Keating v Newcastle Newspapers Pty Limited

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20135/00 - ANTHONY KEATING -v- NEWCASTLE NEWSPAPERS PTY LIMITED

1 HIS HONOUR: On 1 August 2000 I gave judgment in respect of an application by the defendant to "strike in" certain material which accompanied the publication about which the plaintiff complains. An amended statement of claim was then filed, incorporating that material. 2 The defendants now attack the imputations relied upon by the plaintiff, claiming either that they do not arise, or that they are bad in form. 3 Anthony Keating (the plaintiff) was endorsed by the ALP as its mayoral candidate at Maitland in the Local Government elections to be held on 11 September 1999. He was a school teacher from Maitland High School. The day before the election an article was published in the Newcastle Herald. It appeared on the front page, under the following headline: "Hunter mayoral candidate defends himself over Schoolgirl sex harass claims " 4 The headline was given great prominence. It occupies perhaps one third of the front page. The article which followed began with these words: "Maitland mayoral candidate Tony Keating has defended himself against NSW Opposition allegations in Parliament yesterday that identified him as a Lower Hunter teacher and mayoral candidate accused of sexually harassing female students. Opposition Upper House Liberal MP Charlie Lynn questioned the Government as to whether an official investigation was being delayed because of the local government elections. Using parliamentary privilege, Mr Lynn said the teacher still had access to female students while the parents of alleged victims had endured a delay in an investigation without proper explanation." 5 The remainder of the article was concerned with the questions asked in parliament by Mr Lynn, and the response of the Minister representing the Minister for Education in the Legislative Council. 6 The material omitted from the original statement of claim, but incorporated into the amended document, included an editorial purporting to condemn the actions of Mr Lynn. It was headed "Grubby Politics", and was in these terms: "State Parliament is sometimes referred to as 'coward's castle' and with good reason. Politicians often use the legal protection of the parliamentary chamber to make unsubstantiated and damaging allegations about community members who have no right of reply. Upper House Liberal MP Charlie Lynn took the use of parliamentary privilege to a new low yesterday when he raised allegations that a Lower Hunter teacher and mayoral candidate had been accused of sexually harassing female students. My Lynn did not name the teacher or the local government area and provided no detail in support of his allegations. But the fact that they were raised only two days before people cast their votes in the local government elections suggests an intent to damage a candidate's chances of winning the mayoral poll. The candidate in question has referred to Mr Lynn's behaviour as 'grubby politics' and all fair-minded people, no matter what their political leanings, would have to agree. By not naming names, Mr Lynn seems to have hoped that the people in the particular local government area would be aware of the allegations and that his question would jog their memories on the eve of the poll. His broad-brush approach, however, carried the risk of damaging a lot more candidates in the Lower Hunter. Four local government areas - Newcastle, Lake Macquarie, Cessnock and Maitland - will elect their mayors by popular vote. There is a total of 29 mayoral candidates in the four areas. Most voters would be unaware of the occupations of each of the candidates in their area, so Mr Lynn's approach could cast an unwarranted shadow over more than one candidate. The allegations Mr Lynn raised are not new. They were put to this newspaper a month ago and we made inquiries about them. The inquiries revealed that the allegations were being investigated by the Education Department. We duly noted, in a brief two-paragraph report, that allegations against a Hunter teacher of sexual misconduct were under investigation. That put the matter on the public record, without putting a stain on an individual's name. Mr Lynn's reference to the allegations, on the other hand, was designed to hurt. It was the dirtiest of politics because his wording carried an implication that completion of the inquiries had been delayed because the teacher in question was standing for public office. The Newcastle Herald has published the name of the man against whom the allegations have been made. We did that because it gave him a chance to defend himself and to respond to Mr Lynn's cowardly attack. Mr Lynn used parliamentary privilege to attack the candidate because he knew the man had no right of reply. His action deserves condemnation as gutter politics of the dirtiest kind." 7 The imputations said by the plaintiff to arise from the publication are as follows: "(a) The Plaintiff being a school teacher was guilty of sexually harassing female students; (b) The Plaintiff so conducted himself as a school teacher as to warrant an official investigation into allegations that he sexually harassed female students; (c) The Plaintiff as a school teacher should not have been entrusted with access to female students; (d) The Plaintiff so conducted himself that he should not have been entrusted with access to female students while under investigation for sexual misconduct; (e) The Plaintiff being a school teacher was guilty of sexual misconduct with female students; (f) The Plaintiff so conducted himself as a school teacher as to warrant an official investigation into allegations of sexual misconduct with female students. (g) The Plaintiff abused his position of trust as a teacher; (h) The Plaintiff so conducted himself as to warrant an investigation into allegations that he abused his position of trust as teacher."

