Fierravanti-Wells v Channel Seven Sydney Pty Ltd

Baker v Nightingale [2008] NSWDC 103 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Field v John Fairfax Publications Ltd [2004] NSWSC 1285 Grubb v Bristol United Press Ltd [1963] 1 QB 309 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 CASES CITED: Kriss v John Fairfax Publications Ltd [2003] NSWSC 319 Lewis v Daily Telegraph [1964] AC 234 Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 Morris v Newcastle Newspapers Pty Ltd [1985] 1 NSWLR 260 O'Shane v John Fairfax Publications [2004] NSWSC 140 Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 Young v Munro (Supreme Court of NSW, 12 May 1995, unreported)

PARTIES: Plaintiff: Senator Concetta Fierravanti-Wells Defendant: Channel Seven Sydney Pty Ltd

COUNSEL: Plaintiff: Mr R Rasmussen Defendant: Mr D Sibtain

SOLICITORS: Plaintiff: NJ Papallo & Co Defendant: Johnson Winter & Slattery

[1] This is an application by the defendant in defamation proceedings to strike out imputations pleaded by the plaintiff. The defendant asserts that all but the first of the eight imputation pleaded are unable to be conveyed and/or bad in form. [2] The plaintiff's proceedings for defamation were brought following a Today Tonight programme broadcast on 7 January 2010 ("the broadcast") which was entitled "Pollies' Perks". A transcript of the programme is set out as a schedule to this judgment.

[3] The plaintiff pleads that the broadcast conveys the following imputations: (a) The plaintiff wasted taxpayers' money (paragraphs 19 - 25); (b) The plaintiff abused her right to have an overseas trip (19 - 25); (c) The plaintiff rorted the system by going on a taxpayer funded study trip but did not study (19 - 25); (d) The plaintiff cheated taxpayers by spending more than $17,000 for a study trip to Italy because the reason she went there was not to study but to reconnect with her heritage (19 - 25); (e) The plaintiff is unfit to be a member of parliament (19 - 25); (f) The plaintiff cheated taxpayers (19 - 25); (g) The plaintiff went on a dubious study trip (19 - 25); (h) The plaintiff's abuse of her overseas study trip contributed to a complete review of the entitlements system and the possible scrapping of study trips (19 - 25).

[4] In the course of argument the plaintiff sought leave to replead imputations (b) and (d) so that imputation (b) will now read: "The plaintiff abused her entitlement to have an overseas trip by spending more than $17,000 for a study trip to Italy, because the reason she went there was not to study, but to reconnect with her heritage." [5] There being no challenge to imputation (a), the imputations which are the subject of my rulings are imputations (c), (e), (f), (g) and (h). As can be seen from the paragraph references above, these imputations are all asserted to arise from a short segment towards the end of the broadcast. The relevant part, in my view, is the portion commencing from "those dubious study trips" and the specific reference to the plaintiff's trip in paragraph 25, followed by the comment of Senator Fielding in paragraph 26 and the reference to the review of study trips by Senator Lewis in paragraph 27. [6] However, the portions of the broadcast referring to the plaintiff need to be seen in context of the whole of the broadcast, including its title, "Pollies' Perks". The broadcast is predicated upon the basis that a considerable amount of overseas travel for politicians is a "perk" and concludes on the self-congratulatory note that "after more than a year of pressure from Today Tonight, these perks will soon be a thing of the past".

[7] I shall deal with each of the imputations challenged in turn.

Imputation (c): The plaintiff rorted the system by going on a taxpayer funded study trip but did not study

[8] I accept the defendant's complaint that this imputation is a restatement of the elements in imputation (b) which, by reason of its closer connection to what the text actually says (i.e. that she went to Italy to reconnect with her heritage), more accurately conveys the meaning than imputation (c). There is no discernable difference between allegations of abusing an entitlement to having an overseas trip and rorting the system by going on such a trip. Imputations should plead a different act or condition, not a mere shade of meaning. This imputation is struck out on the basis of failure to differ in substance from imputation (b) as repleaded. Imputation (e): The plaintiff is unfit to be a member of parliament

[9] The defendant submits that this imputation is not conveyed and that, by reason of the failure to identify the conduct in terms different to one or more of the other imputations, it is a rhetorical flourish.

[10] The broadcast complains of the "perks" of politicians in terms of money wasted on overseas trips, and ends with the claim that a complete review of the entitlements system will mean that "study tours could be scrapped". It does not, however, assert that any of the politicians under attack are unfit to hold office; the basic premise is that all this money on overseas trips is money wasted.

