Moss v Random House Australia Pty Ltd (No 2) [2015] NSWSC 1190

Supreme Court New South Wales

Medium Neutral Citation: Moss v Random House Australia Pty Ltd (No 2) [2015] NSWSC 1190 Hearing dates: 7 August 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Jurisdiction: Common Law Before: McCallum J Decision: Each of the imputations pleaded will go to the jury. Catchwords: DEFAMATION – pleadings – imputations – capacity Cases Cited: Brown v Random House [2014] NSWSC 1505 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186 Moss v Random House Australia Pty Limited [2015] NSWSC 1189 Category: Procedural and other rulings Parties: William James Moss (plaintiff) Random House Australia Pty Limited (defendant) Representation: Counsel: S Chrysanthou (plaintiff) T Blackburn SC (defendant)

Solicitors: Dibbs Barker (plaintiff) Kennedys (defendant) File Number(s): 2015/180440 Publication restriction: None

Judgment 1. HER HONOUR: At the first listing of these proceedings, the defendant took objection as to both form and capacity. I ruled on the objections as to form: see Moss v Random House Australia Pty Limited [2015] NSWSC 1189. I indicated at that point that I considered, upon reflection, that I should consider the whole (or at least substantially more) of the matter complained of than had been referred to in argument before giving rulings on capacity. A timetable was fixed for the plaintiff to file an amended statement of claim in accordance with my rulings as to the objections on form with a short opportunity for the defendant to be heard further as to capacity if so sought. No further opportunity has been sought to address the Court on the rulings on capacity and, accordingly, I now give my rulings on those issues by reference to the amended statement of claim filed 19 August 2015. 2. There were principally two kinds of objection on the question of capacity. The first relates to the question whether the conduct allegedly attributed to the plaintiff in imputations (a) and (d) was done with knowledge of the dishonest and corrupt dealings of Mr Eddy Obeid, who is the principal focus of the book. Secondly, a question arose as to imputation (e); that is, whether the matter complained of was reasonably capable of conveying the imputation that the plaintiff established a business with a view to engaging in illegal activities through that business. 3. The principles applicable in determining the application are well known and need not be restated here. The task of determining the question of capacity in the present case, however, has been complicated by the need to consider not just the passages of the matter complained of to which the parties took me during argument but considerably further material in the matter complained of. 4. It may be noted that, in these proceedings, the determination whether the imputations are in fact conveyed by the matter complained of (given that the proceedings are to be tried with a jury) will also involve a degree of intense work on the jury's part. I have previously recommended to the parties that a fixture be obtained allowing an additional three days for the jury to read the entire book after being empanelled and following opening addresses. 5. As to the first category of capacity objection, the two imputations concerned are imputations (a) and (d) as follows: (a) "The plaintiff, through his role as sounding board, financial advisor and mediator for the notoriously corrupt Eddie Obeid, facilitated and advanced Mr Obeid's corrupt activities" (d) "The plaintiff, while working for Macquarie Bank, had knowledge of the dishonest and corrupt business ventures of Eddie Obeid." 1. There is an alternative imputation to imputation (d) which is imputation (b), but that imputation does not attribute knowledge of corruption or dishonesty on Mr Obeid's part to the plaintiff and there was no objection to the capacity of the matter complained of to convey that imputation. 2. The consideration I have undertaken of further material within the matter complained of has persuaded me that it is reasonably capable of conveying each of those imputations and that it is a question which should be left to the jury. 3. In considering the question of capacity, I was mindful of the principles recently reiterated by the Court of Appeal in the decision of Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227. The structure of the matter complained of was considered by me in an earlier judgment in the matter of Brown v Random House [2014] NSWSC 1505. In short, as recorded in that judgment, the structure of the book is to follow a chronological account of the life of Mr Obeid. Each chapter has a title that is descriptive of Mr Obeid's role and conduct during various periods of his life but, importantly, the central thesis to the book, as recorded at p 5, is that almost every single deal the Obeid family ever touched was questionable. 4. Mr Moss, the plaintiff in these proceedings, is not featured heavily in the book but he fills the role of one of the many characters referred to in many sections of the book always with insinuation as to the role of the person involved. The particular chapter in which Mr Moss is featured is headed "The Bagman," evidently a reference to Mr Obeid's role in an attempt to bribe the New South Wales Labour Government in circumstances where the approval of poker machines was a central requirement of the success of a development proposal backed by Mr Obeid. 5. Many other characters in the book come in for similar treatment to that involved in the discussion of Mr Moss, that is, there is a collection of statements which, while not openly attributing dishonesty or corruption to those persons, convey those notions in the careful language of insinuation and scepticism. 6. In that respect the book invites the considerations discussed by the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 221 ALR 186. In the report of the decision the whole of the matter complained of is set out at [1] of the joint judgment. The judgment approves the observations from Lewis v Daily Telegraph Ltd [1964] AC 234 as follows: "It is not ... correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." 1. Those remarks are of equal application here where, owing to the subtle scepticism of the language chosen, in my view, the book is capable of conveying the meaning that Mr Moss not only was involved with Mr Obeid in the particular respects identified in the two imputations but that his involvement was knowing in the sense identified in each imputation. 2. The second category of capacity objection relates to a more specific point; the plaintiff's involvement in the business of Oceana. Imputation (e) is that the plaintiff established a business with Mr Obeid to engage in illegal activities. Whilst only four page references are identified in the pleading as giving rise to that imputation, it is of course informed by the balance of the matter complained of, the nature of which I have already discussed. The specific page references do not in terms convey a direct allegation of the kind captured in the imputation but, in my view, there is ample insinuation within that material to suggest that the plaintiff established a business for the identified purpose. It may be that respectable arguments could be put to the jury as to why the imputation is not in fact conveyed but I do not think this is a case appropriately taken from the jury at the capacity stage. 3. For those reasons my judgment is that each of the imputations pleaded in the amended statement of claim will go to the tribunal of fact. 4. Costs are reserved.