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[2011] NSWSC 1415
Supreme Court of NSW
2011-11-25
Nicholas J, Hayne JJ, Dixon J, Barwick CJ
Original judgment source is linked above.
Judgment 1The plaintiff's application is for orders under Uniform Civil Procedure Rules 2005 Pt 14.28 striking out from the defence to the second further amended statement of claim the Lange defence pleaded in par 7, and the contextual imputations pleaded in pars 8(a) and (b).
The Lange defence 2In par 7 of the defence the defence of qualified privilege as extended in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 was pleaded, claiming that the matter complained of concerned government and political matters that affect the people of Australia, and the making of the publication was reasonable. In the particulars the matters were said to include: "(i) The use of foreign labour at the expense of local labour on major public infrastructure projects; and (ii) The use of companies, run by people who have a history of running companies that have not paid state and federal taxes, on major public infrastructure projects." 3The plaintiff's challenge was on the ground that the matter complained of could not be described as containing information concerning government and political matters, and thus was outside the class of publications for which the defence is available. His submission was that the information concerned companies carrying out construction work for the Queensland government whilst employing cheap foreign labour and avoiding obligations to pay superannuation entitlements which attracted criticism from trade unions. 4The defendants' submitted the matter complained of raised wider issues of a political kind. It was put that these included allegations that subcontractors from New South Wales, by means of avoiding compulsory superannuation payments, were undercutting local Queensland firms in subcontracts for a major state government infrastructure project being the airport link tunnel in Brisbane. It was put that the information concerning the use of itinerant backpacker labour to undercut law abiding contractors as described in the matter complained of, was information within the category of publication recognised in Lange . 5It is well settled that contested issues should not be decided on a strike out application except in the clearest of cases. In Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ (at [57]) said: "Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways [Dey v Victorian Railways Commission (1949) 78 CLR 62 at 91, per Dixon J; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130, per Barwick CJ], but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way." (See also John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484.) 6The Lange defence is one of qualified privilege at common law. It is for the trial judge to determine whether the occasion is one of qualified privilege in the light of the surrounding circumstances which, if in dispute, must be decided by the jury and not the judge ( Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511; Defamation Act 2005 s 22(5)(b)). 7The trial judge is required to scrutinise all the circumstances of the case which may include the events leading up to and surrounding the publication and the context in which it was made. 8As pointed out in Peek v Channel Seven Adelaide Pty Ltd [2006] SASC 63; (2006) 94 SASR 196, at [6] by Debelle J, the expression "communication about a government and political matter" has not been defined in any detail and its meaning is imprecise. He said: "16 At the outset, it is to be noted that a publication might concern a matter of public interest but fail to qualify as a government and political matter. In addition, the reasoning in Lange did not equate government and political matters with matters of public interest. 17 When determining the character of the publication, another relevant factor is that it is the nature of the discussion that is important rather than the office or function or the person publishing the words in question (although that office or function might, depending on the circumstances, affect or colour the manner in which the nature of the discussion is categorised): Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 per Steytler J at 458, adopting with approval remarks of Professor Walker in Lange v ABC : High Court Rethinks the Constitutionalism of Defamation Law (1998) 6 Torts LJ 9 at 17. 18 In addition, the mere fact that a statement is published in the context of discussion about "government and political matters" will not necessarily give it that character. Much might depend upon the circumstances: ibid. The decision of this Court in Conservation Council of SA Inc v Chapman provides an instance. That case concerned eleven publications. For present purposes it is sufficient to note only two where the defendant relied on Lange. Those publications concerned proceedings instituted by a company controlled by a Mr and Mrs Chapman in the Federal Court. The Federal Court ordered interim injunctions. In the publications complained of, the Conservation Council stated that the Chapmans had obtained the orders to silence the Council from engaging in public debate concerning the construction of a bridge to Hindmarsh Island. It was found that the publication was defamatory and that it did not concern a government and political matter notwithstanding that the publications were made in the course of the public debate on that issue. Doyle CJ and Besanko J held that the fact that the publication referred to the Federal Court and to court orders was not of itself sufficient to attract the constitutional protection. Nor was the fact that the publication referred to freedom of speech sufficient to bring the publication within the constitutional protection. Similarly in Baltinos v Australian Consolidated Press Ltd (unreported, Supreme Court of NSW, Sully J, 21 July 1995) a press article which in part dealt with migration issues was characterised, not as a political matter, but instead as "a wide-ranging and sensational personal and professional denigration of the plaintiff". In reaching that conclusion Sully J had regard to the article as a whole. ... 20 ... As Doyle CJ noted in Chapman at [17], it is not sufficient that there be merely a link. There must, I think, be more than a link. It is the true character of the publication which must be identified. 21 Depending on the nature of the publication, other criteria might have to be employed to determine the character of the publication ..." 9In this application, I am not prepared to hold that, as a matter of law, the defence is not available to the defendants with regard only to the bare contents of the matter complained of. Although it is arguable that the terms of the matter complained of do not themselves provide evidence that the publication concerned government and political matters, it cannot be said at this stage that the defendants would be unable to establish such a case by the assistance of evidence produced at the trial. It follows that this should not be decided on a strike out application, and must be dealt with at the trial by the trial judge after hearing the evidence as to the circumstances in which the matter complained of was published. To so hold is consistent with long established principle that, except in very rare cases, the issue of qualified privilege cannot be summarily determined in advance of the trial ( Clines v Australian Consolidated Press Ltd (1966) 67 SR(NSW) 364 pp 383, 394-395). 10Accordingly, I decline to order that this defence be struck out.
