District Court New South Wales Medium Neutral Citation: Lee v Fairfax Media Publications Pty Ltd (No. 2) [2014] NSWDC 221 Hearing dates: 28 November 2014 Decision date: 28 November 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Imputations 3(c)(ii), 3(f)(ii), 3(g)(i), 5(c)(ii), 5(f)(ii) and 5(g)(i) are struck out. (2) Imputations 5(h) and 5(i) struck out with leave to replead. (3) Plaintiff is to pay the defendants' costs. (4) Further Amended Statement of Claim in 14 days. (5) Matter listed for directions on Friday 19 December 2014. Catchwords: TORT - defamation - imputations - form and capacity Legislation Cited: - Cases Cited: Alex v Gridneff [2013] NSWSC 2025Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 Jackson v John Fairfax & Sons [1981] 1 NSWLR 36 Lee v Fairfax Media Publications Pty Ltd [2014] NSWDC 172 Purcell v Cruising Yacht Club of Australia [2003] NSWSC 245 Rivkin v John Fairfax Publications Pty Ltd (Supreme Court of NSW, 17 July 1998) Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 Texts Cited: - Category: Interlocutory applications Parties: Plaintiff: Albert Lee First Defendant: Fairfax Media Publications Pty Ltd Second Defendant: Rachel Olding Representation: Plaintiff: Mr R Rasmussen Defendants: Mrs L Barnett Plaintiff: Hans Kim Lawyer Defendants: Banki Haddock Fiora File Number(s): 2014/247247 Publication restriction: None Judgment 1Following my rulings in relation to the imputations pleaded as arising from two publications dated 20 April 2014 (Lee v Fairfax Media Publications Pty Ltd [2014] NSWDC 172), the plaintiff filed an amended statement of claim on 20 October 2014. The defendants have sought rulings concerning certain of the newly pleaded imputations. These are reasons for the rulings I have made today. 2The challenged imputations fall into the following categories: (a)Imputations 3(c)(ii), 3(f)(ii), 3(g)(i), 5(c)(ii), 5(f)(ii) and 5(g)(i) plead, as an alternative to the plaintiff being reasonably suspected by the police, that the plaintiff was reasonably suspected by Ms Olding, the journalist who wrote the article and the second defendant in these proceedings; (b)Imputation 6(h): "the plaintiff became a fugitive because he knew that he was guilty of murder"; and (c)Imputation 6(i): "The plaintiff is being investigated by police for fraud. Imputations 3(c)(ii), 3(f)(ii), 3(g)(i), 5(c)(ii), 5(f)(ii) and 5(g)(i) 3Imputations that a person is reasonably suspected by the police (or by some other investigatory organisation, such as the ICAC: Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632) are capable of being defamatory because the status and official role of that entity is enough in itself for the ordinary reasonable reader to conclude that the person is either guilty of the conduct alleged, or has at least conducted themselves in such a way as to warrant the suspicion: Alex v Gridneff [2013] NSWSC 2025 at [17]. 4Does being suspected of such conduct by a journalist have the same force as being suspected by an investigatory body such as the police? Mr Rasmussen submitted that Ms Olding (the journalist who wrote the matter complained of) had effectively "written a crime novel". In doing so, she had put herself forward as such an expert on the topic that being suspected of these crimes by her had the same defamatory meaning as being suspected by the police. 5I first note the general rule that, where an imputation of reasonable suspicion of this kind was pleaded, the entity holding that suspicion (for example, the police), needs to be identified: Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 671B: "It is necessary to identify the accuser". This person should be an investigating entity because "an accusation from certain quarters may be a compliment" (Sergi v Australian Broadcasting Commission at 671B per Hutley JA): see Purcell v Cruising Yacht Club of Australia [2003] NSWSC 245. 6In Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273, the NSW Court of Appeal struck out (on other grounds) an imputation in the following form: "There are reasonable grounds to suspect that he is the person who arranged for the visit to Mr Steve Mitrovic's premises of a group of men carrying a firearm during which visit Mr Mitrovic was shot dead." 7McColl JA did not refer to Sergi, or to any requirement that the accuser was specified, presumably because the matter complained of consisted of statements by the Assistant Police Commissioner. This decision should not be regarded as giving an imprimatur to the pleading of being suspected of criminal conduct by ordinary members of the community, as opposed to entities charged with the task of investigating crime (see the cases discussed in Zeccola v Fairfax Media Publications Pty Ltd [2014] NSWSC 227 at [42] - [44]). 