Linnell v Channel Seven Sydney Pty Ltd

The First Broadcast 10On the application there was tendered a DVD of both the first and second broadcasts, which I have viewed. I described the subject matter of the broadcasts in Linnell No 1 at [3]. The subject matter of the first broadcast was the dealings between the plaintiff and a particular landlord of his, Mr Tim Collins. Apparently, Mr Collins was a policeman who was stationed somewhere away from his home. He rented his home to Mr Linnell and his wife. I will outline some of what was stated about Mr Linnell shortly. 11In overall terms, the theme of the first broadcast was that Mr Linnell had set his mind against paying any rent to Mr Collins and thereby secured accommodation for himself and his family for no payment. It was said he had taken advantage of delay in the court system to remain in the premises without paying, and that he had otherwise steadfastly refused to assist Mr Collins or the relevant real estate agent who was attempting to manage the property. 12Paragraph 27 of the proposed Second Further Amended Statement of Claim, which is in the same terms as paragraph 27 of the previous version, pleads fifteen imputations. In argument the Court was advised that some were not pressed. 13Imputation (a) is that "the plaintiff is a wealthy cheat". Counsel for Channel Seven, Mr Richardson, objected to this imputation on the basis that it is not different in substance from imputation (m) which pleads that "the plaintiff makes himself wealthy by deliberately not paying his rent to landlords". Mr Richardson contended that, viewed in the context of the broadcast, the only real form of cheating that is described is the act of not paying rent, which is embraced by imputation (m). Counsel for the plaintiff, Mr Rasmussen, contends that the phrase "deliberately not paying his rent to landlords" is not the same as "cheating". 14In my view, particularly when considered in context, the reference in imputation (m) to the plaintiff "deliberately not paying his rent to landlords" is clearly a reference to a form of cheating. Further, subject to one matter, given that the article is only addressing the dealings between Mr Linnell and one landlord, I do not consider that any general imputation truly rises beyond the specifics of the particular sorry saga described in the first broadcast. When those two matters are considered together, then it seems to me that Mr Richardson's objection must be upheld. 15The one manner of exception that was not really debated is that whether the cheating that appears to be encompassed by imputation (a) extends beyond cheating in relation to the payment of rent. If it did, then there would be a problem with the particularisation of imputation (a). Nevertheless, that observation may have some consequence for any redraft of this part of the pleading. In any event, I refuse leave to the plaintiff to rely upon a pleading that includes both imputations (a) and (m) in paragraph 27. 16Proposed imputation (b) in paragraph 27 is in the following terms: "The plaintiff is mis-using the law to stall proceedings so that he can continue to live in the house without paying Tim Collins the rent that is due to him". 17Mr Richardson took objection to this form of imputation because the form of "misuse" of legal proceedings is not identified. In the first broadcast there were various references to Mr Linnell taking advantage of aspects of court proceedings to secure an advantage, namely, staying in the house without paying rent. Thus, there are references to "legal loopholes" as well as to "stalling proceedings" which I understand refers to delay. 18In argument, Mr Rasmussen stated that the form of "misuse" intended to be referred to was his client's conduct of the proceedings for an improper purpose, namely, stalling proceedings so that he can continue to live in the house without paying Mr Collins. Mr Richardson indicated that, if that was spelt out in the imputation, it would meet his objection. In those circumstances, the best course is to indicate that I would refuse leave to include the current form of imputation (b) in paragraph 27, but would grant leave if the words "in that he deliberately stalled" were substituted for the phrase "to stall". 19Imputation (c) is in terms that "the plaintiff is trying to permanently take the family home of a police officer". Mr Richardson raised two objections to this form of pleading. First, he contended that on its face it is not defamatory in that an attempt by a person to take someone's home is not necessarily something that would cause "ordinary decent folk" to think less of someone. Second, Mr Richardson said that, in any event, the imputation is not capable of arising from the first publication. 