GIBSON v NATIONWIDE NEWS PTY LIMITED

Court of Appeal (NSW)|2007-09-03|Before: Giles JA, McClellan CJ, Nicholas J, Clellan CJ

CITATION: GIBSON v NATIONWIDE NEWS PTY LIMITED [2007] NSWCA 284

JUDGMENT OF: Giles JA at 1; McClellan CJ at CL at 2; Handley AJA at 32

CATCHWORDS: DEFAMATION - Challenge to 7A trial jury verdict - member of NSW Legislative Assembly - alleged defamatory material published in newspaper articles - editorial and cartoon - whether failure to give adequate directions to jury at the 7A trial - directions on the meaning of "rort" - whether answers returned by jury were not open to a reasonable jury

Australian Broadcasting Corporation v Reading [2004] NSWCA 411 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 CASES CITED: John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; [2003] 77 ALJR 1657 Mohommed v Channel 7 Sydney Pty Ltd [2006] NSWCA 213 Singleton v Ffrench (1986) 5 NSWLR 425

PARTIES: Paul Gibson (Appl) Nationwide News (Resp)

COUNSEL: M J Neil QC/D A Caspersonn (Appl) T D Blackburn SC/J O Hmelnitsky (Resp)

SOLICITORS: Johnson Winter & Slattery (Appl) Blake Dawson Waldron (Resp)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40679/06 SC 20406/05

GILES JA McCLELLAN CJ at CL HANDLEY AJA

WEDNESDAY 17 OCTOBER 2007 GIBSON v NATIONWIDE NEWS PTY LIMITED Judgment 1 GILES JA: I agree with McClellan CJ at CL. 2 McCLELLAN CJ at CL: The appellant is a member of the New South Wales Legislative Assembly and was in 2005 the Chairperson of the Stay Safe Committee of the Parliament. The committee is concerned with matters of road safety. In November 2005 he travelled, with another member of Parliament and a government official to the United Kingdom, Russia and South Africa on a parliamentary study tour to examine road safety issues. In its edition of Saturday 5 November 2005, The Daily Telegraph newspaper published two articles, together with an editorial and a cartoon which discussed the appellant's trip. I have attached as an annexure to these reasons copies of each of the articles, the editorial and the cartoon. The early portions of the article with the headline "Rort Back and Sides" was published on the front page of the newspaper. 3 The appellant claims that the published material was defamatory of him. At a jury trial to determine whether the imputations of which the appellant complained were conveyed by the publications the jury returned negative answers with the consequence that the proceedings were dismissed. Mr Gibson appeals from that decision to this Court. 4 The appellant particularised his complaint in the following terms: "The matter complained of in its natural ordinary meaning conveyed the following imputations each of which was defamatory of the plaintiff a. the plaintiff is a corrupt politician in that he accepted a tax payer funded study tour to the United Kingdom, Russia and South Africa but failed to do the work and attend the meetings he should have; b. the plaintiff abused his position as a member of parliament by not attending a series of meetings which he should have gone to while on a tax payer funded study tour of the United Kingdom, Russia and South Africa; c. the plaintiff had been exposed for failing to perform his duties on a tax payer funded study tour of the United Kingdom, Russia and South Africa; d. the plaintiff abused his position as chair of the State Government Stay Safe Committee by visiting one of the world's most beautiful cities at tax payer's expense under the pretence of inspecting the Russian road network; e. the plaintiff is a rorter." 5 At a hearing conducted pursuant to s 7A of the Defamation Act 1974 the jury were asked to consider the following series of questions:

Has the plaintiff established that the matter complained of published in The Daily Telegraph on 5 November 2005 conveyed to the ordinary reasonable reader any of the following imputations (or imputations which do not differ in substance from them):

(a)(i) The plaintiff is a corrupt politician that YES/NO he accepted a taxpayer funded study tour to the United Kingdom, Russia and South Africa but failed to do the work and attend the meetings he should have.

Note: (a)(i), (a)(ii) and (a)(iii) are alternatives. If you have answered (a)(i) "Yes", go straight to (b) and do not answer (a)(ii) or (a)(iii). If you have answered (a)(i) "No" answer (a)(ii).

(ii) The plaintiff abused his position as a member YES/NO of Parliament by not attending a series of meetings which he should have gone to while on a taxpayer funded study tour of the United Kingdom, Russia and South Africa.

