Kermode v John Fairfax Publications

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Wednesday 8 March 2000 20110/97 REGINALD KERMODE v JOHN FAIRFAX PUBLICATIONS PTY LTD

1 HIS HONOUR: This is an application made by the defendant addressed to two imputations in an amended statement of claim. 2 Reginald Kermode is seeking to recover damages for defamation from John Fairfax Publications Pty Limited, and his claim allegedly arises from an article in the Sun Herald dated 18 August 1996. 3 The matter complained of contains the heading "Like a wounded bull" and under that heading there is a photograph with the caption "Hip pocket charge: Reg Kermode (inset) and taxi commuters at the Kings Cross rank". There is an inset photograph purporting to be that of the plaintiff in the top left hand corner of the photo of the taxi commuters. Beside and under the photograph I have described, the matter complained of reads: "Reginald Kermode is chairman and managing director of Taxis Combined, Sydney's biggest fleet of cabs. Kermode is also a member of the board of directors of Cabcharge Australia Pty Ltd, the country's fastest-growing cab credit card company. And the many-hatted Kermode is president of the Taxi Council of NSW, the peak body representing the taxi industry. Conveniently, the Taxi Council is located in the same building as Cabcharge Australia in Riley Street, Surry Hills. The NSW Taxi Industry Association is there too. One big happy family. Taxis Combined is the biggest shareholder in Cabcharge Australia, holding 100,000 A class shares, 123,000 B class shares, 123,000 C class shares, 123,000 D class shares, 188,000 E class shares and 188,000 F class shares. Over recent months the Taxi Council has negotiated a new deal for the NSW cab industry. From July 1, the flag fall, or hiring fee, in taxis went up $2 to $3 - a cool 50 per cent rise. And from July 14, fares rose from $1 a km to $1.07, a 7 pc increase, or almost double the inflation rate. In return for these extra charges, the Taxi Council has agreed to put drivers in uniforms, paint cabs a distinctive new colour, provide airconditioning and ensure drivers can speak English and have knowledge of the city. In his capacity as boss of Taxis Combined, Kermode has asked owners and drivers for $20 a shift from their takings to pay for the changes, and also increased radio charges by $80 a week. This provoked an owner-drivers' revolt and the radio charge was rescinded, although further meetings are still to be held. Meanwhile, Cabcharge cardholders have been told that the number of billing periods each year will go up from 12 to 13. The effect of this change is that customers now have to pay 13 service fees instead of 12. The net result is to increase customer charges by an extra $6.50 each year. With 40,000 cardholders around Australia, that puts an extra $260,000 into Cabcharge's pocket. Am I the only person feeling a little uneasy about all this?" 4 The plaintiff, in his amended statement of claim, has pleaded four imputations: "(a) That the plaintiff (i) by procuring, as President of the Taxi Council of NSW, extra taxi fare increases which exceed the cost of covering improved taxi services, and (ii) by requiring, as Chairman and Managing Director of Taxi Combined Services, additional fees from taxi owner-drivers in excess of what was necessary to cover the cost of those improved taxi services so misconducted himself that he had lost the confident [sic] of owner-drivers of Taxis Combined Services. (b) That the plaintiff (i) by procuring, as President of the Taxi Council of NSW, extra taxi fare increases which exceeded the cost of covering improved taxi services, and (ii) by requiring, as Chairman and Managing Director of Taxi Combined Services, additional fees from taxi owner-drivers in excess of what was necessary to cover the cost of those improved taxi services, and (iii) by participating, as a Director of Cabcharge Australia Pty Ltd, in the decision to change billing periods from 12 to 13 per year and so increase charges for account holders, had misused his positions in the taxi industry to orchestrate a range of fare and rate increases which overcharged the public and taxi owners and drivers. (c) That the plaintiff had sought to cause owners drivers and members of the public to be overcharged by unjustifiable increases in payments in respect of the operation and use of taxis. (d) That the plaintiff had caused Cabcharge holders to be overcharged by an unjustifiable imposition of an additional service fee each year." 5 Mr Sackar of Queen's Counsel has submitted that imputations (c) and (d) are defective in form and should be struck out for reasons which I shortly summarise:

As to imputation (c) 6 It is submitted that the form of this imputation does not alert the defendant to what it has to address to prove the truth of the imputation pleaded, and that it is therefore embarrassing. "Sought to cause" involves the use of a "weasel" word and the use of the word "caused" was criticised by the Court of Appeal in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 162-163. Moreover, it is submitted that the words "overcharged" and "unjustifiable" are also "weasel" words, capable of various meanings.

