Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Hearing dates: 27 September 2013 Decision date: 11 October 2013 Before: Bathurst CJ at [1] Beazley P at [2] Macfarlan JA at [3] Decision: (1)Grant the plaintiffs leave to appeal. (2)Allow the appeal. (3)Set aside orders made at first instance on 12 December 2012. (4)Grant the plaintiffs leave to amend their particulars of identification by adding to particular (c) under paragraphs 7 and 9 of the Amended Statement of Claim: "Such readers were so aware at various times respectively prior to publication, further particulars of which will be supplied forthwith". (5)Dismiss the defendants' notice of motion filed on 27 November 2012. (6)Order the plaintiffs to pay the defendants' costs of that notice of motion, of the plaintiffs' application for leave to appeal and of the plaintiffs' appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DEFAMATION - identification of plaintiffs - plaintiffs operated a boarding house - boarding house featured in newspaper and internet article concerning deaths over 14 month period prior to plaintiffs commencing to operate it - whether article reasonably capable of identifying the plaintiffs to readers with knowledge of particularised extrinsic facts Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Amalgamated Television v Marsden (1998) 43 NSWLR 158 Aon Risk Services Aust Ltd v Australian National University [2009] HCA 27; 239 CLR 175 Dare v Pulham [1982] HCA 70; 148 CLR 658 Favell v Queensland Newspapers [2005] HCA 52; 79 ALJR 1716 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Knupffer v London Express Newspaper Ltd Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; 141 CLR 632 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Nu-Tec v ABC [2010] NSWSC 711 Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Universal Communication Network v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1; Aust Torts Reports 81-932; Water Board v Moustakas [1988] HCA 12; 180 CLR 491 Category: Principal judgment Parties: Eddy Younan (First Appellant) Jocelyn Younan (Second Appellant) Nationwide News Pty Ltd (First Respondent) Peter Bodkin (Second Respondent) Representation: Counsel: K P Smark SC/S Chrysanthou (Appellants) A Leopold SC/L Barnett (Respondents) Solicitors: Kalantzis Lawyers (Appellants) Ashurst Australia (Respondents) File Number(s): CA 2012/395535 Decision under appeal Jurisdiction: 9111 Citation: [2012] NSWSC 1528 Date of Decision: 2012-12-12 00:00:00 Before: Nicholas J File Number(s): SC 2012/289973 Judgment 1BATHURST CJ: I agree with the judgment of Macfarlan JA. 2BEAZLEY P: I agree with Macfarlan JA. 3MACFARLAN JA: In these proceedings the plaintiffs sought damages for the defamation of them by the defendants. They alleged in their Amended Statement of Claim that: * Since about 9 November 2010 they have operated a boarding house at a property at Marrickville in Sydney. * On or about 13 March 2012, the defendants published in The Daily Telegraph newspaper, and on the internet, an article entitled "Vile conditions in mouldy boarding house of death" which was defamatory of them. 4By Notice of Motion filed on 27 November 2012, the defendants sought in respect of each plaintiff an order pursuant to r 28.2 of the Uniform Civil Procedure Rules 2005 ("UCPR") that the question of whether the article was reasonably capable of identifying the plaintiff be determined separately and, if the question be answered in the negative, an order pursuant to r 28.4 dismissing that plaintiff's claim. By judgment of 12 December 2012, Nicholas J, sitting in the Equity Division of the Court, found that the article was incapable of identifying the plaintiffs and dismissed their proceedings. Although his Honour did not make any formal order for separate determination under r 28, it was implicit in his judgment that he intended to do so and to answer the questions posed in the negative. As a result, the dismissal should be taken to have been effected under r 28.4. 5The plaintiffs now seek leave to appeal against that dismissal, leave being necessary because the order for dismissal was interlocutory. In the course of argument before this Court, the plaintiffs also sought leave to supplement the particulars of identification contained in their Amended Statement of Claim. I address that application below. The publication 6As noted above, the article complained of was headed "Vile conditions in mouldy boarding house of death". It contained a photograph of the boarding house with the caption "Six people died in this Sydney boarding house". 7The article included the following statements: * Six residents had died "in just 14 months" at the "hostel". * "The terrible conditions and lack of proper health care ... at 300 Hostel may have contributed to the unexpected deaths". * A named person was found dead in his room on 8 August 2010. * His death came after another five residents had died at the boarding house between June 2009 and March 2010. The Amended Statement of Claim 8As noted earlier, the plaintiffs alleged that they had operated the property as a boarding house since about 9 November 2010. 