 4 Some of the respects in which the proposed amended statement of claim was said to be defective concerned the pleading of the imputations Ms Styles alleges were conveyed by the publications. I dealt with those objections ex tempore in a hearing on 3 May 2010. What remains for consideration is a further and more fundamental objection to the pleadings. In order to explain the objection, it is necessary to outline some background facts, drawn from the proposed pleading. I will assume, for the purposes only of this judgment, the facts alleged in the proposed amended statement of claim. The following account of facts and circumstances is drawn solely from what is contained therein. 5 Ms Styles is a solicitor. Between 20 August 2007 and 12 December 2008 she was employed by the Partnership as a graduate solicitor. 6 In paragraph 4, Ms Styles alleges that, at about 7pm on 20 September 2008, Mr Izzo spoke to Mr Catanzariti. He said: "Bridgette Styles, your new graduate solicitor, is making extremely serious and unjustified allegations about Abraham Ashe, Cilla Robinson and James Simpson and I. She is accusing us of conspiring to place pictures of me in Abe's office. She is saying that she has been sexually harassed by the pictures and she is threatening to use the sexual harassment allegations as bargaining chips against the firm, to force us to let her stay in the Workplace Group after her rotation finishes. She was very aggressive and even grabbed me even though I was backing away. I don't want to come back from secondment to the Workplace Group if she's in it." 7 This is referred to in the proposed pleading as "the first matter complained of". 8 In paragraph 5, Ms Styles claims that four defamatory imputations were conveyed by this publication. The defendants make no challenge to this pleading, and it is unnecessary to say more about it. Paragraph 4 can be put to one side. 9 In paragraph 6, Ms Styles alleges that, the following day, 21 September 2008, Mr Izzo (who, it is emphasised, is an employed solicitor, and not a member of the Partnership), communicated by email with an unknown number of recipients, one of whom was Ms Sheila Rebeiro. Ms Rebeiro was the "National HR" (presumably, Human Resources) Manager of the Corporate Practice Group of the Partnership. Mr Izzo made this communication at the request of and with the authority of Mr Catanzariti, who had directed him to prepare and distribute a note of the events to which it referred. The email was entitled "File Note made by Luis Izzo on 20 September 2008" and is referred to in the proposed amended statement of claim as "the second matter complained of". The email contained a longer, more detailed, account of the exchange to which Mr Izzo had referred in the first matter complained of. In paragraph 7, Ms Styles claims that 16 imputations defamatory of her were conveyed by this publication. 10 In particulars subscribed to paragraph 6, Ms Styles claims that there followed wide republication of the content of the email, both inside and outside the workplace of the Partnership. This included republication to "the general population" of legal practitioners of Sydney, in employment law circles in which Ms Styles moved and was employed, among mutual friends and acquaintances of Mr Izzo and of Ms Styles, and among Ms Styles' family and friends. 11 (It is Ms Styles' case that, because the email was sent by Mr Izzo at the direction of Mr Catanzariti, both Mr Catanzariti and the Partnership as a whole are liable for any defamatory consequences. That is not a matter for present determination.) 12 No challenge is made to paragraph 6 of the proposed amended statement of claim (which is in substantially similar terms to the equivalent pleading in the original statement of claim). Paragraph 6 can therefore also be left to one side. 13 The proposed amended statement of claim contains new paragraphs 6A, 6B and 6C. These are the subject of the present proceedings. Counsel for the defendants has urged that paragraph 6A (and, presumably, paragraphs 6B and 6C) be struck out. However, as the document has not been filed, that is inapt. Properly characterised, what the defendants seek is that leave to file the proposed amended statement of claim be refused while ever those paragraphs remain in their present form. The defendants contend that they are defective, and defective in a way that seriously prejudices them. 14 Paragraph 6A pleads: "The second matter complained of has been republished at various times since its publication."