As to imputation (d) 7 It is submitted that this imputation is embarrassing for much the same reasons as imputation (c). Again the imputation employs the words "caused", "overcharged" and "unjustifiable", each in context being capable of a number of meanings. The ambiguities, it is submitted, are significant and in consequence it is argued the defendant is not to know, and the trial judge could not inform the jury, as to the sense in which this imputation is to be understood. 8 In opposing the application, Mr Connell submitted that the imputations attacked do not give rise to uncertainty. However he submitted there is a fundamental difficulty with the defendant's application, namely that the court has already considered and dismissed a challenge to these imputations and that absent any material change in circumstances since the earlier adjudication this application should not be entertained. 9 In my opinion this latter submission is correct. 10 The original statement of claim in this matter pleaded ten imputations allegedly arising from the publication. The defendant launched a challenge to these imputations first pleaded, both as to form and capacity, and the matter was considered by Levine J, who gave judgment on that application on 29 August 1997. The defendant succeeded as to part and failed as to part. Its success prompted the amended statement of claim in which the imputations I identified earlier were pleaded. The imputations challenged on the present application were challenged on the earlier one, I am satisfied, both as to form and capacity. That earlier challenge was unsuccessful. 11 In his judgment Levine J dealt with the earlier unsuccessful challenges in passages of his judgment to which I now propose to refer. Before doing so, I record that imputation (c) in the amended statement of claim was imputation (d) in the earlier statement of claim and imputation (d) in the amended statement of claim was imputation (g) in the earlier statement of claim. 12 As to imputation (d) in that earlier pleading (now imputation (c)), Levine J said at pp 8-9: "As to imputation (d), I do not see any problems in form. Nor on reflection do I see any problems in relation to capacity. The 'sought to' presumably is attributable to the attempt to levy the $80.00 per week radio charge against drivers but overall, taking into account particularly the headline together with the whole of the article and the sting in the tail, and the 'hip-pocket charge' I am not persuaded that the defendant has made out its case in relation to this imputation. Accordingly, imputation (d) will go to the jury." 13 As to imputation (g) (now imputation (d)) his Honour said (at pp 9-10): "Imputation (g) falls within the same category as imputation (d). Certainly there is a suggestion of overcharging, there is no explanation given for it and its consequences are made quite clear particularly in terms of the increase in revenue to Cabcharge in relation to whom Mr Kermode appears to enjoy, on what is stated, a special relationship. Imputation (g) will go to the jury." 14 His Honour's judgment was, of course, in the nature of an interlocutory one but it followed a contested hearing. The decision was not challenged but has remained undisturbed since August 1997. The present challenge appears to have been prompted by the fact that the matter has been set down for trial on 20 March 2000, that is to say in less than two weeks. I gave the present application priority last Friday because the hearing date is so close. 15 It would, of course, have been open to the defendant to have sought leave to appeal to the Court of Appeal against the decision of Levine J in 1997 but it did not do so. 16 In Brimaud v Honeysett (judgment of McLelland J, 19 September 1988, in Ritchie Supreme Court Practice - Practice Decisions 8593 at 8594) his Honour said: "The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge the interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see, eg, Wilkshire v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest 'until further order': as to which see, eg, Warringah Shire Council v Industrial Acceptance Corp (SC (NSW), McLelland J, 22 November 1979, unreported). In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application: see Woods v Sheriff of Queensland (1895) 6 QLJ 163 at 164-5; Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-8; Chanel v Woolworth & Co [1981] 1 WLR 485 at 492-3; Adam P Brown Male Fashions v Philip Morris (1981) 148 CLR 170 at 177-8; Butt v Butt [1987[] 1 WLR 1351 at 1353; Gordano v Burgess [1988] 1 WLR 890 at 894." 