Hayson v Nationwide News Pty Limited

1. The respondents' interlocutory application dated 26 July 2018 be dismissed.
2. The respondents pay the applicant's costs of and incidental to the interlocutory application as assessed or agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

BROMWICH J: 1 The applicant in this proceeding is Mr Edward "Eddie" Hayson. The first respondent, Nationwide News Pty Limited, is the publisher of The Daily Telegraph, a newspaper that circulates widely in Australia, including in the Australian Capital Territory, both in printed form (the first matter complained of) and on its own website (the second matter complained of). The second respondent, News Life Media Pty Limited, is the publisher of material appearing on the www.news.com.au website, including a version of the present matters complained of. The third respondent, Michael Carayannis, is a journalist who admits that he is employed in that capacity by Nationwide News; and admits to co-authoring some of the material appearing in the first three pages of the 3 June 2016 edition of The Daily Telegraph and its online counterparts. 2 This is an interlocutory "strike in" application by the respondents for directions that Mr Hayson include, in his existing further amended statement of claim, additional material to form part of the first and second matters complained of. Mr Hayson opposes this strike in application. It is presently only necessary to consider the first matter complained of, concerning the material published in The Daily Telegraph newspaper. A substantially similar issue arises as part of the second matter complained of, concerning its online counterpart, due to a hyperlink taking a reader to the same additional material. The live and determinative issue can, however, be resolved mostly by detailed reference only to the first matter complained of, given the overlap in factors relied upon by the respondents. 3 The respondents face a formidable hurdle in seeking to have Mr Hayson plead, as part of matters complained of, material in a separate article that he has not chosen to sue upon, albeit published at the same time, proximate to, and made the subject of a cross-reference in a part of the material that is sued upon. That hurdle has not been surmounted. For the reasons that follow, this "strike in" application must be dismissed. 4 The substance of the first matter complained of arises from allegations that a number of Rugby League players competing in the National Rugby League (NRL) had been paid money to lose games for gambling purposes, with the outcome of two games in particular being referred to. Two of the NRL clubs referred to are known as the Manly Warringah Sea Eagles and the South Sydney Rabbitohs. 5 Mr Hayson pleads as the first matter complained of: (1) material on page 1 entitled "NRL MATCH FIXING SCANDAL", "GAME OF THROWNS", "PLAYERS ALLEGEDLY PAID $50,000 EACH TO LOSE"; (2) material in an article on page 1 entitled "Eddie and the Eagles", which refers to Mr Hayson's past and concludes with an arrow and words directing the reader to a full report on page 3; (3) material on pages 2 and 3 entitled "EAGLES ROCKED IN A FIX FURY" and "Match-fixing allegations go to heart of sports we once loved and trusted". 6 Mr Hayson alleges, in substance, that the first matter complained of carried defamatory imputations of him being involved in substantial payments to NRL players to lose a game so that he could make profits by betting on that game, constituting criminal activity. Individual headings, quotes and paragraphs in the first matter complained of are numbered and referred to with some precision to identify where each imputation is said to arise. Apart from Mr Carayannis denying authorship of certain parts of the first matter complained of, the respondents deny that this material was reasonably capable of conveying or in fact conveyed the asserted imputations. The respondents further deny that the material was reasonably capable of being defamatory as alleged. 7 There is a further article about Mr Hayson's past on page 3, entitled "Eddie no stranger to playing long odds", with a byline for the late Rebecca Wilson. The parties have referred to that article as the Wilson Report, so I will do the same. As that heading implies, the Wilson Report also refers to Mr Hayson's past. It does not make any express reference to the match-fixing allegations contained in parts of the first matter complained of, but does expand on material in the "Eddie and the Eagles" article. The substance of the respondents' strike in application seeks to have this Court direct Mr Hayson to add the Wilson Report to the first matter complained of (and for substantially the same reasons to the second matter complained of). 8 The wellspring of the respondents' strike in application is the cross-over between the subject matter of the two paragraphs (numbered "9" and "10") in the article on page 1 entitled "Eddie and the Eagles", and parts of the Wilson Report. The live issue is whether this additional article is a separate publication, or whether it is inextricably tied into and a part of the pleaded first matter complained of. The respondents contend for the latter; Mr Hayson for the former. 