Supreme Court New South Wales Medium Neutral Citation: Polias v Ryall [2013] NSWSC 1267 Hearing dates: 2 September 2013 Decision date: 05 September 2013 Before: McCallum J Decision: Rulings as to imputations Catchwords: DEFAMATION - imputations - objections as to form and capacity - whether plaintiff should have leave to replead imputations objected to Legislation Cited: Civil Procedure Act 2005, ss 53(3), 60 Cases Cited: Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Mundey v Askin [1982] 2 NSWLR 369 Category: Interlocutory applications Parties: Nicholas Polias (plaintiff) Tobin Ryall (first defendant) Andy Hun Wei Lee (second defendant) Sandy Jan (third defendant) Rhys Gould (fourth defendant) Representation: Counsel: P Afshar (plaintiff) M Rollinson (all defendants) Solicitors: Hemsley Lawyers (plaintiff) Phoenix Attorneys (first defendant) Oliveri Attorneys (second defendant) BPH Legal (third defendant) Peter Papadopoulos & Co (fourth defendant) File Number(s): 2013/161335 Publication restriction: None Judgment 1HER HONOUR: Mr Nicholas Polias is a golf instructor and a regular poker player. By this action, Mr Polias seeks damages for defamation arising out of a series of statements made by his former fellow poker players on Facebook and in conversations at various gambling venues. 2The application before the Court is the defendants' application brought by notice of motion filed 2 August 2013 to have some of the defamatory imputations relied upon by the plaintiff struck out. There are four defendants to the action. Whilst each is represented by a separate law firm, they have cooperated to the extent of instructing the solicitor for the second defendant to file a single motion for his client and as agent for the other three defendants. All were represented by the same barrister, Mr Rollinson, at the hearing of the motion. I note that approach for the purpose of recording that, whereas it was initially met with some resistance on behalf of the plaintiff, it was in my view an appropriate cost-saving measure demonstrating proper compliance by those parties with their duty under s 53(3) of the Civil Procedure Act 2005, which requires parties to assist the Court to further the overriding purpose of the Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings. 3There are 15 matters complained of in the proceedings. The defendants' objections relate to 13 of those. At the outset of the hearing Mr Afshar, who appears for the plaintiff, stated that the plaintiff wished to replead some of the imputations objected to. The concession related to eight of the 13 matters complained of addressed in the defendants' objections. Mr Rollinson responded by stating that, notwithstanding that concession, the defendants sought rulings as to their various objections and would oppose the grant of leave to replead. In those circumstances, I determined that I should give rulings as to all of the defendants' objections. In my experience, it is generally ultimately more conducive to the efficient management of defamation proceedings to determine objections to the pleadings when first raised rather than to postpone that day by acceding to a plaintiff's capitulation to the need to replead. Second matter complained of 4A number of the matters complained of relate to an occasion when the plaintiff and the first defendant were apparently on a gambling trip together. The statements suggest that the first defendant believed that the plaintiff had taken $2000 of his money. The statements sued on reveal that the incident generated great bitterness and recrimination, the first defendant accusing the plaintiff of either dishonesty or, at the very least, discreditable carelessness. 5The defendants' first objection relates to the second matter complained of, which is one of the Facebook publications. In most cases, the Facebook publications are alleged to have been published by one of the defendants to 18 people including the other defendants. (The pleading requires some clarification in that respect. A list of persons is defined in the pleading as "the Facebook Recipients" but the pleading has not grappled with the fact that the audience necessarily shifts according to which defendant is alleged to have been the publisher on each separate occasion.) 6The second matter complained of is a lengthy message posted on Facebook by the first defendant. The message is in the second person, evidently addressed directly to the plaintiff. The relevant publication for the purpose of these proceedings consists in its allegedly being accessible to other Facebook users as well. 7The first three imputations relied upon by the plaintiff as arising from that message relate to the plaintiff's conduct in denying that he is a thief. The first defendant raises no objection to those imputations. The objections relate to imputations 6(d) and 6(e), as follows: 6(d) Mr Polias is an odious person. 6(e) Mr Polias is a person who deserves not to have any friends. 