Maitland and Anor v Nationwide News Pty Ltd

NATIONWIDE NEWS PTY LTD (Defendant) JUDGMENT OF : Levine J

R Weaver (Plaintiffs) COUNSEL : T Blackburn (Defendant) RL Whyburn (Plaintiffs) SOLICITORS : Blake Dawson Waldron (Defendant) CATCHWORDS : Imputations - capacity - form - difference in substance CASES CITED : Maitland and Anor v John Fairfax Publications Pty Ltd [2002] NSWSC 369 DECISION : See paragraph 13

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20665 OF 2001 JOHN MAITLAND (First Plaintiff)

CONSTRUCTION FORESTRY MINING AND ENERGY UNION (Second Plaintiff)

JUDGMENT (Imputations - capacity - form -difference in substance) 1 The plaintiffs sue the defendant by an Amended Statement of Claim (filed on 28 February 2002) for an article published on 10 July 2001 in "The Daily Telegraph". It is an article with the headline "Militant mobs find safe haven" and is by The Telegraph's columnist Piers Akerman. The text of the article is appended to these reasons. 2 The first plaintiff alleges that the matter complained of carries the following imputations defamatory of him: "5(a) The First Plaintiff, as national secretary of the Construction, Forestry, Mining and Energy Union, sought to pervert the course of justice by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigations. (b) The First Plaintiff as national secretary of the Construction, Forestry, Mining and Energy Union, obstructed a police investigation by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigations. (c) The First Plaintiff, as national secretary of the Construction, Forestry, Mining and Energy Union, engaged in standover tactics by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigations. (d) The first plaintiff, as national secretary of the Construction, Forestry, Mining and Energy Union, condoned violent, destructive rampages at the offices of employers. (e) The first plaintiff, as national secretary of the Construction, Forestry, Mining and Energy Union, condoned attempts to pervert the course of justice to achieve union ends. (f) The first plaintiff, as national secretary of the Construction, Forestry, Mining and Energy Union, condoned the use of standover tactics to achieve union ends". 3 The second plaintiff contends that the matter complained of contains the following imputations defamatory of it: "6(a) The Second Plaintiff sought to pervert the course of justice by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigations. (b) The Second Plaintiff engaged in standover tactics by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigations. (c) The Second Plaintiff condoned violent, destructive rampages by union members at the offices of employers. (d) The Second Plaintiff condoned the use of standover tactics to achieve union ends". 4 This matter gives rise to similar issues that were dealt with in my judgment of Maitland & Or v John Fairfax Publications Pty Ltd [2002] NSWSC 369.

5 The plaintiff, as it happens, has pleaded here imputations identical to those pleaded against Fairfax. The questions of form and capacity are not determined on a comparative basis of course but there can be peril in pleading identical imputations in relation to two separate articles which might mention the same subject matter but which are quite different in form. 6 Mr Akerman's column (and it is not the same in any sense as the reportage in the Fairfax article) is quite tendentious. It is only however in paragraphs 12, 13 and 22 that there is any reference to the plaintiffs. In paragraph 11 of the column there is reference to the company, Johnson Tiles, being the victim of a mob attack. 7 Leaving aside any question of capacity, imputations 5(a), 5(e), and 6(a) are struck out. As stated in the Fairfax reasons for judgment the use of the expression "sought to pervert the course of justice" and "attempts to pervert the course of justice" are quite elusive of specificity. 8 The article makes it clear that Johnson Tiles is refusing to co-operate with police, it is refusing to do so after entering into a deal with the CFMEU and no charges have been laid relating to the havoc caused at that company. The article makes it clear that the second plaintiff (it must be understood as "the nation's main construction union") apparently made it clear to Johnson Tiles that it would encounter difficulties unless it co-operated with the union "which has volunteered its assistance to the renegade ANWU" (Paragraph13). It is to be noted that in paragraph 12 that it is stated expressly that Johnson Tiles is "refusing" to co-operate with the police and doing so after entering into the deal which the first plaintiff announced. 9 As stated in the Fairfax judgment I am of the view that imputations 5(b) and (c) differ in substance and I am satisfied in respect of this matter that each is capable of arising and is capable of being defamatory. I am so satisfied with respect to imputation 6(b). 10 Imputations 5(d) and (f) and 6(c) and (d) are generalised imputations. In the Fairfax matter I found that they were incapable of being conveyed by the relevant article. In this instance I am not satisfied that the same finding can be made. It is a borderline case in my view but one that should be left to the jury to determine. It is the language, tone and tenor of the columnist that persuades me to leave these imputations to the jury. The theme of Mr Akerman's piece is generalised to the extent that, the events in Victoria could be understood as being used to raise a spectre on a nationwide basis. Reference is made to a Mr Andrew Ferguson having his authority to enter building sites revoked in New South Wales (paragraph 16), reference is made to Labor governments being in all states except in South Australia (paragraph18), paragraph 23 says that Mr Combet is saying that the Federal Government was trying to use the union movement as part of its re-election strategy. In paragraph 24 the matter complained of is in general terms and paragraph 25 makes it quite "union corruption must be stamped out wherever it appears". It is theses elements of the matter complained of that persuade me to leave these sets of two imputations to the jury. 11 Whether the plaintiffs through their advisers give consideration to pleading alternative or fallback imputations more incident specific will be a matter for them. 12 Finally, as a "tidying up" matter, I strike out particular (a) of the particulars of aggravated damages. 13 The formal orders are:

