District Court New South Wales Medium Neutral Citation: Freeburn v The Cake Decorators Association of NSW Inc. [2014] NSWDC 88 Hearing dates: 4 July 2014 Decision date: 04 July 2014 Before: Gibson DCJ Decision: (1) On the application of the defendant, with the plaintiff neither consenting nor opposing, the entire issue of "Pipeline" for December 2012 is struck in to the matter complained of. (2) The plaintiff's application to strike in Motion 4 from the August 2012 edition of "Pipeline" is dismissed. (3) Imputations (b) and (c) are struck out. (4) Grant leave to the plaintiff to replead imputation (d) as "That the plaintiff does not act fairly". (5) Grant leave to the plaintiff to replead imputation (e) to delete the words "and to the detriment of". (6) Imputation (f) is not pressed. (7) Imputations (h) and (i) are struck out with leave to replead. (8) Imputation (j) is struck out. (9) Plaintiff pay defendants' costs of this application. (10) Grant leave to the plaintiff to file an Amended Statement of Claim in 14 days. (11) Matter stood over to Friday 25 July 2014 in the Defamation List. (12) Pursuant to s 26 Civil Procedure Act 2005 (NSW), the parties are ordered to attend mediation before the Deputy Registrar of the District Court on Monday 21 July 2014. Catchwords: TORT - defamation - application to "strike in" publication made four months prior to the matter complained of - form and capacity of imputations Legislation Cited: Associations Incorporations Act 2009 (NSW) Civil Procedure Act 2005 (NSW), s 26 Limitation Act 1969 (NSW), s 14B Cases Cited: Ainsworth v Burden [2000] NSWSC 105 Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605 Bennison v O'Neil [2012] NSWSC 36 Burrows v Knightley (1987) 10 NSWLR 651 Fierravanti-Wells v Nationwide News Pty Ltd [2010] NSWSC 648 Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 Heugh v Askin [2014] WASC 30 Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915 O'Shane v John Fairfax Publications Pty Ltd (2004) Aust Torts Reports 81-733 Renshaw v Reed Business Information Pty Ltd t/as Lawyers Weekly (2013) 16 DCLR (NSW) 38 Toben v Milne [2014] NSWCA 200 Waterhouse v Hickie (1995) Aust Torts Reports 81-347 Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: Kay Freeburn First Defendant: The Cake Decorators Association of NSW Inc. Second Defendant: Eileen Manning Third Defendant: Wendy Simpson Representation: Plaintiff: Mr G Dilworth First and Second Defendants: Ms A Rao Third Defendant: No appearance Plaintiff: MRM Lawyers Defendants: Walker Hedges & Co. File Number(s): 2013/352927 Publication restriction: None Judgment 1The plaintiff brings proceedings for defamation against the publishers of "Pipeline", the bimonthly newspaper of the Cake Decorators Association of New South Wales (an incorporated association under the Associations Incorporations Act 2009 (NSW)) and two individuals who were members of its committee. The matter complained of was a notice (published on 21 November 2012 in the December issue of "Pipeline") to be moved by the State Committee of the First Defendant on 23 February 2013, the text of which was one of a series of such motions set out on page 17 of the newsletter. 2The text of the matter complained of was as follows: "I [sic] State Committee of NSW give notice that I will move the following motion to be held on the 23rd February 2013: That Mrs Kay Freeburn be expelled as a member from the Association at teh [sic] 2012 AGM and not allowed to rejoin the Association as a member.Reason For [sic] continually bombarding memebes [sic] with letters for her personal agenda. For committing acts that bring the Association into disrepute - for failure to follow the Constitution. For accusing the State committee of mal-administration and suppling NO proof of this. For causing members distress by her repeated letters to them and brenaches [sic]. Failure to give good reason why the Committee should not rescind her membership." 3The imputations pleaded to arise were as follows: (a)That the plaintiff made allegations of maladministration by committee members of the first defendant when she had no evidence of such allegations. (b)That the plaintiff is dishonest in that she made allegations of maladministration by committee members of the first defendant when she had no evidence of such allegations. (c)That the plaintiff has attempted to deceive the members of the first defendant. (d)That the plaintiff does not act fairly and reasonably. (e)That the plaintiff has a personal agenda which is not in the best interests and to the detriment of the first defendant. (f)That the plaintiff is motivated by personal and selfish reasons. (g)That the plaintiff has acted outside the bounds of the constitution of the first defendant. (h)That it was necessary to expel the plaintiff as a member of the first defendant in order to resolve the abovementioned improper conduct of the plaintiff. (i)That it was necessary to prevent the plaintiff from ever again rejoining as a member of the first defendant in order to resolve the abovementioned improper conduct of the plaintiff. (j)That the plaintiff is unfit to be a member of the first defendant. 4Three applications were brought before the court on 4 July 2014: (a)The defendants' application to "strike in" the whole of the December issue of "Pipeline"; (b)The plaintiff's application to "strike in" the motion from the August 2012 edition of "Pipeline"; and (c)The defendants' objections to the form and capacity of the imputations pleaded. 5These are my reasons for the rulings I made on 4 July 2014. 