8Imputation 6(d) is alleged to arise from the following lines in the second matter complained of: And I never spread any rumours about you. I told people the story exactly how it happened. I even left out events that occurred that would show just how bad of (sic) a person you truly are. 9Imputation 6(e) is alleged to arise from the conclusion of the matter complained of, as follows: You are a lying, cheating, stealing, selfish, incredibly negative, self-pitying, bad person. Susan deserves better than you and you deserve to have no friends. 10The first objection was as to both form and capacity. Mr Rollinson submitted that imputations 6(d) and 6(e) identify no specific defamatory act or condition allegedly attributed to the plaintiff. He further submitted that the passages relied upon and indeed most of the matter complained of amounts to mere vulgar abuse. In that context, Mr Rollinson reminded me of the Court of Appeal's decision in Mundey v Askin [1982] 2 NSWLR 369. 11It is interesting to revisit that decision two days before the next Federal election. Sir Robert Askin was Premier of New South Wales and a member of the Liberal Party. When the Party opened its campaign in the general election which took place later that year, Sir Askin made a speech which included the following remarks (at 370B): The 'real masters' of the Labor Party are Messrs Hawke, Mundey, Carmichael, Halfpenny and Crawford and all the rest of the left-wingers with a good sprinkling of commos. Fancy leaving the running of Australia - even if they do it behind the scenes - to that happy bunch. But don't under-estimate some of these vermin. Mr Mundey is the trade union official who is generally credited with having pressured Mr Whitlam into putting into his policy speech last Monday an undertaking to remove the penal clause from the Arbitration Act. Is this the kind of person you want having a say in the running of Australia? Because, make no mistake, it is abundantly clear that these are the kind of people who would be standing at the elbow of any Labor prime minister prompting and urging and threatening industrial turmoil and violence unless their demands were granted. Don't let the public say they haven't had a full warning of the dangers of electing a Labor Government. It might seem innocuous on the surface, but it would be a prisoner and obey the dictates of the extreme left-wing. 12Mundey sued. 13At trial, the judge directed the jury that, if they thought any of the words complained of amounted to no more than vulgar abuse, it was open to them to take the view that the words were not defamatory of Mr Mundey. The jury evidently acceded to that proposition, expressly finding that the words were not defamatory. The plaintiff's appeal against the verdict was dismissed. The Court of Appeal held that there was no error in his Honour's direction to the jury that words might be abusive, vulgar or objectionable without being defamatory. The Court specifically endorsed the trial judge's remark that such words "might injure a man's pride without injuring his reputation" (at 372C). 14It must be recalled that Mr Mundey's action went to trial. On a preliminary capacity objection, the characterisation of words sued on in a defamation action as being "mere vulgar abuse" cannot supplant the test as to whether the matter complained of is capable of conveying the imputation in question. As noted in Bennette v Cohen, there is not a dichotomy between vulgar abuse and matter which is defamatory: [2005] NSWCA 341; (2005) 64 NSWLR 81 at [51] per Bryson JA; Beazley JA and Brownie A-JA agreeing at [1] and [60] respectively. Ultimately, the question is whether the jury could reasonably understand the matter complained of in the defamatory sense contended for: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52. 15Conversely, it does not follow that a capacity argument could never succeed in such a case. There will be instances in which the position is clear enough to conclude that abusive words are incapable of conveying any defamatory meaning. The Frenchman's taunt in the well-known Monty Python film may afford an example ("your mother was a hamster and your father smelled of elderberries"). 16However, I do think there is a difficulty with the form of both imputations in the present case. The term "odious" means deserving to be hated or despised; the second imputation expressly rests on deserving a different fate (that of having no friends). Each is a conclusion; the imputation failing in each case to distil what act or condition of the plaintiff sustains it. An imputation that rests on saying what the plaintiff deserves without saying why is inherently problematic. The difficulty is revealed by a consideration as to what would be required to be proved in order to justify either imputation. I am satisfied that imputations 6(d) and 6(e) should be struck out as being bad in form. Third matter complained of 17The third matter complained of is in the following terms: Lol, nick is fucking stupid. His mother