Supreme Court New South Wales Medium Neutral Citation: Hoffman v Challis [2016] NSWSC 142 Hearing dates: 5 February 2016 Date of orders: 05 February 2016 Decision date: 05 February 2016 Jurisdiction: Common Law Before: McCallum J Decision: Rulings on imputations. Catchwords: DEFAMATION – imputations – rulings on form and capacity Category: Procedural and other rulings Parties: David Hoffman (Plaintiff) Darren George Challis (Defendant) Representation: Counsel: M S White, R Grafton (Plaintiff) D Sibtain, P Horibin (Defendant) Solicitors: K&L Gates (Plaintiff) Atanaskovic Hartnell (Defendant) File Number(s): 2015/349993 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings for defamation which are before the Court today for the first listing in accordance with practice note SC CL 4. The parties have this morning argued the defendant's objections to the imputations pleaded by the plaintiff. This judgment determines those objections. In accordance with the usual practice in this list, those determinations, insofar as objection was taken as to the capacity of the matter complained of to convey an imputation, are to be regarded as the determination of a separate question in the proceedings. 2. The statement of claim complains of four defamatory publications. As to the first matter complained of, the defendant takes two objections to the imputations specified by the plaintiff. The first is an objection as to form in respect of imputation 11(d) as follows: "The plaintiff's practice of making false claims about himself and the business of DHR has become so notorious that the word 'Hoffmanitis' has come into common usage to describe a culture of hypocritical dishonesty at DHR for which the plaintiff is responsible." 1. One can well understand the pleader's desire to include in the statement of claim an imputation endeavouring to distil the defamatory sting arising from the treatment of the made-up term, "Hoffmanitis". The matter complained of prominently features a photograph (which I assume is of the plaintiff) with the following words in larger font than the balance of the publication: Hoffmanitis noun a syndrome where one embellishes one's resumé while simultaneously pointing out others doing the same, saying 'there is no room for embellishment' even if 'the consequences are unbelievably significant', and 'as tempting as those things are to do it will always come back to haunt you.' 1. There are in other places in the matters complained of frequent references to or uses of the term "Hoffmanitis". 2. I have concluded, however, that the imputation brought forward in this version of the statement of claim is bad in form. The imputation is directed to the degree of notoriety of the plaintiff's practice of making false claims. That is not in itself an attribution capable of sustaining a defamatory imputation. In my view the rhetorical focus on the extent of notoriety of the practice (being such as to give rise to the word coined by the author) is embarrassing in that it is apt to distract the attention of the tribunal of fact from the true attribution made by the matter complained of. It may be that the pleader could, in a further attempt, distil the defamatory sting of that and related passages of the matter complained of, but the present imputation in my view is embarrassing for the reasons I have explained and is liable to be struck out on that account. 3. The second objection in respect of the first matter complained of is that imputations (a) and (e) do not differ in substance. Imputation 11(a) is "that the plaintiff is an habitual liar". Imputation (e) is "that the plaintiff has an utter disregard for the truth". In my view those imputations do differ in substance, for the reasons offered by Mr White of Senior Counsel in his oral submissions. In particular I would accept, as he submitted, that a person can display an utter disregard for the truth without in fact articulating any specific lie. Those imputations will each stand. 4. There were no objections to the imputations pleaded in respect of the second matter complained of. 5. The imputations specified in respect of the third matter complained of are: 1. The plaintiff caused DHR to engage in an unlawful practice of withholding employee wages and using the money to fund DHR's business; 2. The plaintiff condones DHR's unlawful practice of withholding employee wages and using the money to fund DHR's business; 3. The plaintiff exploits employees by causing DHR to engage in a practice of terminating employees so as to avoid paying them earned commissions; 4. The plaintiff is an unscrupulous employer in that he connived a the unlawful termination of DHR employee in order to avoid paying her commissions she was owed and used the unpaid commissions to fund his private jet. 1. The first objection to those imputations was that none of them differs in substance from the others. In my respectful opinion, imputations (a) and (b) convey a different sting but could properly only be relied upon as alternatives since, in my view, they pose a true dichotomy. Read in the context of the matter complained of, the jury could conclude that it conveys the imputation that the plaintiff caused DHR to engage in the unlawful practice referred to. Alternatively, the jury could conclude that the matter complained of does not make that attribution, but conveys the lesser meaning that the plaintiff condones that practice. The plaintiff should in my view be permitted to rely upon each of those imputations only as alternatives. 2. I am satisfied that the remaining imputations each differ from each other. In particular I accept, as submitted by Mr White, that imputation 15(c) is an attribution as to the existence of a general practice, whereas imputation 15(d) focuses on that which is to be attributed to the plaintiff by reason of a specific act. Further, those two imputations are different from (a) and (b), which focus on the plaintiff's conduct of the company or participation in its governance whereas imputations (c) and (d) focus on his treatment of employees. 3. The second objection to all of those imputations was that they are not reasonably capable of arising from the third matter complained of. The matter complained of recounts the experience of a particular person formerly employed by DHR international who is referred to in the matter complained of as "the principal". The matter reports that the principal has sued DHR International and gives a summary of her pleadings. The particular passages relied upon are as follows, "The pleadings allege that DHR has 'a practice of withholding employee wages and using said wages as a "float" to operate its business without regard to the California labour code. The principal was also informed and believes that DHR has a longstanding practice of acting to avoid paying earned commissions and bonuses. Specifically, principals are routinely terminated after they have generated earned commissions and before the commissions have been paid out." 1. The article proceeds to report that the principal was about to receive a yearly bonus before being fired. At the conclusion of the article it states: "So it would appear DHR International fired a principal who was working diligently and earned decent commissions. DHR had the benefit of the float and then fired her so that David Hoffman could fund his private jet. Or perhaps as alleged it was because she was a woman." 1. With great respect to Mr Sibtain, who appears for the defendant, the submission that the matter complained of is not reasonably capable of attributing the plaintiff, Mr David Hoffman, with a measure of responsibility for the conduct attributed to DHR is an ambitious one. Applying the well-known principles which govern applications for rulings that a defamatory article is not reasonably capable of conveying an imputation pleaded by a plaintiff, the imputations must in my view be allowed to go to the tribunal of fact. 2. The last objection was to imputation 17(a) alleged to arise from the fourth matter complained of. That imputation is "that the plaintiff operates a nepotistic boys club at DHR." The imputation appropriates the precise words of an extract of the fourth matter complained of, as follows: "I am a female ex DHR EVP. It is worse than a boys' club, it is a nepotistic boys' club. The current CEO is the founder's son and had no commercial experience outside DHR. He also had very limited search experience. As a woman I was a second class citizen. The women in the firm all knew that David Hoffman favoured male consultants. David's daughter worked in the firm for a while but David thought she should raise children like his wife and Geoff's wife. That's the approach." 1. There is a deal of authority addressing the circumstances in which it is permissible or appropriate to take the precise words of the matter complained of. In short, there is no prohibition on doing so, provided those words adequately distil the defamatory sting of the matter complained of. 2. In my view the meaning of the phrase, "nepotistic boys club", which must for this purpose be considered in the context of the content of the matter alleged to convey it, is tolerably clear. It is possible that some members of the public may not know the meaning of the word "nepotism" but I think the sense of that term is clear from the content of the matter complained of. In my view the imputation should be allowed to stand. 3. I make orders 1 to 10 in the short minutes of order handed up by Mr White. ********** 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