Crismale v Mathers [2015] NSWSC 1293

Supreme Court New South Wales

Medium Neutral Citation: Crismale v Mathers [2015] NSWSC 1293 Hearing dates: 21 August 2015 Date of orders: 21 August 2015 Decision date: 21 August 2015 Jurisdiction: Common Law Before: McCallum J Decision: Rulings on imputations Catchwords: DEFAMATION – pleadings – imputations – form and capacity Cases Cited: Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212 Category: Procedural and other rulings Parties: Michael Crismale (plaintiff) James Mathers (defendant) Representation: Counsel: S Chrysanthou (plaintiff) T Hale SC (defendant)

Solicitors: Banki Haddock Fiora (plaintiff) Breene & Breene Solicitors (defendant) File Number(s): 2015/206899 Publication restriction: None

Judgment – Ex Tempore 1. HER HONOUR: These are proceeding for defamation before the Court today for the first listing in accordance with Practice Note SC CL 4. The defendant notified the plaintiff of a number of objections to the form of the statement of claim. This judgment gives rulings on those objections. 2. The statement of claim pleads five separate matters complained of. Broadly speaking, each is a publication made in the context of an attempt by the defendant to be elected to the Australian Turf Club, of which the plaintiff was chairman. The matters complained of liberally engage in the kind of language commonly seen in such an electoral context. 3. The first objection is in relation to imputation 2(a) pleaded in respect of the first matter complained of. That imputation is: "The plaintiff, as Chairman of the ATC, acted in that position for his own personal benefit in that, as a member of the Board of the ATC, he voted for a policy that gave him life membership of the Chairman's Club at the Royal Randwick, valued over $200,000." 1. The objections were: "(a) Firstly, the decision was a Board decision. There is nothing in the matter from which it can be inferred that the plaintiff voted for the policy or that he voted from the policy or that he voted for the policy in order to personally benefit from it. (b) Secondly, no criticism is being made of the plaintiff. The matter raises the question of whether such a privilege should have been granted. (c) Thirdly, in the absence of extrinsic facts the imputation is not capable of being defamatory. Without more, the fact that the plaintiff acted for his own benefit cannot be defamatory." 1. My first impression was that the first matter complained of was not capable of being defamatory of the plaintiff in the sense identified. However, having heard the submissions of Ms Chrysanthou, who appears for the plaintiff, I think it must be accepted that this is an issue which should go to the jury. The matter complained of identifies that the plaintiff was elected chairman of the ATC in February 2014; that in September 2014 the policy was introduced which gave him life membership of the club and that the value of that membership would exceed $200,000 where other ATC members are paying around $50,000 per annum "for a table in the chairman's club". The matter concludes with a rhetorical question as to why such a privilege should be granted to the chairman who has been in office for a mere six months. 2. The matter complained of does not expressly assert that the chairman voted in favour of his own benefit but, in the absence of anything to suggest he did not, the question whether the imputation is conveyed should be a matter for the jury. It is, I think, reasonably capable of being conveyed. 3. As to the second matter complained of, the defendant objected to each of the five imputations pleaded by the plaintiff on the grounds of capacity. Broadly speaking, the objections as to four of the imputations (each of which specifies the condition of incompetence) was that the language of the matter complained of did not reveal any condition of incompetence. 4. One of the passages relied upon states that the determination complained about was "pathetically and meekly" accepted by the board and management. Mr Hale of Senior Counsel, who appears for the defendant, submitted that that does not give rise to an allegation of incompetence and that there was a measure of illogicality about the imputation since it assumes a standard of conduct not identified in the matter complained of. Mr Hale attempted, I think, to characterise the imputation as one of entailing false syllogism or at least a level of self-referential reasoning. I do not accept those submissions. 5. In my view, each of the incompetence imputations (that is, imputations (a), (c), (d) and (e)) adequately captures with a degree of precision that which is attributed to the plaintiff by the matter complained of. Those imputations will go to the tribunal of fact. 6. Separately there was an objection to imputation 4(b), which is: "The plaintiff, as Chairman of the ATC, lied about the amount of government grant monies that the ATC had left to spend, saying it was about $16 million when it was around $27.5 million" 1. The imputation, in my view, pitches the complaint as high as it can be pitched. There may be strong arguments that could be put to the jury as to whether the matter complained of goes so far as to accuse the chairman of lying but I think that is a question which must be left to the jury, having regard to the well-known principles to be applied in determining such an objection. 