Cassar v Network Ten Pty Ltd [2014] NSWSC 1576

Supreme Court New South Wales

Medium Neutral Citation: Cassar v Network Ten Pty Ltd [2014] NSWSC 1576 Hearing dates: 8 August 2014 Decision date: 08 August 2014 Before: McCallum J Decision: Rulings given as to imputations; each party to bear its own costs of the application. Catchwords: DEFAMATION - form of pleadings - no question of principle Legislation Cited: Crimes Act 1900 Category: Interlocutory applications Parties: Jacob Cassar (plaintiff) Network Ten Pty Limited (defendant) Representation: Counsel: Dr G O'Shea (plaintiff) L Barnett (defendant Solicitors: Conditsis & Associates Lawyers (plaintiff) Banki Haddock Fiora (defendant) File Number(s): 2012/21034 Publication restriction: None

Judgment 1HER HONOUR: These are proceedings for defamation commenced by Jacob Cassar against Network Ten Pty Limited. The proceedings were commenced by statement of claim filed on 20 January 2012. The statement of claim pleaded two causes of action. In paragraph 3, the plaintiff complained of a television broadcast published by the defendant. In paragraph 4 the plaintiff complained of the posting of that broadcast on the internet on the website www.smh.com.au which, I think it is common ground, is owned and operated by a stranger to the proceedings. 2On 22 June 2012 Hislop J refused the plaintiff's application for an extension of the limitation period in respect of the first cause of action. Accordingly, the only cause of action that remains is the plaintiff's claim in respect of any downloading of the original broadcast from the website to which I have referred. 3The plaintiff has, in those circumstances, had some difficulty providing to the defendant adequate particulars as to the persons who it is alleged downloaded the matter complained of from the website within the twelve month period prior to the commencement of the proceedings. The statement of claim simply asserts in the particulars of publication that he "expects to discover that information through discovery, interrogatories or subpoena". 4Today the defendant seeks an order that those particulars be provided. They are necessary particulars. Apart from being required under the Uniform Civil Procedure Rules, their importance emerges in the need for the defendant to go into the proceedings knowing the scope of publication pleaded against it, which will inform its decisions as to any attempt to settle the proceedings and its conduct of the proceedings (including the consideration of any defences such as the defence of qualified privilege and an assessment of the likely damages that might be awarded if the plaintiff is successful). 5The plaintiff accepts in those circumstances that the particulars must be provided, but has indicated that it is necessary for him to seek that information from the proprietor of the website. He consents to an order to provide particulars sought provided sufficient time is given for that to occur. That disposes of the first matter listed for argument today. 6I should note an anterior point taken on behalf of the defendant, which is that, the first cause of action having been precluded by the judgment of Hislop J, paragraph 3 of the statement of claim ought to be struck out. I am not persuaded that the paragraph is liable to be struck out, since paragraph 4 makes no sense without it, but it should remain on the pleading only as the platform for the single remaining cause of action, and on the understanding that it pleads no discrete maintainable cause of action. 7The other dispute brought forward this morning relates to the imputations pleaded by the plaintiff. The first objection to the imputations is that imputations (a) and (b) do not differ in substance. Those imputations are: (a) that the plaintiff made a violent and unprovoked attack on Jim Bryan and (b) that the plaintiff struck the jaw of Jim Bryan in two places by a violent and unprovoked attack. 8Ms Barnett, who appears for the defendant, submitted that those imputations do not differ in substance. I do not accept that submission. The occasioning of actual bodily harm in the form of a broken jaw (to adopt the language of the Crimes Act 1900) does, in my view, represent a different and very serious act. Ms Barnett submitted that the ordinary reasonable reader would not be expected to know the nuances of the Crimes Act, and I accept that that is so, but I do think that the ordinary reasonable reader is capable of discerning the important difference between an assault which causes no injury and one which does. 9Dr O'Shea accepted, however, on behalf of the plaintiff, that imputation (a) is wholly consumed within the sense of imputation (b) and on that basis that imputation (a) should be relied upon as a fall back or alternative imputation. The ruling on the first objection is that imputations (a) and (b) do differ in substance, but I note the concession as to imputation (a) being a fall-back. 10The final objection is to imputation (d), which is that the plaintiff is a coward. That imputation is said to be conveyed on the basis that the matter complained of describes the plaintiff's alleged attack on Mr Bryan in the following terms "He claims he was king hit by Jake Cassar, an independent running for the marginal federal seat of Robinson". There is then a further quote, "some fella came running out of the dark and king hit me and broke my jaw". 11The term "king hit", as I would understand it, without having consulted a dictionary or its etymology, traditionally was used to refer to an assault in which the assailant hit the victim from behind, or in such circumstances as to afford the victim no opportunity to see the attack coming. In current parlance, however, I think it is a term which has taken on the meaning of a powerful or forceful punch. 12More importantly, however, I think it is not possible to discern from the matter complained of the discrete meaning that the plaintiff is a coward and nothing but a coward. The notion of his having launched a cowardly attack is intrinsically linked with the attack. I do not think the imputation is capable of arising in its present form. However, I would be inclined to grant leave to the plaintiff to re-plead that imputation, if he so chooses, so as to assert that a meaning was conveyed along the lines that the plaintiff launched a cowardly attack on Mr Bryan. 13I order the plaintiff to provide the particulars in paragraph two in the letter dated 18 July 2014 by 19 September 2014. I order that imputation 6(d) be struck out as incapable of arising with leave to re-plead. I note the plaintiff's concession that imputation 6(a) is a fall-back or alternative imputation to imputation 6(b). I grant leave to the plaintiff to file an Amended Statement of Claim in accordance with these reasons within three weeks of today. 14The defendant submits that it has been mostly successful in the application and the plaintiff should pay its costs. Dr O'Shea submits that the result has been mixed and that, to the extent that concessions were made during argument, they related to matters that were going to have to be undertaken as foreshadowed in the statement of claim. In any event, by way of interlocutory processes as to the imputations, the result has been mixed. On balance, I consider the fair order to be that each party bear its own costs of the application today. 15I will stand the matter over to Friday 26 September 2014 at 2.00 pm.