Brigg v Reid & Anor [2002] NSWSC 80 | Case summary

JUDGMENT (On application to strike out contextual truth defence) 1 The plaintiff sues in respect of, first, a memorandum to staff issued by the defendants on the letterhead of the NSW Health Department. It is in the following terms: "To all staff, I wish to advise that, as of today, Mr David Briggs has been removed from his position as Chief Executive Officer of the New England Health Service. Following approval from the Governor of New South Wales, Mr Briggs has been removed following a recent Department of Health audit review which concluded there had been inadequate and ineffective financial management of the NEHS. I appreciate that this decision may cause some disruption within the Health Service, but I can assure you that this step was not taken lightly and was made with the best interests of the Health Service and the population it serves in mind. Ms Christine Kibble, the Associate Director of Financial Management at the Department of Health, will be Acting CEO of the Health Service from today. I will ensure that the position of CEO is advertised as a priority to minimise the risk of any further disruption. In the interim, I would like to thank you for your hard work and dedication which continues to provide the highest quality of health care to residents of the New England." 2 The second matter complained of is a media release dated 3 September 1997 which is in the following terms: "3 September 1997 NEW CEO TO BE APPOINTED TO NEW ENGLAND HEALTH SERVICE NSW Health Director General, Michael Reid, today advised that Mr David Briggs had been removed from his position as Chief Executive Officer of the New England Health Service. Mr Reid said Mr Briggs had been removed following a recent Department of Health audit review which concluded there had been inadequate and ineffective financial management of the NEHS. Ms Christina Kibble, who is currently Associate Director of Financial Management at the Department of Health, will be Acting CEO of the Health Service from today. 'I have asked the Department to advertise the position of CEO as a priority,' Mr Reid said. 'The Department will continue to closely monitor the financial situation in New England to ensure the quality of health care provided to the local population remains unaffected'". 3 On 21 March 2000 the jury in a s 7A trial conducted before Bergin J found that each of the matters complained of carried the following defamatory imputations: "( a) the plaintiff had to be urgently dismissed from his job because he had mismanaged the finances of the New England Health Service. (b) the plaintiff had been caught having engaged in seriously inadequate care and control of the finances of the New England Health service after auditors had checked the books of the New England Health service. (c) the plaintiff as Chief Executive Officer of the New England Health Service had incompetently managed the finances of the New England Health Service". 4 The defendants are justifying these imputations pursuant to s 15 of the Defamation Act 1974. 5 Pursuant to s 16 the defendants are seeking to justify the following contextual imputations: "(i) the plaintiff had so incompetently managed the financial affairs of the NEHS that he deserved to be dismissed from his position as Chief Executive Officer ("CEO") of the New England Health Service ("NEHS"). (ii) The plaintiff as CEO of the NEHS was so irresponsible in his supervision of the financial management of the NEHS that he deserved to be dismissed from his position. (iii) The plaintiff as CEO of the NEHS was so negligent in the performance of his duties as CEO that he deserved to be dismissed from his position". 6 The Particulars of Truth appended to the defence to the Amended Statement of Claim filed 8 August 2001 are the same in respect of the defences under ss 15 and 16. 7 The plaintiff's application is that the defendants' plea of contextual justification be struck out. 8 It is the plaintiff's contention that the defendants in pleading the contextual imputations have failed to comply with what is described as the first rule promulgated by Hunt J in Hepburn v TCN Channel Nine Pty Limited (1984) 1 NSWLR 386 at 400A namely: "(1) Does the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) differ in substance from the plaintiff's imputations to which it is or they are pleaded as a defence? (2) Is the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence? (3) Is the nature of the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) such that its or their substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the plaintiff's imputation to which it is or they are pleaded did not further injure that reputation?" 