Wehbe v Fairfax Media Ltd [2017] NSWSC 207

Supreme Court New South Wales

Medium Neutral Citation: Wehbe v Fairfax Media Ltd [2017] NSWSC 207 Hearing dates: 17 February 2017 Decision date: 17 February 2017 Jurisdiction: Common Law Before: McCallum J Decision: Plaintiff's imputations struck out with leave to re-plead; plaintiff granted leave to file an amended statement of claim within fourteen days; plaintiff to pay the defendant's costs of the argument today. Catchwords: DEFAMATION – pleadings – form of imputations – specificity of imputations – where the term "improper" is used in an imputation – where an imputation is merely a rhetorical re-expression of the defamatory impact of a separate imputation – imputations struck out with leave to re-plead Cases Cited: Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 Category: Procedural and other rulings Parties: Remy Wehbe (plaintiff) Fairfax Media Limited (defendant) Representation: Counsel: J Young (plaintiff) ATS Dawson SC (defendant)

Solicitors: Simon Diab & Associates (plaintiff) Banki Haddock Fiora (defendant) File Number(s): 2016/386208

Judgment 1. HER HONOUR: These are proceedings for defamation commenced by Mr Remy Wehbe against Fairfax Media Limited arising out of the publication of an article in the Sydney Morning Herald in print and online. The statement of claim in the form filed named the wrong entity as defendant but that is a matter which has been addressed in correspondence between the parties. 2. The proceedings are before the court today for determination of the defendant's objections to the form of the imputations relied upon by the plaintiff, as contemplated by cl 13(a) of the Defamation List Practice Note SC CL4. The plaintiff has specified two imputations as arising from the article: (a) The Plaintiff is presently involved in an improper real estate development in that he is developing a property at Restwell Sreet, Bankstown with Paul Obeid, a member of the disgraced Obeid family; (b) The Plaintiff because of his development of the Restwell Sreet, Bankstown property with Paul Obeid is unfit for the public offices to which he aspires. 1. Those imputations are alleged to be conveyed by an article published under the headline "Eddie Obeid's legal bill given $10 million boost with property sale" under the by-line of Ms Kate McClymont. As the article itself reveals, it was published shortly after Mr Eddie Obeid was sentenced to a term of imprisonment following a trial for misconduct in public office. 2. The article recites a series of property development transactions involving various members of the Obeid family, suggesting impropriety or corruption in some aspects of some transactions. The only reference to the plaintiff appears at lines 43 and 44 as follows: "The family's other real estate investments include a prospective development in Restwell Street, Bankstown, which Paul Obeid is pursuing with Labor party aspirant Remy Wehbe". 1. The defendant objects both as to the form of the imputations and their capacity to be conveyed by the matter complained of. It is appropriate as a matter of logic to determine the form objections first. 2. As to imputation (a), it was submitted by Mr Dawson, who appears for the defendant, that the imputation is defective by reason of the inclusion of the term "improper" which, in this context, is insufficiently precise. Mr Dawson relied on the judgment of Hunt J in Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 at [271]-[272] where his Honour expressed the view that the term "improper" should not be used in an imputation unless the context makes plain both its sense and the degree of impropriety alleged. 3. The matter complained of in the present case does not, in my respectful opinion, make plain the sense in which any aspect of the Bankstown development might be thought to be improper. As the argument was developed by Mr Young in oral submissions, it emerged that the real complaint on behalf of the plaintiff is the suggestion of impropriety in allowing himself to be become engaged at all in any property development with a member of the Obeid family. It may be accepted that the article is replete with suggestions of corruption within the Obeid family and that some imputation based on association in any property development with a member of that family is conveyed. The form of the present imputation is problematic, in my view, because the adjective "improper" is attached to the development, not the conduct of the being associated in development with members of the Obeid family. I am persuaded that the imputation must be struck out as being bad in form but with leave to re-plead. On that basis it is not necessary to consider the question of capacity. 4. As to imputation (b), there is also a form objection. Mr Dawson submitted that the imputation is in substance a rhetorical re-expression of the defamatory impact of associating in a property development with Paul Obeid. The article does not in terms discuss the plaintiff's fitness for public office; a view on that issue could only arise as an inference the reader would draw from the very matter addressed in the sting of imputation (a). In my view there is force in that submission. Imputation (b) must be struck out as being bad in form. 5. The plaintiff should have leave to re-plead, as properly accepted by Mr Dawson on behalf of the defendant. 6. The orders I make today are: 1. that imputations 5(a) and 5(b) be struck out as being bad in form; 2. that the plaintiff have leave to file an amended statement of claim within fourteen days and on that basis I relist the matter for further first listing on 24 March 2017. 3. I order the plaintiff to pay the defendant's costs of the argument today.