9They further alleged that the article had the following defamatory meanings: * The plaintiffs ran a boarding house in Marrickville with reckless disregard for the health of its residents. * The plaintiffs, who ran a boarding house in Marrickville, failed to ensure that residents were provided with proper health care, and thereby contributed to the death of some of the residents. * The plaintiffs conducted a boarding house in Marrickville in which conditions were so filthy that it contributed to the death of six residents in 14 months. 10As the plaintiffs were not named in the article, they provided, as required by UCPR r 15.19(1)(d), particulars of the means by which particular readers, or a class of readers, would have identified them as having been referred to by the article. These were as follows: "(a) The plaintiffs are the registered proprietors of the property. (b) The plaintiffs operate a boarding house in the property. (b1) The plaintiffs operate a boarding house in the property pictured in the matter complained of. (c) Readers of the first matter complained of, or some of them, were aware of the matters set out in (a) and/or (b) and/or (b1), above. (d) By reason of the matters set out in (a), (b), (b1) and (c), above, the plaintiffs were identifiable and identified in the first matter complained of and such identification was reasonable in the circumstances. (e) Further and in the alternative to (a) - (d) above, the plaintiffs were identified by the following persons who read the first matter complained of at the time of its publication: i. Olga Mytika - 24 Barcoo Island, Sylvania Waters ii. Jayson Lang - 12/16 Morgan Street, Randwick iii. Johnny Lewis - 41 Llewellyn Street, Marrickville (f) Further particulars will be provided as and when they become available, and after discovery and interrogatories". 11By an application made to this Court in the course of the concurrent hearing of their leave application and the appeal that would follow if leave were granted, the plaintiffs sought to add the following to the end of particular (c): "Such readers were so aware at various times respectively prior to publication, particulars of which will be supplied forthwith". Or in the alternative, an addition as follows: "Such readers were aware of such matters prior to reading the matter complained of". The judgment at first instance 12Having noted that the article "refers to events which occurred within a specific period over about 14 months", the primary judge said: "As the imputations raise a temporal issue it is therefore necessary for the plaintiffs to establish that they were identified as involved in the operation of the boarding house at the times when, or for the period during which, these deaths are said to have occurred" (Judgment [16]). 13After observing that the particulars of identification asserted "that at the time of publication the nominated readers knew that the plaintiffs are the registered proprietors of the property, and operate on it the boarding house which was pictured in the article", his Honour said: "18 ... The imputations are specific in time, and are of and concerning the operators of the boarding house at the times of the deaths. Absent proof of knowledge of a reader of extrinsic facts capable of linking the plaintiffs to the operation of the boarding house in the relevant period it is inevitable that their claim must fail. The fact that it was not until 9 November 2010 that the plaintiffs became the operators negates the existence of evidence capable of supporting the conclusion by an ordinary reasonable reader that the article, and its defamatory imputations, referred to the plaintiffs. 19 Furthermore, I am satisfied that no ordinary reader with knowledge of the facts and matters provided in the particulars could reasonably understand that any of the imputations referred to the plaintiff. In my opinion, any such understanding would be no more than the product of supposition or guesswork without any factual support, which was arrived at in ignorance of the truth." The relevant principles and the procedure adopted in this case 14As the plaintiffs' Amended Statement of Claim recognised, it is an essential element of a claim in defamation that the plaintiff prove that the published statements were made "of and concerning the plaintiff" (Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371). If, as here, the matter complained of did not expressly mention the plaintiff and the identity of the plaintiff as a person referred to would only be known to readers who had knowledge of special circumstances, it is necessary for the plaintiff to prove, first, that the matter complained of was published to a person or persons who had such knowledge and believed that the plaintiff was referred to (Steele at 373 - 4). 