9 There was little dispute as to the relevant principles, as outlined in the competing submissions. The issue is as to their application. Those principles may be stated in short form as follows: (1) There is a cause of action for each publication of "defamatory matter", "matter" being defined as including "an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical": see ss 4(a) and 8, Defamation Act 2005 (NSW). A single published article is therefore usually to be considered as a separate matter unless there is a sufficient reason to treat it in some other way relative to other published material. (2) An allegation of a defamatory meaning, especially when there is a question as to whether an imputation in one part is negated by reference to what appears in another part, must be determined by reference to the matter that has been published, considered as a whole: Morosi v Broadcasting Station 2GB Pty Ltd, unreported, New South Wales Court of Appeal, Samuels JA, 28 September 1978, but published in the manner of a report as an Editor's endnote to Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 per Hunt J, at 418 to 421, relevantly at the bottom of 419. (3) The requirement to read a matter that has been published as a whole means that an allegation of defamation cannot be pleaded in a way that denies its overall meaning. Thus, the pleading must include "every passage which materially alters or qualifies the complexion of the imputation complained of": Gordon at 413[6], endorsed in Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; 66 NSWLR 605 at [26(a)]. The pleading must place the parts relied upon in their full context if that context is capable of materially affecting the imputations relied upon: Obeid at [26(e)-(f)]. (4) Beyond the requirement to plead a matter complained of contextually, an allegation of defamation may be cast as a matter of forensic choice (and, it may be said, risk: see Obeid at [4]). As Simpson J pointed out in Phelps v Nationwide News Pty Ltd [2001] NSWSC 130 at [22] (quoted and effectively applied in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 at [54]-[56], and endorsed more recently by McCallum J in Gav v Ryde Ex Services Memorial and Community Club Ltd [2018] NSWSC 621 at [7]): Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field. (5) Thus, as pithily expressed by Hodgson JA in Obeid at [2], a person bringing a defamation suit "cannot be compelled to include additional material in the statement of claim unless (1) this additional material is part of what can reasonably be regarded as one publication that includes the material relied on by the plaintiff, and (2) the material relied on by the plaintiff must reasonably be regarded as part of a publication that includes the additional material". (6) The compulsion to plead more than has been forensically chosen will only arise if the only reasonable view that is open is that the selection did not provide the "whole of the context" from which the tribunal of fact, considering the matter from the perspective of an ordinary reasonable reader, would be concerned to determine the meaning of what was published: Obeid at [69]; see also Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 at [19]-[20], [25]-[28]; Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 at [20], [24]; Robinson v Brighton [2007] NSWSC 1125 at [12], [15]-[17]; McFarlane v Nationwide News Pty Ltd [2014] NSWSC 1574 at [9], [12]. 10 The competing arguments presented by the parties constitute an exercise in characterisation and capacity. The respondents draw an analogy between this case and Beran v Fairfax; and a contrast between this case and The Age Corporation Ltd v Beran [2005] NSWCA 289. 11 In Beran v Fairfax it was found (at [56]) that a primary judge's decision to reject a pleading of separate articles was correct because: The manner in which the two articles were presented was such that the ordinary reader would have read them as one publication. They were inseparably linked. Each qualified the other. It was incumbent upon the appellant to include within his pleading every passage which materially altered or qualified the complexion of the imputations of which he complained. It was, in my view, essential in order to discharge that obligation that he pleaded the two articles as one publication. 12 In The Age v Beran, the NSW Court of Appeal distinguished Beran v Fairfax. Hodgson JA observed in The Age v Beran (at [42]-[43]): There may be cases where reasonably-minded people could consider either classification valid, so that it is prima facie open for a plaintiff to plead the parts as individual publications, and also plead their combination as a publication, but nevertheless where this should not be permitted because it introduces confusion and complexities into the case wholly unwarranted by any advantage to the plaintiff, and thus can be considered embarrassing. It is possible that this was the approach taken by Adams J in the Plaintiff's case against John Fairfax, and that McColl JA endorsed this as a further reason for dismissing the appeal. The question then is, is the material as published in The Age such that the only view reasonably open is that this was one publication? In my opinion, plainly not. No part of the second section of The Age material appeared on page 1; and the first section on page 1 did not indicate that what was on page 13 was to be read together with what was on page 1 as part of the same whole. There were none of the indications of unity of the two sections displayed in The Sydney Morning Herald material and referred to earlier. Reasonable readers could well read what appeared on page 1 of The Age and not read what appeared on page 13. In my opinion, this was a case where reasonably-minded people could regard the two sections as separate publications, and could also regard them as part of a whole: that is, they could regard both possible classifications as being valid. 