Bateman v Fairfax Media Publications Pty Ltd

Supreme Court of NSW|2015-05-15|Before: McCallum J, Nicholas J

Judgment

HER HONOUR: This is an action for defamation and injurious falsehood commenced by Dr Edmund Bateman arising out of a number of articles published in The Sydney Morning Herald. The matters complained of were published in October 2010. The action was commenced (in the Supreme Court of the Australian Capital Territory) in November 2010. Since that date, the proceedings have suffered a series of delays not due to the fault of the plaintiff.
The plaintiff recently sought expedition of the hearing of the proceedings. The matter is now listed for hearing on 27 July 2015. Since obtaining that fixture, the parties have made a number of further interlocutory applications which, having regard to the approaching hearing date, have had to be heard and determined with a measure of urgency. On 22 May 2015, I indicated my rulings on those applications as follows, reserving my reasons: 1. the plaintiff applied for leave to amend the statement of claim so as to re-plead the case against the fifth defendant, Dr Jeremy Cumpston. I indicated that the application was to be refused; 2. Dr Cumpston applied to have the existing pleading against him struck out and the proceedings as against him dismissed with costs. I indicated that the existing pleading of the defamation case against Dr Cumpston was to be struck out. As to whether it follows that the proceedings against him are to be dismissed with costs, the plaintiff is to be afforded an opportunity to be heard as to the damage element of a proposed claim in injurious falsehood; 3. the defendants applied for leave to file a second further amended defence pleading a new contextual imputation. I indicated that the application was to be refused.
This judgment states my reserved reasons for the rulings indicated and formalises those rulings.

Fifth defendant's strike-out application

It remains to consider whether Dr Cumpston can be held liable on the basis of the existing pleading, that is, as a publisher of the whole of the first article on the strength of the principles stated in Webb v Bloch (1928) 41 CLR 331. As already indicated, in my view it is clear that he cannot.
The argument on this issue focused to a degree on whether the plaintiff should be allowed to rely on further particulars provided after he received answers to interrogatories from other parties to the proceedings. It is not necessary to determine that question since, in my view, the proposed new particulars are not capable of sustaining or saving the Webb v Bloch pleading.
As submitted by Mr Dawson, the case against Dr Cumpston proposed in the new particulars (plaintiff's letter dated 4 May 2015) fails to articulate an arguable case that he is liable for the whole of the final form of the first article, as required in accordance with the principles considered by me in Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 (upheld by the Court of Appeal in Dank v Cronulla-Sutherland District Rugby League Football Club [2014] NSWCA 288 at [137]).
There is nothing in the proposed particulars to support an arguable case that Dr Cumpston had control over, or assented to, the final form of the publication. I do not think there is any other basis identified for holding Dr Cumpston liable as a publisher of the whole article. Ms Chrysanthou sought to make good the proposition that it was enough to say he was a contriver or procurer of the article. As promised, the authorities cited to support that proposition were entertaining but they shed little light on the content of any such principle.
Ms Chrysanthou further submitted that it is not "just, quick and cheap" to seek preliminary discovery whenever a source is sued. She submitted on that basis that a plaintiff should be entitled to plead the allegation of publication (presumably on the strength of direct quotes appearing in the matter complained of) and to supplement the pleading after discovery and interrogatories, at least in circumstances where the precise events are within the exclusive knowledge of the defendants. I do not find that a persuasive argument. To the extent that the argument appeals to case management considerations of expedition and economy, it is difficult to see why those considerations should not equally favour containing such interlocutory steps, at least where there is an effective remedy against the undoubted publishers of the final form of the article ( the media defendants). Case management considerations and the principle of proportionality favour keeping the action simple, particularly as a hearing date approaches.
For those reasons, I consider that the existing pleading as against Dr Cumpston fails to disclose a reasonable cause of action against him and should be struck out.

Proposed new contextual imputation

The defendants seek to amend their defences so as to rely upon a new contextual imputation in the following terms: The first plaintiff engages in deception by using his substantial resources to entice doctors to move their practices to Primary Health Care and then to force them to work beyond the term of their contract.
I accept, as submitted on behalf of Dr Bateman, that the imputation is incapable of arising. In particular, I am not persuaded that the matters complained of are capable of conveying any element of deception. There is nothing in either article to suggest that Dr Bateman represented the position to be other than it was. Certainly, it is suggested that he forced doctors to work beyond the term of their contract but that is a sting amply captured in a number of the plaintiff's imputations. Except perhaps at the level of philosophical debate, it cannot be said that the lure of wealth or reward is intrinsically deceptive.
Even if the matters complained of were capable of conveying any further contextual imputation, I would not be inclined to allow the defendants to amend their defences at this late stage. In my view, the time has come for these parties to bunker down and prepare for a trial on the existing issues.

Injurious falsehood

The defendants noted that the claim in injurious falsehood as against the fifth defendant is liable to be struck out in its present form, since it fails to plead the element of special damage. Ms Chrysanthou said that was due to oversight and would be cured. While it is difficult to see how the claim can survive the rulings given in this judgment, I did not think it would be appropriate to make an order dismissing the proceedings (as sought by Dr Cumpston) without first affording the plaintiff an opportunity to be heard on that issue.
The orders are: 1. that the plaintiff's application to amend the statement of claim be dismissed. 2. that the existing defamation action as against Dr Cumpston be struck out; 3. that the defendants' application to amend the defence to rely on contextual imputation 15(iii) be dismissed.

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: 27 May 2015

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