Gair v Greenwood

Supreme Court of NSW|2017-10-20|Before: McCallum J

Judgment

HER HONOUR: These are proceedings for defamation brought by two councillors of Wingecarribee Shire Council against a local resident. For reasons that need not be analysed here, the business of local councils in this State seems disproportionately to generate bitterly-fought litigation; the present actions exemplify that phenomenon.
The first plaintiff, Mr Gair, has been a councillor since 1995 and has also been the Mayor for a number of terms, most recently losing that office in an election held in September 2016. The proceedings concern a YouTube video posted after that election. The video presented a poem of sorts, entitled "The Strife and Crimes of Duncan Gair". The poem ostensibly commiserates with Mr Gair over his loss of the position as Mayor. It portrays his loss of power as a setback for developers, openly accusing Mr Gair of having been a corrupt supporter of development applications.
The defendants have pleaded defences of truth under s 25 of the Defamation Act 2005 (NSW), contextual truth under s 26 of the Act, honest opinion under s 31 of the Act and triviality under s 33 of the Act. This judgment determines an application by the plaintiffs to have parts of the defence struck out.

Lack of precision

The complaint as to lack of precision and specificity is made in circumstances where no further particulars were sought by Mr Gair in advance of the application. The submissions rested primarily on my decision in Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331. In that case, a truth defence had been pleaded in lengthy, narrative form with no attempt to specify the individual particulars relied upon in respect of each individual imputation. I made orders requiring the defence to be re-pleaded. The plaintiffs submit that the defence in the present case suffers from the same vice.
If that were the only complaint, I would reject it on the basis that the issue could have been raised in correspondence and, in the circumstances of this case, need not be determined in advance of the trial. It is clear enough that some of the particulars are irrelevant to some of the imputations. However, all of the particulars are potentially relevant to at least one imputation or contextual imputation and it is tolerably clear which.
In those circumstances, leaving aside the determination of the second ground, I would not have put the defendant to the cost of re-pleading, as was required in Brooks. In a case such as the present, provided the issues are tolerably clear, the trial is the more appropriate forum for distilling questions as to which aspects of the evidence support which issues in the proceedings. It is not necessary for the just, quick and cheap resolution of the issues in the proceedings to resolve those kinds of issues in an interlocutory application. In particular, as the scope of publication is relatively limited and all of the parties are individuals, the Court must be astute not to encourage too punctilious an approach at the risk of generating disproportionate costs contrary to the expectation of s 60 of the Civil Procedure Act 2005 (NSW).

