Jarratt v John Fairfax Publications Pty Ltd

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List

20068/00 Jeffrey Thomas JARRATT v JOHN FAIRFAX PUBLICATIONS PTY LTD Judgment

HER HONOUR : 1 The plaintiff claims damages for defamatory imputations he alleges were conveyed by the defendant in three separate publications, dated, respectively, 8 September 1999, 5 October 1999 and 7 February 2000. Each publication was contained in the edition for the relevant day of the Sydney Morning Herald of which (it may be accepted for present purposes) the defendant was the publisher. The plaintiff pleads that he is and was at all material times a Deputy Commissioner of the NSW Police Service and Commander, inter alia, of the Communications Group of that Service. This is a separate trial of preliminary issues raised by the defendant relating to the imputations pleaded on behalf of the plaintiff. The defendant seeks orders striking out the imputations pleaded.

The first matter complained of 2 The Sydney Morning Herald on 8 September 1999 carried three separate items that concerned the plaintiff. The general subject matter was a discussion of a contract for the purchase from a company identified as Motorola Australia of a multi million dollar communication system for use in the Police Service, and allegedly questionable activities and dealings that preceded the execution of the contract. In essence, the items, individually and taken together, suggest, at the very least, that the negotiations relating to the contract were marked by impropriety on the part of some police officers who had responsibility for the acquisition of the communications system. 3 Two of the articles were contained on page 5 of the SMH of that date. The first appeared under a headline "Communication Breakdown", which was followed by another, large, headline "Radio Giant courted our police". Immediately underneath this headline was a summary, or synopsis, line which read: "Top level police manipulated negotiations for a new radio network and were wined and dined at the successful company's expense. Ben Hills reports." 4 The second article, which accompanied the first, appeared over the byline of the same journalist and under the headline: "Top cop Jarratt's highest hurdle" 5 The third article of that day appeared in the Features section, on page 16, again over the byline of the same journalist. This article was headlined: "To curry favour". 6 The synopsis reads: "An internal police investigation has raised serious questions over the awarding of a large communications contract, writes Ben Hills."

A significant amount of the space devoted to this article is taken up with photographs, the captions to two of which identify the plaintiff as the person depicted. 7 The articles are far too lengthy to reproduce here in full. It is, however, necessary to refer to substantial extracts from them. The first opens with two paragraphs in the following terms: "The State's second most powerful police officer has been criticised for a 'serious management failure' in an investigation into an influence-peddling scandal surrounding the purchase of a $27 million communications system crucial to Olympic Games security. Deputy Commissioner Jeffrey Jarratt, right-hand man of Commissioner Peter Ryan, is the most senior of 15 police officers against whom action is recommended in a report into revelations first aired six months ago in the Herald over the commissioning of the new police digital radio network." 8 There follow some paragraphs about the communications system, and the author of the report referred to in the second paragraph is quoted as saying that equipment ordering processes were manipulated by senior officers in favour of one supplier, Motorola Australia. The article goes on: "It [that is, the report] details a four-year campaign in which Motorola spent thousands of dollars and 'targeted' members of the Police Service involved in the tendering process with expensive meals at fashionable restaurants, cruises on Sydney Harbour, golf days and overseas trips. It finds that Jarratt, 50, [the plaintiff] who at the time was in charge of the police communications policy group and who signed off on the Motorola contract, took part in a $98-a-head harbour cruise paid for by Motorola which 'does not show due prudence when dealing with potential suppliers'. It criticises Jarratt's management and recommends his conduct be referred to Commissioner Ryan for action. The report … finds that 'management both at the senior command and supervisory levels has seriously failed the service.' " 9 The article then purports to quote references in the report to the plaintiff, and refers to the extent of his area of responsibility within the Police Service. It proceeds to report what it describes as "the harshest finding", which is said to be against another officer, Acting Chief Superintendent Warren Stanton, and to assert that the report recommends termination of his employment; it asserts that the report found that Stanton manipulated the contract process in Motorola's favour and failed to disclose to investigators meals and trips in the United States and Singapore paid for by Motorola. 10 There are a number of paragraphs which follow which do not need here be outlined or quoted; towards the end of the article it is stated that Stanton recommended that the Motorola tender be accepted. 11 Illustrating this article is what was described as a cartoon, but might equally be described as caricature, which the plaintiff asserts depicts him in a golf cart, and which his senior counsel described as depicting the plaintiff in a golf cart shepherding a ball (which senior counsel asserted should be identified as the Motorola bid for the contract) into the desired position. What interpretation should be placed on the cartoon is ultimately a jury question, but it is capable of being viewed as described. 12 The second part of the 8 September 1999 matter complained of appeared in two columns to the left of that already described. In this item the journalist focuses his attention upon the plaintiff and his previously promising career in the Police Service. He states that: "The betting around police headquarters is that this time it is Jarratt who has to go."