As indicated, (a)(i), (a)(ii) and (a)(iii) are alternatives. If you have answered (a)(ii) "Yes", go straight to (b) and do not answer (a)(iii). If you have answered (a)(ii) "No", answer (a)(iii) and then go to (b).

(iii) The plaintiff had been exposed for failing to YES/NO to perform his duties on a taxpayer funded study tour of the United Kingdom, Russia and South Africa.

(b) The plaintiff abused his position as Chair of the State YES/NO Government Stay Safe Committee by visiting one of the World's most beautiful cities at taxpayers' expense under the pretence of inspecting the Russian road network;

If you answered "Yes" to any of the questions 1(a)(i) to (c) above, then has the plaintiff established that any such imputation was defamatory of the plaintiff:

(a)(i) The plaintiff is a corrupt politician in that he YES/NO accepted a taxpayer funded study tour to the United Kingdom, Russia and South Africa but failed to do the Work and attend the meetings he should have.

(iii) The plaintiff had been exposed for failing to YES/NO perform his duties on a taxpayer funded study tour of the United Kingdom, Russia and South Africa.

(b) The plaintiff abused his position as Chair of the State YES/NO Government Stay Safe Committee by visiting one of the world's most beautiful cities at taxpayers' expenses under the pretence of inspecting the Russian road network;

Grounds of Appeal: 7 There are five grounds of appeal as follows: "1. The decisions of the jury that none of the imputations were conveyed by the matter complained (of) were decisions that no reasonable jury, properly instructed, could have reached. 2. The trial judge erred in failing to give the jury adequate directions in answer to the jury's question. 3. The trial judge erred in failing to decide the meaning of imputation 4(e) and to direct the jury as to such meaning. 4. The trial judge erred in failing to direct the jury that the word 'rorter' did not involve conscious dishonesty. 5. The trial judge erred in not directing the jury as to the meaning of 'rort'."

