Garment v Nationwide News Pty Limited

District Court of NSW|2018-02-15

R Rasmussen Defendants: Mr M J Lewis

Solicitors: Plaintiff: Reid Lawyers Defendants: Ashurst Australia File Number(s): 2017/272221 Publication restriction: None

Judgment

These are my reasons for rulings striking out imputations 5(a), 7(a), 5(e) and 7(e) in the statement of claim. These rulings were made in the course of a hearing pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") concerning defamatory meaning and to strike out certain of the imputations by reason of errors of form pursuant to r 14.30 UCPR.
The two matters complained of consist of a newspaper article in the Daily Telegraph dated 9 September 2016 and the internet version of this article (see Annexure A to this judgment). The text of the matters complained of are identical, but the matter complained of as appearing on the internet includes additional photographs. The imputations pleaded as arise from each of the matters complained of are as follows (at paragraphs 5 and 7 of the statement of claim): 1. The plaintiff lacks honesty, integrity and probity because he is a former heroin addicted policeman who was questioned over the murder of a teen prostitute almost 20 years ago (1-12, 14-16) 2. The plaintiff was a heroin drug addict (3, 5, 10-12, 14-15) 3. The plaintiff was a drug dealer who supplied heroin to 18 year old call girl Rebecca Bernauer in January 1997 (6, 10, 12) 4. The plaintiff deceived the voters of the Upper Hunter Shire about his heroin addicted and drug dealing past (1-12, 14-16, 20) 5. The plaintiff lied to the voters of the Upper Hunter Shire about his heroin addicted and drug dealing past (1-12, 14-16, 20) 6. The plaintiff resigned from the police force because police internal affairs caught him using heroin twice in two days (14, 15) 7. The plaintiff arranged for 18 year old call girl Rebecca Bernauer to be murdered 2 weeks before she was due to testify against him on heroin use and supply charges (1-4, 6, 12-14, 16, 20)

The relevant principles of law

This is an application for a separate trial of the capacity of certain of the imputations to be conveyed as well as certain challenges to form (Hibbert v Nationwide News Pty Ltd [2015] NSWCA 13 at [20]-[22]), details of which are set out in relation to each of the challenged imputations as set out below. The test applied to a challenge to the capacity of an imputation has long been considered to be a generous one. In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [6], the High Court stated: "[6] Bearing in mind the dual nature of the application to Helman J, seeking both a striking out of certain paragraphs in the Amended Statement of Claim, and the entry of summary judgment for the respondents, on the ground that the pleading disclosed no reasonable cause of action, the question for decision was whether the material published was capable of giving rise to the defamatory imputations alleged. In the Court of Appeal, McPherson JA correctly said: Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken."
These principles were more recently restated by the New South Wales Court of Appeal in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136] as follows: "[135] Accordingly, the capacity determination is "an exercise in generosity not parsimony"; while it involves a "matter of impression … the impression is not of what the words mean but of what a jury could sensibly think they meant": Berezovsky (at [16]) per Sedley LJ delivering the judgment of the court. Implicit in Sedley LJ's observation, is that the question of course is "what a jury could sensibly think [the words] meant" to the ordinary reasonable reader. [136] One reason "great caution" is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that "no reader could reasonably understand the words to bear any meaning outside the range delimited … by the judge; and that it would be 'perverse' for any jury to do so": Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 89 ("Jameel") (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing)."
The phrase "generosity not parsimony" has similarly been applied by the Queensland Court of Appeal in Wagner v Nine Network Australia Pty Ltd [2017] QCA 261 at [15]. The determining of the capacity of an imputation is a matter of general impression, rather than depending upon a close and careful reading of the matter complained of. Where the terms of the matter complained of suggest that there is more to the story, the court may be more ready to find that an imputation is reasonably capable of being conveyed. In Corby v Allen & Unwin Pty Ltd, the Court of Appeal noted that the reader was invited to adopt a suspicious approach (at [152]) by the insinuations and suggestions of the matter complained of.
As to the relevant principles in relation to challenges to the form of the imputations, I note the helpful summary by Beach J in Gant v The Age Co Ltd [2011] VSC 169 at [40], citing Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 543; Lewis v Daily Telegraph Ltd [1964] AC 234 at 282; Taylor v Jecks (1993) 10 WAR 309 at 321; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137; Sungravura Pty Ltd v Middle East Airlines Airliban S.A.L. (1975) 134 CLR 1 at 13-14; Vitale v Bednall [2001] WASC 278 at [8] and Lim v TVW Enterprises Ltd [2002] WASC 214 at [43]-[57]: "[40] Many authorities have dealt with the rules relating to the pleading of imputations. Whilst whether an imputation has been properly pleaded is to be determined as a matter of practical justice, the following propositions emerge from the authorities: (a) First, distinct meanings should be pleaded - and the test for distinctiveness is whether the evidence required to justify each meaning would be substantially different. (b) Secondly, distinct meanings should be distinctly pleaded - because of the potential for a rolled up plea to cause confusion. (c) Thirdly, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or of which the plaintiff is charged. (d) Fourthly, an imputation should represent the final distillation of the alleged defamatory meaning."
Those observations are particularly apposite in the present case, where there is a complaint of imputations being "rolled up".