Capacity of the particulars to support the defence

The second objection, however, warrants closer consideration. Mr Gair submits that the particulars, taken at their highest, are not capable of proving the truth of the imputations. That contention overlaps with the complaint under the first ground that the particulars are irrelevant to the imputations. Ms Woods, who appears for the plaintiffs, acknowledged that an applicant seeking to have a pleading struck out on that basis faces a high bar. Nonetheless, as she correctly submitted, where the Court reaches a position of confidence as to the incapacity of the particulars to prove the truth of a particular imputation, the Court should not hesitate to take that course.
The defendant relied on the decision of the Court of Appeal in Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 in this context. In that case, Hodgson JA said at [20] (Tobias JA and Santow J agreeing at [23] and [24]): For my part I would accept that there could be circumstances where particulars fall so far short of being capable of supporting the truth of imputations that it could be justified to strike out imputations [sic]. However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate.
Those remarks are frequently cited in this list. The description of particulars as matters that indicate "topics on which evidence may be led" is particularly popular. It is often embellished upon, as here, with the contention that particulars are "merely topics" (not the words of Hodgson JA). In my respectful opinion it is a mistake to elevate his Honour's remarks (in a judgment refusing leave to appeal) to the canonical status sought to be placed upon them here. The judgment does not set out the impugned particulars; there is no measure by which any later case can be compared with the standard thought not to have been met.
I have concluded that the particulars of truth relied upon in the present case, taken at their highest, are incapable of proving imputations 7(a) and 7(b).
Each of those imputations is specifically concerned with corruption (corrupt misuse of his office as Mayor; corrupt receipt of money from developers) consisting in specified conduct, namely, dishonestly influencing the outcome of development applications. The particulars of justification address four topics, three of which do not even address the topic of influencing development applications. The remaining topic is based on an alleged admission the terms of which, while conceivably relevant to imputation 7(a), are so vague that it could not stand alone as the basis for a defence to that imputation. The alleged admission is incapable of supporting imputation 7(b).
Ms Chrysanthou submitted that the three imputations pleaded by Mr Gair in substance concern the same conduct, namely, dishonesty as a Mayor. She submitted that the sting of the allegations is that he is corrupt, that he does favours for his friends and that he benefits by such favours. Ms Chrysanthou submitted that the words of the imputation should not be considered in a vacuum when dealing with an application of this nature and that "context is everything". She submitted that the question whether a particular word in an imputation is an essential element of that imputation for the purposes of the defence of substantial truth needs to be considered in the context of the publication itself.
I would not take issue with the importance of context in this task. In my respectful opinion, however, the submission is based on an untenable premise. Imputations 7(a) and 7(b) undoubtedly entail as an essential element the notion of dishonestly influencing the outcome of development applications. Even as topics, leaving aside the alleged admission, the particulars do not address that issue.
The particulars on the first topic are Delphic. They fall under the heading "non-disclosure of pecuniary interests" in respect of a release subdivision application for two properties (Chelsea Gardens and Coomungie). However, the particulars under that heading address the non-disclosure of an alleged non-pecuniary interest (not a pecuniary interest). Both properties are said to be owned by the Sowter family through other entities. In short, the defendant contends that Mr Gair failed to comply with disclosure obligations under the Local Government Act 1993 (NSW), ss 449 and 451, in that he failed to disclose the fact that Mr Jock Sowter had handed out election flyers for Mr Gair in 2012 and displayed his election posters on one of the proposed rezoning sites in 2016.
It seems doubtful that handing out election flyers or the display of election posters would be regarded as a disclosable "non-monetary electoral donation" amounting to a "significant non-pecuniary interest" conflicting with Mr Gair's public duty, as evidently alleged in the defence (the defence invokes cl 4.16 of the Council's Code of Conduct but that must be read in the context of the whole of Pt 4). Handing out election flyers is, I would think, an unexceptionable instance of participation in the democratic process.
As to the election posters (which may in any event be characterised in the same way), so far as the defence reveals, the allegation is that a rezoning application was lodged in 2013; that Mr Gair was part of the Council that voted on a motion in relation to "Chelsea Gardens and Coomungie" on 9 December 2015; that in January 2016 the Council advised the Department of Planning of that resolution and that "during the 2016 Local Government election", Mr Gair was allowed to display his election posters on a property owned by the Sowter family. The election was held in September 2016. There is no allegation of any bargain to return favours. Unless I am missing something, so far as the particulars reveal, the display of the election posters occurred after any relevant treatment of the rezoning application.
Acknowledging the high bar in respect of such applications, even assuming a rezoning application falls within the description of development applications, I am satisfied that the Chelsea Gardens/Coomungie allegations are incapable of proving the truth of any of the Gair imputations. Particulars (c) to (r) will be struck out.
The second topic addressed is an alleged failure to disclose pecuniary interests in Mr Gair's capacity as the Chairman of the Council's Southern Regional Livestock Exchange ("SRLX") Business Units Committee. The burden of the allegation is that Mr Gair voted on proposals that would benefit his son, who is a livestock agent. The particulars contain no allegation of dishonestly influencing the outcome of development applications.
The third topic is the alleged admission. It is appropriate to set out the relevant paragraph in full (particular qq): At the 22 June 2016 Council meeting Gair admitted that he had "supported Councillor Uliana on all his DAs … I didn't declare a non-pecuniary interest because I knew him … I supported him on his projects for 20 years. 20 years! Helped him make his millions!"
As already indicated, in my view the terms of that admission are ambiguous and too vague to stand alone as the basis for a defence to imputation 7(a). The admission is not capable of proving imputation 7(b).
The fourth topic alleges a further non-disclosure of a non-pecuniary interest, namely, the writing-off of a bad debt owed to Council by a friend of Mr Gair. Those particulars contain no allegation of dishonestly influencing the outcome of development applications.
Having considered each topic separately and all four together, I am satisfied that the particulars of the truth defence in respect of imputations 7(a) and 7(b) fall so far short of being capable of supporting the truth of those imputations as to meet the General Steel test and that the defence of truth to those imputations should be struck out. Owing to the manner in which the defence is pleaded and my conclusions later in this judgment, it is not possible to sever the part of the defence affected by this order. It will be necessary for the defendant to file an amended defence that accords with these reasons.
The position is different in respect of imputation (c). The imputation is that Mr Gair is a racketeer. It may be noted that the word "racketeer" appears to have been chosen more for its poetic quality than its meaning ("he's hurting really badly and he's made this very clear, they've put a stop to Duncan because he is such a racketeer").
In any event, the word is used and appropriately finds its way into an imputation. It refers to a person who engages in dishonest dealings. The plaintiff's submissions on this issue assumed that, in order to prove the substantial truth of that imputation, the defendant would have to prove the existence of a criminal enterprise. In my view, the defence could be proved by something less than that. Apart from the Chelsea Gardens/Coomungie issue (particulars (c) to (r)), each of the topics addressed in the particulars goes to a dealing in the conduct of the business of the Council which is at least capable (taking the particulars at their highest) of suggesting a measure of dishonesty. In my view, the remaining particulars (apart from the Chelsea Gardens/Coomungie particulars) should be permitted to stand in support of imputation (c).
Separately, Mr Gair submitted that, in respect of the SRLX particulars, no particulars are given to identify any "direct appreciable financial implications" that decisions made by the SRLX committee had for Mr Gair's son. It is further submitted that, if Mr Gair had a pecuniary interest in the decisions of the Committee, the decisions applied to all buyers' agents without singling out Mr Gair's son and so did not need to be disclosed. I do not think it is appropriate to determine those contentions at the interlocutory stage. They should, rather, be issues left to the jury. If further particulars are required, they should be sought by correspondence.
An aspect of Mr Gair's complaint was drawn from the fact that the defence contended that Mr Gair's conduct was corrupt within the meaning of s 8 of the Independent Commission Against Corruption Act 1988 (NSW). However, as submitted by Ms Chrysanthou, it is not necessary for the defendant to establish that Mr Gair's conduct fell within that definition in order to prove the substantial truth of the racketeer imputation.