is fucking stupid. What a dumb bitch. How are people like this allowed to breed? Disgraceful, good riddance to bad shit. Nick you should be ashamed of yourself, for the human being you are. 18The only imputation relied upon by the plaintiff in respect of that publication is: 9(a) Mr Polias should be ashamed of himself for the things he has done in his life. 19Mr Rollinson submitted that the whole matter is vulgar abuse and does not convey any defamatory meaning. He acknowledged (consistently with the principles considered above) that there is no rule of law that vulgar abuse has some special immunity in the tort of defamation. Ultimately, it is a question as to what the words mean and whether their meaning is damaging to the plaintiff's reputation. In this instance, however, I would accept Mr Rollinson's contention that the words of the third matter complained of are devoid of any specificity of meaning. They are abusive but have no meaningful content. Another way of putting the same point is to observe that the defamatory meaning upon which the plaintiff relies is rhetorical. In my view, imputation 9(a) should be struck out. Fourth matter complained of 20The fourth matter complained of is a lengthy Facebook message posted by the first defendant further analysing the events of the $2000 allegedly taken by the plaintiff. In this instance the remarks are addressed to others, not to the plaintiff directly. 21The first defendant objects to the following imputations relied upon in respect of that publication: 12(b) Mr Polias is a thoughtless person in that he does not think about the feelings of others. 12(c) Mr Polias is guilty of acts that are akin to crimes. 22Imputation 12(b) is alleged to arise from the following words in the matter complained of: No sign of an apology whatsoever. It seems very thoughtless towards me to not realise how stressful that night was. 23Imputation 12(c) is alleged to arise from the following words: I'm happy for Nick's name to be cleared 100% of any accusation that he deliberately stole from me that night. But it's like clearing one conviction from a man who has been sentenced for committing 10 crimes. 24Mr Rollinson submitted that neither imputation is capable of being conveyed by the matter complained of. As to imputation 12(b), I disagree. In my view a jury could reasonably take that meaning from the publication. Taken as a whole, the description of the relevant events is highly derogatory of the plaintiff. Further, there is a specific focus on the stress he allegedly caused to the first defendant coupled with the complaint that he did not appear to have any appreciation of the impact of his conduct. 25Separately, Mr Rollinson submitted that the imputation does not identify a sufficiently concrete act or condition for the purpose of the tort of defamation. I can see some difficulty with the imputation. Its defamatory quality is elusive. However, I am not persuaded that I should strike out the imputation on that basis. The issue whether an attribution of thoughtlessness is such as to damage a man's reputation entails an essentially evaluative judgment as to which I do not think I should pre-empt the task of the jury. 26As to imputation 12(c), I accept that the imputation is not capable of being conveyed. The example of the man with 10 convictions is given by way of analogy. I do not think it can be understood as a literal assertion of prior criminal conduct. Even if the matter complained of is to be understood in that way, the imputation is bad in form, in my view. The meaning of the phrase "acts akin to crimes" is unclear and is liable to cause embarrassment in the pre-trial processes and at the trial. Imputation 12(c) should be struck out. Fifth matter complained of 27The fifth matter complained of is a lengthy statement posted on Facebook. The first defendant objects to imputation 15(c): That Mr Polias is an odious person. 28That imputation is alleged to arise from the following lines in the matter complained of, which are the concluding lines of a lengthy diatribe: Those are the reasons why I think you are a bad person and why I want nothing to do with you. It is possible that the pleader intended also to rely on the previous sentence "putting me on the phone to tell Susan that you hadn't cheated despite knowing how much I abhor the fact that you did cheat on her". 29For the reasons given in respect of imputation 6(d) above, I do not think that imputation should stand. Sixth matter complained of 30The sixth matter complained of is a very short posting on Facebook, as follows: Scumbags gonna scum 31The only imputation relied upon in respect of that publication is: 18(a) Mr Polias is a scumbag, in that he is a contemptible person. 