MacDonald v Australian Broadcasting Corporation

ex tempore Judgment 1The defendant, the Australian Broadcasting Corporation (the "ABC"), seeks an order that imputations (b) and (c) as pleaded in paragraphs 5 and 7 of the statement of claim "not go to the jury". The basis for that application is that the matters complained of are said not to be capable of giving rise to those imputations. I will treat that aspect of the ABC's application as a strike-out application made pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 14.28. 2The ABC also sought the provision of particulars of publication of the second matter complained of within fourteen days. 3The plaintiff, Ian Michael MacDonald, resisted both applications. 4To place these applications in their context, it is necessary to briefly describe the matters complained of and the pleaded case. 5According to Mr MacDonald, on or about 30 October 2013, the 7pm edition of the ABC's news broadcast led with a story concerning a recent report of the Independent Commission Against Corruption ("ICAC") which outlined "sweeping changes to how coal licences are allocated". 6On this application, there was tendered a DVD containing a recording of this programme which I have viewed. This portion of the news was opened by the news presenter who then crossed to the State's political reporter. The reporter stated that the ICAC report outlined measures to "stop further abuse". 7The reporter tells the newsreader (and thus the audience) of various accountability measures that are suggested by the ICAC report. These are said to extend to the disclosure of the financial interests of family members of Government ministers and MPs. 8The story then shows a picture of someone who appears to be Mr MacDonald walking along the street with many people around him. The reporter then states as follows: "Former Labor 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." 9At this point in the news item, there is a picture of the ICAC Commissioner and the following appears on the screen as text and is also read out: "The execution of the grand corruption was ultimately due to improper influences on an unfettered minister, his disdain for departmental advice and secret meetings with proponents." 10The balance of the news item deals with the proposed accountability measures. It also includes a quote from a Member of Parliament querying the number of licences affected by the conduct of Messrs Obeid and MacDonald and as well as a quote from an industry representative. The item concludes with the State political reporter stating that the: "... government is tight-lipped as to what it will do with the [ICAC] report and whether it will take on board the Commission's advice." 11Mr MacDonald's statement of claim identifies two matters complained of. The first matter complained of is the news item broadcast on free to air television that I have just outlined. 12The second matter complained of is the "online edition of the ABC 7pm news broadcast" which was said to be available from a particular world wide web address. As I understand the position, it is said that by clicking on that address, the viewer can then download and view the news item that I have just outlined. 13As stated, the first aspect of the ABC's application concerns the question of whether two of the imputations pleaded are capable of arising from the matters complained of. The principles governing such an application were outlined by Tobias JA in Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 at [19] ff. In addition, Senior Counsel for Mr MacDonald, Mr Hale SC, referred me to the judgment of Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, especially at pp 165 to 166. In particular, he drew my attention to the statement by Hunt CJ at CL at 166C to the effect that in a case of a "transient" publication, which he describes as including a television broadcast, a trial judge will: "... therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case." 14Counsel for the ABC, Mr A. Dawson, accepted that statement but noted that it was made in a context where his Honour had earlier stated (at page 165G) that a wide degree of latitude was "given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual". Mr Dawson submitted that the words in question here were not of that kind. 15The two imputations the subject of challenge are to the following effect: "(b) The plaintiff faces possible criminal charges for having made millions of dollars from corrupt mining deals in New South Wales; (c) The Independent Commission Against Corruption found the plaintiff had made millions of dollars from corrupt mining deals in New South Wales." 16Mr Dawson contended that the news item was not capable of conveying to the ordinary reasonable reader that Mr MacDonald faced possible criminal charges "for having made millions of dollars from corrupt mining deals" or that ICAC had found that he had made "millions of dollars from corrupt mining deals". He contended that these imputations contained an elision of what was stated in the first sentence of the extract noted in [8] above with what is stated in the second sentence. He contended that the ordinary reasonable reader would not, or could not, conclude that the finding of corruption was in respect of the conduct of Mr MacDonald in making millions of dollars from corrupt mining deals, or that he faced possible criminal charges for having made millions of dollars from corrupt mining deals. 17As I understand it, the overall concern is that if imputations to the above effect are maintained, then some tactical advantage will accrue to Mr MacDonald in that he will only be attacking that part of the broadcast that refers to him having made millions of dollars from corrupt mining deals or ICAC's finding about that topic, whereas if the position simply was that he faced possible criminal charges for having acted corruptly, then the position for him would be more difficult. This may be or may not be the case. Even if it is, it does not affect the answer to the issue that has arisen for decision. 18In all these cases, there are tactical decisions to be made by the parties. If Mr MacDonald is adopting this approach, then he takes the risk of his case failing completely if he does not make out imputations pitched as highly as he has alleged. Further, there are of course defences in the areas of contextual truth and so forth available to the ABC to respond to a plaintiff who pitches their case in that way. 19The onus faced by the ABC of persuading me that an imputation is not capable of arising is a reasonably high one. If one was to simply view the words on a written page, or hear them, one might ask, when Mr MacDonald was found to be corrupt, what was he found to be corrupt in relation to? In my view, at least one possible answer to that question is for having made "millions over mining deals". There are shades of corruption but at least one form of corruption is deriving a personal financial benefit from abusing one's position as a State Government minister. 