Defence of justification to claim by Mr Turland

The second plaintiff, Mr Turland, relies upon the same two grounds in respect of the defence to his claim. As to lack of precision, my ruling would be the same as in respect of Mr Gair.
As to the question of the capacity of the particulars to support the justification defence, Mr Turland seeks to have only part of the defence struck out, namely, that relating to the following imputations: 8(a) Turland is a crook. 9(b) Turland bribed the Mayor in order to obtain favourable outcomes for development applications in which he had an interest.
The particulars pleaded in support of those imputations are set out at par 13 of the defence. The particulars address two topics. One relates to the submission of a development application on 7 November 2016. That was after publication of the matter complained of. That is not in itself determinative. As submitted by Ms Chrysanthou a defendant can, in a proper case, rely on matters after publication to prove the truth of an imputation. More importantly, however, it was after the election, meaning that Mr Gair was no longer the Mayor. Further, there is no allegation of bribery whatsoever. The particulars go no further than to assert the submission of an application in the expectation of favourable treatment on the basis of the close relationship between Mr Turland and Mr Gair.
The second topic relates to applications lodged in November 2015 by persons alleged to have been close friends of Mr Turland. The burden of those particulars is a matter of non-disclosure of a non-pecuniary interest. There is no allegation in any of the particulars relating to Mr Turland allegedly bribing the Mayor or as to the existence of any bargain to that effect.
In my view, the particulars are incapable of proving the truth of the imputation that Mr Turland bribed the Mayor in order to obtain favourable outcomes for development applications in which he had an interest.
As to the imputation that Mr Turland is a crook, the plaintiffs' submissions again assumed that the defendant would have to prove criminal conduct in order to justify the imputation. In my view, the "crook" imputation is at least capable of being proved by evidence that Mr Turland was dishonest or not to be trusted. The particulars address matters of that kind. I do not think the defendant would have to go so far as to prove criminal conduct or conduct amounting to corrupt conduct under the ICAC Act.
For those reasons, I am persuaded that the justification defence in respect of imputation 9(b) must be struck out. The justification defence in respect of imputation 8(a) should stand.