20There are references throughout the first broadcast to Mr Collins fearing that he might lose his home. Mr Richardson submitted that, in context, they could only be construed as a reference to Mr Collins losing it at the behest of a bank because he could not afford to pay the mortgage as a result of Mr Linnell not paying his rent. While I consider that is the more likely construction of the words spoken and the images that were portrayed, I am not satisfied to the requisite standard that that aspect of the imputation is not capable of being conveyed. Further, again while I have my doubts, I am also not persuaded that the form of imputation (c) is such that it could not be considered defamatory. I will allow the plaintiff leave to include an imputation in that form. 21Imputations (d) and (e) are in the following form: (d) "the plaintiff is a squatter", (e) "the plaintiff is squatting in Tim Collins house". 22Mr Richardson submitted that imputation (d) is incapable of arising from the first broadcast if it is meant to convey that the plaintiff is or has squatted on more than the one occasion referred to in the first broadcast. If it is not meant to convey that, then Mr Richardson submits it is no difference in substance to imputation (b). Mr Rasmussen contended that they are substantially different in that imputation (d) is referring to Mr Linnell's general status, whereas imputation (e) is referring to his particular conduct as described in the publication. 23There are always questions of judgment and degree involved in assessing whether imputations expressed in a general way arise from a publication which only describes some limited aspect of a person's conduct, and whether the general description of them suggests something more than their having engaged in the conduct described. For example, an article which accused someone of theft on a single occasion could convey the imputation that they are a thief. In this context, I struggle to see how someone's status as a squatter is different in substance to a particular assertion that they squatted on one occasion. At least in this context to describe the plaintiff as a squatter seems to me to be referring not to some overall characteristic of his, but merely to his present living arrangements. Once imputation (d) is understood in that way, then it is no different to imputation (e). It follows that I would not grant the plaintiff leave to include in any proposed Second Further Amended Statement of Claim imputations (d) and (e). Instead there will need to be one or the other. 24Imputations (f), (h), and (k) are in the following form: (f) "The plaintiff has deliberately dodged paying rent due to Tim Collins." (h) "The plaintiff is stealing from Tim Collins." (k) "The plaintiff is not a moral person and that he refuses to pay Tim Collins the rent that is due to him." 25Mr Richardson's point in relation to these three imputations is that they are, in substance, no different from one another. He contends that imputations (f) and (k) both state that Mr Linnell refuses to pay Mr Collins rent. Further, with imputation (h), he contended that the form of stealing that is referred to in the first broadcast is refusing to pay rent, but if it was meant to refer to some other form of conduct then the imputation is not capable of arising. 26In relation to (f) and (k), Mr Rasmussen points to the reference in imputation (k) to the plaintiff not being a "moral person" as differentiating the two. This appears to arise from a quote that is attributed to Mr Collins when he confronted Mr Linnell. He said: "You are supposedly a moral person but you won't pay rent". However, as a matter of substance, I see no difference between imputations (f) and (k). In both cases the gravamen of the imputation is the refusal of Mr Linnell to pay Mr Collins rent. The reflection on his morality is only a description of his conduct in not paying rent. The inclusion of the reference to the absence of morality on Mr Linnell's part is an example of the vice identified by McCallum J in Waller of lifting the words from the broadcast and inserting them into the imputation. Imputation (k) does not crystallise any different defamatory sting than what is conveyed by stating that Mr Linnell refused to pay rent. 27In relation to imputation (h) there are references in the broadcast to Mr Linnell "stealing" from Mr Collins. Thus, Mr Collins stated: "Now, he can't come into my house in Parkes and steal from