Imputations 5(a) and 7(a)

The text of this imputation, which is the same in relation to both publications, is as follows: "The plaintiff lacks honesty, integrity and probity because he is a former heroin addicted policeman who was questioned over the murder of a teen prostitute almost 20 years ago (1-12, 14-16)"
The sting of the libel is best identified from the heading and subheading. The heading "Standing Joke" relates to the plaintiff's candidature in local government elections in September 2016 as a "Clean-living" candidate when he is asserted to in fact have what the subheading calls a "grubby past".
The plaintiff's "grubby past" is identified as being his drug addiction and the circumstances in which he was questioned concerning the murder of a teen prostitute "almost 20 years ago before being cleared of any involvement". The matter complained of goes on to say that he was "once" a police officer who was suspended after charges of supplying the teen prostitute with drugs in January 1997 but that these charges had been "later dropped". The matter complained of notes that the plaintiff now "runs a cafe in the Upper Hunter town of Merriwa - a far cry from the life he 29 led almost 20 years ago that made headlines across the state." At the close of the article, the plaintiff is quoted as saying that this was "a time of my life that I've moved on from" and to set out that his reasons for leaving the police force had to do with vilification issues because he was a homosexual.
Nowhere in the matter complained of is there any suggestion that over the past 20 years the plaintiff has led anything other than a good life. The sting of the libel is the plaintiff's hypocrisy in that revealing his "grubby past" and in "spruiking the importance of "uprightness of character (and) action"" (paragraph 7),
The plaintiff's response to the challenge by the defendants to imputations 5(a) and 7(a) was to seek to plead three imputations as follows: 1. The plaintiff lacks honesty because he is a former heroin addicted policeman who was questioned over the murder of teen prostitute almost 20 years ago; 2. The plaintiff lacks integrity because he is a former heroin addicted policeman who was questioned over the murder of teen prostitute almost 20 years ago; 3. The plaintiff lacks probity because he is a former heroin addicted policeman who was questioned over the murder of teen prostitute almost 20 years ago.
The principal objection taken in the defendants' letter dated 20 November 2017 is that whatever the phrase "honesty, integrity and probity" may mean, the imputation is not reasonably capable of being conveyed. This is because it fails to capture the true sting of the libel, which is not that the plaintiff lacks these qualities now because of this conduct, either then or now, but that he deceived voters by being less than frank about his own character (I note that an imputation to this effect has been pleaded in imputation 5(d)).
While imputations should be struck out only in the clearest and most obvious of cases (Corby v Allen & Unwin Pty Ltd), this is an example of such an imputation. The matter complained of could not be clearer in terms of saying the activities in question occurred 20 years ago. It is the plaintiff's failure to disclose his "grubby past" that is the subject of his attack, not his honesty, integrity and/or probity at the current time.
The plaintiff has been granted leave to replead. While I have granted a general leave, the imputation in question should differ in substance from imputation 5(d) (which survived the challenge described below) and should focus upon the sting of the libel as identified in the course of argument, namely the criticism of his failure to disclose his "grubby past" to voters.

Imputations 5(d), 5(e), 7(d) and 7(e)

Imputations 5(d) and 7(d) are as follows: "The plaintiff deceived the voters of the Upper Hunter Shire about his heroin addicted and drug dealing past (1-12, 14-16, 20)"
Imputations 5(e) and 7(e) are as follows: "The plaintiff lied to the voters of the Upper Hunter Shire about his heroin addicted and drug dealing past (1-12, 14-16, 20)"
Mr Rasmussen acknowledged that both imputations could not arise at the same time and that it may well be one or the other, but did not propose one to be the fall back to the other. Instead he elected to proceed with imputations 5(d) and 7(d). On that basis, I have struck out imputations 5(e) and 7(e).