32Plainly, the pleading cannot stand in that form. Leaving aside the difficulty with the term "scumbag", the matter complained of does not identify the plaintiff and there are no particulars of identification. Mr Afshar accepted as much, and seeks leave to replead. In my view, assuming the sixth matter complained of could be taken (in some context not presently pleaded) to refer to the plaintiff, it is meaningless abuse. I do not think any defamatory imputation can reasonably be distilled from those words as a single publication. I do not think leave should be granted to file any amended pleading based on that matter. Seventh, eighth and ninth matters complained of 33The defendants' objections in respect of the seventh, eighth and ninth matters complained of all relate to an imputation in the same terms (the scumbag imputation). The seventh matter complained of is an oral publication allegedly made by the second defendant in conversation at the Star Casino, as follows: Nick is scumbag. The scumbag is scared of me so he got me kicked out of the table. 34The eighth matter complained of is a posting on Facebook in the following terms: After last night's dinner with Dean and co, everyone was a little drunk before we sat on the Omaha table. I was particularly loud and called nick a scumbag on multiple occasion. Sure enough he reported me to his milf gf Cassandra and got me kicked out of the casino. Everyone was asking me what happen when the security escort me away from the table, so I said to the table: The scumbag is scared of me so he got me kicked out of the table. Nick goes: I'm not scared of you. I'm not scared of you!! Lol!! 35The ninth matter complained of is the posting of the following words on Facebook: Yeah I guess I deserve it. At least I got him to admit that he is a scumbag. 36The only imputations relied upon in respect of each of those publications is the scumbag imputation, which is no longer pressed by Mr Afshar. In my view, the imputation is bad in form in failing to distil any clear defamatory act or condition. It suffers from the same difficulty as the "odious person" imputation rejected above. 37I cannot see those publications as conveying anything more than meaningless abuse. I do not think leave should be granted to file any amended pleading based on those matters. Tenth, eleventh and twelfth matters complained of 38The plaintiff indicated that leave will be sought to replead the tenth, eleventh and twelfth matters complained of as a single publication, since they constituted part of a series of Facebook comments. It is not appropriate to pre-empt the determination of any such application. No form of proposed amended pleading has yet been provided. It is accordingly appropriate to determine the defendants' individual objections. 39The tenth matter complained of is the posting of the following words on Facebook by the second defendant: Sitting with 75K with a thief on my left. You wanna help me watch my chips while I'm on break? 40Since the matter complained of does not name the plaintiff, the pleading provides particulars of identification as follows: Particulars of Identification a. The plaintiff was present at the crown Casino (Melbourne) and was sitting next to Andy at a poker table at the time of the publication of the tenth matter complained of. b. Rhys was present at the Crown Casino at the time of the publication of the tenth matter complained of. c. Further particulars will be provided following discovery and interrogatories. 41The second defendant objects to both imputations relied upon as arising from that publication, as follows: 30(a) Mr Polias is a thief. 30(b) Mr Polias has the tendency to steal. 42Mr Rollinson submitted that the particulars are incapable of identifying the plaintiff, since he is identified only as having sat next to Andy, not on Andy's left (as stated in the matter complained of). In my view, that is plainly a jury issue. Separately, the second defendant submitted that imputation 30(b) is ambiguous in that it is not clear whether it means "has in the past and will again steal" or "is of such a nature that he can be expected to steal". I would see that not as an ambiguity in the words of the imputation but rather as an identification of the evaluative judgment entailed in determining whether it is substantially true. That is properly a matter for the jury, in my view. 43The eleventh matter complained of is a Facebook publication by the second defendant in the following terms: What's the odds of me sitting next to the most cunning person in a tourney again?? Gotta watch my chips now from being literally stolen. 44The imputations relied upon in respect of that publication are the same as for the tenth matter complained of. I do not think either imputation is capable of being conveyed by the eleventh matter complained of alone. 45The twelfth matter complained of is a further Facebook publication by the second defendant as follows: Na that guy is the most honest guy on earth mate. 46The only imputation relied upon in respect of that publication is: 36(a) Mr Polias is a most dishonest person. 