me - you'll get charged. But he can stay in a rental house and steal from me and get away with it ... I just don't understand mate. You're supposedly a moral person but you won't pay rent. What are you stealing from me now?" 28Mr Rasmussen contended that this imputation is not necessarily tied to the alleged conduct of Mr Linnell in refusing to pay rent. He further says that no additional particularisation is required because, consistent with the discussion in Drummoyne, the broadcast in question does not descend to identify what the acts of stealing are. In those circumstances, he submits, his client cannot be expected to provide further specification of the "stealing" involved because the defamatory publication does not enable them to be provided. 29Further, Mr Rasmussen contended that, as the content of the first broadcast gives rise to the possibility, or even likelihood, that the alleged stealing is different to simply not paying rent, and thus the imputations are or may be different in substance. I found this aspect not an easy matter to resolve. In the end, even though Mr Linnell is seeking leave to amend, Channel Seven bears a burden of persuading me that they are no different in substance, and that they are not capable of being conveyed. It has not done so. Accordingly, I will not allow Mr Linnell leave to bring in a pleading that includes both imputations (f) and (k), but will allow a pleading that includes imputation (h). If it is not otherwise clear, it follows that Mr Linnell may bring in a pleading that includes either imputation (f) or imputation (k), but not both. 30Mr Richardson's next challenge was to imputation (g). It is in the following form: "The plaintiff is a parasite in that he habitually exploits others and gives nothing in return." 31Mr Richardson raised two problems with this imputation. First, in his written submissions, he noted that the imputation refers to Mr Linnell exploiting "others", whereas the allegation of being a parasite was only made by Mr Collins in the first broadcast and only reflects upon the dealings between Mr Collins and Mr Linnell. Second, Mr Richardson took issue with that part of the imputation that states that Mr Linnell "gives nothing in return". Mr Richardson contended that, when considered in the context of the first broadcast, this can only be reference to the rent, but rent is not something that is "given", but is instead an obligation. 32Mr Rasmussen pointed to a statement by Mr Collins in the first broadcast to the effect that Mr Linnell was "a parasite". After he said this he was asked by the reporter how much Mr Linnell owed him. Mr Collins stated: "Currently almost over $4,000 in rental arrears. Plus, because he summoned myself and the real estate to the tribunal, it was almost $3,000 in costs. So there is about $7,500 or more plus legal fees". 33Mr Rasmussen submitted that the description of the meaning of "parasite" given in the imputation was derived from a dictionary definition of that phrase. Be that as it may, the specification of the meaning of "parasite" which follows the words "in that" must at least be referable to what is said about Mr Linnell in the first broadcast. The broadcast is confined to the circumstances of Mr Linnell's dealings with Mr Collins. Further, it is difficult to make any real sense of the complaint that Mr Linnell does not give anything in return when the parasitical behaviour in question concerns his deliberate refusal to comply with obligations and not make gifts. I will not allow the plaintiff leave to rely upon an imputation in this form. 34Mr Richardson also took objection to the form of proposed imputations (i) and (j) on the basis that they were not, in substance, different from each other. In the end, Mr Rasmussen did not press imputation (i). Accordingly, it is not necessary to consider this matter further. 35Mr Richardson also took objection to imputation (n). Again Mr Rasmussen did not press that imputation, so it is not necessary to consider it further. 36Mr Richardson took objection to imputation (o) which states: "The plaintiff stopped Andre Kubeca from conducting inspections of the property." 37Mr Kubeca was the managing agent of Mr Collins' home property. He is referred to in the first broadcast. Mr Richardson submitted that this imputation was not capable of being defamatory. I agree. However, Mr Rasmussen indicated that he would seek to add the words: "[w]hen he was entitled to do so", at the end of the imputation. On the basis of that proposed addition, I will allow the plaintiff leave to amend to include an imputation in that form.

