Hughes v Bulldogs Rugby League Club Limited

District Court of NSW|2009-04-24|Before: Nicholas J

CITATION: Hughes v Bulldogs Rugby League Club Limited [2009] NSWDC 102

HEARING DATE(S): 24 April 2009 EX TEMPORE JUDGMENT DATE : 24 April 2009

(1) On the application of the plaintiff (the defendant neither consenting nor opposing), the plaintiff is granted leave to commence proceedings out of time in relation to the first matter complained of. (2) The limitation period is extended to 14 November 2008 in respect to the first matter complained of pursuant to s 56A Limitation Act 1969 (NSW). (3) Plaintiff's Notice of Motion filed 6 February 2009 dismissed with costs reserved. (4) Strike out imputations 6(a) and (f) as not differing in substance with leave to replead. (5) Imputations 6(d) and 9(c) will go to the jury. DECISION: (6) Strike out the words "unfairly" in imputation 6(e) and grant liberty to replead the imputation. (7) Note the defendant abandons objections to imputation 6(g). (8) Grant the plaintiff leave to replead imputations 16(a) and (f) (9) The plaintiff pay 2/3 of the defendant's costs. (10) Gibson DCJ to email reasons for decision to the parties today. (11) Plaintiff's amended statement of claim in 14 days. (12) Matter stood over for further directions to Friday 15 May 2009 at 9:00am.

CATCHWORDS: Tort - defamation - "ridiculous light" imputations

LEGISLATION CITED: Defamation Act 2005 (NSW) Limitation Act 1969 (NSW), s 56A

Berkoff v Burchill & Anor [1996] 4 All ER 1008 Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 CASES CITED: Mundine v Brown (Supreme Court of New South Wales, Nicholas J, 14 April 2009, unreported) Palmer v Bradshaw (Supreme Court of Western Australia, Master Bredmeyer, 27 September 1991) Robertson v John Fairfax Publications Pty Ltd [2003] NSWSC 473 Rodgers v Nine Network Australia Pty Ltd [2007] NSWDC 180 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

TEXTS CITED: Tobin & Sexton, Australian Defamation Law & Practice

Plaintiff: Graeme Hughes PARTIES: First Defendant: Bulldogs Rugby League Club Limited Second Defendant: Malcolm Noad

COUNSEL: Plaintiff: Mr A T S Dawson Defendants: Mr M F Richardson

SOLICITORS: Plaintiff: Berry Buddle Wilkins, Solicitors Defendants: Banki Haddock Fiora

[1] The plaintiff brings proceedings for defamation pursuant to the Defamation Act 2005 (NSW) for three publications.

[2] On 13 March 2006 the second defendant, the Chief Executive Officer of the first defendant, instructed the first defendant's media manager to send an email to Mr Ray Hadley, a journalist, and other media outlets. The text is set out in Schedule "A" to this judgment.

[3] The plaintiff pleads that this publication gives rise to the following imputations: (a) he humiliated himself by engaging in a drunken rant in a public restaurant; (b) he is, as a radio broadcaster, disloyal to his radio station and his listeners; (c) he is disloyal to his club, the Canterbury Bulldogs Club; (d) he is ridiculously arrogant in that he believes John Singleton will replace Ray Hadley with him to call rugby league on 2GB radio; (e) he was arrogantly and unfairly critical of the NRL and David Gallop; (f) he became so drunk at a public restaurant that he engaged in loud and indiscriminating abuse; (g) he is so arrogant that he thinks he could run the Canterbury Club and the NRL better than the incumbent chief executives. The republication of the first matter complained of

[4] On 13 March 2006 Mr Hadley republished the first matter complained of by publishing on radio the words set out in Schedule "B" to this judgment.

[5] The plaintiff pleads that this publication gives rise to the following imputations: (a) he humiliated himself by engaging in a drunken rant in a public restaurant; (b) he is, as a radio broadcaster, disloyal to his radio station and his listeners; (c) he is ridiculously arrogant in that he believes that John Singleton will replace Ray Hadley with him to call rugby leagues on 2GB radio; (d) he is disloyal to his club. The second matter complained of

[6] On or about 10 February the first defendant posted the words set out in Schedule "C" to this judgment onto a website known as "The Kennel Website", a website used by supporters of the Bulldogs.