Allegations of Guilt 8 The defendant contends that the publication is incapable of giving rise to imputations (a), (c), (e) and (g) because they impute guilt to the plaintiff. The defendant says that the article, at its highest, gives rise to a suspicion of guilt. The cornerstone of that argument is, of course, the judgment of Mason J in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300/301. 9 In support of its contention, the defendant drew attention to a number of matters. First, the test is one of reasonableness. It assumes the reader has examined the whole publication, and is a person not avid for scandal. An imputation of guilt, in the context of an investigation which has not yet concluded, could only be the consequence of prejudice. It is, therefore, not to be attributed to the ordinary reasonable reader (see Harrison per Mason J at 301). 10 Secondly, in Mr Keating's case, on the defendant's argument, the position is even stronger than it was in Harrison. The case of Harrison concerned a police investigation, and a criminal charge. Here the publication was concerned with allegations by a student, and a Departmental investigation. The ordinary reasonable reader, in that context, would be even less ready to infer guilt. 11 Thirdly, the defendant points to the inclusion of material which, it suggests, directly contradicts the notion of guilt. The allegations are denied by Mr Keating. Their revelation had been made with an obvious political motivation, which the editorial roundly condemns. 12 The plaintiff responded by drawing attention to the terms of the article, and its sensational presentation. It went well beyond the mere reporting of an arrest and charge. 13 The principle in Harrison has been considered in a number of authorities. In Rigby v John Fairfax Group Pty Limited (unreported, C of A, 1 February 1996), Kirby P said this (referring to "the fact of arrest and charge": (at 3) "To the extent that the publisher goes beyond such a factual report, it permits a finding that the imputation of its publication is not just that the accused has been arrested and is a suspect but that he or she is also guilty of the offence charged. The more melodrama and sensation, or prejudicial comment, in a news report, the more ready will the court be to permit the plaintiff to plead an imputation of guilt." 14 Priestley JA, made the following comment, referring to aspects of the judgment of Mason J in the Harrison case: (at 8) "The first, second and third portions italicised show how careful Mason J was to make clear that what he was saying applied to a publication which stated only that a person had been arrested and charged and no more . A publication so limited could not in his opinion impute guilt." 15 See also Dunsec Pty Limited v Nationwide News Pty Limited [2000] NSWCA 155, per Mason P (paras 17 to 20); cf Levine J Brogan v Brammer [2000] NSWSC 613. 16 Here, I believe that the article is capable of imputing guilt. It goes well beyond the mere reporting of a person being charged with misconduct, and being under investigation. 17 First, the allegations are displayed in a sensational way. As mentioned, the headline occupies one third of the front page, treatment more appropriate to a matter of national importance than the subject of the article. 18 Secondly, the article repeats a number of times (including in the minor headline, which is given some prominence) that Mr Keating had defended himself against the claims of sexual harassment made by a number of students. 19 Thirdly, there are a number of references to the Departmental investigation being delayed. The article reports the suggestion that such delay is politically inspired, implying that revelations are likely which will damage Mr Keating politically, and harm his chances of being elected Mayor. 20 Fourthly, even the terms of the editorial, which purport to condemn Mr Lynn MP (who raised the issues in Parliament), underline the gravity of what is being suggested. It speaks of the stain on a person's character arising from the allegations. The newspaper claimed that it was giving Mr Keating the chance to defend himself. 21 I believe that, subject to questions of form, these imputations should go to the jury.