15In conformity with this principle, the plaintiffs in the present case pleaded that at least some readers of the article were aware of the particularised extrinsic facts referred to in [10] above. These related to the plaintiffs' ownership of the property and operation of a boarding house on it. The particulars were expressed in the present tense and, taken literally, related to knowledge of the readers of the plaintiffs' operation of the boarding house at the date of the Amended Statement of Claim. However, read sensibly, they must be taken as assertions of knowledge of readers as at the date of them reading the article. 16These extrinsic "facts" were true. Accordingly, the plaintiffs do not, impermissibly, assert that an erroneous belief of extrinsic facts was a sufficient basis for a reader to identify the plaintiffs as being referred to by the article (compare Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; 141 CLR 632 at 642 concerning untrue innuendoes; Nu-Tec v ABC [2010] NSWSC 711 at [18]). Consistently with World Hosts at 642, the plaintiffs do however contend that readers who knew of the (true) extrinsic facts erroneously, but reasonably, understood the article as referring to the plaintiffs. Thus they assert that the readers' beliefs arose from, or were the product of, the article itself (ibid). 17Secondly, for a plaintiff to succeed he or she is required to prove that not only were there readers of the article who, on the basis of the extrinsic facts of which they had knowledge, believed it to be referring to the plaintiffs, but also that those persons were "ordinary sensible readers" who could reasonably have come to that conclusion (Steele at 374). 18Whether identification has been established at trial is a question of fact, in the case of a jury trial, for the jury. Whether the evidence is capable of establishing it is a question of law (Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121). Thus it is a question of law for the judge "to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff" (Universal Communication Network v Chinese Media Group (Aust) Pty Ltd [2008] NSWCA 1; Aust Torts Reports 81-932 at [43] quoting Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245). Unless an affirmative answer can be given to the question of law, the case should not, in the case of a jury trial, be left to the jury (Steele at 364 - 5). 19On the assumption that the present plaintiffs' pleading and particulars defined the ambit of the evidence that they would be able to lead at the trial, the analogous question of law of whether the plaintiffs' allegations were, if proved by evidence, capable of proving the identification element of the plaintiffs' cause of action was able to be determined prior to the trial, with a view to dismissal of the proceedings if the answer was in the negative. This was the course taken by the primary judge, utilising the provisions of UCPR Pt 28 allowing for separate determination of questions arising in proceedings. As explained by Hunt J in Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 at 122 and following, in the defamation context, as in others, this procedure is distinct from the court's jurisdiction to strike out proceedings as manifestly groundless (or indeed to give summary judgment) where the principles stated in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 (and more recently in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118) are applicable. That jurisdiction is presently to be found in UCPR Pt 13, concerned with summary disposal, and UCPR r 14.28, concerning the striking out of pleadings. 20Unlike the summary disposal or strike out jurisdiction, where the question for the court is, in effect, whether the opponent's point is unarguably bad, determination of a point as a separate question simply requires its consideration as on a final hearing, that is, whether it has been established on the balance of probabilities. The circumstances in which it is appropriate to order under Pt 28 that a separate question be determined need not be discussed here as there was no challenge to the primary judge's decision to take that course. It is sufficient to note that that course will often be appropriate where, as here, the determination of a question of law in one way will dispose of the proceedings. 21Notwithstanding that the General Steel Industries approach was inapplicable in the present case, the parties proceeded before the primary judge upon the basis that it did apply. Nevertheless, that is not of significance because the question separately determined here itself involved, as does the General Steel Industries approach, a consideration of possibilities. That is, the question required consideration of whether an ordinary sensible reader (with the particularised extrinsic knowledge) could reasonably have come to the conclusion that the article referred to the plaintiffs. The parties, and the primary judge, treated this as the question for determination and did not suggest, based on the General Steel Industries principles, that it was necessary to consider whether it was unarguable that ordinary sensible readers could not have come to that conclusion. 