13 Thus, because it was open to Mr Beren to plead the two articles as separate publications, it was open to sue on both separately, or to sue on only one. 14 In urging this Court to adopt the outcome in Beran v Fairfax, rather than the outcome in The Age v Beran, the respondents point to the linkage between the two articles in the former case, comprising photographs, a common banner and a pointer. The asserted linkages and indicia of the Wilson Report being part of a single publication relied upon by the respondents in this case are as follows: (1) The location and layout of the Wilson Report in relation to the first matter complained of, which are said to point overwhelmingly towards a conclusion that the ordinary reasonable reader would have read the Wilson Report together with the other material which makes up the first matter complained of. Particular reliance is placed upon the following features of the Wilson Report: (a) being contained in the same edition of The Daily Telegraph which was published on 3 June 2016; (b) being located on the same page (page 3) and forming part of the same visual and textual "spread" (across pages 2 and 3) as a substantial part of the first matter complained of; (c) being located immediately adjacent to the parts of the first matter complained of on page 3, such that the text of the Wilson Report was bent around the large image of the applicant appearing on that page; (d) featuring the same font and style of text and headline used in relation to the parts of the matter complained of appearing on pages 2 and 3; and (e) being written by Rebecca Wilson, who was the same author and co-author of the parts of the first matter complained of appearing on pages 1, 2 and 3. (2) The words "Full coverage pages 2-5, Sport" and "Full report page 3" appearing on page 1 of the newspaper invited the reader to read the material on page 1 together with the other material appearing on pages 2 and 3, which included the Wilson Report. (3) There is said to be a clear and substantial overlap between the contents and subject matter of the first matter complained of and the Wilson Report, both of which concern the applicant's alleged role in two incidents of suspected match-fixing in 2015 and his sports betting habits and relationships with NRL players more generally. This is said to be conveniently illustrated by comparing: (a) the opening paragraphs of the item titled "Eddie and the Eagles" appearing on page 1, which is sued upon, from the words "The colourful racing identity at the centre of the NRL's match-fixing turmoil ... " to " ... Hayson declared he was down to his last $100 and was boarding in an apartment after the collapse of his brothel business"; with (b) the opening paragraphs of the Wilson Report from the words "Colourful racing identity Eddie Hayson has had a long and chequered history ..." to "An NRL investigation failed to find evidence of wrongdoing". 15 The only substantial additional point taken by the respondents in oral argument, as opposed to developing the above points and elaborating upon the effect of the authorities as largely summarised above, was the fact that the further amended statement of claim expressly relies upon paragraphs numbered "9" and "10" in the article on page 1 entitled "Eddie and the Eagles". The content of those paragraphs cover some of the same subject matter as parts of the Wilson Report, as adverted to at [8] above. Considerable reliance is placed on this by the respondents. The respondents submit that the applicant implicitly acknowledges that subject matter of the kind featured in the Wilson Report is relevant to determining defamatory meaning in the first matter complained of. 16 Mr Hayson's pleaded reliance upon paragraphs numbered "9" and "10" in the article on page 1 entitled "Eddie and the Eagles" is perhaps puzzling. They are relied upon in support of the imputation of match-fixing conduct by Mr Hayson, yet seem, at least at first blush, to do little to advance that imputation. In the end, the reliance on those paragraphs does little to assist in determining the central issue of whether the Wilson Report must be read as part of the first matter complained of. By parity of reasoning, nor does it assist the respondents with regards to the second matter complained of. 17 Mr Hayson takes full advantage of the compulsion to plead additional matters as only arising when the only reasonable view that is open is that what has been pleaded did not provide the "whole of the context" of what has been published. He does not endeavour to argue that the Wilson Report could not be regarded as forming part of the same publication as the first matter complained of, but only that it does not have to be regarded in that way. He submits that the Wilson Report is not capable of affecting the sense of the first matter complained of as pleaded, because it does not operate inexorably to qualify the first matter complained of. In support of these arguments, he points to an alternative way in which to view both the first matter complained of, and the Wilson Report, as follows: (1) The three matters complained of all relate to match fixing, whereas the Wilson Report does not refer to match fixing at all. (2) Neither the placement of the Wilson report in the printed article, nor its hyperlinking in the online version meant that it had to be regarded as part of the same publication as that first (or second) matter complained of - while it might be regarded in that way by a reader, it does not have to be, functioning more in the nature of an optional extra piece of reading, rather than an inextricable component of the first matter complained of. (3) The features relied upon by the respondents (summarised above at [14(1)-(3)] rise no higher than identifying a basis upon which the Wilson report and the first and second matters complained of are capable of being regarded as a single and indivisible publication, not that they must, inexorably, be read in that way. (4) It is incorrect to speak of a significant overlap between the contents of the Wilson Report and the first matter