Coronation Property Co Pty Ltd v Fairfax Media Publications Pty Ltd

1. [1]

   These proceedings were commenced by summons filed on 28 July 2025. The plaintiffs seek a range of relief in respect of publications and allegedly threatened publications by the Sydney Morning Herald. The claims include claims for defamation by the third plaintiff, Mr Nahas, in respect of the publication of articles (both online and in print) on 14 and 15 July 2025. The articles dealt with a range of matters including several arson attacks in Sydney.

2. [2]

   Without intending to express any concluded view about whether such meanings are actually conveyed, the articles broadly describe a number of circumstances that potentially suggest some kind of link between Mr Nahas and those arson attacks.

3. [3]

   The parties have abided by the terms of the Defamation List Practice Note and have been in correspondence about the form of the Statement of Claim. They have, to some extent, resolved their differences in relation to the pleading, but certain questions remain concerning the imputations pleaded in paragraphs 31 and 34.

4. [4]

   The unresolved objections concern the question of whether certain of the imputations differ in substance, as is required by r 14.30 of the Uniform Civil Procedure Rules 2005 (NSW) (‘UCPR’). The disputed imputations are in two groups. The first group concerns imputations dealing with Mr Nahas’s involvement in arson attacks on two childcare centres. The second group concerns imputations dealing with Mr Nahas’s involvement in arson attacks on the home of Jordan Shanks.

5. [5]

   The first group of imputations are imputations (c), (d) and (g) of paragraphs 31 and 34, which are relevantly as follows:

6. [6]

   The second group of imputations are imputations (f), (h), (i), (j) and (m) contained in paragraphs 31 and 34, which are relevantly as follows:

7. [7]

   The defendants argued that in circumstances where the imputations do not differ in substance, it is appropriate for them to be struck out.

8. [8]

   The plaintiffs submitted that there was no prejudice to either party in allowing imputations that do not differ in substance to remain in the pleading. They submitted that the circumstances in which a pleading may be struck out are specified by UCPR r 14.28(1) and that the exercise of the power to strike out a pleading must be viewed in the context of broader case management principles found in Part 6 of the Civil Procedure Act 2005 (NSW).

9. [9]

   The plaintiffs’ argument is that if the challenged imputations do not differ in substance, then there is no utility in striking them out because such imputations are unlikely to have any meaningful effect on the course of proceedings. They submitted that the imputations will therefore not cause prejudice, embarrassment or delay within the meaning of r 14.28(b), nor could they amount to an abuse of process within the meaning of r 14.28(1)(c).

10. [10]

    The plaintiffs also submitted that maintaining objections to imputations that do not differ in substance does not tend to advance the just, quick and cheap resolution of the real issues in dispute in proceedings: s 56 of the Civil Procedure Act.

11. [11]

    I am unable to accept the plaintiffs’ submissions. Rule 14.30(3) of the UCPR provides:

12. [12]

    Rule 14.30(3) means what it says. The rule is there for a reason, namely, to ensure that the defendant and the tribunal of fact are not required to deal with separate meanings that do not differ in substance. That reason is one that has special significance for a jury trial. There is an enormous benefit in the conduct of any jury trial in ensuring that the pleadings are in order and, in particular, that there be no scope for confusion or repetition in the meanings contended for by the plaintiff.

13. [13]

    At the commencement of argument, I was advised by senior counsel for the plaintiffs that this is a matter in which the plaintiffs will elect for the matter to be tried by jury. Leaving aside the question of whether the defendants seek to raise a defence to an imputation that does not differ in substance to one relied on by the plaintiffs, which is a different issue, there is merit in ensuring that the jury is not required to rule on multiple imputations that do not differ in substance.

14. [14]

    Further, the fact that a pleading does not comply with a specific requirement of the rules is ordinarily a sound basis to conclude that the pleading is one that causes embarrassment within the meaning of r 14.28(1)(b): McGuirk v University of New South Wales [2009] NSWSC 1424 at [34] (Johnson J).

