Gibson v Nationwide News Pty Ltd

CASES CITED : Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Jarratt v John Fairfax Publications Pty Ltd [2000] NSWSC 547

PARTIES : Paul Gibson - Plaintiff Nationwide News Pty Ltd - Defendant

COUNSEL : B McClintock SC - Plaintiff A Leopold / S Chrysanthou - Defendant

SOLICITORS : Gilbert & Tobin Lawyers - Plaintiff Blake Dawson Waldron - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

JUDGMENT 1 HER HONOUR: By statement of claim filed on 27 February 2006 the plaintiff claims damages in defamation as a consequence of the publication by the defendant in a daily newspaper (The Daily Telegraph) on 5 November 2005 of five imputations he claims defamed him. 2 The defendant has filed a notice of objection, claiming certain defects in the statement of claim. Pursuant to UCPR r28.2 the parties seek a separate trial of the questions that arise. I am satisfied that this is an appropriate case in which to take that course. I so order. The questions to be separately tried concern the imputations pleaded. For these purposes it is convenient to accept as accurate the facts pleaded in the statement of claim. 3 The plaintiff is a member of the NSW Parliament. The matter complained of was contained in three separate articles in The Daily Telegraph. The principal article began on the front page, under a heading, in very large type: "RORT BACK AND SIDES" 4 This was accompanied by an equally large photograph of the plaintiff, apparently in a hairdressing salon or barber shop, having his hair cut. Under the photograph was a caption reading: "Trim ... State MP Paul Gibson gets a haircut while in London on a road safety study tour. 5 A smaller-type headline, above the large one, read: "EXCLUSIVE: State MPs busted in Britain on $55,000 taxpayer-funded study tour" 6 The article commenced: "This is state MP Paul Gibson, hard at it in a London hair salon on a parliamentary study tour which has taken him and fellow MP Daryl Maguire to the UK, Russia and South Africa." 7 On the second page was yet another headline, reading: "Caught out on a $55,000 tour" 8 Above this were four photographs: one showed the plaintiff carrying some shirts on a hanger; it was captioned: " o WASHING ... Mr Gibson picked up his dry cleaning before visiting a pub."

Another photograph showed the British House of Commons, and was captioned: " o LUNCH ... Mr Gibson and Mr Maguire dined at the House of Commons"

A third photograph showed the plaintiff and another man. Its caption was: " o CONFRONTATION ... An angry Mr Gibson discussed his workload outside the Ye Olde Cheshire Cheese pub"

The fourth photograph showed Buckingham Palace with its guards. The caption was: "" o ROYALTY ... Mr Maguire enjoyed a stroll around Buckingham Palace" 9 The last three photographs appeared one under another, under the general headline: "Taxing work". 10 The whole page was headed: "BUSTED IN BRITAIN" 11 The thrust of this article was that the plaintiff and another MP, Daryl Maguire, had travelled to London, the plaintiff in his capacity as Chair of the Staysafe Committee, and Mr Maguire, also a member of Parliament, as a member of the Staysafe Committee; also travelling with them was a Staysafe Committee staff member, Ian Faulks. The article claimed that the two members of Parliament had failed to meet their obligations on the study tour by failing to attend official engagements on each of three days. On the first day, the article said, the plaintiff had a haircut and picked up some dry cleaning and dined in a London pub. On the second day, it said, both members of Parliament missed another appointment, but did attend lunch at the House of Commons. It quoted a British official as saying that three people had been expected at one of the meetings, but that the members of Parliament did not attend. 12 The article said that on the third day the MPs missed a third meeting (which, like the earlier meeting) was attended only by Mr Faulks. 13 The plaintiff was quoted as saying, in response to a question about what he had been doing all day, that he had not been doing anything; but following this by saying that he had spent the day in various meetings. He was also quoted as refusing to disclose to the journalist what meetings he had attended. 14 There was more, but what I have outlined is sufficient to give the flavour of the article. It is unnecessary to say more. It finished by saying that the members of parliament were travelling to St Petersburg but that no meetings were there scheduled. 15 The second article appeared also on page 2 of the newspaper and was headed: "MPs on a Russian road to nowhere"