[11] The defendant additionally complains about the form of an imputation that simply states the plaintiff is unfit. If an imputation goes on to state what the plaintiff is asserted to be unfit for, and why, an imputation of unfitness may be permitted: see Field v John Fairfax Publications Ltd [2004] NSWSC 1285; O'Shane v John Fairfax Publications [2004] NSWSC 140. As to whether it is possible to plead imputations that a plaintiff is "unfit" to hold a particular kind of employment, I agree with the observations of Levine J in Kriss v John Fairfax Publications Ltd [2003] NSWSC 319 at [8]-[9], where his Honour explained: "[8] As to imputation 3(a), "The Plaintiff is unfit to be a barrister" , the defendant argues that the matter complained of is simply incapable as a matter of law of carrying it. There is certainly no express allegation in the broadcast that the plaintiff was unfit. Indeed the overall impression to be gained from the publication of the plaintiff is not that he was unfit but rather that his readmission to the Bar was contrary to the flow of "traffic heading the other way". That traffic in the other direction was made up of barristers who had been struck off by reason of either failing to file a tax return or being bankrupted by the Tax Office. There is nothing in the article that equates Mr Kriss with the persons referred to in it other than the statement of fact that he was "bankrupted" . The article makes clear that Cooper AJ had said that there was no suggestion that the plaintiff's bankruptcy involved any moral turpitude and that in every respect he was a fit and proper person to be a barrister. The notion of "turn up for the books" and "marvel" is referable merely to the plaintiff being readmitted to the Bar, having been, inter alia, bankrupted, when the "traffic" was constituted by members of the Bar being struck off. Whilst it might be more pertinent to imputation (c), the "surprise" is that contrary to the recent trend, here we have a barrister who is being readmitted having been struck off.

[9] The defendant also argues that the imputation is rhetorical, founded in the statements made in that regard by Hunt J in Morris v Newcastle Newspapers Pty Ltd [1985] 1 NSWLR 260 at 270-271 and 272E-G. I do not consider the imputation as a matter of form to be rhetorical or otherwise by reference to the other imputations pleaded. It is simply incapable of being carried and I so hold."

[12] In the present case, the imputation is, similarly, incapable of being conveyed, rather than being rhetorical, and it is struck out on that basis. Imputation (f): The plaintiff cheated taxpayers [13] I accept the submissions of the defendant that this imputation does not differ in substance from the redrafted imputation (b), other than to raise the act of wrongdoing to an impermissibly higher level of abstraction. I reject, however, the defendant's complaint that this imputation is rhetorical. [14] As this objection was raised to several of the imputations, I should note the explanation of Simpson J in Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 at [22]-[25] as to whether this is a valid complaint: "[22] The next complaint is that the imputation is "rhetorical". No argument was advanced to support that description. Reliance was placed upon another decision of Hunt J, Morris v Newcastle Newspapers Pty Ltd [1985] 1 NSWLR 260. At 272 his Honour was considering an imputation:

" … that the plaintiff was not a fit and proper person to be a member of the Federal Parliament"

His Honour did characterise this imputation as "rhetorical", but did not explain what he meant by it. He recorded an admission by the plaintiff that the imputation was intended to be "no more than a rhetorical flourish". Again, in the authorities to which I was referred, imputations were sometimes characterised as "rhetorical", but there has been no attempt to pin down the meaning of that expression, or to establish what amounts to a "rhetorical" imputation. The Macquarie Dictionary (Limited Edition, 1985) gives three meanings of "rhetorical":

"1. belong to or concerned with mere style or effect; 2. having the nature of rhetoric; 3. overelaborate, bombastic in style."

[23] Reference to the decision of the Court of Appeal in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771 (cited by Hunt J, in this context, in Morris (see p 272)), suggests that the term is used to denote repetitive imputations, not differing in substance one from another, a pleading practice prohibited, first by SCR Pt 67 r11(3), and now by UCPR 14.30(3): see also Grubb v Bristol United Press Ltd [1963] 1 QB 309, at 328, 329; and Lewis v Daily Telegraph [1964] AC 234 at 278, (where the pleading of true innuendo in addition to the natural and ordinary meaning of the words in the broadcast was criticised as "rhetorical"), both also cited by Hunt J in Morris .

[24] If that is what is meant by "a rhetorical imputation", a complaint to that effect merely duplicates a complaint that the imputations in question fall foul of the rule. In my opinion, the time has come for defendants' counsel to bury the practice of attacking imputations pleaded by plaintiffs on the basis that they are "rhetorical"; alternatively to specify precisely what they mean by the epithet. Otherwise, the complaint is, itself, mere rhetoric.