15. [15]

    It is therefore appropriate for the Court to consider the defendants’ objections at this stage. If, and to the extent the defendants are correct in their submission that any of the challenged imputations do differ in substance, it is, in my view, appropriate that they be struck out pursuant to r 14.28(1)(b).

16. [16]

    Turning to the first group of imputations, imputations (c) and (g) do in my opinion differ in substance. There is a distinct difference in the nature and degree of culpability imputed to Mr Nahas in each of these imputations. They differ sufficiently such that it is appropriate for them both to remain in the pleading and to go to the jury.

17. [17]

    A more difficult question concerns imputation (d). It was submitted for the plaintiffs that all three imputations should be seen as specifying different degrees of culpability in the arson attacks and that imputation (d) specified a degree of culpability or involvement sitting somewhere between that denoted by imputations (c) and (g).

18. [18]

    The difficulty with imputation (d) is that the imputation is one that is capable of imputing a range of matters to Mr Nahas, depending on how one reads the imputation. The range of meanings seem to me to be broadly as follows. First, it might be that Joe Nahas was an arsonist because he was responsible for the attacks in the sense of being behind the attacks or being the person who caused the attacks to happen. Secondly, it might be that Joe Nahas was an arsonist because he was responsible for the attacks in the sense of having some other unspecified level of involvement in the attacks. Thirdly, it might be that Joe Nahas is an arsonist because he was responsible in the sense of having actually committed the attacks. There may be other meanings, but these seem to me to be three possible meanings that imputation (d) connotes.

19. [19]

    If the imputation has the first of these meanings, then it does not differ in substance from imputation (c). If it has the second of these meanings, then it does not seem to me to differ from imputation (g). If it has the third of these meanings, namely, that Mr Nahas is an arsonist because he was responsible in the sense of having committed the acts, then I do accept that the imputation is one that differs in substance from both imputations (c) and (g). However, if that really is the meaning for which the plaintiffs are contending, the imputation cannot be left in that form. If Mr Nahas does intend to plead an imputation that he is an arsonist in the sense of having actually committed or been involved in the attack, and if that is what he means by pleading that the imputation is that he was ‘responsible for the arson attack’, then he should say so.

20. [20]

    In my view, imputation (d) is embarrassing and should be struck out, but with leave to replead: Rubenstein v Truth & Sportsman Limited [1960] VR 473 at 476.

21. [21]

    The second group of imputations concerns the attack on Mr Shanks’ home. These imputations are in very similar form to the first group, save they also include imputations that Mr Nahas’ involvement in the attacks was ‘in retaliation’ for things done by Mr Shanks.

22. [22]

    Insofar as the defendants submit that imputations (h) and (j) do not differ in substance from imputations (f) and (i) respectively, I am unable to accept that submission. In my view, an imputation that someone ordered an arson attack is substantially different from an imputation that someone ordered an arson attack in retaliation for the victim’s conduct. It may well be that the first imputation is encompassed within the other, but the converse is not necessarily true. I consider that these imputations do differ in substance.

23. [23]

    The conclusions that I reached above at [17]-[19] in relation to the first group of imputations otherwise apply equally to this second group of imputations. That is, I consider that imputations (i) and (j) are uncertain in meaning and that they only differ in substance from other imputations if they are given one of several possible meanings. Again, it may be that Mr Nahas does intend to plead an imputation that he was an arsonist in the sense of actually having committed the attack. If that is what the reference to having been an ‘arsonist’ by reason of being ‘responsible’ for the arson attack, then he should say so. But as the matter stands, I do not think it is appropriate for imputations (i) and (j) to remain in the pleading.

24. [24]

    I will therefore order that imputations (i) and (j) be struck out, with liberty to replead.

Orders

1. [25]

   The orders of the Court will be:

   1. (1)

      Paragraphs 31(d), (i) and (j) and 34(d), (i) and (j) of the Statement of Claim filed on 7 October 2025 be struck out with liberty to replead.