It was written by Warren Brown, who was described as: "Cartoonist, author, and veteran of the Russian road system" 16 The tone of this article was sardonic, satirical, ironic - even sarcastic. Mr Brown described, in somewhat caustic terms, the Russian road system, to which he attributed the epithet "diabolically crook". He advised the members of parliament not to avail themselves of road transport, but to take the train, and see the sights. 17 The third item in the newspaper was an editorial, and appears on page 18. Under the heading: "We await findings"

was a photograph of the plaintiff, with the caption: "London calling ... Paul Gibson goes shopping" 18 This editorial, too, was of a derisive, even sneering, sarcastic tone. It also referred, bitingly, to the meetings that the plaintiff was said not to have attended, to the barber shop visit, to the lunch at the House of Commons, and to dinner at the pub. It finished with the sentence, heavy with irony: "How fortunate are we to have such men as these working in our service." 19 The plaintiff has pleaded that five imputations that defamed him were conveyed by this material. They are: "(a) the Plaintiff is a corrupt politician in that 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; (b) the Plaintiff abused his position as a member of Parliament by not attending a series of meeting which he should have gone to while on a taxpayer funded study tour of the United Kingdom, Russia and South Africa; (c) the Plaintiff abused his position as Chair of the State Government Staysafe Committee by visiting one of the world's most beautiful cities at taxpayers' expense under the pretence of inspecting the diabolical Russian road network; (d) the Plaintiff had been exposed ('busted') for failing to perform his duties on a taxpayer funded study tour of the United Kingdom, Russia and South Africa; (e) the Plaintiff is a rorter." 20 Objections of two different kinds have been raised on behalf of the defendant. One concerns the capacity of the matter complained to convey certain of the imputations pleaded. The other raises questions as to whether certain of the imputations differ in substance (as, pursuant to UCPR r14.30(3), they must). 21 I will deal with the objections to the imputations in turn.

imputation (a): The plaintiff is a corrupt politician in that 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. 22 Three objections were taken to this imputation. The first is that the matter complained of lacks the capacity to convey that part of the imputation that asserts that the plaintiff is "corrupt". It was argued that "corrupt" carries the notion of serious dishonesty whereas what is conveyed by the article is of some lesser kind of mala fides. 23 "Corrupt" (as an adjective) is defined in the Macquarie Dictionary (Revised) (first) Edition as: "1. dishonest; without integrity; guilty of dishonesty, esp involving bribery: a corrupt judge . 2. debased in character; depraved, perverted, wicked, evil. 3. putrid 4. infected, tainted 5. made bad by errors or alterations, as a text"

Most of these definitions are immaterial to the present question. Definition 2 is obviously far stronger than can be ascribed to the matter complained of, as is definition 4. However, while I would have some hesitation before finding that the matter complained of in fact conveyed an imputation of dishonesty, I am of the view that a reasonable jury may do so, and the matter complained of therefore has the capacity to convey that imputation. In any event I am quite satisfied that it has the capacity to convey the imputation that the plaintiff is without integrity, and this is sufficient to defeat the defendant's objection. 24 A second objection is that the imputation is internally confusing. This is based on the proposition that the imputation itself asserts corruption in a particular respect - that is, that the plaintiff accepted a taxpayer funded study tour but failed to honour his obligations in respect of the study tour; it was argued that failure to honour such an obligation is insufficient to amount to corruption. Having regard to the definition of "corrupt" to which I have already referred, I reject this argument. 25 The third objection is that the imputation is confusing because it runs together two defamatory accusations: that is, the acceptance of a taxpayer funded study tour and the failure to honour the obligations thereby incurred. I cannot accept this either: there is nothing defamatory about stating that a person has accepted a taxpayer funded study tour. The defamatory accusation arises only when that is linked with the asserted failure to meet the commitments associated therewith. I reject all objections to imputation (a).

imputation (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 taxpayer funded study tour of the United Kingdom, Russia and South Africa. 26 An objection similar to the second taken in relation to imputation (a) was taken in relation to this imputation. That is, it was argued that the acts alleged against the plaintiff - the failure to attend the meetings - cannot amount to abuse of the plaintiff's position as a member of Parliament. I have hesitated over this argument. The imputation could, in my view, have been better drafted. However, its meaning is clear enough and I have concluded that failure to attend meetings that the plaintiff should have attended, in his capacity as a member of Parliament, could amount to abuse of his position as a member of Parliament. I reject this objection. 27 In relation to imputations (a) and (b), a further objection was taken based upon my own decision in Jarratt v John Fairfax Publications Pty Ltd [2000] NSWSC 547. At [19] and [20] I said: "When regard is had only to the imputations themselves, and reference to the matter complained of is excluded, I am of the view that the plaintiff's argument should be accepted. The imputations do differ in substance as the plaintiff contends. The difference is one of degree. In truth, imputation 4(c) would wholly incorporate imputation 4(b); imputation 4(b) asserts a lesser degree of misconduct than imputation 4(c). The imputations differ in substance to this extent, and to this extent only. Thus, if the plaintiff were to go to the jury, and succeed, on imputation 4(c), he should not be able to go to the jury also on imputation 4(b). In considering these questions it is relevant to bear in mind that each imputation is itself a separate cause of action; and that, therefore, if the plaintiff were successful in establishing that the imputations were conveyed, and defamed him (and the defendant failed in any of its defences), he would be entitled to an award of damages in relation to each separate imputation. It would not be right in principle for him to recover damages for both imputations 4(b) and 4(c) (unless it could be seen, from the matter complained of, that there were in fact allegations of different conduct on different occasions, giving rise to the two imputations as quite separate matters). I accept, therefore, that there is a difference in substance (that is, of degree) between the two imputations, but it is not such a difference as would entitle the plaintiff to a verdict on both imputations."