9 It is said that the fundamental problem is that each contextual imputation contains the word "so," then attributes conduct, and then states that the plaintiff "deserved to be dismissed from his position". These words convey a concept of so conducting oneself as to "merit/deserve" dismissal as opposed to dismissal itself. The plaintiff goes on to submit that it is implicit in the structure of the contextual imputations that "dismissal" has not necessarily occurred. The matters complained of, it is argued, make it abundantly clear that the plaintiff has in fact been removed from his position and gives the reasons therefor. There is nowhere in the matters complained of any "message" to the effect that the plaintiff had so conducted himself as to deserve dismissal as contained in the contextual imputations. 10 It is further argued that contextual imputation (c) is vague and imprecise by reason of its use of the word "negligent". 11 Further it is contended that the contextual imputations do not differ in substance. It is further argued that the particulars of truth lend support to the last mentioned proposition. I would, at this point, indicate my view that it is a matter for the defendants whether to allocate facts, matters and circumstances to two particular imputations/contextual imputations. In reality it might well be that a defendant proposes to prove a series of facts and rely upon those proved facts in support of one or all of the plaintiff's imputations of truth or that of the contextual imputations. The fact that one set of particulars is relied upon is not necessarily determinative of the question of whether the contextual imputations differ in substance. 12 For the defendants, it is contended, by way of example, that when viewed against plaintiff's imputation (a) and (b) it can be seen that the plaintiff's imputations assert that there was a need for the "urgent" dismissal of the plaintiff because of his financial management - that is to say his urgent dismissal was "mandated" because of financial mismanagement; the defendants' contextual imputations are said to be at least equally serious but different in substance. Those contextual imputations impute that the plaintiff's dismissal was deserved because his management of the financial affairs was so incompetent. It is said that the dismissal was not necessarily urgently required but rather it was deserved. That difference is substantial, so it is said. 13 It is, of course, not appropriate to consider what an imputation means: I am firmly of the view, however, that when one reads the plaintiff's first imputation and the defendants' first contextual imputation it cannot be said on any rational basis that it arises at the same time and in addition to that pleaded by the plaintiff (and found by the jury to have been carried). An ordinary understanding of the English language would predispose one to the view that if the plaintiff had to be urgently dismissed from his job because of mismanagement of finances, he had so incompetently mismanaged the financial affairs as to "deserve' dismissal. 14 A similar exercise taken in relation to plaintiff's imputation (b) and defendant's contextual imputation (b) must inevitably lead to the same result. 15 I am reinforced in this view by the terms of the defendant's submissions in relation to the "need for urgent dismissal" - it can only mean that the dismissal was warranted or deserved. 16 As to the respective imputations (c), the plaintiff's imputation refers to "incompetence" and the defendants' to "negligence". In Matheson v Kennedy & Anor (unreported, 3 November 1989) Hunt J was of the view that imputations such as this do differ in substance. The imputation as to incompetence asserts the plaintiff to be without competence; the imputation was to negligence assumes competence but asserts that that competence was failed to be employed. His Honour said "although to a lawyer they have become almost synonymous terms, they are clearly enough different in substance - although only just"; see also Haertsch v Andrews & Anor [1999] NSWSC 359. 17 It thus conforms with precedent that a contextual imputation that pleads negligence differs in substance from one that pleads incompetence. There are two flaws however: the notion of "deserving" to be dismissed with which I have dealt in relation to (a) and (b); and second, otherwise, that contextual imputation is not such that its substantial truth is capable of being rationally considered by the tribunal of fact as so affecting the plaintiff's reputation that the plaintiff's imputations to which it is pleaded (assuming them not to be proved to be true) did not further injure that reputation: Hepburn (supra) at 400B - the third rule. 18 The ultimate conclusion at which I have arrived is brief; the imputations found by the jury to be carried and defamatory "cover the field". I take the same view of the defendants' contextual imputations in this litigation as I took of those sought to be pleaded in Blake v John Fairfax Publications Pty Ltd [2001] NSWSC 885 where leave to amend was refused; appeal from that judgment was dismissed: John Fairfax Publications Pty Ltd v Blake [2001] NSWCA 434. 19 I strike out paragraphs 9 and 13 of the Defence to the Amended Statement of Claim filed on 8 August 2001. 20 The defendants are to pay the plaintiff's costs. 21 I stand the matter over for directions in the Defamation List on 8 March 2002.

Brigg v Reid & Anor

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