Solicitors:
Taylor & Scott Lawyers (plaintiff in each proceeding)
Banki Haddock Fiora Lawyers (defendant in each proceeding)
File Number(s): 14/19799414/198004
[2]
Judgment
HER HONOUR: Before the Court are two sets of proceedings commenced by Mr Darren Greenfield arising out of publications addressing broadly the same subject matter. The first are proceedings against Fairfax Media Publications Pty Limited in respect of two articles published in the Sydney Morning Herald. The second are proceedings against the Australian Broadcasting Corporation arising out of a segment of the 7.30 Report on ABC television.
The proceedings have been relisted today for determination of an application by each defendant to amend its defence, in particular, to rely on a new contextual imputation. The proceedings are presently listed for hearing in July 2017 and, accordingly, it is appropriate to determine the application promptly. As contemplated by clause 20 of the Defamation List Practice Note SC CL 4, I will accordingly state my reasons in short form.
The proposed amendment initially sought to plead an additional contextual imputation "that the plaintiff is a corrupt union official". In response to an objection that that imputation was insufficiently precise, the defendants now propound, in respect of each of the three matters complained of in the two sets of proceedings, the following contextual imputation:
That the plaintiff is a corrupt union official in that he used his position in the CFMEU to advance the business interests of George Alex over the interests of workers.
The plaintiff opposes the amendment on a number of grounds. First, as to the first matter complained of in the Fairfax proceedings, it is submitted that the new contextual imputation is not capable of being carried by the matter complained of. Mr McGrath, who appears for the plaintiff, put a number of submissions in support of that contention in written submissions dated 15 February 2017 to which I have had regard. It is not necessary to rehearse the detail of those submissions.
Mr McGrath submitted, first, that the new contextual imputation seeks to extract a condition from a single incident. He submitted that the imputation falls foul of what he referred to as "the conditions" for pleading a general condition from a single act. That was a reference to the discussion of imputations which plead a general condition to be found in the decision of the Court of Appeal in Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [60] to [63] per Gleeson, Macfarlan and McColl JJA agreeing. In that case, the Court contrasted the illustration provided by the case of State of New South Wales v Deren [1999] NSWCA 22, where a single act of sexual assault of a child was held to give rise to the general imputation of being a paedophile, with the illustration provided by the case of Bookbinder v Tebbit [1989] 1 WLR 640, where a single instance of misuse of resources in public office was held not to give rise to an imputation of a general condition of that kind.
At the end of the day, however, the Court must always approach questions of this kind by reference to the content of the particular matter complained of. As noted in the judgment of Gleeson CJ and Crennan J in a different context in ABC v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [18], "formulations of principle which, for purposes of legal analysis, gather together considerations which must be taken into account may appear rigid if the ultimate foundation for the exercise of the jurisdiction is overlooked".
In my respectful opinion, it is wrong to elevate the discussion in Cornwell to a statement of "conditions" which must be met before an imputation that attributes a condition or personality trait (such as that of being a paedophile or being a corrupt person) can be pleaded.
Having regard to the content of the matter complained of in the present case, I am satisfied that the new contextual imputation is reasonably capable of arising. As submitted by Mr Dawson, who appears for the defendants in both sets of proceedings, the relevant matter complained of (that is, the first matter complained of in the Fairfax proceedings) is replete with references to corruption and not shy in pointing to Mr Greenfield as the author of the conduct reported.
The second broad submission put by Mr McGrath was that whereas other parts of the matter complained of openly accuse other persons of corruption, the passages dealing with Mr Greenfield take care not to accuse him of taking bribes or being corrupt and that the contradistinction would be taken on board by the ordinary reasonable reader. That is a submission which might properly be put to the jury but, addressing the capacity issue, it has not persuaded me that the imputation should be struck out.
The second objection to the new contextual imputation so far as the first matter complained of is concerned is that the contextual imputation is not capable of meeting the requirement of s 26(b) of the Defamation Act 2005 (NSW). Section 26 provides:
26 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that:
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations" ) that are substantially true, and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
It is established that the appropriate approach to the determination of that issue on a strike-out application is to compare the evidence relied upon in support of the proof of the truth of the contextual imputation with the sting of the least serious of the plaintiff's imputations. The relevant imputations are set out at paragraph 4 of the second amended statement of claim filed 7 November 2017.
Mr McGrath submitted that each of those imputations attributes conduct associated with criminal activity to the plaintiff whereas the proposed contextual imputation is something less, resting on an allegation of corruption. Again, while submissions might be put with some force to the jury on that issue, I am not persuaded that the high bar faced by a plaintiff in having a contextual imputation struck out on that basis is met.