That is followed immediately by: "Not because he is corrupt - all the investigators could discover was a $98-a-head harbour cruise he accepted from Motorola when the communications company was bidding for a lucrative police contract. But he 'did not show due prudence' in schmoozing with a potential supplier of equipment to police, and also showed a 'serious failure' as his management allowed his subordinates to accept much more. He also allowed them to bend the rules to favour a product which ultimately saddled NSW taxpayers with a communications system that cost too much and doesn't work as it should." 13 The article concludes with what might be read as a history of the plaintiff's declining career in the Police Service. 14 The final article of 8 September is that which appeared in the Features section. This is headlined "To curry favour", with a large print synopsis referring to "an internal police investigation" which was alleged to have "raised serious questions over the awarding of a large communications contract". In the body of the article a description is given of a lavish and expensive Indian restaurant at which a lunch was said to have taken place, hosted by an executive of the Motorola company, and at which eight police officers were present as guests. The occasion for the lunch was the celebration of the contract to supply the communications system. A careful reading of the article would show that there is no explicit statement that the plaintiff was among the eight police guests. However, following the description of the lunch, the article contains the following: "Over a period of four years Stanton and his colleagues, including Assistant Commissioner Jeff Jarratt, the second most senior officer in the State, were entertained in lavish style - meals at restaurants such as Five Doors in Surry Hills and Fratelli's in Parramatta; $130-a-head golf days at Riverside Oaks; catered cruises on Sydney Harbour." 15 The next four paragraphs refer in more detail to Superintendent Stanton, concluding with the observation that his dismissal from the Police Service had been recommended. The following then appears: "Jarratt also faces the sack. And another 13 sworn and unsworn officers caught up in the curry-for-contracts caper, face internal disciplinary proceedings and will carry the stain on their records for the rest of their careers." 16 The plaintiff pleads that three defamatory imputations are conveyed by the articles, read in combination. The imputations he pleads are: "4(a) that the Plaintiff so conducted himself in his dealings with Motorola that he deserved to be dismissed from the Police Service; (b) that the Plaintiff was corrupt in accepting inducements from Motorola which was seeking to secure a lucrative contract with the Police Service; (c) that the Plaintiff assisted Motorola to secure a lucrative contract with the Police Service because of the inducements given to him by Motorola." 17 The defendant raises three challenges to the imputations as pleaded. By the first challenge it argues that imputations 4(b) and (c) do not differ in substance and accordingly contravene the requirements of SCR Pt 67 r 11(3). The second challenge concerns the form of the imputation 4(a). The third challenge is that none of the imputations pleaded is capable of arising from the natural and ordinary meaning of the matter complained of.

