District Court New South Wales Medium Neutral Citation: Carey v Nationwide News Pty Ltd (ACN 008 438 828) (No. 2) [2014] NSWDC 93 Hearing dates: 11 July 2014 Decision date: 11 July 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Proposed imputation "the plaintiff is racially inferior" struck out as embarrassing in form. (2) Plaintiff is to file a further statement of claim pleading all imputations asserted to be conveyed. (3) No further correspondence is to be sent to the court in these proceedings without correspondence being provided to the opposing party. (4) Plaintiff pay the defendants' costs of the argument. (5) Matter stood over to the Defamation List on Friday 25 July 2014 at 9:30am. Catchwords: TORT - defamation - form and capacity of imputations - imputation that "the plaintiff is racially inferior" struck out Legislation Cited: - Cases Cited: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 Carey v Nationwide News Pty Ltd (ACN 008 438 828) [2014] NSWDC 73 Stanizzo v Badarne & Ors [2014] NSWSC 689 Toben v Milne [2014] NSWCA 49 Zbyszko v New York American Inc (1930) 239 NYS 411 Texts Cited: Lawrence McNamara, "Reputation and Defamation", Oxford University Press, 2007 Category: Interlocutory applications Parties: Plaintiff: Otis Carey First Defendant: Nationwide News Pty Limited Second Defendant: Briana Domjen Representation: Plaintiff: Mr M Rollinson Defendants: Mrs L Barnett Plaintiff: Sanford Legal Defendants: Ashurst Australia File Number(s): 2014/94505 Publication restriction: None Judgment 1On 20 June 2014 I handed down judgment in Carey v Nationwide News Pty Ltd (ACN 008 438 828) [2014] NSWDC 73, granting the plaintiff leave to replead imputations (c), (d) and (e). 2The plaintiff did not file an amended pleading in accordance with my orders, preferring to advise the defendant by letter that he proposed to plead the following imputation: "The plaintiff is racially inferior." 3The proceedings were listed before me today for argument concerning the form and capacity of this imputation. Conformably with my obligations to give reasons for striking out this imputation with leave to replead (Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6), I set out my reasons for the orders made today. 4As to capacity and defamatory meaning, the defendants formally challenge this imputation firstly on the same basis as that set out at [4] - [17] of my judgment of 20 June 2014. I shall not repeat my earlier rulings, beyond noting that, in addition to the other authorities to which I was referred, I have found an additional judgment referring to Zbyszko v New York American Inc (1930) 239 NYS 411, where the court held it was disparaging of the plaintiff to compare him to a gorilla. In Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449, Hunt J cited this decision as authoritative when explaining the manner in which an imputation may be defamatory if it is disparaging of the plaintiff: "[11] To be defamatory of the plaintiff, the imputation relied upon must be such as is likely to cause ordinary decent folk in the community, taken in general, to think the less of him: Gardiner v John Fairfax & Sons Pty Ltd; Consolidated Trust Co Ltd v Browne. At common law, in general, an imputation, to be defamatory of the plaintiff, must be disparaging of him. ...I say that this is "in general" the position, as the common law also recognizes as defamatory an imputation which, although not disparaging, tends to make other persons "shun or avoid" the plaintiff, for example, by attributing to him that he is insane: Morgan v Lingen; or by attributing to her that she has been raped: Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd, as well as an imputation that displays the plaintiff in a ridiculous light, notwithstanding the absence of any moral blame on his part: Cook v Ward; Dunlop Rubber Co Ltd v Dunlop; Burton v Crowell Pub Co. See also Zbyszko v New YorkAmerican Inc." 5In addition, when determining whether the ordinary reasonable reader would consider such an imputation defamatory, I note the analysis of pleading imputations of racial inferiority by Lawrence McNamara in "Reputation and Defamation", Oxford University Press, 2007, pp 193-197. 6I accordingly reject the defendants' submissions that an imputation of racial inferiority is incapable of being defamatory and that, if it is defamatory, the bane outweighs the antidote. 7The second basis of the defendants' argument arises from the form of the imputation. What is meant by the imputation that the plaintiff is "racially inferior"? Does this mean that he is racially inferior to white persons, or that he is inferior to other persons in the sense of being sub-human? 8The defendants submit that the nature of the racial inferiority (whether on the basis that he is Aboriginal and not white, or inferior to all other human beings regardless of race) should be stated in the imputation. If the meaning is that he is sub-human or like an animal (such as an ape), that may not differ in substance from the other imputations already pleaded. 9Mr Rollinson, for the plaintiff, submitted that the imputation, or one like it, was clearly conveyed. The issue, however, is one of the form of the imputation. If the imputation is that the plaintiff is racially inferior to other human beings because of his appearance, that imputation must differ in substance from imputations (a) and (b). If it is asserted to be due to his Aboriginal heritage, this should be made clear. 10For the reasons explained by the Court of Appeal in Toben v Milne [2014] NSWCA 49 at [31] and [41] - [43], the imputation in its current form is too imprecise, and should be struck out with leave to replead. 11The plaintiff should pay the defendants' costs. The objections taken by the defendants to the form of the imputation were clearly set out in their correspondence, and the plaintiff should have considered redrafting the imputation to cure the defects of form. The relisting of this matter 12After I handed down judgment on 20 June, the plaintiff's solicitors wrote to the registry seeking to relist the matter on 27 June, but without consulting the defendants' solicitors, inquiring as to their availability or sending them copies of correspondence. 13The solicitors for the defendants replied on 24 June complaining about this failure, and referring to statements to this effect in Stanizzo v Badarne & Ors [2014] NSWSC 689 at [63]-[80]. 14Given the number of defamation proceedings in both the Supreme and District Courts in which the solicitors for the defendants (and their counsel) appear, it is important they should be given adequate notice of relisting. However, the same courtesy should be afforded for opposing counsel and solicitors generally. 15While the relisting of these proceedings without notice was no doubt an unfortunate oversight by the plaintiff's solicitors, parties in defamation proceedings will need to exercise additional care when relisting defamation matters for directions or arguments in future, as the Supreme Court will soon change its listing arrangements and conduct its defamation list on the same day as the District Court's defamation list. Practitioners will need to be more than usually accommodating to each other in the future. That will include not listing matters in future without prior consultation, rather than taking it for granted that a defendant's legal representatives are likely to be attending the defamation list because of other matters. 16The costs order I have made against the plaintiff in relation to this argument should accordingly include the costs of the 27 June 2014 relisting. Orders (1)Proposed imputation "the plaintiff is racially inferior" struck out as embarrassing in form. (2)Plaintiff is to file a further statement of claim pleading all imputations asserted to be conveyed. (3)No further correspondence is to be sent to the court in these proceedings without correspondence being provided to the opposing party. (4)Plaintiff pay the defendants' costs of the argument. (5)Matter stood over to the Defamation List on Friday 25 July 2014 at 9:30am. ********** 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: 14 July 2014