Supreme Court New South Wales Medium Neutral Citation: Gav v Ryde Ex Services Memorial and Community Club Ltd [2018] NSWSC 621 Hearing dates: 20 April 2018 Decision date: 20 April 2018 Jurisdiction: Common Law Before: McCallum J Decision: Pursuant to s 8(1)(A) of the Court Suppression and Non-Publication Orders Act 2010 (NSW) I prohibit the publication or other disclosure of Confidential Annexure A to the statement of claim and the Summons Defendant's strike-in application rejected; the objection to the particulars to paragraph 35 is rejected; I rule that imputations (a) and (c) are capable of arising from the matter complained of; costs of today's application be each party's costs in the cause Catchwords: DEFAMATION – form of pleading – plaintiff seeking to restrain apprehended publication – whether "strike-in" of further material can be compelled in that context – imputations – whether capable of being conveyed Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 15.19(e) Cases Cited: Charleston v News Group Newspapers Limited [1995] 2 AC 65 Noble v Phillips (No 2) [2018] NSWSC 25 Phelps v Nationwide News Pty Limited [2001] NSWSC 130 Category: Procedural and other rulings Parties: Greg Gav (plaintiff) Ryde Ex Services Memorial and Community Club Ltd (defendant) Representation: Counsel: BR McClintock SC, N Olson (plaintiff) JAC Potts SC (defendant) Solicitors: Blackstone Waterhouse Lawyers (plaintiff) Thomson Geer Law (defendant) File Number(s): 201848387 Publication restriction: A non-publication order has been made in these proceedings Judgment – EX TEMPORE 1. HER HONOUR: These proceedings raise a number of causes of action brought by Mr Greg Gav against Ryde Ex Services Memorial and Community Club Limited. The proceedings include a claim in defamation and accordingly have been placed in the Defamation List in accordance with the Defamation List Practice Note SC CL 4. The matter proceeded today on the basis that the Court should determine the issues expected to be determined at the first listing of such proceedings. However, for reasons I will explain, those issues have an unusual feature in the circumstances of the present case. 2. One of the causes of action sued on by the plaintiff relates to the confidentiality of certain material. In order to preserve the plaintiff's cause of action in respect of those matters it is necessary to explain my reasons in this judgment with a measure of circumspection. 3. Following the practice contemplated by the Practice Note, the defendant notified the plaintiff of objections to the form of the statement of claim. This judgment determines those objections. The first relates to the manner in which the matter complained of is pleaded in par 34 of the statement of claim. The unusual feature of the proceedings to which I have referred is that the claim in defamation seeks a final injunction in respect of a threatened publication as opposed to seeking remedies following upon actual publication. 4. Without descending to the detail of the threatened publications, for the reasons I have stated it is enough to say that the proceedings arise from the publication to Mr Gav of an email threatening, if a certain dispute was not resolved, to publish to others a letter included as an attachment to the email. That letter, in turn, made plain that the threat was to send to each of the proposed recipients of the letter two additional documents which are capable of informing the meaning of the letter. 5. It is probably enough for present purposes to say that it might be anticipated at trial that the plaintiff would contend the letter is defamatory on its face, and the defendant would contend that any defamatory meaning conveyed by the letter might be mollified or else explained by the additional material. In those circumstances the defendant's first objection to the pleading is, in substance, a strike-in application. The defendant notes that the statement of claim pleads as the "matter complained of" only the letter attached to the email. The defendant seeks to have struck into the pleading the two additional documents intended to be included under cover of that letter if and when sent to any recipient. It is perhaps relevant to observe that one of the two proposed enclosures is a judgment of this Court which is publicly available. 