Supreme Court New South Wales Medium Neutral Citation: Creak v Channel Seven Sydney Pty Ltd [2015] NSWSC 1002 Hearing dates: 21 July 2015 Date of orders: 21 July 2015 Decision date: 21 July 2015 Jurisdiction: Common Law Before: McCallum J Decision: Rulings on imputations Catchwords: DEFAMATION – pleadings – imputations – objection that imputations do not differ in substance Category: Procedural and other rulings Parties: Ian David Charles Creak (plaintiff) Channel Seven Sydney Pty Ltd (defendant) Representation: Counsel: P Wass SC, M Lewis M Richardson Solicitors: Kennedys (plaintiff) Addisons Lawyers (defendant) File Number(s): 2011/330038 Publication restriction: None Judgment – Ex Tempore 1. HER HONOUR: These are proceedings for defamation commenced in 2011. The proceedings have seen a measure of delay due primarily to the fact that they were stayed on the application of the plaintiff pending the final determination of criminal proceedings brought against him arising from allegations in common with those the subject of these proceedings. 2. The criminal proceedings have now been finally determined in the plaintiff's favour and it is common ground that the matter can now proceed (although the stay has never formally been lifted). The proceedings were before me today for determination of the defendant's objections to a proposed second further amended statement of claim. 3. In accordance with clause 20 of the Practice Note (SC CL 4), the reasons for my rulings on those objections will be given in short form. 4. The first objection is to imputation 5.1 alleged to arise from the first matter complained of, which is: The first plaintiff, a car dealer, is guilty of illegally interfering with the odometer of a Porsche with the registered number MBI-17M. 1. The objection to that imputation is as to its form. The defendant contends that the imputation is ambiguous. The ambiguity derives from the fact that the matter complained of suggests the odometer was adjusted by a person identified in the matter complained of as "Frank". The defendant complains that the imputation is accordingly ambiguous as to whether it attributes to the plaintiff the act of directly interfering with the odometer himself or alternatively arranging for Frank to do so. 2. Ms Wass SC, who appears with Mr Lewis for the plaintiff, made plain in argument that, so far as the plaintiff is concerned, it does not matter which of those acts is attributed to him, since the essence of the act sought to be captured by the imputation is criminal responsibility for interference with the odometer, whether done directly by the plaintiff or with Frank's assistance. The matter complained of plainly asserts that, if it was Frank who adjusted the odometer, he did so at the plaintiff's request. 3. In my view, in that understanding, the alleged ambiguity does not matter. Ultimately, though, I think the parties were agreed that any ambiguity could be resolved if the imputation were amended so as to read, "the first plaintiff, a car dealer, is criminally responsible for illegally interfering with the odometer of [the identified Porsche]." The plaintiff is content to make that amendment. It would be incumbent upon the trial judge to direct the jury as to any defence of justification pleaded to that imputation that a person would be criminally responsible for that conduct whether it was his act or the act of another person undertaken at his request. 4. Imputation 5.4A is objected to on the grounds of form and capacity. That imputation is: The plaintiff is part of an organised crime syndicate comprising numerous car dealers that conspired to defraud the New South Wales public into believing that they can have confidence in the odometer readings of the car for sale when they should not. 1. The complaint was that the imputation does not identify the co-conspirators. It was submitted that the matter complained of speaks only of a conspiracy with Frank and that, in so far as a broader conspiracy is sought to be attributed to the plaintiff, that is an imputation not reasonably capable of being conveyed by the matter complained of. Separately, Mr Richardson, who appears for the defendant, submitted that an imputation in that form is not sufficiently precise. 2. In my view, this is a situation in which the lack of clarity in the imputation is a direct consequence of the broad and undifferentiated allegations made by the language and tone of the matter complained of. 3. Further, I think there is enough in the language adopted by the reporter, who refers to "a major car selling scheme", "an operation", "a substantial racket" and "organised crime", for the ordinary reasonable viewer of the matter complained of to understand there to be alleged against the plaintiff a more broad-ranging conspiracy than one entered into only between the plaintiff and Frank. Imputation 5.4A will not be struck out and will go to the jury. 4. Imputation 5.8 was objected to but during argument was agreed to be recast in the following form: The first plaintiff was so desperate to avoid the consequence of illegally falsifying the odometer reading of [the identified Porsche] that he was willing to lie to the New South Wales Supreme Court. 1. The imputation can stand in that form, in my view. 2. The remaining objections in respect of the first matter complained of are that the imputations do not differ in substance. The pleading of imputations that do not differ in substance is prohibited under the rules. There is always scope for disagreement as to whether imputations focussing on similar aspects of the matter complained of differ in substance. Further, one can understand an approach by a plaintiff of trawling the matter complained of for every conceivable variation of imputation, against the risk of facing a contextual truth defence if any nuance is missed. 3. In my view, in the present case, imputations 5.2, 5.5, 5.6 and 5.7 are no more than different ways of saying substantially the same thing. Imputation 5.2 is that the plaintiff consistently engaged in fraudulent conduct in that he misrepresents to the public the true odometer readings of the cars he sells so as to enhance their sale value. 4. Imputations 5.5 and 5.6 characterise substantially the same conduct as being, variously, "despicable" or conduct which is "motivated by deceit". I do not think, properly understood in the context of the matter complained of, those imputations differ in substance from 5.2. 5. Imputation 5.7 focuses on a less serious kind of conduct, namely, acting immorally. However, it emerged during argument that that again is in substance an alternative characterisation of essentially the same conduct. In my view those four imputations should properly be distilled into one. 6. Those rulings govern the objections in respect of the second matter complained of, which is in substantially the same terms as the first. 7. As to the third matter complained of, an objection as to imprecision in the phrase, "he is attempting to evade investigation" was addressed by the addition of the words "by authorities". On that understanding, there was no further objection. 8. The only remaining matter to be determined in respect of the third matter complained of again raises the question of whether imputations in 9.4 and 9.5 differ in substance from 9.2A. For the reasons given in respect of the first matter complained of, I am not persuaded that they do. 9. Finally, objections to the fourth matter complained of again raise common issues with those in respect of the first matter complained of. An objection to imputation 11.1A again raises the potential ambiguity of the phrase "interfering". Leave should be granted to amend that imputation in a manner consistent with my ruling in respect of imputation 5.1. That ruling also governs an objection to imputation 11.1B. 10. As to imputation 11.5, unless any different conduct is sought to be identified by that imputation, it is one of characterising as acting "immorally" the same conduct captured in another imputation and should be governed by my ruling in respect of imputation 5.7 in the first matter complained of. ********** 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: 23 July 2015