complained of because both refer to Mr Hayson's role in two incidents of match-fixing in 2015, his sports betting habits and his relationship with NRL players more generally, because: (a) the Wilson Report does not refer to match-fixing at all, but only to historical allegations made against him, enabling the Wilson Report to be read separately; (b) the respondents' reliance on the commonality of betting habits and relationships with NRL players is cast at too high a level of generality, which obscures or glosses over material differences requiring, or at least warranting or permitting, them to be read separately - the Wilson Report refers to Mr Hayson being banned from the Star Casino and the use of inside information in relation to a Rugby League game, and to his role in the life of another player, Kieran Foran, whereas the match fixing described in the first and second matters complained of involves specific and quite different allegations of the payment of specific sums of money to fix particular games, involving a specific NRL team and the placement of a specific bet; (c) the analogy with Beran v Fairfax is not well-made because in that case, two sections of the same article had been pleaded separately, such that it is no authority for the effective proposition being relied upon that a pleading can be compelled to strike in a discrete article about relevantly different subject matter. 18 Mr Hayson has the better argument. In substance I accept the submissions that he advances and prefer those to the submissions for the respondents. While there is some cross-over between the Wilson Report and the first matter complained of (and thus the second matter complained of), the similarities only exist at a relatively high level of generality. It may be interesting and even informative for a reader to consider additionally Mr Hayson's past, following the reference to both the current or more recent allegations and the historical allegations in the "Eddie and the Eagles" article on page 1, and indeed the invitation to do so by the arrow and reference to the full report at page 3. But that only serves to highlight the different subject matter being expanded upon in a discrete way. There is no such dual reference in the Wilson Report, which is confined to historic matters that are separate and distinct from the match fixing allegations alleged to constitute defamatory imputations in the first matter complained of (and the second matter complained of). An ordinary reasonable reader would be entitled to either reason in terms of, in effect, "that was then, and this is now", or alternatively, as the respondents urge, to treat it as part of the one story. But the respondents needed to go further; they needed to show that only their latter interpretation was open. Because the former interpretation is available - and in my view is the more compelling way in which to read the Wilson Report - the necessary threshold has not been met by the respondents. 19 The respondents fail to exclude as a reasonable way to read the Wilson Report that it could be regarded as being separate and distinct. Thus, the situation here is much the same as that in The Age v Beran, and in particular the characterisation by Hodgson JA at [43], reproduced at [12] above. 20 If follows that the respondents are not entitled to insist upon the Wilson Report forming any part of the first matter complained of, and cannot be in any better position in relation to the second matter complained of. Their interlocutory application seeking directions to that effect must therefore fail and be dismissed with costs. 21 For completeness, I should indicate that Mr Hayson had an alternative argument based on discretionary considerations to do with delay and pleadings having closed well before this application was brought. Had I been against him on the primary argument, I would have been inclined to accede to this alternative basis for refusing the application, even in the absence of any real prejudice being demonstrated in acceding to the application. There needed to be a compelling reason to permit pleadings to reopen in all the circumstances. None was proffered, at least to my satisfaction, especially given that this application did not turn on anything that was new or that could not have been raised much earlier. 22 The above conclusion is reinforced to some limited extent by the following practical considerations. Soon after this interlocutory application was heard, this proceeding, along with a proceeding by Mr Hayson brought against another publisher involving similar, but not identical issues surrounding match fixing allegations made against Mr Hayson, had hearing dates reserved for the three week period from 9 to 27 September 2019, being dates largely determined by the availability of counsel. I have today made orders separately dismissing an interlocutory application by the respondent in that other proceeding to have the two proceedings heard together, with evidence in one being evidence in the other. The parties in that proceeding did not require reasons in light of what transpired at the interlocutory hearing, including the clear difficulties in having these two proceedings run at the same time, yet needing to keep the issues and determinations separate, with subtle but important differences, and no saving of time to be had. Instead, the two trials, which have the same opposing counsel, but different solicitors for the respective publishers, will be heard consecutively in the same hearing period, a course that suited counsel in both proceedings. This proceeding should proceed to trial, subject only to the question of whether this should precede or follow the other proceeding. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich.