Solicitors:
Mark O'Brien Legal (Plaintiff)
M&K Lawyers Group Pty Ltd (Defendants
File Number(s): 2016/169831
[2]
Judgment
HER HONOUR: These are proceedings for defamation commenced by Mr Paul Jordan arising out of a publication in The Sunday Telegraph and in the on-line version of that newspaper. The proceedings are before the Court today for the first listing as contemplated by the Defamation List Practice Note SC CL 4.
The defendants object to each of the imputations pleaded by the plaintiff on the grounds that they are not reasonably capable of being carried by the matters complained of. It is accepted that my rulings in respect of the first matter complained of would govern the objections as to the second matter complained of. In accordance with the usual procedure in this list, the determination of those objections will stand as the determination of a separate question in the proceedings.
The article appeared under the headline "Beirut bungle" with the subheading "Hart link in botched kid snatch". The way in which the matter complained of has been pleaded brings together a collection of related material spread over two pages of the newspaper but the primary focus of the attention on the plaintiff as argued in the defamation list today is on the column on the left hand side appearing under the two headlines I have identified, together with a further piece at the bottom of that page under the headline "journalists' lavish retreat from a botched operation".
The article relates to a well-publicised attempt by a mother to recover her children after they were kept in Lebanon by their father, according to the matters complained of, contrary to his agreement to return them to the mother after a holiday in that country. The attempt appears, from material that has been in the public arena since those events, to have been conducted at least with the co-operation of the 60 Minutes programme and possibly as a result of events organised by the producers of that programme. The events received broad publicity throughout Australia with a surprising degree of focus on the fate of the journalists and other agents involved at the expense of attention on the tragic circumstance of the mother of the children, who it appears is now precluded from seeing them at all.
The article, as the headline suggests, reported a link between those events and a company described as "Australian based security company Hart International" which the article contends was employed by Channel 9 in Lebanon in relation to the events resulting in the "botched kid-snatch", as it was described.
The argument proceeded by reference to proposed amended imputations specified by the plaintiff in respect of the first matter complained of, as follows:
1. The plaintiff, as General Manager of Hart International, directed at least two Hart Employees to commit the crime of conspiring to kidnap two children;
1. (ai) (in the alternative to (a)) The plaintiff, as General Manager of Hart International, acted with gross negligence in that he failed to prevent operatives employed by that company from committing the crime of conspiring to kidnap two children;
1. The plaintiff, as General Manager of Hart International, directed at least two Hart Employees to commit the crime of assault;
1. (bi) (in the alternative to (b)) The plaintiff, as General Manager of Hart International, acted with gross negligence in that he failed to prevent operatives employed by that company from committing the crime of assault;
1. The plaintiff, as General Manager of Hart International, directed at least two Hart Employees to commit the crime of kidnapping two children;
1. (in the alternative to (c)) The plaintiff, as General Manager of Hart International, acted with gross negligence in that he failed to prevent operatives employed by that company from committing the crime of kidnapping two children;
1. The plaintiff was General Manager of a security contracting company which employed an operative to assist in the kidnapping of two children from the care of their grandmother and nanny;
2. The plaintiff was General Manager of a security contracting company which had two operatives detained in Lebanon on kidnapping, assault and conspiracy charges.
The principles which govern the determination of an application for a ruling that an imputation is not reasonably capable of being carried by allegedly defamatory matter are well known. The Court of Appeal recently had an occasion to analyse those principles in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227. The main judgment in that case was written by McColl JA; Bathurst CJ agreeing with her Honour's analysis of the legal principles (at [1]; his Honour dissented as to her Honour's conclusion in respect of one of the imputations); Gleeson JA agreeing with McColl JA's reasons and conclusions at [191].
The passage in which the relevant principles were analysed by McColl JA appears at [132] to [138] of the judgment. Her Honour there emphasised the great caution a trial judge should exercise in determining that an imputation is not reasonably capable of being conveyed by allegedly defamatory matter.
The key principle is probably that recorded at [135] and [136] of the judgment, as follows:
135 Accordingly, the capacity determination is "an exercise in generosity not parsimony"; while it involves a "matter of impression ... the impression is not of what the words mean but of what a jury could sensibly think they meant": Berezovsky (at [16]) per Sedley LJ delivering the judgment of the court. Implicit in Sedley LJ's observation, is that the question of course is "what a jury could sensibly think [the words] meant" to the ordinary reasonable reader.