Imputations arising from the third matter complained of

Argument could not proceed in relation to the third matter complained of because of errors in relation to the description of the third matter complained of in the statement of claim. As it is likely that there will be further argument concerning these imputations, I briefly note the problem in question.
The third matter complained of is alleged to have been published by the defendants as follows (paragraph 8 of the statement of claim): "8. On or about 9 September 2016 on its Facebook page at web.facebook.com/dailytelegraph the first defendant wrote and published of and concerning the plaintiff certain defamatory material which is annexed hereto and marked 'C'."
However, examination of Annexure C shows that it is not published on the first defendant's Facebook page at all, but is instead a website link published by a person with a Facebook page (a Mr Doza Harding), who shared the website link with his own Facebook followers on 9 September 2016.
Mr Lewis states that the matter complained of was never published by the defendant on its Facebook site. Even if it had been, it is clear that this publication is not a publication from the first defendant's website, but a republication by a third party. That is not to say that the defendants may not be liable for such a publication, but it is a republication by a third party and should be pleaded as such. It would appear from Mr Rasmussen's submissions that there are a number of other republications, upon which the plaintiff relies, but for damages only.
The problems caused by conflating liability and assessment issues in relation to claims for republication is starkly illustrated by the difficulties which occurred in Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231. That is a situation which must be avoided at all cost.
I have granted leave to the plaintiff to file and serve a further amended statement of claim and it is to be hoped that this and other problems in relation to particulars of publication will be attended to in the next draft pleading. As judges are increasingly noting in interlocutory judgments concerning particulars of publication for internet publications, it is not sufficient for a plaintiff merely to identify a publication as being on the internet and failing to provide proper particulars not only of downloading (including names and addresses and the circumstances in which the download was made, if applicable) but also the dates of downloading, to avoid problems of the kind which occurred in McDonald v Dods [2017] VSCA 129. Plaintiffs should bear in mind, when providing particulars of publication, that full and proper particulars are required, not merely the identification of one person, or the risk of a Bleyer v Google (Bleyer v Google Inc (2014) 88 NSWLR 670) application becomes a significant one, particularly after the recent observations of the New South Wales Court of Appeal in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 at [5].

Orders 1. Grant the parties uplift access to subpoena packets 1 and 2. 2. Imputations 5(a) and 7(a) are struck out on the basis of form and capacity. 3. Imputations 5(b) and 7(b) are reasonably capable of being conveyed. 4. Imputations 5(c) and 7(c) are reasonably capable of being conveyed. 5. Imputations 5(d) and 7(d) are reasonably capable of being conveyed. 6. Imputation 5(e) is struck out as not differing in substance from imputation 5(d). 7. Imputation 7(e) is struck out as not differing in substance from imputation 7(d). 8. Imputations 5(f) and 7(f) are reasonably capable of being conveyed. 9. Imputations 5(g) and 7(g) are reasonably capable of being conveyed. 10. Grant leave to the plaintiff to replead liability for the third matter complained of to reflect a claim for publication based on the sharing of a website link on Facebook by Mr Doza Harding. 11. Grant the plaintiff leave to file an Amended Statement of Claim in 14 days, such pleading to include full particulars of publication and any claim by way of republication (including whether such republication is relied upon as to liability or as to damages only). 12. Grant leave to the plaintiff to file in court today a Statement of Particulars pursuant to r 15.12 Uniform Civil Procedure Rules 2005 (NSW) particularising injury to health and special damages. 13. Matter stood over to the Defamation List for further directions on Thursday 8 March 2018. 14. Plaintiff to pay half the defendants' costs of the argument today. 15. Defendants' application for indemnity costs refused.

Garment v Nationwide News Pty Limited - Annexure A - Matters Complained Of (1.96 MB, pdf)

Amendments 07 March 2018 - Annexure A added. 15 March 2018 - Paragraph 25 deleted. 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: 15 March 2018

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Judgment (10 paragraphs)

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Legislation Cited (2)

Cases Cited (15)