Supreme Court New South Wales Medium Neutral Citation: Williams v Fairfax Media Publications Pty Limited [2013] NSWSC 1828 Hearing dates: 4 December 2013 Decision date: 04 December 2013 Before: McCallum J Decision: Application to have imputations struck out dismissed Catchwords: DEFAMATION - imputations - form and capacity - no issue of principle Cases Cited: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Category: Interlocutory applications Parties: K Williams (plaintiff) Fairfax Media Publications Pty Ltd (defendant) Representation: Counsel: B McClintock (plaintiff) ATS Dawson (defendant) Solicitors: Johnson Winter & Slattery (plaintiff) Banki Haddock Fiora (defendant) File Number(s): Publication restriction: None Judgment - ex tempore 1HER HONOUR: These are proceedings for defamation commenced by Mr Kim Williams against the proprietor of the Sydney Morning Herald arising out of an article published on its front page. 2The defendant has objected to the form of the pleadings. Specifically, it is contended that none of the imputations relied upon by the plaintiff is capable of being conveyed by the article. 3I should note that there is a series of articles relied upon but the parties are agreed that my rulings in respect of the first matter complained of will govern the balance of the pleadings, there being little difference between the different versions published in different forms of the newspaper. 4The article concerns the conduct of a meeting of the Board of the Opera House Trust, of which Mr Williams was formerly the Chair. The focus of the article is a tender process, evidently overseen by the chief executive officer of the Opera House, Ms Louise Herron, for the management of the restaurant at that venue. 5As submitted by Mr Dawson, who appears for the defendant, the article is in many respects critical of the management of the tender by Ms Herron. Mr Dawson submitted, and I accept, that the article relates to serious issues and the criticism directed at Ms Herron should be construed in that context. 6However, it does not follow that the article says nothing about the plaintiff. In certainly opens in a manner that focuses on his conduct at the meeting. The article reports that he was the chairman of the meeting. It includes the following. First, printed across a photograph of the relevant characters (Mr Williams, Ms Herron and the incumbent well-known chef of the restaurant) are the words, "Can't stand the heat...". A second, larger headline states, "Williams stormed out over Guillaume." A third, smaller part of the headline states, "Tempers boiled over during a meeting of the Opera House Trustees, writes Joe Austin." 7The body of the article insofar as it appears on the front page continues: Outgoing Sydney Opera House chairman Kim Williams stormed out of his final board meeting in disgust at Chief Executive Louise Herron's management of the restaurant tender that forced French chef Guillaume Brahimi from the building. 8Later the front page of the article continues: Ms Herron gave an impassioned defence of her actions, and those of her management team, during which an irate Mr Williams rose and told her, "I'm over you," before walking out of... 9The article continues on page 3 to indicate that Mr Williams walked out of the room and tendered his resignation shortly afterwards. 10The balance of the article on page 3 is, as already noted, largely focused on Ms Herron's conduct of the tender and is quite critical of her. 11The final point of relevance for present purposes is the caption underneath the photograph of Mr Williams with Ms Herron, which includes the words, "food fight." 12The first imputation relied upon is: (a) the plaintiff, as Chairman of the Sydney Opera House Trust, behaved in a petulant and boorish manner by storming out of a trust meeting and shortly afterwards tendering his resignation. 13Mr Dawson submitted that the focus the article places on the conduct of Mr Williams must be viewed in the context that it is an article on a serious issue. He submitted, in that context, that there is nothing in the matter complained of to suggest any childish, rude or indeed petulant or boorish conduct on the part of Mr Williams. 14The principles to be applied in determining whether an allegedly defamatory article is capable of conveying the imputations relied upon by the plaintiff are well known and were not in dispute this morning. As stated by the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, the test is ultimately one as to what can reasonably be made of the article. If minds could reasonably differ on that issue, an imputation should go to a jury rather than being pre-empted in the determination of a judge on an interlocutory application. 15In my view a jury could reasonably understand the article in the sense captured in imputation (a) set out above. In particular, the inclusion of the dramatic juxtaposition at of the three people depicted in the photograph on the front page and the reduction of that serious contest, to something in the nature of a kitchen fight in which Mr Williams is portrayed as the person who could not stand the heat or engaged in a food fight, or who stormed out in a temper, capable of focussing the mind of the ordinary reasonable reader on some child-ish aspect of his behaviour, rather than the serious topic otherwise referred to in the article. 16The second imputation is: (b) the plaintiff, while Chairman of the Sydney Opera House Trust, insulted and denigrated its Chief Executive Officer, Louise Herron. 17Mr Dawson submitted that the only words attributed to Mr Williams as having been directed at Ms Herron, "I'm over you," do not amount to an insult or denigration of her. However, it must be understood that those words are attributed as having been said by the Chair of the meeting as he stormed out of the meeting that he was supposed to be chairing. In my view, the ordinary reasonable reader could understand that conduct, taken as a whole (including the suggestion that the words were levelled at Ms Herron by the Chair after her conduct prompted him to abandon the meeting) as being insulting or denigrating to her. 18The third imputation is: (c) the plaintiff behaved unprofessionally as the Chairman of the Sydney Opera House Trust by permitting his emotions to take control and losing his temper during a trust board meeting. 19Mr Dawson noted that the article alleges only that Mr Williams walked out of the meeting after standing and saying three words to Ms Herron. Again, however, the attribution of that conduct must be viewed in the context of the conduct of the meeting, as reported, taken as a whole. 20In my view the ordinary reasonable reader could accept that it is unprofessional for the chairman of a meeting to leave during the meeting in the state described in the article. The article, as I have indicated, refers to tempers boiling over and to Mr Williams having allegedly stormed out of the meeting "in disgust". Those matters are capable, in my view, of producing the conclusion in the mind of the ordinary, reasonable reader that he behaved unprofessionally and allowed his emotions to control him. 21For those reasons the challenge to the imputations is rejected. HER HONOUR: Mr Dawson, can you be heard against an order for costs? DAWSON: Certainly not, your Honour. HER HONOUR: I order the defendant to pay the plaintiff's costs of the application today. ********** 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: 16 December 2013