2. There was no objection to any of the imputations pleaded in respect of the third matter complained of. 3. As to the fourth matter complained of, the first objection was to imputation 8(a), which is: "The plaintiff, as a member of the board of the ATC, is responsible for the disgraceful condition of the club's finances, namely massive financial losses and solvency issues. 1. The complaint was that it is not clear from the imputation whether it is alleged that the plaintiff should take responsibility for those circumstances as a member of the board of the ATC or whether he is responsible for them in the sense that he caused them. Ms Chrysanthou submitted that the imputation makes plain that it is the latter. She submitted that the matter complained of squarely attributes the plaintiff with causal responsibility for the adverse circumstances referred to and that the imputation is clear in that respect. In my view, the imputation is clear and is not liable to be struck out on the basis identified. 2. Ms Chrysanthou relied in that context on the decision of Nicholas J in Wafawarova v Australian Broadcasting Corporation [2007] NSWSC 1212. In that case, Nicholas J considered a similar imputation, set out in the judgment at [12]: "The plaintiff as director of training was responsible for the training programme of Zimbabwe's youth with the aim of inculcating blatantly anti-democratic, racist and xenophobic attitudes." 1. His Honour rejected a submission that the phrase "responsible for" was imprecise in the context of that imputation. There is a difference, leaving aside the different circumstances of the case, in that the imputation attributes the plaintiff in that case with being the director of training whereas the plaintiff in the present matter is described as being only one member of the board. Nonetheless, I would accept that the matter complained of is robust in its attribution of responsibility to the plaintiff in that role. The imputation will not be struck out. 2. Separately, the plaintiff objected to each of the five imputations pleaded as arising from the fifth matter complained of on the grounds of capacity. The capacity objection to the first imputation is, I think, resolved by the resolution of the former objection (understood in the way in which Ms Chrysanthou submitted it is to be understood which is, in my view, the clear understanding of the imputation). In my view, it is plainly capable of being conveyed. 3. Imputation (b) is another imputation alleging incompetence. There was no objection to the form of that imputation. As I indicated in argument, I think it is cumbersome in its form but, having considered the explanation for its terms put forward by Ms Chrysanthou, it seems to me that it captures the degree or litany of incompetence alleged against the plaintiff in the matter complained and is not objectionable on that basis. The capacity objection again repeated the submission that no imputation of incompetence can arise from the fact that the plaintiff was a member of the board that made the various decisions referred to. I do not accept that submission. The whole tenor of the fourth matter complained of is to launch an attack on the competence of the plaintiff in that role. 4. Imputation 8(c) raises the same objection as imputation 2(a) although the matter from which it is alleged to arise is in different terms. The imputation is, in my view, plainly capable of arising from that material for substantially the reasons identified in respect of imputation 2(a). 5. Imputation 8(d) again attributes the condition of incompetence as a member of the board. Mr Hale submitted that it could not be incompetent to incur a debt, even a large debt, without more specification as to why it was incompetent to do so. In my view, read in the context of the whole of the matter complained of, the attribution of incompetence plainly does arise. 6. Finally, imputation 8(e) is: "The plaintiff, as a member of the board of the STC, breached his duty to members by disregarding their decision not to merge with the AJC." 1. Ms Chrysanthou made a careful submission taking me through each of the aspects of the matter complained of alleged to give rise to that imputation. I would accept that it is plain from that material as a whole that the imputation is reasonably capable of arising. 2. The only remaining objection is to imputation 10(c), alleged to arise from the fifth matter complained of. The objection was as to form on the basis that it is not clear whether it is alleged that the plaintiff knowingly made the false report or simply reported something that was factually incorrect. If the former, it was submitted that the imputation was not capable of being defamatory. Ms Chrysanthou stated that it was intended in the imputation to specify that the plaintiff knowingly falsely reported the information identified. I think there is an ambiguity in that respect. If it was intended to assert a knowingly false report, that should be specified in the imputation by the insertion of the word "knowingly". On that premise, the imputation will be allowed to stand on the pleading. 3. I order the defendant pay the plaintiff's costs of the application.