Contextual truth

The plaintiffs also seek to have the defence of contextual truth struck out. The defendant has pleaded the following contextual imputations: 1. Gair is a criminal. 2. Gair is dishonest. 3. Turland is a criminal. 4. Turland is dishonest.
The particulars relied upon to support the defence based on those contextual imputations repeat the particulars pleaded in respect of the justification defence but also introduce further allegations wholly unrelated to any question of dishonesty. In the case of Mr Gair, the particulars allege that, on an occasion in October 2016 (after publication of the matter complained of), at a lunch attended by both Mr Gair and the defendant, Mr Gair approached the defendant holding his hand out to introduce himself and that, when the two men shook hands, Mr Gair "forcefully kept hold of the defendant's hand, hurting the defendant" and that he said words to the effect, "fucking scumbag, I am going to get you".
In the case of Mr Turland, the particulars allege a series of physical confrontations with various persons alleged to amount to common assaults contrary to s 61 of the Crimes Act 1900 (NSW).
Again, Ms Woods acknowledged that the bar for having contextual imputations struck out is high. She submitted that the test is met in this case. In particular, she submitted that the imputation that "Gair is a criminal" is not different in substance from the general imputation already pleaded by Mr Gair that "Gair is a racketeer" and so is not capable of satisfying the requirement of s 26 of the Defamation Act that it be an imputation conveyed "in addition to" the imputations relied upon by the plaintiff. Alternatively, Ms Woods submitted that, if there is a difference between those two imputations, the contextual imputation is not capable of being conveyed by the matter complained of.
Equally, in the case of Mr Turland, Ms Woods submitted that the imputation that Mr Turland is a criminal is not capable of being conveyed in addition to the imputation that Mr Turland is a crook and, alternatively, that the latter imputation is not capable of being conveyed by the matter complained of.
The authorities governing this issue pose a relatively undemanding test: Fairfax Media Publications Pty Ltd v Zeccola (2015) 91 NSWLR 341; [2015] NSWCA 329. In my view, imputations (i) and (iii) (that each plaintiff is a criminal) do differ in substance from the plaintiffs' imputations, the sense of which is to accuse each plaintiff of dishonesty. A general attribution of criminality is different, in my view, as the particulars relied upon to support it reveal. It follows that, subject to the question of the capacity of the matter complained of to convey those imputations, they should stand.
As to contextual imputations (ii) and (iv) (that each plaintiff is dishonest), acknowledging the high bar for having a contextual imputation struck out on this basis, I do not think the attribution of dishonesty is capable of being regarded as a discrete attribution conveyed in addition to the plaintiff's general imputations ("Gair is a racketeer" and "Turland is a crook"). Contextual imputations (ii) and (iv) should be struck out.
As to capacity, it would appear from the transcript of the matter complained of that there is considerable force in the plaintiffs' complaint that it is incapable of conveying the general imputation that each plaintiff is a criminal. The difficulty, however, is that the parties were unable to provide me with a recording of the matter complained of, which is no longer available on the internet. I have some hesitation in striking out an imputation on the grounds that it is not capable of arising from the matter complained of when it was in audio-visual form and I have not seen it.
If the matter complained of is incapable of conveying the "criminal" imputations, it would follow that the particulars objected to would be struck out and that would result in at least some saving of hearing time. In the circumstances, the appropriate course is to afford the plaintiffs an opportunity to provide a copy of the matter complained of and to reserve that question for later determination.
For those reasons, my rulings are: 1. that the defence of truth in respect of imputations 7(a), 7(b) and 9(b) be struck out; 2. that contextual imputations (ii) and (iv) be struck out.
I direct the parties to bring in short minutes of order to reflect these reasons and for the future conduct of the proceedings.

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: 01 December 2017

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