The Second Broadcast 38The second broadcast in part updated the saga involving Mr Linnell and Mr Collins. It reported upon the alleged outcome of various legal battles between Mr Collins and Mr Linnell. They had finally resulted in Mr Linnell leaving Mr Collins' property. The broadcast showed Mr Collins returning in apparent triumph to his home and reclaiming it. Then the presenter states that "Mr Collins was not Michael Linnell's only victim". The presenter stated the programme had been tracking his rental records "and found at least three other landlords ripped off by the wealth expert" and [i]n fact, he's been pulling this stunt for sixteen years". The second broadcast then includes comments from two of those persons, a Ms Cselko and a Ms Bernadette Martin. The programme also states that, to the knowledge of the presenter, Mr Linnell was said to be involved in another rental dispute with a couple in 1995. 39Paragraph 29 of the Second Proposed Amended Statement of Claim pleads sixteen proposed imputations in relation to this broadcast. Mr Richardson took objection to the first two on the basis that they do not differ in substance. They state: "(a) The plaintiff was a squatter. (b) The plaintiff is a serial squatter." 40Mr Richardson submitted that, as imputation (a) is framed in general terms, then the word "serial" in imputation (b) does not add anything. Mr Rasmussen submitted that imputation (a) is a reference to his client's status, whereas imputation (b) is a reference to him having squatted on more than one occasion. 41In a sense this is the reverse argument to that which arose in relation to the first broadcast. I do not see any difference in substance between the two imputations in that in context (a) is subsumed by (b) but not necessarily vice versa. It is possible I suppose for someone to have the status of a squatter without having done it on a repeated basis, but if they have done it on a repeated basis then they would certainly have that status. In my view, the plaintiff should not be given leave to have both imputations, however he is entitled to plead imputation (b) so as to make it clear that it is being suggested that he squatted on a number of occasions. 42Mr Richardson's next objection concerns imputations (c), (n) and (o) which state: "(c) The plaintiff has a long history of cheating landlords ... (n) The plaintiff has ripped off at least three landlords other than Tim Collins. (o) The plaintiff has been pulling off the stunt of ripping off landlords for 16 years ." 43In oral submissions Mr Rasmussen stated that he did not press the word "pulling off the stunt of" in imputation (o). Mr Richardson contended that the imputation that Mr Linnell has a long history of cheating landlords covered the ground sought to be conveyed by the imputation that Mr Linnell "had ripped off" at least three landlords and that he has been "ripping off" landlords for sixteen years. In my view, that proposition is clearly correct. 44The more difficult question is whether there is any difference between imputation (n) and imputation (o). The source of the figure of sixteen years appears to be that the second broadcast refers to Mr Linnell having had a rental dispute in 1995, being the third disaffected landlord referred to in the second broadcast (other than Mr Collins). Be that as it may, both the second broadcast and the imputations all leave open the possibility that there were other landlords, beyond the three referred to, that Mr Linnell had "ripped off". In those circumstances, one can envisage at least the potential for a difference in substance between imputations (n) and (o), in that it may be that three landlords were "ripped off" in a period of four to five years, even if it they are not the three landlords referred to in the broadcast. Accordingly, if imputations (n) and (o) are to be maintained by Mr Linnell in any further pleading, then they would need to be as alternatives to imputation (c) but need not be alternatives to each other. 45Imputation (d) is to the effect that the plaintiff is "the tenant from hell". The phrase "the tenant from hell" was used by one of the landlords, Ms Bernadette Martin, in the second broadcast. The relevant passage involves the reporter stating: "And this is the tenant who has caused 18 months of grief. Self-acclaimed wealth creation expert and financial advisor, Michael Linnell. And as you see tonight a man of long history of cheating his landlords." There is then an image of Ms Martin. She states: "I didn't know there was such a thing as a tenant from hell until I met Michael Linnell." Mr Richardson says the reporter then states: "Now you know". Ms Martin then replies "Now I know exactly". 46Later in the broadcast Ms Martin describes Mr Linnell as a "professional low life scumbag". Mr Richardson asked her how much Mr Linnell ended up owing her. Ms Martin says that he owed about $10,000, accounting for water rates and unpaid rent. Ms Martin then explains that Mr Linnell left the property in an extremely poor state. 47In these circumstances, Mr Richardson's contention is that the use of the phrases "tenant from hell" was an impermissible lifting of a direct quote from the article which simply failed to distil any defamatory sting of the words so far as they concerned Mr Linnell (see Waller at 18 to 23). 