Supreme Court New South Wales Medium Neutral Citation: Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1244 Hearing dates: 1 September 2017 Decision date: 01 September 2017 Jurisdiction: Common Law Before: McCallum J Decision: Imputations (a) and (b) struck out with leave to re-plead Catchwords: DEFAMATION – pleadings – objections to imputations on grounds of capacity – no question of principle Category: Procedural and other rulings Parties: Denby-Lea Eardley (plaintiff) Nine Network Austraila Pty Ltd (first defendant) Erin Willing (second defendant) Representation: Counsel: R Glasson (plaintiff) M Richardson (defendants) Solicitors: Carroll & O'Dea Lawyers (plaintiff) Mark O'Brien Legal (defendants) File Number(s): 2017/00106487 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings for defamation arising out of the broadcast of a segment of Channel 9 News on 10 April 2016. 2. The broadcast concerned the aftermath of the publication on social media of a string of posts directed against Greens MP, Jenny Leong, after she had made remarks supporting a proposed bill aimed at ending the use by New South Wales police officers of drug detection dogs in public spaces without warrant. 3. The response on social media from within the New South Wales police service was the subject of the news broadcast. The broadcast in my respectful opinion makes plain that a significant number of police officers was alleged to have participated in a vicious campaign against Jenny Leong in response to her remarks. 4. The argument today concerns two imputations sought to be relied upon by the plaintiff as follows. (a) the plaintiff, a serving police officer, was responsible for the posting of a string of sexist posts on social media aiming to bully, attack and humiliate pregnant Greens MP, Jenny Leong. (b) the plaintiff, a serving police officer, was responsible for the posting of a string of racist posts on social media aiming to bully, attack and humiliate pregnant Greens MP, Jenny Leong. 1. The only difference between the two imputations is the description of the posts as on the one hand sexist and on the other hand racist. The defendant's objection is that neither of those imputations is reasonably capable of arising because the matter complained of makes plain that a number of police officers are responsible for the string of offending posts whereas the imputations seeks to attribute sole responsibility to the plaintiff. 2. In my view there is force in that objection in the current formulation of the imputations. Each imputation, I think, would be understood to mean that the plaintiff was the only person responsible for the posts whereas it is plain from the context that the broadcast was putting her forward as one of a number of people so responsible. The objection could be cured by insertion of the words "one of the persons" after the verb "was" in each imputation. The imputations in their present form are struck out with leave to re-plead. Orders 1. I grant leave to the plaintiff to file an amended statement of claim in accordance with these reasons and prior correspondence between the parties within seven days. 2. I direct the defendant to file and serve the defence within four weeks thereafter. 3. I direct the plaintiff to file and serve any reply within 14 days thereafter. 4. I list the proceedings for second listing on 17 November 2017. 5. I order the plaintiff to pay the defendant's costs of today's argument. ********** 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: 15 September 2017