6The application by the defendants to strike in the whole of the December issue of "Pipeline" is consented to by the plaintiff, and the amended statement of claim to be filed in accordance with the orders I made on 4 July 2014 should include this entire document. Any portions of that document relevant to the imputations pleaded should be so noted by the plaintiff in the body of the statement of claim. However, the plaintiff's application to strike in a motion contained in the August 2014 issue of "Pipeline" is contested, and I set out my reasons for refusing that application. Application to strike in the motion published in the August 2012 edition of "Pipeline" 7The text of the motion is as follows: "Motion 4 The State Committee give notice to move the following motion at the Annual General Meeting that: Mrs Kay Freeburn be expelled as a member from the Association at the 2012 AGM & not allowed to join the Association as a member. Reason: For continually annoying members with letters for her personal agenda for committing acts that bring the Association into disrepute - for failure to follow the constitution. For accusing the State Committee of maladministration and supplying NO proof of this. For causing members distress by her repeated letters to them and branches. For failure to give good reason why the committee should not rescind her membership." 8The plaintiff relies upon the explanation of the relevant principles by Tobias JA in Australian Broadcasting Corporation v Obeid (2006) 66 NSWLR 605 at [26] as follows: "[26] Her Honour then considered the law relating to "strike in" applications in respect of which there does not appear to be any significant dispute between the parties. Drawing heavily on the statement of the relevant principles by Hunt J in Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 and Burrows v Knightley (1987) 10 NSWLR 651, I would summarise those principles as follows: (a) Where the publication sued upon is in written form, a plaintiff is obliged to include within his or her pleading every passage which materially alters or qualifies the complexion of the imputation complained of: Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 at 477, 480; Gordon (at 413 [6]). The justification for that rule lies in the principle that the effect of the matter complained of must be taken from the whole of what has been published: Gordon (at 413 [6]). (b) In the case of oral defamation, that basic principle cannot, however, be applied without any qualification. In the case of radio and television publications, a plaintiff is entitled to submit to the jury that the reasonable listener or viewer, as the case may be, although deemed to have listened to or watched the whole of the broadcast, nevertheless may not have devoted the same degree of concentration to the broadcast as he or she would have to a written document: Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420 [12]; Gordon (at 413 [7]). (c) Each case will depend upon its own circumstances, but it is easy to imagine a listener or viewer missing the significance of a qualification or contradiction at the beginning or (perhaps less likely) at the end of a segment. On the other hand, it is difficult to accept the existence of a reasonable listener or viewer who failed to comprehend a refutation in the sentence following that in which a charge was made or whose concentration selectively increased in relation to random passages between those which materially qualified the effect of those he or she comprehended. (d) It is true that that principle is not to be applied without qualification in the case of oral defamation. Nonetheless, the rule remains that the capacity of the matter complained of to convey particular defamatory imputations of and concerning the plaintiff must be judged by what the ordinary reasonable listener or viewer of average intelligence would have understood from the context constituted by the broadcast as a whole: Morosi (at 419 [5]); Gordon (at 413 [9]). (e) Accordingly, a defendant is entitled to require the plaintiff to plead the full context of what is broadcast if that context is capable of materially affecting the imputations complained of by the plaintiff. (f) Thus, if there are passages not pleaded in an agreed context relating to the complaint by the plaintiff, and those passages materially alter or qualify the complexion of the imputations complained of, the plaintiff is obliged to plead those additional passages in oral as well as written defamation: Gordon (at 414 [15]). (g) However, where in a case of oral defamation the context of the matter complained of is in dispute (as in the present case), the question arises as to whether in these circumstances the plaintiff is bound to plead any more than what he or she alleges is the whole context: Gordon (at 414 [11]-[12]). (h) Relevant to the question of context is the principle that where the matter complained of is contained in a newspaper and refers to othermaterial in the same newspaper, the plaintiff may be required to tender that other material in his or her case provided that such other material is capable of affecting the sense of the matter complained of. Where there are two separate publications by the defendant, the plaintiff is entitled (or may be obliged) to have them considered together in order to determine the sense in which either was understood, provided that they are sufficiently connected and identified with each other: Burrows (at 655 F-G). (i) However, another principle applies where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct internal references are made from one to the other, so that the reader may reasonably be expected to read it together. In such cases it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the imputations said to have been conveyed by the material as a whole: Burrows (at 657E)." 