48Mr Rasmussen submitted that, in circumstances where that phrase was used but not elaborated upon, it was sufficient for his client to plead an imputation in those terms. I do not accept that submission, because I do not accept that the second broadcast did not elaborate upon what Ms Martin was describing when she referred to Mr Linnell as "a tenant from hell". Quite to the contrary, Ms Martin descended into specific detail as to why she described Mr Linnell as "a tenant from hell". Although other decisions do not create a precedent on such an issue, I note that in Bruce v Channel Seven Sydney Pty Ltd [2013] NSWSC 1091, at [18] to [19], McCallum J rejected an imputation which described the plaintiff in that case as a "horror neighbour". 49Imputation (e) is in the following terms: "The plaintiff causes grief to landlords for enjoyment." 50There are a number of references throughout the second broadcast to the apparent "grief" being caused by Mr Linnell. Mr Richardson submits the imputation does not identify any defamatory act or condition of the plaintiff, but simply refers to the effect of some unspecified conduct he engaged in. Mr Rasmussen's defence to this imputation was similar to his defence of imputation (d). My ruling is the same. This imputation does not specify any relevant conduct or condition of Mr Linnell. This is not an example of an imputation where the publication in question is so devoid of detail or specification that a plaintiff can justifiably say that no further particularisation can be provided. I will not grant the plaintiff leave to bring in a pleading that includes an imputation in that form. 51Imputation (f) is in identical form to imputation (g) as pleaded in relation to the first broadcast (see [30]). Mr Richardson does not object to the reference to "exploiting others", but maintains his objection to the phrase "and gives nothing in return". For the reasons I have stated in relation to that aspect of Mr Richardson's argument in relation to imputation (g) concerning the first broadcast, I uphold that contention. I will not grant the plaintiff leave to bring in a pleading that includes an imputation in the form of imputation (f). 52Mr Richardson objected to imputations (g), (j) and (k) which were all said not to differ in substance. Ultimately, Mr Rasmussen did not press imputations (j) and (k). I will not allow the plaintiff leave to bring in a pleading that includes those imputations. 53Mr Richardson initially objected to imputation (h) but withdrew his objection. 54Imputation (i) is in the following terms: "The plaintiff used every trick in the book to prevent Tim Collins from legitimately entering his property and receiving rent from it". 55This part of the pleading refers to a statement made by the reporter in the second broadcast as follows: "Michael Linnell came to our attention when policeman and Tim Collins couldn't get the squatter out of his lakeside home on the NSW Central Coast. Linnell has used every trick in the book and the law stopped Tim from even entering his property, not receiving rent for months on end". 56Mr Richardson's objection to the imputation is to the lifting of the phrase "every trick in the book" from the second broadcast and its use without proper particularisation. He submits there is no attempt to distil an act or condition of the plaintiff. Mr Rasmussen defended the imputation on the basis that the second broadcast itself did not enable one to specify what "trick" was used other than it was designed to prevent Mr Collins legitimately entering his own property. Unlike the reference to "a tenant from hell", I am not persuaded that it is possible in this case to further particularise the assertion that Mr Linnell used "every trick in the book". Although it is not clear, the balance of the broadcast does not seem to me to enable one to tease out what type of trickery Mr Linnell is said to have engaged in. Accordingly, I will allow a pleading containing this imputation to be filed. 57Imputation (p) was originally in the form: "The plaintiff is a professional low life scumbag, meaning he is a contemptible professional criminal". 58Mr Richardson took objection to the imputation as not being capable of arising from the second broadcast. He submitted that nothing in it suggests or conveys that Mr Linnell has committed a crime. In the end, Mr Rasmussen did not press the words appearing after "scumbag". On that basis, I will allow the plaintiff to include a pleading in that modified form of imputation (p).

Orders 59Consistent with what I have stated at the commencement of this judgment, the only order that I will make is that the plaintiff serve a proposed Second Further Amended Statement of Claim consistent with this judgment within twenty-one days. [The parties addressed on costs.] 60On the question of costs, the parties have presented wildly different estimates of their relative success compared to the other party. My overall impression is that the defendants were largely but not completely successful. The appropriate order is that the plaintiff pays 60% of the defendant's costs of today and costs related to today's application.

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