[7] The plaintiff pleads that this publication gives rise to the following imputations: (a) he has failed in financial obligations to the co-stars of his radio programme on 2SM; (b) he greedily required a fee of $50,000 to be paid to him personally to participate in a fundraising event for charity; (c) he cannot be trusted to conduct himself appropriately as a director of the Bulldogs; (d) he is disloyal and disrespectful to his own club and its history; (e) he does not have any integrity or credibility; (f) his conduct as a radio broadcaster is questionable. [8] An application for leave to commence proceedings out of time in relation to the first matter complained of and republication was brought and has not been opposed by the defendants. The application before me today is an argument concerning the form and capacity of certain of the imputations. After hearing argument in the Defamation List this morning, I made the following orders: "(1) On the application of the plaintiff (the defendant neither consenting nor opposing), the plaintiff is granted leave to commence proceedings out of time in relation to the first matter complained of. (2) The limitation period is extended to 14 November 2008 in respect to the first matter complained of pursuant to s 56A Limitation Act 1969 (NSW). (3) Plaintiff's Notice of Motion filed 6 February 2009 dismissed with costs reserved. (4) Strike out imputations 6(a) and (f) as not differing in substance with leave to replead. (5) Imputations 6(d) and 9(c) will go to the jury. (6) Strike out the words "unfairly" in imputation 6(e) and grant liberty to replead the imputation. (7) Note the defendant abandons objections to imputation 6(g). (8) Grant the plaintiff leave to replead imputations 16(a) and (f) (9) The plaintiff pay 2/3 of the defendant's costs. (10) Gibson DCJ to email reasons for decision to the parties today. (11) Plaintiff's amended statement of claim in 14 days. (12) Matter stood over for further directions to Friday 15 May 2009 at 9:00am." [9] These are my reasons for judgment in relation to orders (4)-(6) above, which the parties agreed I could email to them rather than have the delay of waiting for the draft of an ex tempore judgment from our overworked Court Reporting staff.

[10] The defendant complains that imputations (a) and (f) do not differ in substance. They arise from the same portion of the publication (lines 3 - 6); the phrases "drunken rant" and "drunk…loud and indiscriminate abuse" are identical acts and the reference to "humiliated" in (a) is only a gloss, given that both imputations refer to this conduct being in "a public restaurant".

[11] The plaintiff contends that the concept of humiliation is enough for there to be a difference between the two.

[12] However, I cannot see that the conduct in (a) is humiliating while the conduct in (f) is not. If the plaintiff wants to argue that the matter complained of infers humiliation, that can be considered in the repleaded imputation. Although Mr Dawson advised me that the Supreme Court permits overlapping imputations (as, for example, in a recent decision in Mundine v Brown (Supreme Court of New South Wales, Nicholas J, 14 April 2009, unreported)), this is a submission of limited assistance because these two imputations are identical. In Mundine the imputations were that the plaintiff was incompetent as a mental health worker while the other was not that she was incompetent, but did not perform her job in a proper fashion. These are two quite different concepts, although overlapping in the sense that they related to the performance of the plaintiff's job as a health worker in the Aboriginal community. That is not the case here. Imputations (a) and (f) do not differ in substance, and I will strike both out, with leave to replead.

[13] I will allow imputation 6(d) for the same reason as imputation 9(c), for the reasons set out in the section of this judgment relating to the challenges to the imputations in the republication.

[14] Imputation 6(e) says that the plaintiff was "arrogantly and unfairly" critical of the NRL and David Gallop. Counsel for the plaintiff conceded that this was rolled-up, but submitted that this was what the article actually said and that the rolled-up imputation should be permitted.

[15] The use of "fair" and "unfair" in imputations has been considered in a number of decisions, commencing with Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 73 and including Robertson v John Fairfax Publications Pty Ltd [2003] NSWSC 473 where Simpson J allowed one such imputation which connoted deceptive business practices while striking out another where the meaning was unclear. The question is whether the publication is capable of carrying an imputation of unfairness, as I noted in Rodgers v Nine Network Australia Pty Ltd [2007] NSWDC 180, and that is the problem the plaintiff has here.