I therefore ruled that the plaintiff in that case could go to the jury on the two imputations as alternatives to one another. 28 I think the defendant is on strong ground in arguing that imputations (a) and (b) in the present case are of the same kind as the imputations I was there considering. The plaintiff will be permitted to go to the jury on these imputations as alternatives, but not conjointly.

imputation (c): The plaintiff abused his position as Chair of the State Government Staysafe Committee by visiting one of the world's most beautiful cities at taxpayers' expense under the pretence of inspecting the diabolical Russian road network. 29 The first objection that was taken to imputation (c) was the advocate's flourish represented by the word "diabolical". As I understood it, senior counsel for the plaintiff agreed to delete that word. Certainly, it adds nothing to the imputation so far as the plaintiff is concerned. The next objection in relation to imputation (c) was that it does not differ in substance from imputation (b). This was put because of the opening words, that "the plaintiff abused his position as ..."; it was argued that the two positions he was said to have abused; member of Parliament, and Chair of the State Government Staysafe Committee, are not materially different. This may or may not be so; it is unnecessary to decide, because the particularisation, that is the explanation of what constitutes the abuse of position, is in each case quite different. I reject this objection.

imputation (d): The plaintiff has been exposed ("busted") for failing to perform his duties on a taxpayer funded study tour to the United Kingdom, Russia and South Africa. 30 The first complaint made in relation to imputation (d) is in respect of the use of the word "busted" in brackets, presumably as explaining the source of the word "exposed". Although I cannot see that any real difficulties are likely to be created by this form of pleading it is unconventional and inappropriate. The word in brackets should be removed. 31 Of more substance, the second objection was that imputation (d) does not differ in substance from imputation (b). I have come to the view that this imputation is in the same category vis a vis imputation (b) as is imputation (b) vis a vis imputation (a). It is essentially the same accusation at a lesser degree of seriousness. The plaintiff will be permitted to go to the jury on the three imputations as alternatives but not in conjunction.

imputation (e): The plaintiff is a rorter. 32 The complaint that was made about this imputation was of its level of generality, asserting of the plaintiff that he has a particular characteristic, although the matter complained of merely asserts that he has engaged in the relevant conduct on only a single occasion. This is an argument frequently heard in the Defamation List - that an imputation of a general allegation cannot be supported by an accusation of a single instance of the conduct in question. It is time to put an end to the proposition, which is itself expressed at an unacceptable level of generality. A few illustrations will suffice to make the point. How many murders does a person have to commit before it is appropriate to label him or her a murderer? How many rapes does a person have to commit before he or she may be called a rapist? True it is, of course, that the theft of a small amount of money on an isolated occasion may not suffice to warrant the epithet "thief" of the person concerned. All this shows that whether or not a general allegation can be made from a single instance of conduct depends upon the circumstances, what is alleged, and the seriousness of the allegation made. 33 In my opinion, in the present case, what is said in the matter complained of is said with sufficient vehemence to be capable of giving rise to an imputation that the plaintiff is a rorter, even though a mere single incidence of rorting is alleged against him. 34 No point was taken that the word "rorter" is an unacceptable colloquialism. That is a correct approach; the word has found its way into various dictionaries, including the Third Revised Edition of the Macquarie Dictionary. However, an objection was taken that the word is merely taken from the matter complained of, in the large headline which I have extracted above. 35 It is true that there is a line of authority, repeated most recently in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 that it is inappropriate to use, in the imputation, the words of the matter complained of. That is not a universal proposition. This is not the occasion to enter into the debate on its boundaries. Even the strongest of the statements do not say that no word that appears in the matter complained of may be used in the imputations. In my opinion the word is an appropriate one and aptly conveys the sting of the articles. 36 The order I make is: the plaintiff is to have leave to amend imputations (c) and (d), if so advised, in the manner set out in these reasons.

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.