20Similarly, if one was to ask what it was that Mr MacDonald might have done to warrant his facing possible criminal charges, then again the answer to that question, or at least one answer, is for having made "millions over mining deals" in New South Wales. 21Again, the ordinary reasonable reader would, I think, be capable of understanding that, if a person derives a substantial financial benefit for obtaining mining deals in their capacity as a State Government minister, that can form the basis of criminal charges. Of course, other forms of abuse could lead to a finding of corruption and the facing of possible criminal charges. However, this item was presented by stating as a fact that Mr MacDonald made millions over mining deals in New South Wales. It then recounts as a fact that he was found to be corrupt and now faces criminal charges. The close proximity of those two statements, in my view, is clearly capable of raising the imputations that are pleaded. 22I refuse this aspect of the ABC's application. 23The other issue that arises is whether there is a need for further particulars in respect of the publication of the second matter complained of. 24The pleading of the second matter complained of identifies the words spoken in the story that is available on the online edition. There is then pleaded the imputations that are conveyed, followed by the assertion that the publication has brought Mr MacDonald into hatred, ridicule and contempt, etc. There then follows particulars of publication. The particulars of publication identify the address on the world wide web where the user could download the news item in question. The next particular states that "further particulars of publication, circulation and distribution of the matter complained of will be provided after discovery and interrogatories". 25Mr Dawson's short point is that in respect of material that is made available on the internet, or the world wide web, "publication" will not occur simply by the "unilateral act on the part of the publisher" (Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575 at 600) ("Dow Jones") in uploading the material. Instead, he submitted that, as such publication is a "bilateral act" (Dow Jones id), there needs to be particulars provided of some aspect of that bilateral act so as to amount to a publication. The obvious example is to identify a person who may have downloaded the article and comprehended it. 26Mr Hale referred me to the decision of Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 ("Lazarus"), and in particular to the discussion at pp 192 to 193. In Lazarus, Hunt J addressed the circumstances in which a plaintiff must give particulars of the identity of the persons to whom a publication is alleged to have been made. Hunt J stated the relevant principle as follows (at 193E): "Such cases support the rule, as I have sought to express it, that, in both oral and written defamation cases, particulars should be supplied of the identity of the persons to whom the publication is alleged to have been made when that identity is relevant to either the plaintiff's or the defendant's case. That identity will usually be relevant in oral defamation cases and in written defamation cases where it was not published in the mass media; but that identity will not usually be relevant in mass media cases." 27Mr Hale SC submitted that this is a "mass media case" and that the identity of the persons to whom the publication is alleged to have been made is not a matter relevant to his case. However, this overlooks the significance of the discussion in Dow Jones as to the need for a bilateral act in relation to the publication of matters placed on the internet. It is not an essential part of Mr MacDonald's case that he identify a person to whom the publication is alleged to have been made. However, it is an essential part of his case in respect of the second matter complained of that he ultimately demonstrate that the bilateral act referred to in Dow Jones took place. In a sense, this distinguishes internet and web-based publication from the concept of "mass media cases" discussed in 1985 by Hunt J in Lazarus. 28Ultimately the debate on this question was something of a mismatch in that one side was seeking particulars of publication and the other was resisting providing particulars of the identity of persons to whom the publication is alleged to have been made. In a case such as this, identifying persons to whom the publication is alleged to have been made is merely one way of providing particulars of publication. As Mr Dawson conceded in argument, it may be in a particular case involving the internet that a plaintiff cannot name such a person but would instead rely upon an inference from, say, the number of hits and the period of time over which a matter was placed on the internet that at least one person downloaded and viewed the article in question. Be that as it may, I am satisfied that in conformity with UCPR 15.19, it is incumbent upon the plaintiff to provide such particulars as it can of the publication of the second matter complained of, including, to the extent it may be relied on by the plaintiff, the identity of any person who downloaded and viewed the second matter complained of. 29Accordingly, I order the plaintiff within twenty-one days to provide all the facts, matters and circumstances said to support the publication of the second matter complained of including, to the extent it will be relied upon, the identity of any person other than the plaintiff who downloaded or viewed the second matter complained of. Otherwise I dismiss the application. [Counsel addressed on costs.] 30Mr Hale seeks an order that some proportion of his client's costs be paid by the defendant. 31There were, in effect, two separate issues; one concerning particulars of publication and one concerning whether the imputations were capable of being conveyed. 32In terms of overall importance to the case, there is no doubt that the matter that Mr MacDonald prevailed upon was much more significant than the matter upon which the ABC succeeded. However, in terms of overall time, I think the time and effort spent on both was about the same. 33In my view, imputations arguments, although important, can, and in this case were, conducted with reasonable efficiency. In the end the consideration of time involved prevails. I consider that the most appropriate order is that the costs of this application be the parties' costs in the cause. I so order. [After judgment the parties filed further orders.]