HER HONOUR: These are proceedings for defamation commenced by Mr Conrad Bolton, the Mayor of Narrabri Shire Council. The proceedings relate to a series of publications on a Facebook page under the banner "Narri-Leaks" with the slogan "Blowing the whistle on waste, poor management and worse in Narrabri Shire Council - the truth will always conquer". The defendants are sued as the alleged publishers of that Facebook page.
The proceedings came before the Court for first listing in accordance with the Practice Note SC CL 4 on 6 May 2016. The second defendant, Ms Ann Loder, argued objections to the form of the pleading. This judgment determines those objections. The first defendant, who represents himself, took no separate objections and was content to adopt the submissions put by Mr Potter on behalf of Ms Loder.
The first matter complained of, headed The "Captain's Call", cites the council's obligation under s 349 of the Local Government Act 1993 (NSW), in making the decision to appoint a person to a staff position, to select "the applicant who has the greatest merit" according to "the abilities, qualifications, experience and standard of work performance" of the eligible applicants. The article refers to Narrabri Shire Council "interviewing for its sixth general manager in seven years next week", explaining "the people doing the picking, our councillors, on the evidence, had not done a very good job of picking the best person on merit".
The article continues:
"A view that has been voiced in some councils, is that a mayor's "captain's call", is a problem. The suggestion that a strong, long experienced GM who knows the ropes backwards and cannot be prevailed upon, may not be popular with a certain type of mayor".
The article then poses the following question:
"What happens if a council spends considerable funds engaging respective expert consultants, the process is followed in accordance with the Act, the consultants recommend an applicant that they view best based on merit, and some councillors agree with the expert advice, but in a close vote a mayor is able to prevail on enough councillors so as to pick a person other than the one deemed the best on merit. In other words we get another "captain's call".
Bolten v Stoltenberg [2016] NSWSC 596 | Case summary | Zoe
The article concludes by asserting that the ratepayers have the right to know who the experts recommended and which councillors voted with the experts and which voted with the Mayor.
One of the imputations specified by the plaintiff adopts the term "Captain's Call". It was objected on behalf of Ms Loder that that term is meaningless and renders the imputation objectionable for imprecision. That objection was withdrawn at the outset of argument. In my view, it may be accepted that the public discourse surrounding the former Prime Minister's use of the term "Captain's call" to defend his decision to award a knighthood to Prince Phillip without consulting any of his cabinet colleagues has lent the phrase a clear meaning (now recognised in the Macquarie Dictionary), being a decision made by a political leader without consultation with colleagues.
The principal objection to each of the imputations pleaded in respect of the first matter complained of is that the article does not allege that the plaintiff in fact did or was willing to do anything; it merely calls for information in the interests of transparency. In my view, although the article does not specifically attribute the Mayor with any particular act, it is capable of insinuating the degree of impropriety attributed to him in each of the imputations objected to (imputations 5(a), (b) and (c)). Those imputations will go to the jury.
A separate objection was taken as to the form of imputation 5(c), which is "that the plaintiff, in his role as Mayor of Narrabri Shire Council, corruptly favours candidates for the position of General Manager who are weak and inexperienced over those who are strong and experienced so he can engage a candidate he can dominate and exploit". The objection was that the term "corruptly" in that imputation is imprecise and that the additional words "so he can engage a candidate he can dominate and exploit" do not add to the sting of the imputation. In my view the inclusion of those additional words is the very reason the term "corruptly" is adequately precise in this context, since they explain the benefit sought to be obtained (the ability to dominate and exploit) from the alleged corrupt conduct (favouring weak and experienced candidates). That imputation will stand.
The next objection relates to the manner in which the plaintiff has pleaded the second and third matters complained of. The second matter complained of is an article in Narri-Leaks under the heading "You deserve more". The third matter complained of is the same article together with all of the comments posted in respect of the article. Mr Potter submitted that the pleading amounts to an abuse of process "by double imputations" and that the plaintiff should be required to elect either to plead the article as a stand-alone publication and the comments as a separate stand-alone publication (without repeating the article as part of the latter) or alternatively pleading a composite publication alone (that presently pleaded as the third matter complained of).
Mr Richardson submitted that the manner in which the two publications have been pleaded is permissible in accordance with the principles considered by Simpson J (as her Honour then was) in Phelps v Nationwide News Pty Ltd [2001] NSWSC 130. Her Honour stated at [22]:
"Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it which is to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out."
The manner of pleading in the present case is similar to that approved in the decision of Levine J in Lucas v Fairfax Media Publications Pty Ltd [2000] NSWSC 950, considered to by Simpson J in Phelps at [16]-[17]. In that case, a headline and news item appeared on the front page of a Saturday newspaper, with a second article appearing on the second page under a different heading. The plaintiff sued on the second article as a single defamation and, separately, on the combination of the two articles. As here, the defendant in that case submitted that the pleading was "an improper attempt on the part of the plaintiff to multiply the imputations to increase the award of damages and that this constituted an abuse of process" (Phelps at [17]). In allowing the pleadings to stand, Levine J considered that the risk of multiplication of damages awarded was minimised because that is a determination now committed to a judge rather than a jury.
