Williams v Melky [2012] NTCA 5

PARTIES:	WILLIAMS, John Russell

	v

	MELKY, Eli

TITLE OF COURT:	COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:	CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:	AP 10 of 2011 (21043171)

DELIVERED:	14 MARCH 2012

HEARING DATES:	14 MARCH 2012

JUDGMENT OF:	KELLY J

APPEAL FROM:	MASTER LUPPINO

REPRESENTATION:

Counsel:
	Appellant:	B McClintock SC
	Respondent:	W Roper

Solicitors:
	Appellant:	De Silva Hebron 
	Respondent:	Halfpennys Lawyers

Judgment category classification:	C
Judgment ID Number:	KEL12007
Number of pages:	6

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Williams v Melky [2012] NTCA 5
No. AP 10 of 2011 (21043171)

	BETWEEN:

	JOHN RUSSELL WILLIAMS
	Appellant

	AND:

	ELI MELKY
	Respondent

CORAM:	Kelly J

REASONS FOR JUDGMENT

(Delivered 14 March 2012)

KELLY J:
[1]	The plaintiff has brought an action against the defendant claiming damages for defamation.  In his rather brief statement of claim the plaintiff makes the following allegations in paragraphs 1 and 2.
“1.	On or about 1 September 2010, the defendant, during a race that was part of the Northern Territory Athletics Championships, held at Alawa Ovals, Lakeside Drive Alawa in the Northern Territory, and at which race the plaintiff was officiating, shouted and published words towards the plaintiff and in the presence of others, to the following effect:

“Hey John, this is for you.”

The defendant then raised his index finger and pointed it to the plaintiff.  He then shouted, and published words to the following effect:

“You’re such a great fucking sport eh!”

2.	The matter complained of, in its natural and ordinary meaning, carried the following imputations (or imputations not different in substance), each of which is defamatory of the plaintiff:

A.	The plaintiff did not act in a sportsman like manner.

B.	The plaintiff, as an official at a sporting event, did not act with good sportsmanship.”

[2]	In response to a request from the defendant, the plaintiff provided particulars of the third parties to whom the matter complained of was published.  Five people were identified by name and 30 people were identified as members of Broome Athletics.
[3]	The defendant applied to strike out the statement of claim on the grounds that:
(a)	the imputations pleaded by the plaintiff were not reasonably capable of arising, or were otherwise embarrassingly pleaded;
(b)	the two imputations pleaded did not differ in substance; and
(c)	the particulars of aggravated damages provided were not proper particulars of such a claim.
[4]	The Master upheld each of the defendant’s complaints and struck out the statement of claim. 
[5]	The appellant sought and was granted leave to appeal against the decision of the Master.  The appellant makes no complaint about the Master’s decision in so far as it applies to the pleading of aggravated damages, but contends that the Master was in error in holding that the implications pleaded in the statement of claim were not capable of arising from the words complained of in the circumstances pleaded, and also in holding that the two pleaded implications were in substance the same.  Because leave to appeal was given by a single judge pursuant to s 53(2) of the Supreme Court Act, this appeal is being heard and determined by a single judge under s 53(4)(a).
[6]	In coming to his decision, the Master identified the following circumstances from the statement of claim as the only pleaded circumstances capable of supporting the pleaded imputations:
(a)	the words used;
(b)	that the defendant pointed at the plaintiff with a raised finger;
(c)	that the words were shouted in the presence of others; and
(d)	that it occurred at an athletics championship where the plaintiff was an official.
[7]	The Master concluded that these limited pleaded circumstances alone were not capable of conveying to an ordinary reasonable hearer the imputations pleaded by the plaintiff.
[8]	Counsel for the appellant has argued that more surrounding circumstances were pleaded than were identified by the Master, namely that the defendant’s conduct (words shouted, gestures used) occurred during a race that was part of a particular named athletics championships, and that the plaintiff was officiating at that race.  In addition, he pointed to the particulars which were sought and provided specifying that the publication was to 5 named persons and to about 30 members of Broome Athletics.
[9]	The appellant contended that the matters alleged in paragraph 1 of the statement of claim were capable of conveying to the ordinary reasonable person:
(a)	present during the race,
(b)	hearing the words said during the race (including the use of the word “fucking”),
(c)	noting that the words were shouted,
(d)	seeing that they were directed to the plaintiff who was officiating at the race,
an allegation of lack of sportsmanship on the part of the plaintiff.
[10]	I agree.  Sufficient surrounding circumstances are identified as to when, where and how the matter complained of was communicated, and to whom, to enable the court to say that a reasonable person of the kind to whom the publication was made was capable of understanding the matter complained of to give rise to the pleaded imputations.  Whether those words and actions in that context do in fact give rise to the pleaded imputations will be a matter to be determined at the trial.
[11]	The Master also held that the two imputations were repetitious, as the sting in both is that the plaintiff is not a good sport.  In doing so, the Master relied on the test suggested in Singleton v John Fairfax & Sons, namely that two imputations are the same in substance if the same facts could be proved to justify each pleaded imputation.  The Master accepted the submission from counsel for the defendant/respondent that a valid defence to both imputations could be made out if the defendant were able to demonstrate that the plaintiff conducted himself on the day in question in an unsportsmanlike manner.  
[12]	I do not think that that submission ought to have been accepted.  I agree with the submission of the appellant that to say of a person that he did not act with good sportsmanship is different from saying that he did not act with good sportsmanship in his capacity as an official.  Facts which may well justify, for example, an imputation of unsportsmanlike behaviour, may not justify an imputation of bad sportsmanship as an official.  It may be that on the evidence, only one of those two imputations is in fact conveyed, but that is a different matter.
[13]	The appeal is allowed.  The Master’s order setting aside the whole of the statement of claim is set aside.  In lieu thereof the following order is made: all of the words in paragraph 4 of the statement of claim after the word “damages” where it first occurs are struck out.