Contextual imputations 11The plaintiff claimed that imputation par 8(a)(i) be struck out on the ground that it is incapable of being defamatory of the plaintiff. It is: "(i) The Plaintiff is a director of a failed company, which collapsed owing hundreds of thousands of dollars in tax". 12In my opinion it is strongly arguable that the imputation is defamatory. The question is quintessentially one for the jury to decide. The objection fails. 13The plaintiff claimed that imputations 8(a)(ii) and (iii) are bad in form and/or incapable of being conveyed by the matter complained of. It is convenient to deal with them together. They are: "(ii) The plaintiff engaged in unconscionable conduct in that he sought to profit from the company he was running doing work on the Queensland Government's showcase $5.6 billion Airport Link project, when he had recently been involved in the liquidation of another company of which he was a director, leaving hundreds of thousands of dollars in tax owed to the Australian Taxation Office (ATO) and the Queensland Government. (iii) The Plaintiff engaged in unconscionable conduct in that he sought to profit from his company doing work on the Queensland Government's showcase $5.6 billion Airport Link project by using foreign backpackers at the expense of local south-east Queensland workers and when he had recently been involved in the liquidation of another company of which he was a director, leaving hundreds of thousands of dollars in tax owed to the ATO and the Queensland Government." 14It will be seen that (iii) differs from (ii) in that it includes the component "... by using foreign backpackers at the expense of local south-east Queensland workers ...". 15The plaintiff's submissions objecting on grounds of form and capacity were somewhat intermingled. They were to the effect that the description of the conduct as "unconscionable" and the assertion of involvement in the liquidation of another company were allegations which were imprecise, ambiguous and, in any event, incapable of arising from the matter complained of. 16After some hesitation, in my opinion the grounds of objection should not be upheld. The plaintiff's conduct said to be unconscionable is described with sufficient specificity. His involvement in the other company is readily seen as attributable to his role as a director. The sense in which the terms of the imputation may be understood is confirmed when regard is paid to the terms of the matter complained of. In my opinion these imputations are sufficient in form. 17I am also satisfied that the matter complained of, taken as a whole, provides ample support for these imputations. If detail is required, it is enough to refer to the lines relied upon by the plaintiff in support of the imputations pleaded in pars 2 and 4 of the second further amended statement of claim. As these imputations are capable of arising, they must be left to the jury. 18Objection was also taken on the ground that the imputations are not "other imputations" additional to those of which the plaintiff complains within s 26(a) of the Act. It cannot be sustained. Analysis of each of these imputations against the terms of the plaintiff's imputations shows that it differs in substance from each of the plaintiff's imputations, and meets the description of a contextual imputation under the section. 19Imputation 8(a)(iv) is: "(iv) The Plaintiff so conducted the affairs of companies of which he was a director as to warrant complaints that he unfairly obtained construction work by using foreign backpacker labour and failing to meet statutory obligations." 20The imputation is sufficient in form. Regard to the whole of the publication and, in particular, to the statement "... Mr Close said south-east Queensland subcontractors were right to complain when then missed out on Airport Link work with contractor Thiess John Holland" support the finding that the imputation is capable of being conveyed. It must be left to the jury. 21In the result, the plaintiff's application is refused on all grounds. The defendants accepted that if the application failed in respect of imputations 8(a)(ii) and (iii), they would no longer rely upon imputations 8(b)(i) and (ii). 22Accordingly, it is ordered that: (1)The plaintiff's application be dismissed. (2)The plaintiff to pay the defendants' costs.
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: 29 November 2011
Eoin Michael O'Neill
Queensland Newspapers Pty Ltd & Ors
[2006] SASC 63
(2000) 201 CLR 552
(2007) 70 NSWLR 484
(1997) 189 CLR 520
(1990) 20 NSWLR 511
(2006) 94 SASR 196
(1949) 78 CLR 62
(1964) 112 CLR 125
(1998) 19 WAR 440
[2000] HCA 41