Objections to Form 22 Objection is taken to imputation (b) upon the basis that it does not specify the conduct. By employing the phrase, "so conducted himself", it introduces uncertainty (cf Levine J Lawson v Hadley (unreported, 9 August 1999) at p3). 23 I agree that the phrase, "so conducted himself", is unfortunate, and that the imputation would be better expressed as follows: "(b) The plaintiff's conduct as a school teacher warranted an official investigation into allegations that he sexually harassed female students." 24 So expressed, I believe it is sufficiently precise. The plaintiff should have leave to re-plead. 25 Imputation (c) is objected to on much the same basis. It does not state, according to the defendant, the act or condition attributed to the plaintiff. Again, I think there is some force in that complaint. It would be acceptable, in my view, if the matter were re-pleaded along the following lines: "(c) The plaintiff's conduct as a school teacher was such that he should not be entrusted with female students." 26 Even more simply, the imputation may be expressed as: "The plaintiff should not be entrusted with the teaching of female students." 27 The plaintiff has liberty to re-plead. 28 Imputation (d) is objected to on a number of bases. First, as with imputation (c), the defendant contends that it does not specify an act or condition. Secondly, the imputation uses the phrase, "so conducted himself", which adds to the uncertainty. Thirdly, it is said to be a rolled up imputation. It contains two concepts, namely, being entrusted with access to female students, and being under investigation for sexual misconduct. The defendant may wish to justify one and not the other. 29 I am not persuaded by these objections, although, in my view, the wording of the imputation would be improved by replacing the phrase, "so conducted himself", with something more direct (such as, "the plaintiff's conduct was such that …"), and by changing the tense of the verb from "should not have been" to "should not be". The plaintiff has liberty to re-plead. 30 Objection is also taken to imputation (f) upon the basis that it incorporates the phrase, "so conducted himself" (and is therefore imprecise), and, in any event, does not differ in substance from imputation (b). In my view the imputation does not differ in substance from (b). It therefore should not go to the jury. 31 Objection is taken to imputation (h) which, for convenience, I repeat: "(h) The Plaintiff so conducted himself as to warrant an investigation into allegations that he abused his position of trust as teacher." 32 First, it is said that the material is incapable of giving rise to that meaning. There is no reference in the publication to the plaintiff having abused his position of trust as a teacher. 33 Secondly, the defendant also draws attention to the use of the phrase "so conducted himself", which, it says, adds to the uncertainty. 34 Thirdly, it is said that the imputation does not differ in substance from imputations (b), (d) and (f). I do not believe, however, that there is substance in these objections. Again, the imputation would be more clear, in my opinion, if introduced by the words, "the plaintiff's conduct warranted an investigation …". The plaintiff should have liberty to re-plead.

Objections that the Imputations do not Differ in Substance 35 The defendant asserted that certain imputations did not differ in substance from other imputations which have been pleaded. I have dealt with one such objection already. 36 The defendant contended that imputations (c) and (g) did not differ in substance. However, I believe that they do. Imputation (c) refers to the future. The plaintiff, by his conduct, should not be trusted with female students. Imputation (g) uses the word "abused" (which I take to mean "had abused"), dealing with the past, and the suggestion that he was guilty of sexual misconduct and harassment, abusing the trust he enjoyed as a teacher. 37 The defendant also contended that imputations (a) and (e) did not differ in substance. The article, on the front page, both in the headline and the text, refers to "sexual harassment" (lines 3 and 12). The statement attributed to Mr Keating (page 2, line 8) denies "impropriety" inside and outside the classroom. The Departmental spokeswoman refers to investigation into allegations of "improper conduct". With some hesitation, I believe the article is capable of giving rise to both imputations and that they do differ in substance.

Orders 38 The orders appropriate, therefore, are as follows:

1. Imputations (a), (e) and (g) should go to the jury.

2. Imputations (b), (c), (d) and (h) should go to the jury, although the plaintiff should have liberty to re-plead.

4. Balancing wins and losses, I believe the appropriate order is that the defendant should pay 75% of the plaintiff's costs. **********

Last Modified: 03/08/2001 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.