[16] The trouble is that beyond stating the plaintiff said the NRL and David Gallop "weak as piss", the matter complained of just says that the plaintiff "went on" about the salary cap, the judiciary and refereeing, saying he could do a better job than Gallop. Mr Dawson was unable to explain to me what would be "unfair" about "going on" about such topics. While the test for imputations on a strike-out application presents a very low bar, an imputation of "unfair" conduct is hopeless, and I strike out the word "unfairly" with leave to replead imputation 6(e).

[17] The defendant abandoned objections to imputation 6(g) and this imputation will go to the jury, as will the other imputations (subject to any objections to the repleaded imputations).

[18] Counsel for both parties agreed that these imputations stood or fell together (Palmer v Bradshaw (Supreme Court of Western Australia, Master Bredmeyer, 27 September 1991); see also Australian Defamation Law & Practice [51,120]), so it is convenient for me to deal with them at the same time.

[19] The problem identified by the defendant is the word "ridiculously". The plaintiff, however, submits that this word is necessary to distill the mocking tone of the whole of each publication.

[20] There are plenty of examples of mockery in each publication. Looking at the first publication, the author says that he and his companion "had to stop ourselves from laughing" at the plaintiff's conduct. He goes on to list what the plaintiff has done in a sneering way (noting it was "very entertaining" and that he stayed to have an extra coffee "to keep hearing his barrage" of "colourful language" and concludes "Graham is a legend! If we catch him again at the casino I'll give you a heads up".

[21] The second publication refers to the "entertaining" contents of the email, noting that the author of it and his companion "had to stop ourselves from laughing". Mr Hadley went on to say he didn't think the plaintiff would be taking over his job calling the football because if Mr Hadley ever decided to call it a day he would be getting Andrew Moore, a much more talented person, to take over.

[22] Each of these imputations is a "ridiculous light" imputation; in other words, the plaintiff seeks to distil a meaning that the conduct attributed to him makes him look ridiculous.

[23] The famous phrase "hatred, ridicule and contempt" received insightful analysis by the Court of Appeal in Berkoff v Burchill & Anor [1996] 4 All ER 1008 where the plaintiff, a famous actor, sued a newspaper when a journalist said he was "hideously ugly". The Court of Appeal held, by majority, that insults which did not diminish a person's standing might not found an action for defamation, but words were capable of being defamatory if they held the plaintiff up to scorn, contempt or ridicule even if they did not impute disgraceful conduct, lack of skill or other identifiable wrongdoing.

[24] A number of cases on "ridiculous light" imputations, including the landmark Australian decision of Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, are about football playing, but this is coincidental. If ridicule is there, the test is whether the ridicule is such that none of its contents can be taken seriously and thus no imputation (including no imputation of ridicule) could be made. In Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 the plaintiff sued over a satirical article imputing, in the manner of a learned treatise, whether the plaintiff's lack of success as a prominent football coach resulted from an inadequate upbringing and early childhood traumas such as being enrolled in a child care centre by his mother (hence the heading "Coleman's mother blamed for Souths' disastrous year"). In striking out the actions brought by Mr Coleman and his mother, Levine J considered (at [25]) that neither the plaintiff, nor his mother, could point to imputations which an ordinary reader would consider disparaging.

[25] However, that is not the case here. Each publication is presented in such a way that the plaintiff is not merely portrayed as being arrogant for thinking John Singleton will give him Ray Hadley's job, but ridiculously and embarrassingly arrogant.

[27] In the course of argument Mr Dawson sought leave to replead the two imputations objected to (16(a) and (f)).

[28] As the defendant was successful in relation to a number of the issues, I order the plaintiff pay two thirds of the defendant's costs.

(1) On the application of the plaintiff (the defendant neither consenting nor opposing), the plaintiff is granted leave to commence proceedings out of time in relation to the first matter complained of. (2) The limitation period is extended to 14 November 2008 in respect to the first matter complained of pursuant to s 56A Limitation Act 1969 (NSW). (3) Plaintiff's Notice of Motion filed 6 February 2009 dismissed with costs reserved. (4) Strike out imputations 6(a) and (f) as not differing in substance with leave to replead. (5) Imputations 6(d) and 9(c) will go to the jury. (6) Strike out the words "unfairly" in imputation 6(e) and grant liberty to replead the imputation. (7) Note the defendant abandons objections to imputation 6(g). (8) Grant the plaintiff leave to replead imputations 16(a) and (f) (9) The plaintiff pay 2/3 of the defendant's costs. (10) Gibson DCJ to email reasons for decision to the parties today. (11) Plaintiff's amended statement of claim in 14 days. (12) Matter stood over for further directions to Friday 15 May 2009 at 9:00am.

