Supreme Court New South Wales Medium Neutral Citation: Carolan v Fairfax Media Publications Pty Ltd [2014] NSWSC 1628 Hearing dates: 31 October 2014 Decision date: 31 October 2014 Before: McCallum J Decision: Rulings on objections to imputations Catchwords: DEFAMATION - pleadings - objections to imputations - whether imputations are ambiguous - whether imputations are reasonably capable of being conveyed Cases Cited: Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 Category: Interlocutory applications Parties: Sean Carolan (plaintiff) Fairfax Media Publications (defendant) Representation: Counsel: S Chrysanthou (plaintiff) ATS Dawson (defendant) Solicitors: Kalantzis Lawyers (plaintiff) Banki Haddock Fiora (defendant) File Number(s): 2014/245957 Publication restriction: None Judgment 1HER HONOUR: These are proceedings for defamation commenced by Sean Carolan against Fairfax Media Publications Pty Ltd in respect of a series of articles published in the Sydney Morning Herald. 2The matter has come before me today to determine two objections to the imputations pleaded by the plaintiff. With one exception to which I will come, it was accepted that the argument could proceed by reference to the first matter complained of. 3The first objection was to the form of imputation (a). In its form as brought forward by the plaintiff, that imputation is, "the plaintiff, who runs a sports nutrition company, conducted blood tests on football players without their consent". 4The objection was that the imputation is capable of being understood in two different ways: either that blood was taken from football players without their consent, or that the blood taken with their consent was tested in a way or in a manner to which they did not give their consent. 5During the course of argument and in the face of a fairly strong hint from me, Ms Chrysanthou ultimately acceded to a suggestion that the ambiguity could be cured by amending the imputation to read "the plaintiff, who runs a sports nutrition company, conducted tests on football players' blood without their consent." In my view that should occur. I did regard the original imputation as having a potential ambiguity. As has been recently reiterated by the Court of Appeal, it is not appropriate for any such ambiguity to be left on the face of the pleading cured only by a concession by counsel: see Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 at [24] per McColl JA; Leeming JA and Tobias JJA at [29] and [30]. 6The second objection was to imputation (d), "that the plaintiff gave the results of blood tests he conducted on Sydney Roosters football players to an organised crime figure". The objection to that imputation was that it is not reasonably capable of being conveyed by the matter complained of. 7It may be accepted that there is a deal of speculation in the article which is expressly answered in terms suggesting that no one can know who that person was. 8Upon careful analysis, however, of the content of the matter complained of, and bearing in mind the high test that must be met in order for the court to rule that an imputation is incapable of being conveyed according to well-known authority, I am persuaded that the imputation is reasonably capable of being conveyed. Mr Dawson put a number of compelling submissions but they are matters which should rather be considered by a jury, without pre-emption by a judge. 9In particular, I note the following features of the matters. In this context I am referring only to schedule C, which excludes some of the material in the other matters, and that is the one respect in which Mr Dawson did not accept that the issues could all be determined according to schedule A. 10First, there is no doubt that the matters attribute the plaintiff with being the person who conducted the blood tests. The fact that the tests were conducted without the consent of players is observed. Mr Carolan is referred to as having taken the blood readings to the Roosters, plainly suggesting that at some point they were in his possession. There is a reference to his having vacated his premises following complaints about his having offered growth hormones to players. 11The drugs he is attributed with having supplied to players are clearly referred to as being illegal and banned by ASADA. And, finally, the article concludes (at paragraph 71): "Police have expressed concern about the blood tests being found on a crime figure's phone as it raised the prospect of blackmail or possible attempts to use information to pressure footballers to fix matches. There is no suggestion that any of the Roosters were involved in any of these activities." 12The exclusion of any of the players as being a suspect certainly invites a degree of uninformed speculation, but ultimately the article points to one person as the likely person who supplied the results to the organised crime figure referred to. I would accept that the imputation may not, in fact, be conveyed, but that is a question which should be determined by a jury, in my view. I consider it is a meaning which could reasonably be conveyed by the material to which I have referred. 13Accordingly, my ruling is that imputation (d) will go to the jury. ********** 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: 01 December 2014