Gillespie v Nationwide News Pty Ltd

• 8 - djl:1 [2002] NSWSC 553 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20083 OF 2002 NORMAN GILLESPIE (Plaintiff)

JUDGMENT (Defamation - imputations - form - capacity - difference in substance) 1 The plaintiff, by a Statement of Claim filed on 8 March 2002, sues the defendant for damages for defamation arising from the publication of an article in "The Australian" of 23 February 2002. The article, with the by-line of Mark Westfield, bears the headline "Fast and lose prophets of profit face market whipping" the text of which is appended hereto. 2 The plaintiff contends that that matter complained, of in its natural and ordinary meaning, carries the following imputations defamatory of him: "(a) That the plaintiff deliberately falsified the account books of C & W Optus to give the appearance that it was making money; (b) That the plaintiff is a corporate crook; (c) That the plaintiff committed crimes by exaggerating C & W Optus' earnings; (d) That the plaintiff deliberately misled investors as to C & W Optus' profit and earnings; (e) That the plaintiff is a stubborn liar; (f) That the plaintiff had, by his misconduct, caused the ASIC to find that C &W Optus had exaggerated its earnings and mislead investors". 3 The defendant, having given notice, takes objection to the imputations generally with respect to form, SCR pt 67 r 11(3) - difference in substance, and to capacity. As to the last mentioned, by consent pursuant to SCR Pt 31 r 2 that issue of law was argued for determination. 4 The first objection taken is under SCR PT 67 r 11(3): imputations (a) and (d), it is contended, do not differ in substance. 5 It is clear that imputation (a) imputes that the plaintiff "deliberately falsified the account books" in order "to give the appearance" that Optus was making money. It is equally clear that imputation (d) imputes that the plaintiff "deliberately misled investors" as to the "profit and earnings" of Optus. I am persuaded that it is really unarguable that an allegation that a person deliberately falsified accounts in order to give a particular appearance is the same as an allegation that a person deliberately gave misleading information as to profit and earnings. 6 I hold that imputations (a) and (d) do not differ in substance. The plaintiff is to elect as to which imputation upon which he will go to the jury at the s 7A trial. 7 As to imputations (b) and (c), the defendant asserts that neither is capable of being conveyed, that imputation (b) is bad in form and that, in any event, they do not differ in substance. 8 As to the question of form in relation to imputation (b) - "that the plaintiff is a corporate crook" it was argued that the expression "corporate crook" would mean different things to different people. I do not agree. "Corporate crook" is a phrase of two words that has in my view an ordinary meaning in current English usage. It is one of those phrases that means what it says. The Macquarie Dictionary defines the word "crook" as (colloquially) "dishonest or illegal". Any objection to the imputation based on form in that respect I reject. As to the question of capacity, had the matter complained of been one of reportage in the more strict sense of that word referring only to the two incidents in respect of accounting practices, there might be some merit in the defendant's position in this regard. However, on a capacity basis, the defendant must bear the consequences of its own language including "fast and loose players"; the specific reference to and linking of the plaintiff with Alan Bond (a convicted criminal) and Christopher Skase (who might be described as a notoriously unconvicted criminal); "cooked their books"; "exciting smoke and mirrors treatment"; "creativity at its finest"; "misled investors". It is not unreasonable in my view for the position to be taken that an ordinary reasonable reader of this whole piece could understand this generalised charge being made against the plaintiff. This generalised charge is one as to his personal attributes, character or "condition". It is clearly capable of arising. 9 Imputation (c) - that the plaintiff committed crimes by exaggerating C & W Optus' earnings - in my view is capable of arising, not least from the use of the expression "cooked their books" with which particular activity the plaintiff could reasonably be understood by a reader of the article to be connected. On a capacity argument and a difference in substance argument, as to the latter in the end it attributes a particular act as distinct from the "condition" captured by imputation (b). Arguments such as those advanced for the defendant that there is nothing in the matter complained of about criminal proceedings having been taken and concluded adversely to the plaintiff in my view are out of place in considering the impact of a piece such as the present one. In my respectful view, it is not appropriate in seeking to answer the question could the ordinary reasonable reader understand a piece such as this as meaning "x", involving notions of criminality, to bring to bear the lawyer's particular knowledge of terms and principles that apply within the administration of the criminal justice system. This is by no means a case comparable to Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 * where the High Court did attribute to the ordinary reasonable reader awareness of the fundamental presumption of innocence (per Mason J at 300). That however was a case concerned with a statement in the article itself that a person had been arrested and charged with a criminal offence. 10 Accordingly I hold imputation (b) to be good in form, capable of being carried by the matter complained of and capable of being defamatory. I find it to differ in substance from imputation (c) which I find to be capable of being carried and capable of being defamatory. 11 As to imputation (e) - that the plaintiff is a stubborn liar - I am quite unable to come to the view that the matter is capable of carrying such an imputation in its natural and ordinary meaning. I agree that the matter refers to the plaintiff trying to 'tough it out" in "true John Howard style". What that means or what that could mean is a matter of pure speculation. The plaintiff argues that at the time of publication of the matter complained of the Prime Minister was "notoriously" known to have "arguably" (stubbornly) lied to the public over what is called the "babies overboard" controversy. I have no difficulty, as a matter of form, with otherwise holding that to say of a person that that person is a "stubborn liar" is clear in its meaning, it is the antecedent proposition upon which availability of the imputation rests that is unreasonably speculative involving countless inferences on the part of the reader. 12 In relation to imputation (e) I hold that the matter complained of is incapable as a matter of law in its natural and ordinary meaning of carrying that imputation and enter a verdict for the defendant. The plaintiff will have liberty however to replead as he may be advised: that liberty presumably will be exercised in terms of a different meaning resting in "toughing it out" or a true innuendo properly pleaded and particularised as distinct from the natural and ordinary meaning I have held incapable of being carried. 13 As to imputation (f) - that the plaintiff had, by his conduct, caused the ASIC to find that C & W Optus had exaggerated its earnings and misled investors - the defendant objects on the basis of form ("caused") and capacity. Leaving to one side for the moment the matter of the use of the word "caused", the defendant says that the matter complained of is incapable of carrying a meaning that refers to a "finding" by ASIC. The relevant part of the matter complained of is "not surprisingly, the Australasia Securities and Investments Commission felt it exaggerated the company's earnings and misled investors". On a capacity basis I am not prepared to accept the defendant's contention. When that sentence is read with the preceding material which includes "it was creativity at its finest" and the subsequent references to Alan Bond and Christopher Skase, for example, on a capacity issue I am prepared to hold that this article is capable of carrying this imputation and that it is defamatory. 14 The defendant says that the word "caused" is a "weasel" word. Comfort is sought for that proposition from what Hunt CJ at CL in Amalgamated Television ServicesPty Ltd v Marsden (1998) 43 NSWLR 158 at 163A-C. When one considers the imputations with which the Court of Appeal was concerned (see 161E and 163D), the availability of the notion of "caused" as a "weasel" word becomes abundantly clear. Here one merely has to read the language of the matter complained of to come to the view that there is a sufficient "flow" in the propositions advanced by its author (and publisher) that would lead to the understanding of the word "caused" in its most ordinary sense of bringing something about. I hold the use of the word "caused" not to be improper in any sense in this imputation. 15 The orders are:

1. The plaintiff is to elect between imputations (a) and (d).
2. Imputations (b), (c) and (f) are capable of being carried and are capable of being defamatory.
3. Imputation (e) is incapable of being carried and I enter a verdict for the defendant in respect of that cause of action.
4. The plaintiff has leave to file an Amended Statement of Claim within 14 days in accordance with these reasons.
5. Each party is to pay its own costs.
6. The matter is to be listed in the Registrar's Defamation Directions List on 12 July 2002.

1. Fast and loose prophets of profit face market whipping

5. In the old days, probably before most investors can remember, a company made a profit
6. when it sold a product at a price higher than it cost to make.

7. It was simple, and investors buying shares in companies expected to be paid a dividend
8. out of the actual profits - ie, real money - that the company made from selling its
9. products or services.

10. During the 1980s, investors were confused with some exciting smoke and mirrors
11. treatment of profits under the guise of "equity accounting". Then things went quiet until
12. accounting practices went haywire again in the late 1990's dot.com bubble.

13. For instance, two years ago, the telephone company

15. Fast and loose prophets of profit face market whipping

16. Cable & Wireless Optus developed a new interpretation of "profit" when it signed a 15-
17. year deal to sell capacity on its cable network to a rival, AAPT, for $104 million. The
18. deal was done on the last day of its financial year, March 31. Yet, C&W Optus booked a
19. profit out of that "revenue" of $84 million and applied it all to the year just gone. The
20. only trouble was, Optus received upfront payment of only $12 million, yet it claimed a
21. profit seven times this figure for money it mostly had not received. It was creativity at its
22. finest.

23. This made C&W Optus' profits look pretty good that year at a time when the company
24. was courting potential suitors. Not surprisingly, the Australasian Securities &

25. Investments Commission felt it exaggerated the company's earnings and misled investors.

26. Market punters didn't like being treated like donkeys either. C&W Optus stock plunged.
27. But its chief financial officer, Norman Gillespie and his boss, Chris Anderson tried to
28. "tough it out" in true John Howard style and insisted the treatment was legitimate. The
29. market made its own adjustments, despite their protestations.

30. Now, a telco from across the Tasman, Telecom New Zealand, is taking a leaf from
31. Gillespie's book of accounting tricks. It is not as extravagant as Gillespie's creativity but
32. unacceptable nevertheless.

33. TNZ is bristling with indignation that anyone should suggest this might be anything other
34. than "comprehensive disclosure". It clearly isn't.

35. If a company has to take such a short-term view as to depend on profits and revenues -
36. some of which haven't been earned - being crammed into one year of a fifteen-year
37. contract, then the obvious conclusion is that there must be something wrong with the
38. company.

39. Australia has had an overabundance of fast-and-loose players, like Alan Bond, Chris
40. Skase, John Spalvins, Jodee Rich and Norman Gillespie, who cooked their books to give 41. the appearance that their listed vehicles were making money.

42. Interestingly, when Singapore Telecom launched its long-awaited takeover offer for
43. C&W Optus in May last year, it applied more conservative (ie, believable) accounting to 44. readjust Optus' claimed profit of $424 million for the year to March 2001 to a loss of $34 45. million.

46. Local investors have enough to cope with trying to get to the truth of profit assertions by 47. their own companies than tackling fancy numbers coming from across the Tasman.

48. TNZ reported a first half profit up 4% to NZ$312 million ($254 million). This figure
49. included NZ$28 million of profits lumped together from the sale to four buyers of
50. capacity on its half-earned Southern Cross fibre-optic network it shares with Australia's 51. Telstra.

52. At least in TNZ's case, through these sales included payment upfront. Most of the money 53. is in the till.

54. Logic suggests, however, that this revenue should be taken over the term of the lease,
55. rather than giving profits a short term rev.

56. No doubt, the telco buying the capacity will be costing their payments over the fifteen
57. years. **********

Last Modified: 06/25/2002 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.