47As effectively conceded by Mr Afshar, the twelfth matter complained of, taken alone, is incapable of conveying that imputation. That is the basis for the application to re-plead several publications in the series as a single publication. Separately, however, I think the imputation is problematic. Acknowledging that the description of the person as "the most honest guy on earth" is plainly sarcastic, I do not think those words are capable of conveying the meaning that he was "a most dishonest" person. At best, the meaning is that he is a dishonest person. Thirteenth matter complained of 48The thirteenth matter complained of is an oral publication allegedly made at a poker venue as follows: Nick is a liar. Toby was with Nick in the same room in Vegas. Nick stole $2,000 from the room. The money was left on the cupboard and it has gone missing. Nick is a thief. Nick did the wrong thing. Nick is a bad person. 49The second defendant objects to the following imputations relied upon as arising from that publication: 39(b) Mr Polias lied when he denied the fact that he is a thief. 39(c) Mr Polias is an odious person, in that he did something that was morally wrong. 50Imputation 39(c) is one of the imputations as to which the plaintiff seeks leave to replead. It is plainly bad in form, for the reasons given in respect of imputation 6(d) above. 51Mr Rollinson submitted that imputation 39(b) is not capable of being conveyed. I disagree. Read as a whole, the accusation of lying in the first sentence is clearly capable of being linked to what follows. Fourteenth matter complained of 52The fourteenth matter complained of is an oral publication by the third defendant as follows: Nick stole money from Toby. Toby left money on the table in Las Vegas and Nick did something. I don't know when and where but the money was missing. Nick put his whole story on Facebook saying he did not steal the money but we do not believe him. 53The third defendant objects to imputations 42(b) and (d) as follows: 42(b) Mr Polias is a thief. 42(d) Mr Polias cannot be believed when he denies the fact that he is a thief. 54The basis for the objection is that those imputations do not differ in substance from imputations (a) and (c) as follows: 42(a) Mr Polias stole money from Toby when Mr Polias and Toby were in Las Vegas. 42(c) Mr Polias lied when he denied the fact that he is a thief. 55As to imputations (a) and (b), I see no vice in allowing both imputations to stand. One is an imputation of a specific act, the other a general condition. It is well recognised that a defamatory publication can convey both kinds of imputation at the same time. 56However, I see no difference in substance between imputations (c) and (d). Mr Afshar submitted that there is a temporal difference. If that is a technical difference in the language of the two imputations, I do not think it produces any difference in substance. The plaintiff should elect between those two imputations. Leave to replead 57Mr Rollinson submitted, with some force, that there should be no leave to replead. As to some of the matters complained of, he submitted that the imputations not objected to adequately capture the defamatory sting of the publications and that there is no utility in allowing the plaintiff to attempt to distil anything further. 58Mr Rollinson further noted that the defendants have already pleaded defences to the existing pleading, with the resulting inconvenience and duplication of costs if there is any amendment now. 59The astute observer at the hearing will have perceived that I was sorely tempted to accede to those submissions. Defamation actions are notoriously blighted by the unnecessary complication of simple claims. Such actions often generate legal costs out of all proportion to the importance and complexity of the matters in dispute (cf s 60 of the Civil Procedure Act). Disputes become intractable on that account. There is much to be said for taking a robust position against applications to replead. 60Regrettably, save where indicated above, I do not think I can yet reach the conclusion that no further amendment could be allowed in response to the rulings given in this judgment. However, these remarks should be considered carefully by the plaintiff in formulating any amendment. As already noted, there are four defendants to the proceedings, each represented by a separate law firm. They have pleaded defences of truth. Without derogating from the plaintiff's entitlement to seek a remedy to vindicate his reputation, due attention should be paid to confining interlocutory applications in the proceedings within sensible limits in proportion to the nature of the action, which is based on publications of limited circulation. 61A factor in my declining to pre-empt any leave to replead is that, contrary to the practice established in this list, the defendants did not bring forward the present objections promptly after the statement of claim was filed and before filing their defences. 62I will hear the parties as to the appropriate orders. ********** 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. Decision last updated: 09 September 2013