The course of the trial 8 The trial occupied only one day. As is the common practice in trials conducted pursuant to s 7A of the Defamation Act the publications were tendered and counsel addressed the jury. This was followed by the judge's summing-up. 9 In the course of his address to the jury counsel for the appellant explained that the word "rort" is an Australian slang word and said that "it means something crooked, something dishonest and when it is applied to a politician or a member of parliament, as Mr Gibson is, it means that he is corrupt." Counsel developed the theme of dishonesty and wrongdoing by reference to the detail of the relevant publications. He said of the headline "Exclusive: State MP busted in Britain on $55,000 tax payer funded study tour" that "when you bust someone it is when you catch them out doing something wrong … busted means catching someone doing something wrong." Counsel told the jury that they would see the headline "busted" as meaning the same thing as "caught out" and said to them that the meaning conveyed was that the appellant had done "something wrong." 10 Counsel also referred to the cartoon and the reference to a "junket," He said that "it suggests strongly or confirms the suggestion of rorting that goes earlier." 11 After discussing the publications in general terms and with repeated references to dishonesty and wrongdoing counsel turned his attention to the questions which the jury were asked to answer. As an introduction to that discussion he said that people reading newspaper articles obtained general impressions: "The general impression (from these articles) is, I would suggest, overwhelmingly, absolutely powerfully the stuff that comes from the front page and the headline and the use of the word "busted" and "rort", members of the jury. That is what the overall impression is going to be; this is a politician who's rorting the system who's being crook, who's not going his job, and we have caught him, members of the jury. That is the impression, I would suggest, very, very strongly, a very strong impression that a reader would get. Once you understand that, as I suggest I think you will, you will see how very close a general impression in fact is to the imputation as they are specified there, and that was the thing I wanted to mention before." 12 In relation to the particular questions counsel said "the first element of the imputation is corrupt politician." He argued that "that element" was to be found in each imputation. He said: "But if you look here, members of the jury, ask yourselves this, if you were aware of a politician who had taken tax payer's money to go on what clearly enough here is portrayed as a luxurious overseas trip, and despite the fact that the money was coming from the NSW taxpayer, didn't go to the meetings, didn't do the work that he was supposed to do, it is clearly, I am going to suggest to you, suggesting the man is corrupt. He is taking citizen's money for doing, I'm going to use a fairly strong phrase, doing absolutely nothing, I would suggest members of the jury, absolutely nothing at all, and that is corrupt, members of the jury. It suggests a lack of integrity. It suggests dishonesty, and those are corrupt things. …. I would suggest to you the ordinary reader would see that this is an allegation of corruption against [the appellant] … for doing these things, members of the jury." 13 Counsel explained to the jury that questions 1(a)(i), (ii) and (iii) were alternatives and said that they were in "ascending order of seriousness." I expect he meant "descending" but nothing turns on that matter. 14 In relation to question 1(b) counsel said that the suggestion in the article by Warren Brown was that the trip to St Petersburg was a sham and that the politicians were "not going to St Petersburg for the truth of investigating the road network but simply to go to one of the world's most beautiful cities to ponce around the canals and ride in the gondolas." Later counsel said: "The whole article is saying that these people are just a bunch of rorting no hopers and they are going to St Petersburg not that they want to look at the road network, which is practically non existent, but really for the purpose of their own pleasure, basically, and that's where the imputation (b) is from "abused", this idea of abusing their position." 15 In relation to question 1(c) counsel drew attention to the headline "rort back and sides" but said that "it gets better" "the whole article is, all of it, saying that he is rorting the system" and that the article was clearly saying that the appellant was a rorter. 16 Counsel for the respondent joined issue with the appellant's counsel. He argued that rather than suggesting that the appellant had corruptly exploited the parliamentary study arrangements the article, read as a whole, should be understood to be critical of the parliamentary study scheme itself. He said: "Now, can I indicate essentially what we say this article is saying. Can I do that really by putting to you a couple of questions. The first question I want to put to you is: Is this article saying that these parliamentary trips or study tours are junkets or rorts? Members of the jury, it is, isn't it? It is saying pretty clearly, rightly or wrongly, that these are study tours parliamentarians go on every year. You have read about them before. They go on them in the summer recess. Is this article saying that they are junkets, that they are, in effect, rorts? Well, it probably is saying that. It is a matter for you of course whether you think the article is saying that as a whole, but I wouldn't suggest to you that it is not saying that … The second question I want to perhaps put to you is this: If the article is saying that, that these parliamentary trips are junkets, is it saying that because the politicians that go on them and, in particular Mr Gibson and Mr Maguire, is it saying that because it is saying that Mr Gibson and Mr Maguire didn't in fact go to all the meetings that they had to go to? In other words, is this article saying to the ordinary reader that this trip was a junket because in fact Mr Gibson was supposed to go to these meetings but he didn't go to them, or is it saying this trip is a rort because Mr Gibson didn't have to do very much." 17 The respondent's counsel was mindful of the fact that the main article says that the appellant and Mr Maguire failed to turn up to "official engagements" and, although they were scheduled to do so, only Mr Hawkes, who was a non-parliamentary adviser to the Stay Safe Committee, had attended. However, the article also records the appellant as saying "I never missed a meeting we had to go to. If it's meeting politicians, that's one thing but if it's with administration, then the administration person goes. I have been to every meeting I've had to go to. Just because it's on the itinerary doesn't mean I have to go to it." The article also says that no meetings were scheduled for St Petersburg. 18 Consideration of counsels' addresses confirms that the contentions of both the appellant and respondent were clearly placed before the jury. Before returning answers to the questions which it had been asked the jury sought the assistance of the trial judge. They asked two questions. The first question was a request for a definition of the word "rort." Counsel for the appellant invited his Honour to respond to that question by reminding them of counsels' submissions. As I have related the appellant's counsel had told the jury that "rort" meant "crooked, something dishonest" and in the context a rorter was "a corrupt politician." 19 His Honour did not take the course requested by counsel. Instead his Honour explained to the jury that the word "rort" is an ordinary English word and that it was a matter for the jury, having regard to the context, to decide the sense or meaning which the ordinary reasonable reader, having read the article as a whole would give to the word. 20 The jury's second question asked whether they could change the foreperson. This question came to his Honour's attention together with the information that the jury had reached a verdict. Apparently the court officer indicated to the jury that it was a matter for them as to whether they changed their foreperson and his Honour did not discuss the issue directly with them. The parties were content to have the matter dealt with by his Honour enquiring of the jury whether the verdict was "the verdict of you all." In this way it was accepted that if the jury's question was motivated by some dissension between them the court could be assured that the verdict was unanimous. After responding to the questions, the jury was asked by his Honour "that is the verdict of you all?" To which the foreperson answered "yes." The jury was then discharged.

