Supreme Court New South Wales Medium Neutral Citation: Rowe v Smith [2016] NSWSC 104 Hearing dates: 5 February 2016 Date of orders: 05 February 2016 Decision date: 05 February 2016 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff given leave to file an amended statement of claim Catchwords: DEFAMATION – publication – whether permissible to plead part only of a whole letter – where omitted parts capable of informing the reader's understanding of the letter and arguably capable of conveying additional defamatory imputations Legislation Cited: Defamation Act 2005 (NSW), s 26 Cases Cited: Bracks v Denoon (14 December 2006, unreported) Tsvangirai v The Special Broadcasting Service (2002) NSW SC 532. Category: Procedural and other rulings Parties: David Rowe (Plaintiff) Touie Smith (Defendant) Representation: Counsel: R De Meyrick (Plaintiff) M Richardson (Defendant) Solicitors: Best Macken McManis (Plaintiff) Colquhoun Murphy Lawyers (Defendant) File Number(s): 2015/337967 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings for defamation commenced by Mr David Rowe against Mr Touie Smith. The proceedings arise out of the publication of two letters broadly concerning the affairs of Yass Valley Council. The plaintiff is the General Manager of the Council. 2. Two kinds of objections have been raised by the defendant as to the form of the plaintiff's pleading. The first concerns the way in which the plaintiff has pleaded each publication. Mr Richardson, who appears for the defendant, has tendered the whole of each letter sued on. The way in which the plaintiff has pleaded those two publications is to select passages from the letters but not to sue on the whole of each letter. 3. The material tendered by Mr Richardson reveals that in each letter there are other passages referring to the General Manager or General Managers which might well be understood to be references to the plaintiff. Mr Richardson submitted that, in accordance with the principles stated in a number of authorities, the plaintiff should be compelled to plead the whole letter in each case. He relied first on the decision of Nicholas J in Bracks v Denoon (Supreme Court (NSW), Nicholas J, 14 December 2006, unrep). In that case the defendant, Mr Denoon, had provided a letter to a Mr Smyth-Kirk. Mr Smyth-Kirk had then included that letter as part of a letter distributed to fellow members of the AJC. The plaintiff had sought to frame a case against Mr Denoon on the basis that he was liable for the republication of his letter by Mr Smyth-Kirk. The matter complained of consisted only of Mr Denoon's letter, without the additional material in Mr Smyth-Kirk's letter. 4. The objection to that form of pleading was that the plaintiff was suing on only part of the whole publication, being Mr Smyth-Kirk's letter which had Mr Denoon's allegedly defamatory letter on the reverse side. Nicholas J formed the conclusion that the plaintiff should be required to plead the whole of the document distributed by Mr Smyth-Kirk. His Honour said at paras 9 and 10: [9] In my opinion the act of publication of the Denoon segment in the Smyth- Kirk letter cannot be seen as separate and distinct from the act of publication of the whole of that letter. In my view, the only reasonable conclusion is that the Denoon segment must be considered as part and parcel of and an integral part of the whole. [10] At the risk of overstating it, the Denoon segment which is said to be the defamatory matter, was communicated to the reader as part of the letter. That was the comprehensible form by which the matter was published and which constituted the relevant publication. Whether or not publication of the words complained of in the context of the letter constitutes a republication will ultimately be a matter for the plaintiff to prove. That, of course, is the central issue which it seeks to raise, but it seems to me the starting point is to identify and plead the publication which is said to amount to a republication for which the defendant is said to be liable. 1. The plaintiff has submitted that, since that was a case dealing with republication, it does not govern the present case. In my view, however, the principle articulated by Nicholas J in those paragraphs is of equal application to the present case. 2. Secondly, Mr Richardson relied on the decision of Levine J in Tsvangirai v The Special Broadcasting Service [2002] NSWSC 532. His Honour there stated at [12] the following principle: If an issue arises as to whether the plaintiff has impermissibly omitted material from the publication (the whole of which the viewer is taken to have seen) the test to be applied is whether any of the omitted parts is reasonably capable of materially altering or qualifying the complexion of the plaintiff's imputation. It will be for the tribunal of fact - the jury - to determine whether any such material in fact has that effect. 1. Applying that principle in the circumstances of that case, his Honour expressed the view at [16] that it would be "an exceptionally rare case where a plaintiff can safely avoid pleading the whole of the published program." Mr Richardson submitted, and I accept, that the application of that principle by Levine J would apply a fortiori in the case of a letter. 2. In my view this is a case in which the plaintiff should be required to plead the whole of each letter as the relevant matter complained of. It is clear that the omitted parts of each letter are reasonably capable of informing the reader's understanding of the letter. Further, it is possible that the omitted parts may be capable of conveying additional imputations which the defendant would wish to plead as contextual imputations under s 26 of the Defamation Act 2005 (NSW). 3. Separately, Mr Richardson raised a number of objections to the plaintiff's imputations. Those objections were narrowed during argument and ultimately largely agreed. The relevant rulings, which should be recorded, are as follows. 4. Imputation 8(a) is: "That the Plaintiff was capable of acting and had in the past acted in a vengeful manner towards the Defendant in retribution for the Defendant raising complaint issues by limiting council services, interrupting the Defendant's business interests, interfering with the Defendant's superfund and preventing him from raising issues." 1. Mr De Merrick, who appears for the plaintiff, I think ultimately accepted that the imputation is directed to two separate attributions allegedly made of the plaintiff by the relevant paragraphs of the matter complained of: first, that he was capable of acting in a particular way and, separately, that he had done so in the past. If that is the contention, in my view that imputation should be re-pleaded as two discrete imputations. 2. Imputation 8(c) is: "That the Plaintiff ignores legal agreements in the exercise of his role as General Manager of Yass Valley Council." 1. An exchange of correspondence between the parties in preparation for the first listing reveals that the plaintiff construes the phrase "ignores legal agreements" in a manner which, in my view, is capable of better distillation. Specifically, the plaintiff argued that the relevant parts of the matter complained of conveyed an imputation of ignoring legal agreements in the sense of "not giving any regard to the dictates of legal agreements", which in turn was further qualified as conveying an imputation of "not performing one's duties in a proper and law abiding manner". 2. The present form of the imputation I think is problematic by reason of the inclusion of the phrase "ignores legal agreements". It should be struck out with leave to re-plead. 3. The plaintiff has leave to file an amended statement of claim in accordance with these rulings. 4. I order the plaintiff to pay the defendant's costs of the argument today. 5. *** 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: 26 February 2016