17 The decision in Brimaud has, as I understand it, been consistently followed for courts of first instance: see Danieletto v Khera (unreported, McLelland CJ in Eq, 1 September 1994); Re BPTC Limited (In Liq.); Murphy and Allen re Kelly (unreported, Windeyer J, 16 March 1995) and Wentworth v Rogers (unreported, Sperling J, 28 April 1995). In Wentworth v Rogers Sperling J made an extensive review of the authorities and said at p 6: "I hold that, as a general rule, an interlocutory order made after a hearing at which each side has the opportunity to put its case should not be set aside, varied or discharged, except to accommodate a change of circumstances or where evidence has become available which was not available at the earlier time." 18 Then in Collier v Howard (unreported, McLelland CJ in Eq, 23 April 1996) his Honour restated the relevant principle thus: "Generally speaking, the interests of justice as between the parties, fortified by the public interest in the finality of litigation and the efficient employment of judicial resources, require that where an application for interlocutory relief has been made, heard on the merits and refused, a further application for substantially the same relief should not be entertained, unless it is founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the Court on the hearing of the original application." 19 The decision of McLelland J in Brimaud was cited with approval in Amalgamated Television Services v Marsden [1999] NSWCA 313. See, in particular, the judgment of Mason P, with whom Meagher and Handley JJA agreed, at para 38. 20 Mr Sackar submitted that the decision of the Court of Appeal in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 warrants the further application now being pursued. He submitted that not only do the imputations the defendant now wishes to challenge have the vices he has identified in his submissions but in the decision of Marsden Hunt CJ at CL, with whose judgment the other members of the court agreed, was critical of the use of the word "caused". His Honour's remarks in Marsden are to be seen in the context of a challenge to the form of two imputations which employed the use of the word "caused". His Honour said at 163: "It was made apparent to counsel for the plaintiff during the hearing of the appeal in the present case that this form of pleading had not been successful in identifying the sense in which the word 'caused' was used in these two imputations. 'Caused' is what has become known as a 'weasel' word, in that, such is its convenient ambiguity, no-one will ever know the way in which it is being used or understood: E C Brewer, I H Evans, Brewer's Dictionary of Phrase and Fable (1989), London, Cassell; 'weasel word' is an expression of United States origin, but it is very expressive when applied to a word which has both a more serious and a less serious meaning: see also The Grand Panjandrim, JN Hook (1991, Macmillon) (at 151). Here, it could mean the immediate cause (or the last link in the chain of causation) or it could mean some preceding link without which the consequences asserted by the plaintiff could not have occurred (the causa causans or the causa sine qua non). Such ambiguity would necessarily be destructive of a trial involving such emotive issues as this one will involve." 21 Amendments as to the form of the imputations were made in the course of the appeal but it is to be observed that the amended imputations each continued to employ the use of the word "caused". The court then went on to consider the question of capacity as to the two imputations as amended, and one of the imputations, employing the word "caused" survived on appeal and it was ordered that it be permitted to go to the jury. 22 The criticism of the imputations challenged in Marsden is to be seen in context. Having had the opportunity of reading that judgment, I do not see it as basing a conclusion that there has been a material change of circumstances since Levine J's earlier decision on the two imputations with which this present application is concerned. I note in passing that counsel appearing as junior counsel on the appeal in Marsden was the same experienced counsel who had appeared for the defendant before Levine J in August 1997. The decision of the Court of Appeal in Marsden was delivered in February 1998 and it prompted no immediate fresh challenge to these imputations. I do not regard the timing of this present application as being an irrelevant consideration. 23 I have concluded that the principle underlying the reluctance of the courts to permit interlocutory decisions to be revisited has been enlivened in the present circumstances. I respectfully agree with the expression of the relevant principle by McLelland CJ in Eq in Collier v Howard (supra) and I find no material change in circumstances since Levine J published his judgment on 29 August 1997. 24 Accordingly the defendant's application fails and the defendant must pay the costs of the application. I however reject Mr Connell's application that such costs be paid on an indemnity basis.

Formal orders 25 1. The defendant's application is dismissed.

2. I order the defendant to pay the plaintiff's costs of the application. **********

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