Matthew Jonathan Hyndes v Nationwide News Pty Limited

Judgment 1This is an action for defamation arising out of the publication of an article in The Australian newspaper and on the Internet version of that publication. The proceedings are listed for hearing with a jury for two to three weeks commencing on 5 September 2011. The application presently before the Court is an application by the defendant for leave to amend its defence. The plaintiff does not object to the filing of a further amended defence but takes a number of specific objections to the draft amended pleading presently propounded.

Background 2The matter complained of is an article published under the headline "Elderslie owner sails away as the heat rises". The primary focus of the article is the conduct of a person who is not a party to these proceedings, Mr Peter George. It is reported that Mr George, who was the owner of "the failed $200 million Elderslie Finance Corporation", had also been a director of EC Consolidated Capital, a company that "stole millions of dollars from investors and was liquidated in 1997". The article claimed that Mr George had recently sailed out of Sydney aboard his $3 million yacht, apparently never to return. 3Separately, the article makes reference to another director of EC Consolidated Capital, Mr Tim Gatland, who allegedly went missing in Bangkok in 1996 and was presumed to have been murdered. The article then refers to a relationship between the late Mr Gatland and the plaintiff, stating: Mr Gatland made headlines again in May last year when Australia's then Deputy High Commissioner in Sri Lanka, Matthew Hyndes, told the Industrial Relations Commissioner of his relationship with the conman. Mr Hyndes told the IRC in unrelated proceedings that via a company controlled by Mr Gatland, he had helped lend money to drug-dealing Thai officials while he was on leave from the Australian embassy in Bangkok in1996. The Department of Foreign Affairs and Trade said yesterday Mr Hyndes was employed by the department but no longer held the Sri Lanka post. 4Mr Hyndes alleges that the article was defamatory of him and carried the following meanings: (a) that he had assisted officials of the Thai government to deal in illegal drugs by helping to lend them money; alternatively (b) that he had knowingly assisted drug dealers by helping to lend them money; (c) that he had helped lend money to drug dealing Thai officials while he was on leave from his employment at the Australian embassy in Bangkok in1996; (d) that his conduct in helping Thai drug dealers had caused the Department of Foreign Affairs to remove him from his post as the Australian Deputy High Commissioner in Sri Lanka. 5In its amended defence filed on 29 October 2010, the defendant pleads defences of truth under section 25 of the Defamation Act 2005 (apparently only as to imputations (a) and (c)); contextual truth under section 26 of the Act, fair report of proceedings of public concern under section 29 of the Act and common law qualified privilege. In addition, the defendant pleads a number of matters in mitigation of damage. 6By the proposed further amended defence, the defendant seeks to amend the contextual truth defence with a new contextual imputation and to add a plea of justification at common law. The proposed amended pleading also seeks to amend the truth defence by extending the defence to imputation (b) and refining the particulars relied upon in support of the defence. Particulars in support of truth defence 7The first objection raised by the plaintiff is that some of the particulars of truth are not capable of being relevant in the proof of that defence. The particulars objected to on that ground are paragraphs 7C, 19 and 20 of the proposed amended pleading. Although the plaintiff's objections to those paragraphs were brought forward in the context of the defendant's application for leave to amend, the particulars in question are not new (being in substantially the same form as particulars 7C, 12G and 12H in the present defence). However, no point was taken as to the appropriateness of determining the plaintiff's objections as an incident of the application for leave. 8Section 25 of the Defamation Act 2005 provides: 25 Defence of justification It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true. 9As already noted, the imputations sought to be proved as being substantially true are imputations (a), (b) and (c) relied upon by the plaintiff (paragraph 21 of the proposed pleading). The contentions relied upon in support of the truth defence are set out in the preceding paragraphs (7 to 20) of the proposed pleading. 10Paragraph 7C states: 7C The plaintiff was found by the Department of Foreign Affairs and Trade to have misrepresented to the Department of Foreign Affairs the start date of his employment with the Company as being 1 July 1996. Particular to Paragraph 7C( UCPR 15.22 ) (i) The findings are set out in the following business records of the Department of Foreign Affairs and Trade: (A) Charges laid on 26 October 1998 by Authorised Officer (Mr Bob Tyson). (B) "Report of Inquiry into Charges against Matthew Hyndes" dated 2 July 1992 1999, (C) "Review of employment actions - section 33 Public Service Act 199" dated 22 May 2003. 11The question of fact raised by the truth defence is whether it is substantially true that the plaintiff did the acts attributed to him in imputations (a), (b) and (c). The fact asserted in particular 7C, that the Department of Foreign Affairs and Trade made the finding referred to, is in my view incapable of having any bearing on that question. The forum in which the truth of the plaintiff's imputations is to be determined is this Court. The existence of findings in other forums cannot be brought to aid in that task. I am satisfied that particular 7C in the amended defence is liable to be struck out under rule 14.28 of the Uniform Civil Procedure Rules and that the defendant should not have leave to file a further amended defence that includes a particular in those terms. 12The next particular objected to is paragraph 19 of the proposed pleading, which provides: 19. The plaintiff offered a bribe to Rutagorn Assadon Teriut with the intention of influencing the decisions regarding nominations with TTF. Particular to paragraph 19 ( UCPR 15.22) The representations were made by the plaintiff on 9 September 1997 to Allan John Spencer and Christopher Price. 13The objection to particular 19 was added only during the hearing of argument. Mr Smark, who appeared for the plaintiff, submitted that the allegation of offering a bribe can have no bearing on the conduct sought to be proved by the defendant of helping lend money to drug dealers. There appears to be some force in that contention. On balance, however, I think it is a question that should be reserved for the trial judge. I note that, elsewhere in the particulars, "TTF" is alleged to have provided loans to Thai officials who were drug lords. Without a full understanding of the facts underlying the defendant's contentions, I cannot be satisfied that it is appropriate to preclude the defendant from relying on the particular contention in paragraph 19 at this stage. 14The third particular objected to is paragraph 20, which states: 20. The plaintiff was the subject of a security clearance review and had his security clearance with the Department of Foreign Affairs downgraded on 26 September 1997 (the Security Clearance Review) as a result of: (a) conduct by the plaintiff in connection with his employment by the Company in Thailand during the Relevant Period; (b) the plaintiff was untruthful during a security clearance interview conducted on 9 September 1997 in relation to this conduct in Thailand during the Relevant Period; (c) the plaintiff's involvement in attempts by companies for which he worked to bribe senior Thai officials. Particulars to paragraph 20 ( UCPR 15.22) The findings of the Department of Foreign Affairs and Trade were set out in the following business records: (i) Department of Foreign Affairs and Trade in Minute dated 26 September 1997. (ii) Department of Foreign Affairs and Trade Minute dated 18 June 1998. 15As with the existence of a finding of the Department (sought to be relied upon in particular 7C), the existence of a decision of the Department to downgrade the plaintiff's security clearance is not capable of proving the substantial truth of the plaintiff's imputations. The critical issue is the conduct of the plaintiff, not the findings or decisions of others as to any aspect of his conduct. Accordingly, I am satisfied that particular 12H in the amended defence is liable to be struck out under rule 14.28 of the Uniform Civil Procedure Rules 2005 and that the defendant should not have leave to file a further amended defence which includes a particular in that form. 16I am further satisfied that, as submitted by Mr Smark, particulars 7C and 20 in their present form are not proper particulars in mitigation of damage, for the same reasons. If what is in truth sought to be established is that the plaintiff had a bad reputation within the Department, that should be made explicit. The fact that there was a security clearance review which resulted in the plaintiff's clearance being downgraded could not in itself mitigate the plaintiff's damages.