22Returning to the assumption I made earlier concerning the role of the particulars in the present case (see [19] above), I note that before this Court the plaintiffs contended that their particulars would not have confined the evidence that they could have led at the trial. I do not accept this to be the case. Pleadings and particulars "enable the relevance and admissibility of evidence to be determined at the trial" (Dare v Pulham [1982] HCA 70; 148 CLR 658 at 664). A plaintiff will not be restricted by his or her particulars if evidence extending beyond the particulars is led without objection and a broader issue than particularised is litigated, but the particulars should subsequently be amended to conform with the evidence (ibid; Water Board v Moustakas [1988] HCA 12; 180 CLR 491 at 497). That a defendant may choose not to object at a trial to evidence going beyond the plaintiff's particulars or that the court may at a trial give a plaintiff leave to amend his or her particulars, does not derogate from the principle that the plaintiff's pleadings and particulars define the ambit of his or her case and thus provide a proper basis for assessing whether the plaintiff's case should be permitted to go to trial. The correctness of the primary judge's decision based on the unamended particulars 23The effect of the primary judge's decision was that ordinary sensible readers, knowing that the plaintiffs owned the subject property and operated a boarding house on it at the date of reading, could not reasonably have come to the conclusion that the article referred to the plaintiffs. Thus he found that such readers could not reasonably have concluded that present ownership and operation of the boarding house equated to ownership and operation in the period, concluding on 8 August 2010, referred to in the publication. In other words, such readers could not reasonably have concluded that the operators of the boarding house in the period up to 8 August 2010 would necessarily have been the same on or after 13 March 2012, the date of publication, about 19 months later. The date of reading must, of necessity, have been the same as, or after, the date of publication. 24I agree with his Honour's conclusions. Ordinary sensible readers with the alleged knowledge might have wondered whether the operators were unchanged or even suspected that that was so, but in my view for them to have concluded, without further information, that that was the case would have involved them in speculation which did not have any proper basis. It is common knowledge that properties and businesses frequently change hands and, as the defendants pointed out in submissions to this Court, the fact that a number of deaths had occurred at the boarding house in the defined past period referred to in the article increased the likelihood that 19 months later the boarding house would be under different management. 25I have reached this conclusion notwithstanding that, although the ordinary reader must have rational grounds for his or her belief that the matter complained of refers to the plaintiff, the "standards of reasonableness required of an identifying reader are not high" (Steele at 363 - 4), the ordinary sensible reader "is understandably prone to engage in a certain amount of loose thinking" (Amalgamated Television v Marsden (1998) 43 NSWLR 158 at 165) and such a reader draws implications much more freely than lawyers, "especially when they are derogatory" (Favell v Queensland Newspapers [2005] HCA 52; 79 ALJR 1716 at [11]). In my view, a conclusion that the plaintiffs were referred to in the article would not be based upon "the reader's understanding of what the [article] is saying" but would result from the reader's own "beliefs and prejudices" (Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293 at 301). The application for amendment 26The plaintiffs contended before this Court, that, contrary to the view of the particulars I have taken above, the existing particulars were consistent with the plaintiffs leading evidence at the trial from readers that they knew of operation by the plaintiffs of the boarding house prior to the date they read the article. 27I do not accept that it would have been open to the plaintiffs to lead such evidence. By using the present tense, the particulars clearly referred to knowledge of current operation only (see [15] above). Contrary to the plaintiffs' submission, that construction of the particulars does not render them insensible: for example, when reading the article, and mentioning it to another person, perhaps in a café, the reader might have been told that the plaintiffs (at that time) operated the boarding house. 28The plaintiffs' counsel asserted that this was not the intended meaning of the particulars and, lest the Court construe the particulars as I have indicated, sought to supplement them (see [11] above) to enable the plaintiffs to call evidence of the type referred to in [26] above. 