136 One reason "great caution" is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that "no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be 'perverse' for any jury to do so'": Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 89 ("Jameel") (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing).
The reference in those paragraphs to the capacity determination being "an exercise in generosity" is derived from a decision of the English Court of Appeal in Berezovsky v Forbes. [1] Unusually, that was a case in which the capacity determination was raised by the defendant's Lucas-Box meanings; even more unusually, the argument centred on the contention that the matter complained of was not reasonably capable of conveying the less serious meanings pleaded in the Lucas-Box defence as opposed to the higher, more direct meanings that had been specified by the plaintiff.
I have previously remarked that I would understand the term "generosity" in that context and where cited by McColl JA in Corby not to be an invitation to the judge making a capacity determination to allow an imputation to stand out of feelings of kindness or sympathy but rather to describe in a different way the extreme caution which must be taken in determining that an imputation will not go to the jury. As McColl JA emphasised in Corby, the focus should be on the fact that such a decision deprives a plaintiff of the opportunity to present his case to the tribunal of fact which has a constitutional role as the tribunal of fact: see Corby at [137].
Paying due regard to the high test that a defendant must meet before having an imputation taken from the jury in accordance with those principles, I have concluded that imputations 5(a) to 5(c)(i) are simply not reasonably capable of being conveyed by the matters complained of. I have reached that conclusion with some hesitation, having regard to the principles I have just summarised. My reasons for reaching that conclusion are as follows.
I accept, as submitted on behalf of the plaintiff, that although the matter complained of reports the plaintiff as having denied that Hart International had any involvement in the actual events of the so-called "kid snatch" (as opposed to its aftermath), the matter complained of is reasonably capable of conveying the impression that an employee or employees of Hart International were present at the time of the actual snatching and were detained by authorities in association with that event.
The difficulty I see is that the matter complained of is, in my respectful opinion, wholly incapable of attributing to the plaintiff any prior knowledge of or direction or control over the events as they unfolded. That was my initial impression and I have confirmed it during the luncheon adjournment by re-reading the matter complained of more carefully and with an approach of what I understand to be the notion of generosity referred to by the English Court of Appeal in Berezovski. In my view, the matter complained of is simply incapable of attributing Mr Jordan with being the directing mind or hand of the events reported.
The article does, as I have indicated, contain statements reasonably capable of giving the impression that Hart International had an involvement in the events but not as the directing mind of the incident. Whilst it is not appropriate for me to attempt to indicate any way in which the imputations might be re-drafted, by way of explanation of my reasons for reaching the conclusion I have, I would indicate that the matter seems to me to convey a sense more along the lines of that captured in the imputations upheld by the Court of Appeal in Amalgamated Television v Marsden (1998) 43 NSWLR 158, that is, some notion that Mr Jordan bore a responsibility for the events that in fact unfolded, perhaps on the basis that he allowed his employees to participate in the undertaking or failed to take further steps to learn the nature of the operation or prevent their involvement. I am, to a degree, thinking aloud in those last remarks; as already indicated, I am not purporting to indicate any imputation that should be pleaded or would be allowed but rather to explain what seem to me to be the outer limits of defamatory meaning of the matter complained of.
There is no doubt, however, that the matter complained of is capable of conveying defamatory meanings about Mr Jordan. The plaintiff should have leave to re-plead but I have concluded, with some reservation, that imputations 5(a) to 5(c)(i) are simply not reasonably capable of being carried and will not go to the jury.
Imputations 5(e) and 5(f) are in a different category. Those imputations seem to me adequately to capture the kind of defamatory sting conveyed by the matter complained of and in my view are reasonably capable of arising.
For those reasons, the rulings and orders are:
1. Imputations 5(a) to 5(c)(i) will not go to the jury.
2. Imputations 5(e) and 5(f) will go to the jury.
3. The plaintiff has leave to re-plead.
4. That the plaintiff pay half the defendants' costs of the argument.
[3]
Endnote
[2001] EWCA Civ 1251
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Decision last updated: 04 August 2016