MacDonald v Australian Broadcasting Corporation

Judgment 1HER HONOUR: These are proceedings for defamation arising out of the broadcast of a news item on ABC television. The ABC has pleaded defences of justification (truth) and contextual truth. This judgment determines an application by the plaintiff, Mr Ian MacDonald, to have parts of that defence struck out.

Truth defence 2Paragraph 10 of the defence pleads a defence of substantial truth pursuant to s 25 of the Defamation Act 2005 in answer to the plaintiff's imputation (c), which is: The Independent Commission Against Corruption found that the plaintiff had made millions of dollars from corrupt mining deals in New South Wales. 3The particulars of truth provided in support of that defence are set out in paragraph 22 of the defence, as follows: (a) individuals for whose benefit the plaintiff acted corruptly, including Eddie Obeid senior, Moses Obeid and John Maitland, stood to receive millions of dollars from that corrupt conduct; (b) by reason of the plaintiff's conduct, individuals for whose benefit the plaintiff acted corruptly did in fact receive millions of dollars; and (c) the plaintiff acted corruptly with the intention that those people would profit from that conduct. 4Those particulars make no reference to Mr MacDonald making any money personally from corrupt mining deals. Mr Dawson, who appears for the ABC, frankly acknowledged that the ABC is not in a position to prove that Mr MacDonald personally made millions of dollars from any such deals. However, he disputed that that is the sting of the imputation. He noted that the key words of the matter complained of said to give rise to imputation (c) are as follows: Former labour ministers Eddie Obeid and Ian MacDonald made millions over mining deals in New South Wales. They were found to be corrupt and now face possible criminal charges. 5The burden of the submission was that those words would be understood to mean that the combined efforts of Eddie Obeid and the plaintiff generated millions of dollars from corrupt dealings although the plaintiff did not personally receive that money. Mr Dawson accepts that imputation (c) has been found capable of arising, in an earlier decision in these proceedings given by Beech-Jones J: see MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 at [21]. It does not appear to have been suggested at that point that there was any ambiguity in the meaning of the imputation. The plea of justification has, however, revealed that the parties have different understandings as to the meaning of the imputation. That is a dispute which should be brought forward as a challenge to the form of the imputation and clarified by a determination of the Court: see Singleton v Ffrench (1986) 5 NSWLR 425 at 433G per McHugh JA; Samuels J agreeing; Mahoney JA also agreeing and see his Honour's additional remarks at 433G. 6Upon reflection, I do not think there is ambiguity in the formulation of the imputation chosen by the plaintiff. In my view, it clearly means that Mr MacDonald personally made millions from the corrupt deals referred to. Understood in that way I accept, as submitted on his behalf, that the particulars of justification are incapable of proving the substantial truth of that imputation. 7In the event that the plaintiff wishes (having heard the way in which the defendants understood the imputation by reference to the words of the matter complained of said to convey it) to plead an alternative, fall-back imputation to capture that less serious sense, leave should be granted for that to occur. If the pleading is to remains as it is, I am satisfied that paragraphs 10 and 22 of the defence must be struck out. 8The second aspect of the application is a challenge to two of the contextual imputations specified by the ABC in support of the contextual truth defence, being contextual imputations 11(g) and (h), as follows: (g) the plaintiff was found by ICAC to have been dishonest; (h) the plaintiff was found by ICAC to have abused his position as a government minister. 9Mr Hale SC, who appears with Mr Mackay for Mr MacDonald, submitted that those imputations are not capable of meeting the requirements of s 26 of the Defamation Act, which provides that a contextual imputation must be an "other" imputation carried by the matter complained of "in addition to" the imputations of which the plaintiff complains. Mr Hale relied upon the remarks of Spigelman CJ in John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205, particularly at [20] where his Honour said: "In my opinion the purpose of section 16 was directed to a situation in which the same publication conveyed imputations which differ in their character, not merely a different way of formulating the same imputation at a higher level of generality." 10The three main arguments put by the ABC in response to that objection were: (a) it is inappropriate to strike out contextual imputations in advance of trial; (b) contrary to the remarks of Spigelman CJ in Jones set out above (which were concerned with s 16 of the Defamation Act 1974, now repealed), there is no requirement that a contextual imputation relied upon in support of a defence under s 26 of the Defamation Act 2005 must differ in kind or character from the imputations specified by the plaintiff; (c) in any event, assuming the correctness of those principles, the defendant's contextual imputations are at least capable of meeting those requirements and are accordingly not liable to be struck out. 11As it happened, on the day on which argument was heard in this matter, I published a judgment in other proceedings addressing the first two issues raised by Mr Dawson: see Jones v Fairfax [2014] NSWSC 1453. However, having regard to the conclusion I have reached in the present case, it is not necessary to determine how the principles discussed by me in that decision should apply in the present case. That is because the conclusion I have reached is that contextual imputations (g) and (h) are reasonably capable of meeting the requirements of s 26 of the Defamation Act 2005. 12My reason for reaching that conclusion is that, contrary to the submissions of Mr Hale, I do not accept that the defendant's contextual imputations are merely different ways of formulating the plaintiff's imputation (c) at a higher level of generality. Nor do I accept that they are merely reformulations of the plaintiff's imputation drawn from precisely the same words. In addition to the words referring to Eddie Obeid and Ian MacDonald making "millions over mining deals" set out above, regard must be had to the opening words of the report, as follows: "It's one of the State's most lucrative resources and a damning report has found its management is conducive to corruption. The corruption watchdog has recommended sweeping changes to how coal licences are allocated and it says to stop future abuse State Government ministers must be held to greater accountability." 13In addition, the whole of the paragraph relied upon by Mr Hale should be considered. It says: "Former Labour ministers Eddie Obeid and Ian MacDonald made millions over mining deals in New South Wales. They were found to be corrupt and now face possible criminal charges. In a scathing report the Commissioner found that corruption was almost inevitable because the system was so conducive to it". 14Each of the plaintiff's imputations includes the element imputing the plaintiff with having "made millions". Even if the jury finds that each of those imputations was carried by the matter complained of, in my view it is reasonably capable of conveying at the same time the imputations of dishonesty and abuse of position as a government minister specified by the ABC. In my view, each of those imputations is reasonably capable of being understood to be an "other" imputation carried in addition to the plaintiff's imputations. They impute something of a different character to the plaintiff from the notion of "making millions" from corrupt deals captured in the plaintiff's imputations. 15For those reasons, the application to strike out those parts of the defence must be dismissed. I will allow the plaintiff a short period of time in which to consider whether to plead an alternative, fall-back imputation to imputation (c), failing which paragraphs 10 and 22 of the defence will be struck out. 16The orders are: (a) the plaintiff's application to strike out parts of the defence is allowed in part; (b) I direct the parties directed to bring in short minutes of order within seven days reflecting the further steps to be taken in the proceedings in accordance with these reasons.