29The readers covered by the amended particulars could extend to readers of the article who were in fact aware that the plaintiffs were operating the boarding house as early as three months following the last of the incidents in question. It is possible such a reader could reasonably conclude, in those circumstances, that the plaintiffs were the operators of the premises referred to in the article. Whether, assuming that the reader reached that conclusion, he or she in fact acted reasonably in so concluding would be a question of fact for the jury. 30The question of at what interval of time the reasoning of a reader would cease to be rational and become speculative is not easy to determine. Questions of degree are obviously involved. Whether my conclusion would be the same if the period involved were four or five months, or some longer period, does not arise for consideration. 31In these circumstances, I consider that the plaintiffs should be granted leave to supplement their particulars by adding the first of the two alternative formulations proffered (see [11] above). That addition to the particulars would, for the reasons I have given, mean that at the trial the plaintiffs would be able to lead, in accordance with their pleading and supplemented particulars, evidence capable of establishing that an ordinary sensible reader reasonably concluded that the subject article referred to the plaintiffs. This grant of leave seems to me to be the just course to take as the plaintiffs wish to propound an arguable case which they would otherwise be precluded from pursuing, and the only prejudice to the defendants, that of costs, can be cured by appropriate orders. 32I do not accept that any of the factors relied upon by the defendants in opposition to this grant of leave require a contrary conclusion. These were, in substance, that the defendants' written submissions before this Court had some months ago put the plaintiffs on notice of the difficulty with their particulars; that the plaintiffs previously amended their particulars to delete an allegation that a class of readers knew that the plaintiffs had operated the boarding house since 9 November 2010; and that the plaintiffs had not, but should have, demonstrated that they have evidence of the type to which I have referred to in [26] above available to call. 33In putting these submissions, the defendants referred to Aon Risk Services Aust Ltd v Australian National University [2009] HCA 27; 239 CLR 175 but, for a number of reasons, that case was very different from the present. In particular, the amendment in that case was sought on the third day of a four week trial, requiring the trial's adjournment, at considerable cost and expense. Further, that amendment raised entirely new issues which is not the case here. 34It is regrettable that the order for separate determination in this matter has resulted in unnecessary costs being incurred but that is a risk that is run where such orders are made, or indeed summary dismissal or strike out applications are made. These steps give plaintiffs an opportunity to reconsider their positions and, perhaps, to thwart them by seeking to amend pleadings or particulars. As Aon illustrates, a defendant may be in a better position to resist such an amendment if it is sought during a trial, when the consequence of its allowance may be an adjournment with corresponding expense to parties and to public resources. It is less likely that the Court will at an interlocutory stage refuse to permit a plaintiff to amend to raise an arguable case. 35My conclusion that leave to amend should be granted should not be taken as involving the expression of a view as to the sufficiency of the supplementary particulars. If necessary, that will have to be determined at first instance after the plaintiffs have supplied any further details of their additional allegations that are available. Orders 36Although the primary judge's decision was correct upon the basis of the particulars before him, the plaintiffs should be given leave to amend their particulars, with the result that leave to appeal should be granted and the appeal should be allowed. 37As the plaintiffs will have succeeded only because of their late application to supplement their particulars, they should, as they accepted must be the case, be ordered to pay the defendants' costs of the motion heard at first instance, of the plaintiffs' application for leave to appeal and of the appeal. 38For these reasons, I propose the following orders: (1)Grant the plaintiffs leave to appeal. (2)Allow the appeal. (3)Set aside orders made at first instance on 12 December 2012. (4)Grant the plaintiffs leave to amend their particulars of identification by adding to particular (c) under paragraphs 7 and 9 of the Amended Statement of Claim: "Such readers were so aware at various times respectively prior to publication, further particulars of which will be supplied forthwith". (5)Dismiss the defendants' notice of motion filed on 27 November 2012. (6)Order the plaintiffs to pay the defendants' costs of that notice of motion, of the plaintiffs' application for leave to appeal and of the plaintiffs' appeal. ********** 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: 11 October 2013