1. Imputations 5(a), 5(e) and 6(a) are struck out without liberty to replead.
2. Imputations 5(b), 5(c), 5(d), 5(f), 6(b) 6(c) and 6(d) are capable of being carried and capable of being defamatory.
3. Particular (a) of aggravated damages is struck out.
4. Each party is to pay its own costs.
5. The matter is to be listed for directions in the Registrar's Defamation Directions List on 31 May 2002.

APPENDIX A

1. THE DAILY TELEGRAPH, Tuesday july 10 2001, page 17
2. Militant mobs find safe haven

3. Piers Akerman
4. If ALP leader Kim Beazley, his trade union mates and the bulk of the left-leading media had their way, former industrial relations minister Peter Reith would forever be linked with the balaclava-clad security forces needed to clear dock workers from the wharves.
5. The fact that the waterfront had historically been a hot bed of corruption and the home of some of the nation's worst criminals was conveniently overlooked.
6. Just as conveniently ignored is the fact that the docks are now reformed to a large degree and the levels of production the MUA claimed were impossible are now the norm.
7. Peter Reith achieved the unachievable in the face of vehement and sometimes violent opposition from the worst elements of the Labor Left, supported by such people as Jennie George and the Premier of NSW Bob Carr.
8. Now the balaclavas are back and are being worn by the ultramilitant members of the Australian Manufacturing Workers Union.
9. And despite a well-documented report of a rampage through the offices of Skilled Engineering in Victoria, during which a balaclava-clad mob of about 40 unionists allegedly led by the AMWU's state boss Craig Johnston ran riot, Labor is still protecting its trade union mates.
10. According to the police reports, the mob smashed its way into Skilled Engineering's premises with a crowbar then proceeded to demolish computer equipment and other office furniture, before systematically smashing windows with chairs, leaving the terrified staff to prepare an inventory of the extensive damage, estimated at about $300,000.
11. A similar mob had attacked another company, Johnson Tiles, earlier the same day, damaging manufacturing equipment and leaving the staff shaken.
12. Police have charged six including Johnston over the rampage at Skilled Engineering but it has now emerged that Johnson Tiles is refusing to co-operate with police investigators after entering into a deal with the Construction Forestry Mining and Energy Union, and no charges have been laid relating to the havoc caused at the tile company.
13. The nation's main construction union apparently made it clear to the company that it could encounter difficulties with a $6 million extension unless it co-operated with the trade union, which volunteered its assistance to the renegade AMWU.
14. It has also been reported in The Sydney Morning Herald that a group of senior union leaders attempted to pressure the Victorian Premier Steve Bracks and ACTU secretary Greg Combet to prevent charges being laid.
15. Obviously, the whole situation reeks. Don't be lulled into a false sense of security because these recent events occurred in Victoria. The same attitude to the law is to be found in NSW.
16. Just over a month ago, the NSW branch secretary of the nation's CFMEU main construction union, Andrew Ferguson, had his authority to enter building sites revoked by the Australian Industrial Relations Commission.
17. The revoking of Ferguson's "right of entry" permit followed complaints by a CSR subsidiary, CSR Humes, that Ferguson obstructed work.
18. With Labor governments in all states except South Australia, it should come as no surprise that state industrial relations ministers are opposed to Federal government plans to hold an enquiry into allegations of corruption and criminal activity in the construction sector.
19. In the words of the harlot Mandy Rice Davies, they would, wouldn't they?
20. The Federal Government, which had been reviewing a 10-page report prepared by the Employment Advocate, Mr Jonathan Hamberger, into allegations of money laundering, bribery, theft, fraud, kickbacks for union officials mis-use of union funds, false invoicing, employment of illegal immigrants and breaches of company tax laws, before the recent violent rampages in Victoria has yet to announce whether it will conduct a royal commission.
21. The Federal Opposition's industrial relations spokesman, Arch Bevis, has attacked the report and planned inquiry as having "all the trimmings of a cheap political witch-hunt".
22. The national secretary of the Construction, Forestry, Mining and Energy Union, John Maitland, who announced the deal with the tile company, said his union has "nothing to hide" but added it would not co-operate with a "political circus".
23. Combet said the Federal Government was trying to use the union-movement as part of its re-election strategy.
24. Try to tell that to the workers who watched balaclava-clad thugs who smashed their way into their workplaces.
25. Union corruption must be stamped out wherever it appears.
26. The Federal Opposition stands to lose if it tries to prevent an inquiry.
27. It should show that it has clean hands by offering to participate and co-operate with any investigation instigated by the Federal Government.

Last Modified: 05/06/2002 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.