Whether imputations differ in substance is frequently a matter of judgment and opinion in respect of which reasonable minds may differ. The defendant's argument may be stated simply. It is that, on analysis, imputation 4(b) is an imputation that the plaintiff accepted bribes from Motorola while it was seeking to conclude the contract; and imputation 4(c) is likewise an imputation that the plaintiff accepted bribes during the same time and for the same purpose, and therefore cannot reasonably be differentiated from imputation 4(b). This question may, and probably should, be determined by reference only to the imputations as framed, and without regard to the matter complained of. 18 The plaintiff's argument is that the substantial difference between the two imputations can best be articulated in this way: imputation 4(b) is an imputation that the plaintiff accepted inducements - or bribes - during the relevant period; that these bribes were offered and accepted with a view to having the plaintiff provide assistance to Motorola in its quest for the contract; but that the imputation stops short of accusing the plaintiff of delivering any benefit or assistance to Motorola. Imputation 4(c), on the other hand, is an imputation of a similar arrangement for a similar purpose, but contains the added, important, element that the plaintiff delivered the assistance or benefit to Motorola - that is, that the plaintiff brought to fruition the plan or arrangement identified in imputation 4(b). This is an allegation of completed corrupt conduct, to be contrasted with the first, which is an allegation of corrupt conduct not brought to completion. The accusation contained in the imputation, is on the defendant's argument, therefore different, the plaintiff arguing that the assertion of completed conduct is both different from, and more serious than, the assertion of corruption in accepting bribes absent the assertion of performance of the agreement on his part. 19 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). 20 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. 21 Accordingly, I have come to the view that, while the plaintiff would be entitled (subject to the argument concerning the capacity of the matter complained of to convey the imputations), to go to the jury on imputation 4(c), and, only against the possibility that he might fail in that more serious imputation, as an alternative to go to the jury on imputation 4(b), he should not be permitted to go to the jury on both (other than as alternatives). 22 The plaintiff will have leave to amend the statement of claim (if he wishes) by pleading the two imputations as alternatives. Should he not wish to accept this course, he will have to elect which of the two imputations he wishes to rely upon. 23 The further argument raised in relation to imputation 4(a) was that the imputation as framed is bad in form because it says nothing about the conduct of the plaintiff. A degree of precision or specificity is necessary in the pleading of imputations said to have been conveyed by the matter complained of. One way of testing whether the imputation as pleaded on behalf of the plaintiff correctly captures the act or condition asserted of or attributed to the plaintiff is to consider what the defendant would need to prove if seeking to justify the imputation. I see no difficulty in the way of the defendant should it seek to justify imputation 4(a). Indeed, the imputation is framed so widely that it could potentially give greater scope to the defendant to take that course; (the defendant could, conceivably, seek to justify by proving conduct by the plaintiff quite extraneous to the Motorola dealings, that, nevertheless, warranted his dismissal); but that, of course, is a matter for the plaintiff. 24 If the defendant's complaint is concerned with the inclusion of the words "so conducted himself …", then it seems to me that the complaint is of no moment. An imputation merely that the plaintiff deserved to be dismissed would equally be defamatory, and equally open to justification should the defendant have the appropriate evidence. 25 I reject the complaint that imputation 4(a) is bad in form.

Capacity of the matter complained of to convey any of the imputations. 26 That brings me to the question of most substance in relation to the publication of 8 September 1999. 27 The argument put on behalf of the defendant was, essentially, that, on detailed analysis, it could be seen that the vast bulk of the attack made on members of the Police Service in the three articles was made upon Superintendent Stanton, and little was said about the plaintiff. The most serious allegations levelled at the plaintiff, on the defendant's analysis, were of "serious management failure" and failure of "due prudence". A fair reading of the articles could not reasonably leave the reader with the impression that the plaintiff deserved to be dismissed, or was corrupt, or accepted bribes or inducements. 28 It is true that much of what was said about the plaintiff was concerned with issues relating to management shortcomings. The first part of the first article opens with a statement that the state's second most powerful police officer (obviously the plaintiff) had been criticised for a "serious management failure", and goes on to quote the report as finding that the plaintiff "does not show due prudence when dealing with potential suppliers". 29 In this regard it is of some significance that, included in the second article are the specific words, referrable to the plaintiff: "Not because he is corrupt - all the investigators could discover was a $98-a-head harbour cruise he accepted from Motorola when the communications company was bidding for a lucrative police contract." 30 However, there is rather more than this. Significant among the statements made in the articles is the paragraph in the third article, quoted above, to the effect that the plaintiff and other police officers accepted extravagant entertainment from Motorola, entertainment which went beyond the single harbour cruise mentioned and included meals at at least two different restaurants, expensive golf days and "catered cruises" - that is, in the plural - on Sydney Harbour. 31 Further, senior counsel for the plaintiff relied upon the cartoon accompanying the first of the articles. It was conceded in argument that a jury could identify the individual depicted in the cartoon as the plaintiff. Whether a jury does so in fact remains to be seen. Similarly, whether the cartoon would be perceived by the ordinary reasonable reader as showing the plaintiff shepherding the Motorola golf ball to its desired resting place is a matter properly to be determined by a jury. 32 Senior counsel also relied upon the headline over the third article - "To curry favour" - the double meaning of which emerges from a reading of the article with its extensive reference to the fare at the Indian restaurant at which the police officers were allegedly entertained, but with its obviously more sinister meaning of securing an advantage by underhanded methods. 33 I am satisfied that the ordinary reasonable reader, even one exercising more than usual attention and care in analysing the allegations contained in the articles, could read the articles as conveying each of the imputations pleaded. 34 That disposes of the complaints made in relation to the first matter complained of. 35 Although initially complaint was also made of the imputations pleaded in relation to the second matter complained of, no argument was addressed to those complaints and it is unnecessary further to consider the publication of 5 October 1999.