8I raised with the parties whether being suspected by family members of a murder victim might be sufficient. In Rivkin v John Fairfax Publications Pty Ltd (Supreme Court of NSW, 17 July 1998), Levine J was concerned by the "authority" requirement being limited to investigatory bodies: "I must say that I was troubled by the submission of Mr Nicholas on the "authority" issue. To the extent, of course, that there is reference to the "authority" he is undoubtedly correct. But why, one might ask, does the holder of the suspicion have to be a person in authority before the imputation can be held to be capable of being defamatory? If a person is suspected of some misconduct by his/her "peers" or one of them, might that not be sufficient? I agree with the submission of Mr Hughes to require the presence, as-it-were, of the "authority", as the holder of the suspicion is too restrictive. Each case might depend upon its own circumstances but I am of the view that if the publication refers to the conduct attributed to the plaintiff and the suspicion about it held by someone else and that there is something about the relationship between that person vis-a-vis the plaintiff, that gives some cogency or weight to the suspicion held by that person that might well be sufficient on a capacity argument. What I have just enunciated could apply to the father of the deceased vis-a-vis the plaintiff the employer of the deceased's boyfriend (in the context of criminal connection with her death), or to the deceased herself vis-a-vis the plaintiff in relation to his (sexual) conduct with her boyfriend. If an imputation is pleaded to the effect that either "suspected" something in relation to the plaintiff, it is capable of being defamatory." 9Levine J's obiter views are acknowledged to be an addition to the accepted rule that the reasonable suspicion must be held by an "authority", and his Honour certainly did not suggest that a journalist writing the report of a murder investigation would have the necessary "relationship" for the holding of a suspicion to convey a defamatory meaning. 10Additionally, I do not accept Mr Rasmussen's submission that the author of the matters complained of was holding herself out as a specialist crime writer, expressing views and opinions of an expert nature or resulting from her own investigation of the crime. This is a straightforward news story about a cold crime. 11Imputations 3(c)(ii), 3(f)(ii), 3(g)(i), 5(c)(ii), 5(f)(ii) and 5(g)(i) are accordingly struck out. Imputation (h) 12As is set out in my earlier judgment, the matters complained of convey imputations of suspicion and not of guilt. Conformably with those reasons, I strike out this imputation, but with leave to replead. Imputation (i) 13This imputation is assert to arise from paragraph 16 of the matter complained of, which states: "Among the persons of interest identified by Detective Rogerson was Albert Lee, an old school mate of Peter Choi's from Trinity Grammar School, who was being investigated for fraud and had asked to borrow money from Peter's wife." 14The next paragraph goes on to refer to an investigation in 2009, which gives further information as to the time at which the plaintiff was being investigated for fraud. However, the imputation in question is pleaded not in the past, but as an event occurring in the present. 15Mr Rasmussen submits that the use of the word "being" means that the conduct is in the present and not in the past. If the writer had intended to refer to conduct in the past, she should have used the construction "has been". 16Mrs Barnett referred to Alex v Gridneff at [15], McCallum J discusses the pleading difficulties where conduct in the past is asserted to be conduct in the present, referring to Jackson v John Fairfax & Sons [1981] 1 NSWLR 36. 17However, that problem does not arise here. "Has been" and "was being" are both forms of the past tense. Only "is being", which is present progressive tense, connotes conduct in the present. Additionally, it is clear from the context that one of the persons identified in 2009 "was" the plaintiff who was being investigated (i.e. in 2009) for fraud and who "had" (i.e. at a time prior) attempted to borrow money from the victim's daughter-in-law. 18This imputation is not capable of arising while framed in the present tense, and is struck out with leave to replead. Costs 19All of the defendants' challenges to form and capacity have succeeded, and the plaintiff should pay the defendants' costs. Orders (1)Imputations 3(c)(ii), 3(f)(ii), 3(g)(i), 5(c)(ii), 5(f)(ii) and 5(g)(i) are struck out. (2)Imputations 5(h) and 5(i) struck out with leave to replead. (3)Plaintiff is to pay the defendants' costs. (4)Further Amended Statement of Claim in 14 days. (5)Matter listed for directions on Friday 19 December 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: 11 December 2014