In my view, the form of the pleading in the present case is permissible and should be allowed to stand. It will of course be necessary for the judge assessing damages to ensure that there is no duplication in the award; the plaintiff will be entitled to damages in respect of publication to those readers who read only the article and, separately, for publication to those readers who read the article together with all of the comments, but there must be no overlap in those awards.
Separately, the second defendant maintained a number of individual objections to the imputations pleaded in respect of the second and third matters complained of. The first was an objection to the use of the term "corruptly" in imputation 7(a). In my view, the use of that term is adequately clear in the present context, for substantially the reasons stated above in respect of imputation 5(c).
The next objection was to imputation 7(c), as follows:
"The plaintiff's conduct as Mayor of Narrabri Shire Council in selecting a grossly unqualified candidate for the position of general mayor was so despicable that it deserved to be equated with the Fine Cotton ring-in."
The first objection was that the reference to the Fine Cotton ring in is imprecise. As indicated during argument, I agree. The phrase refers to events which occurred in 1986. Those events undoubtedly have a degree of notoriety in some circles but I do not think the term "Fine Cotton ring-in" can be said to be one that would necessarily be understood by the ordinary reasonable reader. The matter complained of itself explains the term to a limited degree but I think its inclusion in the imputation is embarrassing (in the sense of causing prejudice due to its imprecision).
Mr Richardson proposed alternatively to rely upon an imputation in which the term "Fine Cotton ring-in" would be replaced with the phrase "a criminal enterprise". In that form, in my view the imputation suffers from the second vice complained of by the defendants, that it is rhetorical. It is an appeal to the reader that one event "deserved" to be equated with another (more precisely, that the degree of despicableness of one act deserved to be equated with the degree of despicableness of an unspecified criminal enterprise). I do not think the imputation distils what is alleged to have been attributed to the plaintiff by the matter complained of with the required specificity. That imputation will be struck out.
The next objection is to imputation 7(d), as follows:
"The plaintiff as Mayor of Narrabri Shire Council was the sort of person prepared to exert pressure on other councillors to tell lies or cover up the truth during an independent inquiry by the Ombudsman, the Department of Local Government or ICAC."
The defendants submitted that the imputation is incapable of arising. Accepting the high test a defendant must meet in order to have an imputation taken from the jury on that basis, in this instance the submission should be upheld, in my view. The matter complained of suggests or hints at a prospect of the plaintiff influencing other councillors if they were to be interviewed at the same time but in my view it is too far a stretch to contend that the article attributes him with a propensity to pressure others to lie.
In respect of the fifth matter complained of, the only objection pressed by the defendants is that imputations 13(a) and (b) (containing an attribution of corrupt conduct) do not differ in substance from imputations 13(c) and (d) (containing an attribution of acting illegally). I do not agree. The two attributions are different, in my view.
The sixth matter complained of consists of a political comment by Narri-Leaks (regarding the likely impact on pensioners of an increase in council rates) coupled with a comment on that article by a particular reader. It is the comment that lends the whole alleged publication a potentially defamatory meaning. Based on remarks made by the first defendant at the first listing, it appears there will be a contest at the hearing as to whether the defendants are liable for the reader's comment. For present purposes, it is appropriate to determine the objections having regard to the whole publication as pleaded. Unfortunately for the defendants, it follows that they are (at least for present purposes) fixed with imprecise language of the comment.
The imputations specified by the plaintiff are that he acquired millions of dollars through dishonest means and that he acquired millions of dollars through dishonourable means. The comment suggests that "mayors with cloudy pasts" have often acquired their money "under highly questionable circumstances". The first objection is that the imputations are ambiguous and uncertain. Accepting that imputations must state with specificity the act or condition allegedly attributed to the plaintiff by the matter complained of, this is an instance where the plaintiff can in my view do no better, owing to the imprecise language of the reader's comment.
Separately it is objected that those imputations are incapable of arising. I do not accept that submission. Mr Potter submitted that the term "questionable" can raise only a reasonable suspicion. However, it is necessary to consider the whole of the reader's comment which, in my view, is at least capable of being understood to go further than merely raising a suspicion.
The seventh matter complained of is a further political comment directed to the impact on pensioners of a 26% rate increase. The only imputation specified in respect of that article is an imputation conveyed only with the aid of extrinsic facts. Mr Richardson accordingly submitted that, in accordance with authority, the objection to that imputation should not be determined as a separate question but should await the trial: Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 at 123F. Mr Richardson referred to two other decisions concerning the appropriateness of determining separate questions but each of those was a case in which the publication was oral. Here, the terms of the publication are known.
Mr Potter submitted that, accepting the reservations that have been expressed as to the separate determination of such a question where an assumption has to be made as to matters pleaded that remain to be established by evidence, the present case is one in which the imputation is so clearly untenable that it should be addressed now. In my view, there is force in that submission. Love, of course, was decided before the introduction of the Civil Procedure Act 2005 (NSW).
The matter pleaded by way of extrinsic fact reveals that the matter complained of would plainly have been highly offensive to the plaintiff for personal reasons (as subsequently recognised by the first defendant, who promptly apologised). However, I do not think, even taking the extrinsic fact at its highest, the matter complained of is capable of conveying the imputation pleaded. For considerations of privacy I have stated these reasons obliquely, without referring to the content of the article in question. Imputation 17(a) will not go to the jury.
[2]
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Decision last updated: 17 May 2016