9Mr Dilworth particularly referred me to paragraphs (h) and (i), submitting that the plaintiff was entitled to have both the August and December issues considered together, given that the motion to expel the plaintiff was first published in the August issue, and was the first in what he described as a "continuing and developing series of events" which reached their peak in the motion in the December issue. The gap in time could be explained by the fact that nothing about this ongoing dispute appeared in the October issue. The August and December newsletters were "sufficiently connected", in the sense set out by Tobias JA at (h) above, for them to be read together in order to understand the defamatory sting. The two publications were connected: Burrows v Knightley (1987) 10 NSWLR 651. 10There are compelling reasons why the striking in of this additional material should not be permitted: (a)These publications were not connected in the sense described by Tobias JA, whose example of such a requirement was the publication of two articles in the same newspaper. In the present circumstances, not only were these two publications four months apart, but there had been no "continuing or developing" discussion of the kind posited by Mr Dilworth in his written submissions (page 2) in the intervening October issue, let alone any "crescendo" in December referring back to these prior events. Nor is "Pipeline" a continuous narrative comparable to the instalments of Mr Knightley's book. (b)There is no cross-reference, or even reference, between these two publications (Burrows v Knightley, supra, at 657). These are not two publications that are "identified with each other" in the sense set out by Tobias JA at [26(h)]. Nor is there any evidence of a true innuendo arising out of the second publication as a result of the first, or any claim that the first publication alters the meaning of the second. (c)Where there is a series of defamatory publications, the better course is that the plaintiff should commence proceedings in relation to each such publication. That is particularly the case given the four month gap between the two publications. (d)The addition of the August 2012 publication to the matter complained of is impermissible because it was published more than twelve months before proceedings were commenced: s 14B Limitation Act 1969 (NSW). 11Accordingly I have refused the plaintiff leave to strike in the relevant portion of the August 2012 newsletter. Form and capacity of the plaintiff's imputations 12The text of the matter complained of is as set out at [2] above. The plaintiff challenges the form and capacity of all but imputations (a) and (g) of the imputations pleaded. In the course of argument, Mr Dilworth sought leave to amend imputations (d) and (e) and did not press imputation (f). The remaining imputations falling for consideration are as follows: Imputations (b) and (c) 13The defendants' principal submission is that neither of these imputations is capable of being conveyed. The matter complained of paints a picture of the plaintiff bombarding the committee and its members with discursive complaints about maladministration, but without providing any evidence. The defendant submits that an imputation that the plaintiff dishonestly made these allegations when she knew they could not be proved, as opposed to making allegations without providing the evidence to back them up, goes too far. 14The plaintiff submits that the imputation arises from the fact that "NO" is in capital letters, and that the word "maladministration" connotes allegations of serious and wrongful conduct. Any person who made such serious allegations and failed to back them up with proof was, by inference, dishonest. 15The dictionary definitions of conduct amounting to "maladministration" refer to such conduct as inaction, delay, incompetence and failure to deal with administrative issues. The ordinary reasonable reader would not read anything more sinister into such a word. The word "NO" in capital letters, in the context of the other conduct attributed to the plaintiff such as prolix correspondence and raising matters on her own agenda, would be seen by the ordinary reasonable reader as being a response to the lack of proof rather than a claim that the plaintiff was making these claims dishonestly or deceitfully. The overall impression is that the plaintiff is a nuisance and troublemaker who does not provide any proof for her claims, rather than a person dishonestly or deceitfully making false allegations knowing that she has no proof. Applying the test for capacity as most recently enunciated by the NSW Court of Appeal in Toben v Milne [2014] NSWCA 200, neither of these imputations is conveyed. 16In addition, if the failure to offer proof is the basis upon which imputation (b) is pleaded, these imputations do not differ in substance: Toben v Milne, supra, at [10]. Both are pleaded as acts, and both could only arise from the reference to failure to provide proof, as this is the only conduct in the matter complained of with any capacity to support any imputation of deceitful conduct. 17While the test for capacity of an imputation is at a very low level (Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915), neither of these imputations is capable of being conveyed and, in addition, do not differ in substance. Imputation (d) 18The plaintiff has been granted leave to replead this imputation as set out in the orders below. Imputations (e) and (f) 19Mr Dilworth conceded these imputations did not differ in substance and ultimately did not press (f). His principal argument was that these imputations "use some of the words" from the matter complained of, which he submitted was permissible, having reference to McHugh J's statement in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [63] that if the imputation "closely followed the text" no jury could reasonably reject it. 20However, as the Court of Appeal explained in Toben v Milne, supra, at [21]: "[21] An imputation may plead or closely follow the exact words used in the alleged defamatory publication: see John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77 at [63]. However, as Hunt AJA pointed out in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [126]: Merely pleading the words of the matter complained of as the imputation for which the plaintiff contends where those words do not adequately distil the act or condition attributed to the plaintiff, and thus identify his cause of action, is not a compliance with Pt 67 r 11(2)." 