The test to be applied by this Court 21 The principles which must be applied by this Court when there is a challenge to a jury's verdict in s 7A trial have been discussed on many occasions. They were reviewed by this Court in Mohommed v Channel 7 Sydney Pty Ltd [2006] NSWCA 213 where the formulation "a jury's finding that imputations were not conveyed can only be successfully challenged on appeal if it was one no reasonable jury (properly directed) could reach" was adopted [17]. McColl JA analysed the relevant decisions including John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; [2003] 77 ALJR 1657, Australian Broadcasting Corporation v Reading [2004] NSWCA 411 at [120], [165]; Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [51]. Although on occasions different words have been used to describe the test McColl JA's formulation reflects the approach which this Court should take.

Consideration 22 In my view it could not be said that the answers returned by the jury to the questions in the present case were not open to a reasonable jury. As I have recorded counsel for the appellant invited the jury to accept that the articles conveyed the imputation that the appellant was corrupt. In response the respondent urged upon the jury, and submitted to this Court, that the publications should be understood as commenting upon the minimal demands imposed by overseas study tours but not that by embarking on such a tour, the appellant was corrupt. It was argued that although the publications indicated that parliamentary study tours were a "rort" this was because the demands made of those who participated in them were modest. The appellant was not himself a rorter. He fulfilled the limited duties required of him and had not acted dishonestly. 23 Central to each of questions 1(a)(i), (ii) and (iii) was an allegation that the appellant failed to attend meetings which he should have attended. Although the relevant article suggested that meetings were held which the appellant did not attend it also records the appellant's response that these were meetings between government officials at which his attendance was not required. Accordingly, in my view, it was open to the jury to conclude that the publications conveyed that although the demands were light, the appellant had carried out the official duties required of him and had not acted dishonestly. 24 The same conclusion is available in relation to questions 1(b) and 1(c). It was open to the jury to accept, as counsel for the respondent urged them to do, that, although the publications suggested the demands of the overseas trip conducted as chair of the State Government Stay Safe Committee were not onerous, by carrying out his obligations, such as they were, the appellant did not abuse his office or fail to perform his duties. 25 For these reasons the first ground of appeal fails. 26 Grounds 2, 3, 4 and 5 all relate to the directions which the trial judge gave to the jury. Grounds 2, 3 and 5 complain that his Honour did not give the jury appropriate assistance in relation to the meaning of the word "rorter" or "rort." It was submitted that the trial judge should have reminded the jury of what counsel had said about the meaning of "rort" instead of merely telling the jury that it was a matter for them. 27 The question which the jury asked was confined. The request was in the following terms: "Can we please get a definition of 'rort'." 28 As is usual with 7A trials, this trial was short. It was completed within one day. When summing-up, his Honour reminded the jury of the essential elements in counsels' addresses. Although he did not repeat counsels' precise words the clear implication was that the appellant alleged that the article suggested that the appellant had engaged in a "rort" and was lacking in integrity, having failed to fulfil his duty as a member of parliament and abused his position as chair of the State Government's Stay Safe Committee. His Honour said that counsel had submitted "that when you evaluate the thrust of the whole article, which includes the cartoon then, quite plainly, it is making the allegation that Mr Gibson is a rorter, that is to say, one who is ready to and did, in fact, rort the system. They are all common enough terms and notions and ones which all of us in the community, you might think, would have little difficulty in understanding." 29 In Singleton v Ffrench (1986) 5 NSWLR 425 this Court held that the meaning of a pleaded imputation was a matter for the judge and not the jury (at 435E). However, the meaning of the matter complained of is a matter for the jury. In the present case the jury did not ask for the meaning of the imputation pleaded by the appellant to be defined. Their request was with respect to the meaning of the word "rort." That, as his Honour correctly indicated, was a matter for the jury. As the trial had occupied only a short time there was in my opinion, no requirement for the trial judge to have reminded the jury of what the parties had said about the meaning of the word "rort." The jury must have been mindful of counsels' addresses. 30 Ground 4 of the grounds of appeal states that the trial judge was in error in failing to direct the jury that the word "rorter" did not involve conscious dishonesty. Having regard to the fact that counsel for the appellant at the trial repeatedly invited the jury to understand the expressions "rort" and "rorter" as involving dishonesty this submission must be rejected. 31 For these reasons in my opinion the appeal should be dismissed. 32 HANDLEY AJA: I agree with McClellan CJ at CL. **********

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Judgment (28 paragraphs)

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Cases Cited (5)

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