[25] In my opinion an expression which is rhetorical is one that has little content or substance, but comes with a good deal of prejudicial flourish. I can readily understand how a publication may be said to be "rhetorical". It is more difficult to see how an imputation can be rhetorical, unless, as I suggest, it merely means repetitive. There is, in my opinion, nothing "rhetorical" about the terms of this imputation. I would reject this challenge." [15] Imputation (f), although not rhetorical (for the reasons explained by Simpson J) will, however, be struck out on the basis that it does not differ in substance from the repleaded imputation (b). Imputation (g): The plaintiff went on a dubious study trip

[16] The defendant submits that notwithstanding the use of the term "dubious" in the matter complained of, the imputation is ambiguous and bad in form, in that it would be impossible for a jury to distil the sting with any reasonable precision, or for a defendant to know in what way the imputation would, or could, be justified.

[17] However, the opening words of the broadcast (paragraph 22) are: "Then there's those dubious study trips".

[18] The emphatic way that these words are spoken (followed by a photograph of Liberal MP Fran Bailey asleep) makes it clear that this part of the broadcast is dedicated to the investigation of overseas trips that are dubious. The first example of a dubious study trip is Ms Bailey who, we are told, was "last seen asleep at the NATO Assembly in Edinburgh" and is now retiring, "so it's hard to see how taxpayers got value for money". The second is Liberal MP Petro Georgiou. The basis for asserting that his study trip was dubious seems to be that he was "Ms Bailey's colleague" (paragraph 24). The third and final example is the plaintiff, who is seen talking vivaciously and waving her arms while the rhetorical question of where else would Senator Concetta Ferravanti-Wells go for her study trip but Italy is put to the viewer.

[19] How could it be said that this imputation would be better conveyed by using a word other than the defendant's own description of "dubious" in the imputation? The claim that the defendant would not know what to justify is disingenuous, for the reasons explained by Hutley JA in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688B, explained and followed by Gleeson CJ at CL in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 (endorsing Hutley JA's remarks), endorsed again by Levine J in Young v Munro (Supreme Court of NSW, 12 May 1995, unreported) and by the NSW Court of Appeal in a series of decisions (summarised in Baker v Nightingale [2008] NSWDC 103 at [9]-[10]) permitting imputations to be pleaded using the words of the matter complained of.

[20] This is a very clear example of the sting of the imputation being best encapsulated by the actual words of the publication. Hutley JA in Hepburn considered, in 1983, it was "strange to hear" the suggestion that a defendant does not understand an imputation which is in precisely the words it has used. It is equally strange to hear such a suggestion being made in 2010.

Imputation (h): The plaintiff's abuse of her overseas study trip contributed to a complete review of the entitlement system and the possible scrapping of study trips

[22] The defendant submits that this imputation is "far-fetched and divorced from the broadcast" and complains that the word "contributed to" does not identify whether or not the plaintiff is asserting her study trip was in fact one of the study trips under consideration in this review.

[23] The framer of the imputation appears to be hesitating between an imputation that the plaintiff's trips was one of the trips which was reviewed by Special Minister of State Joe Ludwig, or whether it has in some other way been connected to or contributed to this review, or whether it is an example of what Mr Ludwig was concerned about. Whatever imputation the plaintiff is aiming for, it should be pleaded in clear terms.

[24] Imputation (h) is struck out with leave to replead, and I note I have made an order for a further amended statement of claim to be filed in 7 days.

[25] The defendant has successfully challenged a number of the plaintiff's imputations and costs should follow the event.

(1) Note there is no challenge to imputation (a). (2) Grant the plaintiff leave to replead imputations (b) and (d) as follows: "The plaintiff abused her entitlement to have an overseas trip by spending more than $17,000 for a study trip to Italy, because the reason she went there was not to study, but to reconnect with her heritage." (3) Imputation (h) is struck out with leave to replead. (4) Strike out imputations (c), (e) and (f). (5) Plaintiff pay the defendant's costs. (6) Plaintiff to file amended statement of claim in 7 days. Matter stood over for further directions to Friday 21 May 2010 at 9:00am.

