Oeiuk v Seven West Media Ltd [2016] NSWSC 1190

Supreme Court New South Wales

Medium Neutral Citation: Oeiuk v Seven West Media Ltd [2016] NSWSC 1190 Hearing dates: 22 July 2016 Date of orders: 22 July 2016 Decision date: 22 July 2016 Before: McCallum J Decision: The objections to the form of the pleading are rejected; each of the imputations will go to the jury; the costs of the first listing be each party's costs in the cause. Catchwords: DEFAMATION – pleadings – whether imputations capable of arising from matter complained of – no question of principle Category: Procedural and other rulings Parties: Ronney Oueik (Plaintiff) Seven West Media Ltd (First Defendant) Bryan Seymour (Second Defendant) Representation: Counsel: K Smark SC (Plaintiff) ATS Dawson (Defendant)

Solicitors: Sterling Legal (Plaintiff) Addisons Lawyers (Defendants) File Number(s): xx

JUDGMENT 1. HER HONOUR: Mr Ronney Oueik has commenced proceedings for defamation against the proprietor of Channel Seven and a journalist arising out of the broadcast of a segment of Seven nightly news. The proceedings are before the Court today for the first listing, as contemplated by the Defamation List Practice Note SC CL 4. 2. Broadly speaking, the focus of the news segment was the allegation that the plaintiff had amassed a valuable real property portfolio during his period as Mayor of Auburn City Council. The presenter spoke in terms suggesting scepticism as to the means by which a man on "a modest Mayor's salary of around $60,000" could amass such a fortune. 3. The plaintiff has specified four imputations as arising from the matter complained of, the last two in the alternative. They are: (a) The plaintiff corruptly used his position as Mayor of Auburn City Council to amass a fortune in real estate including the acquisition of a $5,400,000.00 mansion located in Kenthurst; (b) The plaintiff conducted himself unethically when holding the public office of a councillor of Auburn City Council by placing properties owned by him in the name of companies owned solely by him for the purpose of him avoiding making full declarations to Auburn City Council of his property ownership; (c) The plaintiff is a dishonest person in that he sought to be elected as a member of the NSW Parliament, not for the purpose of serving the constituents of Auburn but for the purpose of furthering his own private interests as a property developer; (d) Alternatively to (c), the plaintiff is a hypocrite in that he sought to be elected as a member of the NSW Parliament, not for the purpose of serving the constituents of Auburn but for the purpose of furthering his own private interest as a property developer. 1. There is no objection to imputation (b). Imputations (a), (c) and (d) are objected to on the basis that they are not reasonably capable of being carried by the matter complained of. In accordance with the usual procedure in this Practice List, that issue is to be determined as a separate question. 2. The authorities applicable to the determination of the question whether an imputation is capable arising from the matter complained of are well known and need not be rehearsed in this judgment. As frankly acknowledged by Mr Dawson, who appears for the defendants, the authorities set a high bar for a defendant seeking to have an imputation withdrawn from the jury. 3. As to imputation (a), a focus of Mr Dawson's submissions was that the broadcast says on a number of instances that the conduct referred to was legal. He submitted that there is, in that circumstance and in the context of the matter complained of taken as a whole, no suggestion that the plaintiff at any point bribed any person or behaved in any way that the ordinary reasonable viewer would understand to be corrupt. Submissions put by Mr Dawson on that issue would no doubt be able to be put with some force to a jury but, in my view, the matter is plainly capable of conveying the corruption imputation specified by the plaintiff. 4. The whole focus of the matter complained of is the expression of surprise or scepticism as to the means by which the plaintiff has been able to amass such a valuable portfolio, the clear suggestion in my view being that he must have discharged his function as Mayor of Auburn City Council in a manner other than the way in which that function should properly have been discharged in accordance with his duties as Mayor. I think it would be open to the ordinary, reasonable viewer to take the meaning that his conduct must have entailed corruption of that function. 5. As to imputations (c) and (d), as submitted by Mr Smark SC, who appears for the plaintiff, the matter complained of entails a measure of confusion between the levels of government in this State. I must approach this issue in accordance with the authorities to which I have referred, but also bearing in mind that an audio visual broadcast of an ephemeral nature is more likely to give rise to loose thinking or reading between the lines on the part of the ordinary, reasonable viewer. In my view, the content of the matter complained of is capable of conveying an imputation of dishonesty or hypocrisy in the manner specified in imputations (c) and (d). 6. For those reasons the objections to the form of the pleading are rejected and each of the four imputations will go to the jury. 7. I order that the costs of the first listing be each party's costs in the cause. ***** 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: 25 August 2016