21The plaintiff has been given leave to replead, but should bear these principles in mind. Imputations (h) and (i) 22The plaintiff's submission was, again, that these imputations should be permitted because they use some of the actual words. The real problem, however, lies in the form of the imputations. Both use the formula "it was necessary" without saying by whom it was necessary. Mr Dilworth himself was uncertain whether the committee, the organisation, the defendants or the ordinary reasonable reader was the person identified as considering it was necessary. In those circumstances, the defendants' complaint that it is defective in structure is made out. 23Additionally, the reference to "the abovementioned improper conduct" seeks to roll up a series of acts. Use of the word "improper" should be avoided in any event. 24The difference between these imputations is very slight indeed, and any redrafted imputations will need to differ in substance. 25Finally, the imputation amounts to an exhortation and is this rhetorical: Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 at [13], [18] - [19]. 26For all of the above reasons, these imputations should be struck out with leave to replead. Imputation (j) 27Mr Dilworth referred to my judgment in Renshaw v Reed Business Information Pty Ltd t/as Lawyers Weekly (2013) 16 DCLR (NSW) 38 as authority for the proposition that a bare imputation of unfitness is not rhetorical. 28The plaintiff in Renshaw v Reed Business Information Pty Ltd t/as Lawyers Weekly, supra, was a barrister. As in Ainsworth v Burden [2000] NSWSC 105 (Simpson J), where the plaintiff held gaming licences requiring that he be a fit and proper person, Mr Renshaw had to satisfy a specific test of being a fit and proper person to be a barrister, where the character flaw attributed was inherent in the role for which he was said to be unfit. As a general rule, however, as the New South Wales Court of Appeal explained in Waterhouse v Hickie (1995) Aust Torts Reports 81-347, imputations of being "unfit" are a rhetorical flourish. 29As Ms Rao explains in her helpful submissions, this is particularly the case where what is asserted is unfitness for office or membership of an organisation: Fierravanti-Wells v Nationwide News Pty Ltd [2010] NSWSC 648 (unfit to be a senator); O'Shane v John Fairfax Publications Pty Ltd (2004) Aust Torts Reports 81-733 (unfit to be a magistrate). Generally speaking, such an imputation is permissible only if the fitness for a specific profession is capable of this kind of specific definition, where an imputation of being unfit for that position is capable of conveying a defamatory meaning. Where this occurs, the nature of the unfitness is generally specified in the imputation, such as being unfit to be a councillor after failing to disclose a conflict of interest (Bennison v O'Neil [2012] NSWSC 360), being unfit to be a director after displaying bad commercial judgement (Heugh v Askin [2014] WASC 30), or being unfit to be in charge of Olympic swimmers because of his improper sexual attentions to a minor (Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933). 30Without being disrespectful to the importance of cake decorating, the matter complained of refers to the basis upon which the plaintiff should be expelled from an organisation membership of which says nothing about her character. As Ms Rao points out in her written submissions at [23], a general allegation of unfitness for membership of the Cake Decorators Association would say nothing about the plaintiff, except possibly being a disinterested or poor cake decorator. No such imputation is capable of being conveyed. Ms Rao submits that an imputation casting aspersions on cake decorating skills or interest is also incapable of being defamatory, but as I am satisfied that no such imputation is conveyed, this is not an issue upon which I need to make any findings. Orders 31I set out below the orders I have made. These include orders for the parties to attend a court-arranged mediation before one of the registrars of this court pursuant to s 26 Civil Procedure Act 2005 (NSW). These mediations, which are conducted without charge to the parties, form an essential part of the court's case management process, and are of particular assistance in defamation actions, where the technicality of the law and expense of proceedings may mean that the results of litigation may be as uncertain as they are pyrrhic. I have stood these proceedings over to a date after the mediation has taken place. (1)On the application of the defendant, with the plaintiff neither consenting nor opposing, the entire issue of "Pipeline" for December 2012 is struck in to the matter complained of. (2)The plaintiff's application to strike in Motion 4 from the August 2012 edition of "Pipeline" is dismissed. (3)Imputations (b) and (c) are struck out. (4)Grant leave to the plaintiff to replead imputation (d) as "That the plaintiff does not act fairly". (5)Grant leave to the plaintiff to replead imputation (e) to delete the words "and to the detriment of". (6)Imputation (f) is not pressed. (7)Imputations (h) and (i) are struck out with leave to replead. (8)Imputation (j) is struck out. (9)Plaintiff pay defendants' costs of this application. (10)Grant leave to the plaintiff to file an Amended Statement of Claim in 14 days. (11)Matter stood over to Friday 25 July 2014 in the Defamation List. (12)Pursuant to s 26 Civil Procedure Act 2005 (NSW), the parties are ordered to attend mediation before the Deputy Registrar of the District Court on Monday 21 July 2014. ********** 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: 07 July 2014