1 SAMANTHA ARMYTAGE: We used to complain when politicians took enough people on their overseas jaunts to field a football team. But Kevin Rudd is now in a league of his own. On a recent trip to Copenhagen, the Prime Minister took an entourage big enough not only to start his own team, but to field an entire competition; 114 members to be precise. Here's Jonathan Creek with the who's who of the Copenhagen crowd. 2 REPORTER: Like his prime ministerial jet, Kevin Rudd's travel costs are soaring, [File excerpt] 3 KEVIN RUDD: What happens here on Wall Street. [END EXCERPT] 4 REPORTER: Our PM's travel expenses nudged $1 million between January and June last year. A trip to Papua New Guinea cost taxpayers almost $150,000. [FILE EXCERPT] 5 BARACK OBAMA: There is a great meeting of the minds between Prime Minister Rudd and myself. [End excerpt] REPORTER: Twelve days in America, England and Singapore came to $370,000. 6 And another $46,000 was spent on a visit to Germany and a return trip to Singapore. Since winning the top job in November 2007, Mr Rudd has visited 40 international destinations, spending $100,000 a month on overseas travel. He's been out of the country for more than 100 days. [File excerpt] 7 KEVIN RUDD: It's necessary to sift out the substance from the sound and light show. [End excerpt] REPORTER: Yet to be accounted for, astonishing trips like this one to the Copenhagen climate summit. 8 [Vision: Rolling list of names] No, these aren't the credits of a movie. They're the names of the politicians, advisers, PR flacks, security personnel, and various hangers-on who made the trip.· In all, 114 Aussie delegates, including Mr Rudd, ventured to the Danish capital. 9 STEVE FIELDING: I spoke to a lot of people at Copenhagen. They couldn't believe that Australia would send over 100 people as part of its official delegation. It was just over the top and a waste of taxpayers' money. 10 REPORTER: Family First Senator Steve Fielding used a study trip to make the journey to Copenhagen. Still, he's not impressed by the size of Mr Rudd's entourage. 11 STEVE FIELDING: If you're trying to save greenhouse gases from going up in the air, then why would you send a hundred over a hundred Australians to Copenhagen? REPORTER: Among those in our delegation, Mr Rudd's official photographer. Also, transport, accommodation, passport and baggage liaisons. Even a student. 12 And while we agree it's important Australia participates in the climate debate, sending more delegates than England and India is highly questionable. [File excerpt] 13 KEVIN RUDD: This was really hard, really, really hard. [End excerpt] 14 REPORTER: Recently Mr Rudd blamed the states for the blowout. But we can only count 14 delegates who have a clear state government affiliation. Yesterday his office told us there were just 67 Commonwealth representatives on the trip; adding, delegation members were key players in the fight against global warming. 15 WARREN TRUSS: Since he's been working as prime minister, he's travelled more overseas than any other prime minister in their first term. 16 REPORTER: Leader of the National Party, Warren Truss, is one of a chorus of opponents angered by Mr Rudd's constant globe trotting. 17 WARREN TRUSS: We do need to look after the domestic interest and ensure that the people of Australia are getting the best possible value for the tax paying money they're spending. 18 REPORTER: Now, we approached Mr Rudd's office for an interview about his excessive travel. But despite discussing the Issue with reporters from newspapers, he refused to speak to Today Tonight. 19 Of course Mr Rudd isn't the only pollie running up large travel bills. More than $16 million was spent by federal politicians between January and June last year. 20 Foreign Affairs Minister Stephen Smith spent close to half a million dollars, and visited 14 different countries. Simon Crean wasn't far behind. 21 And nearly $350,000 of taxpayers' money went towards Treasurer Wayne Swan's travels. 22 Then there's those dubious study trips. [Vision: photograph of Fran Bailey asleep] 23 Liberal MP Fran Bailey, last seen asleep at the NATO Assembly in Edinburgh, spent more than $23,000 on a study trip to Europe and Asia. She's retiring and won't contest the next election so it's hard to see how taxpayers got value for money. 24 Ms Bailey's colleague Petro Georgiou ran up $23,000 during his study trip to Europe. [Vision of the plaintiff talking] 25 And where else would Liberal Senator Concetta Fierravanti-Wells go for her study trip? Italy, of course. It cost the taxpayer more than $17,000 for the politician to reconnect with her heritage. 26 STEVE FIELDING: Look, they are useful and we do need them. However, just because they're an entitlement, you shouldn't just use them automatically. They've got to actually be proven to be value for money. REPORTER: But out of all the pollies' perks perhaps none is more coveted than the lifetime gold pass. It entitles former parliamentarians to 25 free domestic flights every year for life, and costs taxpayers around $1 million annually. 27 Now, after more than a year of pressure from Today Tonight, these perks will soon be a thing of the past. Special Minister of State Joe Ludwig launched a complete review of the entitlements system in September. Today Tonight understands study trips could be scrapped; MPs given a salary increase of $5000 a year instead. And gold pass flights could be cut from 25 per year to just 15. As for Mr Rudd, expect to see more of him at home in the coming months. After all, it is an election year. 28 SAMANTHA ARMYTAGE: Jonathan Creek with that investigation.

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