The third matter complained of 36 The third matter complained of was published on 7 February 2000, also in the Sydney Morning Herald. This is a smaller article, a news item, apparently on page 4. It is headlined: "Jarratt back on track for top job" 37 It opens innocuously enough, with a report that the way is open for the plaintiff again to be regarded as a candidate for the office of Police Commissioner. A reference is made to a finding of the Police Integrity Commission to the effect that the plaintiff had exercised poor judgment in a recommendation he made relating to a promotion within the Police Service, and a similar criticism said to have been made of him by the serving Police Commissioner. 38 The article contains the following: "The Motorola scandal surfaced in a special police inquiry last July, which found that the contract had been 'manipulated' in favour of the American communications giant, which had spent thousands of dollars on cruises, golf days and travel for 15 police, including Mr Jarratt."

A little later the plaintiff is quoted as saying that he had "done nothing wrong" and the author of the article writes: "…and the PIC appears to have agreed with him." 39 The article closes with a spokesman for the Police Minister quoted as saying that, although the inquiry into the Motorola contract was not completed, the report was not expected to contain any finding which would preclude the plaintiff's continued tenure in his current position. 40 The imputations pleaded to have been conveyed by this article are framed as follows: "10(a) that the Plaintiff was guilty of misconduct in accepting Motorola's hospitality whilst it was bidding for a lucrative Police Service contract; (b) that the Plaintiff was corrupt in accepting inducements from Motorola which was seeking to secure a lucrative contract with the Police Service." 41 Th criticisms made of these imputations are also threefold. The defendant first contends that imputation 10(a) lacks specificity in failing to identify the misconduct relied upon; it secondly argues that the two imputations do not differ in substance; and thirdly it claims that neither imputation is capable of arising from the matter complained of. 42 The first argument was a reprise of that advanced in relation to imputation 4(a); for the reasons given in relation to that argument I am satisfied that imputation 10(a) is sufficiently precise. 43 In relation to the difference in substance between the two imputations, I also take a similar view to that which I took in relation to imputations 4(b) and 4(c). During the course of argument I raised this matter with senior counsel, both of whom accepted that imputation 10(b) is properly to be seen as a more serious accusation of conduct otherwise encompassed in imputation 10(a); if imputation 10(b) were found by a jury to be conveyed, then it would be neither necessary nor appropriate for the jury to consider whether imputation 10(a) was conveyed. 44 I therefore grant leave to the plaintiff to amend paragraph 10 of the statement of claim by pleading the imputations in the alternative.

Capacity of the matter complained of to convey the imputations 45 Senior counsel for the defendant argued that there was nothing in the third matter complained of to support the imputation that the plaintiff was corrupt, and that the imputations pleaded overstate the effect of the articles and, again, that the criticism made of the plaintiff related to management decisions, rather than corruption. 46 If it were not for the paragraphs extracted above (para 38) there would be considerable force in the defendant's contentions. However, that paragraph contains a clear suggestion that the plaintiff had been the recipient of extravagant entertainment by Motorola during the course of the negotiations for the contract. 47 In response to the arguments put on behalf of the plaintiff, senior counsel for the defendant contended that a reading of the article in its totality demonstrated a balance, or even a preponderance of statements favourable to the plaintiff and exonerating him of the kind of conduct the plaintiff pleads is attributed to him. 48 Although the article is neither as extensive nor as biting as the earlier articles, I am of the view that a jury would be entitled to find that the paragraph extracted did convey one or other of the imputations pleaded. 49 Accordingly, I decline to strike out the imputations.

Last Modified: 09/26/2000 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.