6. The plaintiff responded that the three documents "cannot reasonably be regarded as all one publication." That probably puts the position too high. If it is threatened to send three documents within a single envelope or electronic bundle, in my view the three documents are capable of being regarded as one publication. That, however, is not determinative as to the question whether the plaintiff must be or can be required to "strike in" those additional documents to the pleading of the matter complained of. 7. It was, I think, common ground at the hearing this morning that the test is as stated by Simpson J (as her Honour then was) in Phelps v Nationwide News Pty Limited [2001] NSWSC 130 at [22]. I recently considered that authority and other authorities in Noble v Phillips (No 2) [2018] NSWSC 25, concluding at [28] that a strike-in application is appropriately determined in accordance with the test stated by her Honour in that case, which holds that the plaintiff is entitled to select the manner in which to present the case subject to unfairness amounting to abuse of process or unreasonableness or the inability of the publication to sustain the form of pleading chosen. 8. Applying that test, as already indicated, I think it puts the matter too high to say that the three documents cannot reasonably be regarded as all one publication, and indeed I think there is a forceful argument for saying that the defamatory meaning of the threatened publication should appropriately be considered on the premise pleaded in the statement of claim, that all three publications were proposed to be sent together. The difficulty is what was referred to during argument as the temporal problem. The claim is unusual in that, although the statement of claim refers to "the matter complained of" and alleges that it "was" defamatory of the plaintiff and "carried" certain defamatory meanings, in fact there has as yet been no defamatory publication. The claim seeks to restrain an apprehended publication. 9. Accordingly, applying the test stated by Simpson J in Phelps, I think it is open to the plaintiff to plead the matter as he has. There having been no publication, it makes no sense to compel the plaintiff to plead an expanded publication. That is not to say that the defendant could not at the trial seek to defend the claim on the basis that the threat made was to publish a composite publication and, further, to contend that the composite publication would not convey the defamatory imputations complained of. However, for the reasons I have indicated, I do not think it is appropriate to compel the plaintiff to strike in those two additional documents at this stage. 10. The second objection related to the adequacy of the particulars given pursuant to r 15.19(1)(e) of the Uniform Civil Procedure Rules 2005 (NSW) as to which parts of the matter complained of conveyed the various imputations relied upon by the plaintiff. That issue arguably was resolved by the correspondence exchanged between the parties in advance of the hearing. To the extent that the objection was pressed, I would reject it. The argument was that the plaintiff had not adequately complied with the rule by stating that he relied on the whole of the matter complained of and in particular specified sentences within the matter complained of. 11. The response given in the correspondence was that it is an appropriate form of pleading because the natural and ordinary meaning of defamatory matter arises from the publication taken in its entirety, taking into account not only the specific words used but also the context in which they are used. If authority were needed for that common sense proposition, it may be found in a case cited by the plaintiff of Charleston v News Group Newspapers Limited [1995] 2 AC 65 at 70E per Lord Bridge et al. In my view, the particulars given adequately comply with the requirement of the rule in the context of the present case. 12. Thirdly, the defendant objected to imputations (a), (c) and (d) on the grounds of capacity. As to imputation (d), the objection was cured by an amendment made by the plaintiff during argument. The real contest was as to the two imputations which convey attributions of dishonesty as opposed to the condition of being dishonourable, namely, imputations (a) and (c). For the reason already identified, namely the mixture of confidential and open information the subject of these proceedings, I will not set out as I ordinarily would the statements alleged to be capable of conveying the two dishonesty imputations. 13. In my respectful opinion, while there was much force in the submissions put by Mr Potts on behalf of the defendant concerning the question whether an imputation of dishonesty is capable of being conveyed, I think the current state of authorities on the question of capacity would require me to leave that issue to the jury or tribunal of fact, if only for the reason that the ordinary reasonable reader might understand the kind of dishonest conduct attributed to the plaintiff in the matter complained of to amount to a species of dishonesty, and I think that is a question of community standards which ought properly be determined at trial rather than at the preliminary stage. 14. The remaining objections reflected the substantive objections I have already determined in different contexts and will be governed by the rulings I have indicated. ********** 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: 08 May 2018