As to the second matter complained of in the Fairfax proceedings, the argument was confined to the s 26(b) point. The argument is perhaps stronger in the case of the second matter complained of where the least serious of the plaintiff's imputations is perhaps less serious than in the case of the imputations pleaded in respect of the first matter complained of. On balance, however, I am not persuaded that it is appropriate to withdraw the imputation from the jury on that basis.
In respect of the proceedings against the ABC, the contextual truth defence was objected to on the basis that the contextual imputation is not capable of arising "in addition to" the defamatory imputations of which the plaintiff complains and so is not capable of meeting the requirement of s 26(a). In particular, imputation 5(c) in the amended statement of claim filed 21 October 2014 is "the plaintiff, a CFMEU official, acted against the interests of CFMEU members in that he supported George Alex, a man whose companies owed more than $500,000 in unpaid superannuation to CFMEU workers and was involved in bikie organised crime".
Mr Dawson submitted that the contextual imputation is at least capable of differing from that imputation in two important respects. First, whereas the plaintiff's imputation contains an allegation of particular conduct, that is a particular instance of acting against the interests of members, the contextual imputation asserts a general condition of corruption. Secondly, he submitted that the notion of corruption contemplated in the contextual imputation is different from the sting in the plaintiff's imputation which focuses on a breach of duty or obligation to the members. Mr Dawson submitted that the contextual imputation thus elevates the sting over and above that of the plaintiff's imputation.
Whilst at first glance it was my impression that the two imputations were substantially the same, Mr Dawson's submissions have persuaded me that the issue is capable of being determined in the defendants' favour and that, accordingly, it would not be appropriate for me to withdraw the imputation from the jury pre-emptively.
Apart from the objections to the contextual imputation, Mr McGrath's submissions brought forward a number of cogent objections to various particulars of the truth defence. Having given careful consideration to the content of the written submissions before hearing argument, I indicated my preliminary view that those matters were more properly determined by the trial judge in the context of rulings as to the admissibility of evidence, with one exception. The exception was a series of particulars alleging an association between Mr George Alex and Mr Khaled Sharrouf. Those particulars are relied upon to prove the truth of an imputation that the plaintiff is a participant in organised crime. Mr McGrath submitted that, to the extent that the particulars address Mr Sharrouf's alleged participation in extremist or terrorist activities outside Australia, they are not capable of informing the truth of that imputation. I called upon the parties to address me on that issue. Whilst I think there is considerable force in Mr McGrath's objection to those particulars, I have on balance been persuaded, as with the other particulars, that that is an issue that should more properly be left to the trial judge.
As to the balance of the objections to the particulars, the parties were content to accept the suggestion I indicated at the outset of argument. I should note in that context that, had the plaintiff sought to press the objections in this list, a consideration I would have taken into account is that the practice note does not expressly contemplate the determination of such objections in advance of the trial. The intention of the practice note, as made plain by its terms, is to communicate the expectation that proceedings for defamation should not come before the Court on numerous occasions for numerous interlocutory applications, as might perhaps have occurred previously, but should only come before the Court for two listings for determination of the matters referred to in clauses 13 and 16. Ordinarily, proceedings in the Common Law Division other than proceedings for defamation do not see the same kind of meticulous attention to pleadings as is often raised in interlocutory applications in the defamation list; such matters are reserved for determination by the trial judge.
In my view, parties to proceedings in this list are to be discouraged from bringing forward for interlocutory determination the kind of objections brought forward in Mr McGrath's submissions. In saying so, I mean no criticism whatsoever of Mr McGrath, whose careful submissions, as I have already recorded, make some cogent points in respect of the breadth of the particulars in these proceedings. I accept that a plaintiff faced with extensive particulars in support of a truth defence faces a dilemma in deciding whether to bring forward an interlocutory application so as to curtail the need for expensive preparation rather than leaving the allegations on the pleadings and hoping to have a defendant's more extravagant allegations excluded at trial. However, as the Defamation List Judge, my concern is to give effect to the overriding purpose recorded in Part 6 of the Civil Procedure Act 2005 (NSW) and that is the consideration to which I am presently referring.
Finally, I note that the defendants accept that, in the consolidated amended defence they will be required to file, a reference in the particulars of mitigation to the findings of the Royal Commission Into Trade Union Governance and Corruption "including but not limited to" specified findings should be amended so as to omit the words "including but not limited to" and to specify the particular findings relied upon in mitigation so as to ensure that the plaintiff is not taken by surprise, having regard to the scope of the findings of that Royal Commission.
[3]
Orders
1. I grant leave to the defendants to file an amended defence in accordance with these reasons and the matters otherwise agreed between the parties within 14 days.
2. I order that the costs of today's argument be the defendants' costs in the cause.
[4]
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: 28 February 2017