I was having dinner at Star City on the weekend and noticed that former Canterbury player Graham Hughes was at the table behind me. He was having dinner with two other men who I didn't recognise. They were all hitting the wines pretty hard and their conversation was getting louder and louder. Graham was pretty shitty and was bagging everyone. It was very entertaining and we stayed around and had an extra coffee just to keep hearing his barrage.

He was having a go about being stuck at "a lowbrow radio station with no talent cohosts", I don't which one, and that they had "inbred listeners". We had to stop ourselves from laughing. He then went on about Ray Hadley and how he has no credibility as a rugby league caller because he hasn't played footy. He said that he had spoken to John Singleton about doing league on 2GB and that it would only be a matter of time.

Graham than ripped into everyone at the Canterbury club. The colourful language was flying. He reckons Steve Folkes is past his time as a coach and has no control over the players. he said he was overated as a player and is overated as a coach. He thinks that George Peponis is a "halfwit, who bumbles along and that the Canterbury boss Malcolm Noad is the worst thing that has happened to the club and he would do everything he could to get rid of him. He says that the club would be better to have him as CEO and that he would do a mass cleanout.

He then had a go at the NRL and David Gallop. He called them "weak as piss" and went on about the salary cap, the judiciary and referreeing. He reckons he could do a better job than Gallop.

If we catch him again at the casino I'll give you a heads up.

I've got a most bizarre email from one of my listeners who writes to me from time to time and I believe him. He says a friend of mine sent this email through about a fellow at Star City Casino and I won't name the fellow because I can't verify it yet but I suspect it might be right, having a go at you. The fellow says that I was having dinner at Star City Casino on the weekend and he names the person who is now involved in the media was having dinner with two other men who I didn't recognise. They were all hitting the wines pretty hard and their conversation was getting louder and louder. This particular person was giving it to everyone. It was entertaining stuff. We stayed around and had an extra coffee just to keep hearing the barrage. He spoke about working at a 'low brow' radio station with no talent co-hosts apparently, I don't know who that would be referring to, we had to stop ourselves from laughing and then he went on to talk about Ray Hadley and how he has no credibility as a rugby league caller because he hasn't actually played the game, despite the fact I am celebrating my 20th year doing it. He said that he had spoken to John Singleton about doing league on 2GB and that it would only be a matter of time. Then he ripped into a particular club that he has had an association with, talking about the coach and talking about the Chief Executive and the Chairman. Oh dear. I guess I'll be able to ascertain whether this is correct or not by making a couple of phone calls but, ah, I don't think he will be working here calling the football because if I ever decide to call it a day it will be Andrew Moore who will be doing it who is a much talented caller and much more talented than the mentioned, er, man mentioned in the email.

Is this the man you want on the Board of Directors of the Canterbury Bulldogs:

He is backed by Gary McIntyre, the man who ruined this great club in 2002 by rorting the salary cap.

Graeme Hughes runs a radio program on 2SM where he gets paid but his co-stars don't and then they get sacked when they complain - just ask Jimmy Smith and Paul Langmack. We don't need a questionable director.

Graeme Hughes asks for $50,000 to run a fundraising event for a rugby league charity organization, the Men Of League, when other former footballers help the Men Of League for free. He is only interested in himself.

Graeme Hughes is being sued for defamation for comments he made about Dr George Peponis and Malcolm Noad. We can't have a director who would shoot off at the mouth and the Bulldogs are then held liable.

Graeme Hughes bagged the late Peter Moore when he was in charge of the Bulldogs and then tried to make good to Mr Moore's wife after he had passed away. He need directors who are respectful of our past.

When asked in 2002 to come on board and help the club after the salary cap scandal Graeme Hughes said no. He is not interested in helping the Bulldogs.

We need a board that has integrity and credibility. Graeme Hughes has neither.

We are at a time when the Bulldogs need stability and less controversy. Graeme Hughes creates controversy and only wants to see his name in the newspapers.

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.

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