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[2016] ACTSC 286
General information, not legal advice.
Supreme Court of the ACT
2016-09-22
Mossop AsJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
McMillan v The Federal Capital Press of Australia Pty Ltd
DEFAMATION - Imputations - Application to strike out imputations in statement of claim - Whether imputations not reasonably capable of arising - Meaning influenced by reading article as a whole - Turns on own facts
Court Procedures Rules 2006 (ACT), rr 425, 1701(2)
Chiguvare v Seven Network (Operations) Limited [2015] ACTSC 285
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Fairfax Media Publications Pty Ltd & Ors v Cummings [2012] ACTCA 36; (2012) 269 FLR 182
Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
The Federal Capital Press of Australia Pty Limited (First Defendant)
Fairfax Media Publications Pty Limited (Second Defendant)
Fairfax Digital Australia and New Zealand Pty Limited (Fourth Defendant)
1. The plaintiff has brought proceedings for defamation in relation to a publication of an article that appeared in the Canberra Times newspaper on 19 December 2015 as well as a number of other publications. The article, written by Jack Waterford, was entitled "FOI laws resented, resisted" and "FOI laws are resented and resisted, even by former allies". The statement of claim alleges that the publication gives rise to eight imputations.
2. By application in proceeding filed 16 August 2016, the defendants sought an order that each of the pleaded imputations be struck out pursuant to r 425 of the Court Procedure Rules 2006 (ACT) (Rules). The essential complaint in relation to each of the eight imputations is that the imputation is not reasonably capable of arising. Further, in relation to imputations (vi) and (viii), the defendants contend that the imputations are, because of their form, embarrassing.
3. For the purposes of these reasons I will focus upon the publication in the Canberra Times newspaper and refer to the paragraph numbering provided of that article annexed to the statement of claim. Any variations in the content or paragraph numbering of the different forms in which the article was published are not significant for the purposes of the present application. Whatever the outcome of the application is in relation to the Canberra Times publication will flow through to the other publications.
4. Whether or not an imputation is reasonably capable of being conveyed raises a question of law for determination by the Court. An imputation will be struck out if the Court finds that the meaning is not a meaning which any reasonable judge or jury could find to be conveyed. The principles to be applied are uncontroversial and are summarised in Fairfax Media Publications Pty Ltd & Ors v Cummings [2012] ACTCA 36; (2012) 269 FLR 182 at [61]- [62] (Cummings) as follows:
61. The test on such an application has been authoritatively stated by Hunt CJ at CL, with whom Mason P and Handley JA agreed in Amalgamated Television Services Pty Ltd v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 at 164-7. Those principles were summarised by Tobias JA, with whom Sheller JA and Young CJ in Eq agreed in Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 as follows (at [18]-[20]):
Pursuant to s 7A(1) of the Defamation Act 1974 (the Act), the primary judge was required 'to determine whether the matter complained of is reasonably capable of carrying the imputations pleaded by the plaintiff.' By s 7A(2) of the Act if the court determines that the matter is not reasonably capable of carrying the imputation pleaded, it is required to enter a verdict for the defendant in relation to that imputation.
The principles applicable to the correct approach of the primary judge and this Court to the issue posed by s 7A(1) were authoritatively stated by Hunt CJ at CL, with whom Mason P and Handley JA agreed, in Amalgamated Television Services Pty Limited v Marsden [1998] NSWSC 4; (1998) 43 NSWLR 158 at 164-167. Relevantly for present purposes, those principles may be summarised as follows:
(a) Section 7A(1) of the Act is declaratory of the common law, namely, that the issue of the capacity of the matter complained of in a defamation action was properly described as the task of deciding whether it would be open to the jury in the particular case to find that ordinary reasonable readers would have understood the matter complained of, when read as a whole, in the defamatory sense pleaded.
(b) On any appeal, this Court is required to independently come to the conclusion as to whether there is a case to go to the jury.
(c) If reasonable persons may differ as to whether the matter complained of was capable of carrying the imputation pleaded, then the issue must be left to the jury; otherwise, it is a matter for the court.
(d) The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it; in deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable; accordingly, any strained or forced or utterly unreasonable interpretation must be rejected.
(e) The ordinary reasonable reader is a person of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal. However, that person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs.
(f) The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader.
(g) The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking.
(h) There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual.
(i) There is a distinction to be drawn in the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded. The distinction is between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said: it is the former approach, not the latter, which must be adopted.
Although in dissent as to the result, the foregoing principles were re-stated by McHugh J in John Fairfax Publications Pty Limited v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 where his Honour observed (at 1161 [26]) (omitting citations):
However, although a reasonable reader may engage in some loose thinking, he or she is not a person 'avid for scandal'. A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If '[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together'. But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article.
See also Callinan J, with whom Gleeson CJ agreed, at 1699 [181] (emphasis in original).
62. It is, of course, necessary for this decision that the Court consider the whole of the matter complained of and the context in which it appears. As Lord Devlin said in Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 at 285:
[I]t is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done.
5. The defendants placed particular emphasis on the distinction drawn in paragraph (i) in the extract from Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 (Griffith) quoted in Cummings between:
(a) the ordinary reasonable reader drawing on his or her own knowledge and experience of human affairs; and
(b) a conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said.
6. In Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [132]- [138], the New South Wales Court of Appeal articulated the position as follows:
Although the primary judge set out principles dealing with the determination of whether the Book was capable of conveying the pleaded imputations, her Honour did not, with respect, set out the function of the capacity determination or the standard by which the issue of law raised by the separate trial was to be determined.
The judge's function at the capacity stage is to determine "the outside boundaries of the possible range of meanings and [set] the 'ground rules' for the trial": P Milmo and WVH Rogers, Gatley on Libel and Slander (11th ed 2008, Sweet& Maxwell) ("Gatley"), at [3.13] (see also [32.5]) citing Mapp v News Group Newspapers Ltd [1997] EWCA Civ 1107; [1998] QB 520.
That standard by which the issue of law raised by the separate trial was to be determined was addressed in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 ("Favell") where the plurality (Gleeson CJ, McHugh, Gummow and Heydon JJ, Kirby J generally agreeing) approved the following statement by McPherson JA in the Court of Appeal:
"Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application_. Such a step is not to be undertaken lightly but only, it has been said, with great caution._ In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken." (Emphasis added)
Accordingly, the capacity determination is "an exercise in generosity not parsimony"; while it involves a "matter of impression ... the impression is not of what the words mean but of what a jury could sensibly think they meant": Berezovsky (at [16]) per Sedley LJ delivering the judgment of the court. Implicit in Sedley LJ's observation, is that the question of course is "what a jury could sensibly think [the words] meant" to the ordinary reasonable reader.
One reason "great caution" is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that "no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be 'perverse' for any jury to do so'": Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 89 ("Jameel") (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing).
Thus, the focus should be on the fact that the decision deprives the plaintiff of the opportunity to present his or her case to the jury, the importance of whose constitutional role in this area as representatives of the community is frequently emphasised: see John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 ("Rivkin") (at [2]) per Gleeson CJ (who also agreed with Callinan J); (at [184]) per Callinan J. The significance of the jury's role warrants the application of a "high threshold of exclusion": Jameel (at [14]) per Simon Brown LJ.
In Favell (at [14] - [15]), the plurality appeared to apply a capacity test which asked whether challenged imputations "could reasonably be found by a jury". This is the test adopted in this Court: see Marsden (at 164) per Hunt CJ at CL (Mason P and Handley JA agreeing); Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 (at [19](a)); Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254; (2007) Aust Torts Reports 81-915 (at [14]) per Beazley JA (Basten JA and McClellan CJ at CL agreeing). It is consistent with the test applied when determining generally whether a case should be left to a jury: see Naxakis v Western General Hospital [1999] HCA 22; (1999) 197 CLR 269 (at [16]) per Gaudron J; (at [45]) per McHugh J; (at [66] - [67]) per Kirby J; cf Gleeson CJ (at [1]); Callinan J (at [117] - [123]). Naxakis concerned the test to be applied when directing a jury at the close of evidence to enter a verdict in favour of the defendant. Whether or not the Naxakis approach is strictly that which should be applied at a capacity determination was not argued. In any event the Court is bound to follow Marsden.
7. In Chiguvare v Seven Network (Operations) Limited [2015] ACTSC 285 at [4]- [8] I summarised the approach to be taken to the striking out of imputations as follows:
4. The principles governing the question of whether an imputation is capable of arising are summarised in Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36 at [61]- [62] ('Cummings').
5. If reasonable minds may differ as to whether an imputation is capable of being conveyed, then that imputation must be left to the tribunal of fact: see Cummings at [72]. The High Court's decision in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 ('Favell') illustrates that it may be difficult to successfully contend that a finder of fact could not reasonably conclude that the challenged imputation arose.
6. Imputations must be clear in their terms and imprecise imputations will be struck out: see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 140 ('Drummoyne'). I would however note that what is required in any given case involves a judgment being made as to the degree of particularity or generality which is appropriate to the occasion. In Drummoyne Gleeson CJ articulated the nature of the problem and the fact that the specificity of the pleading is very much dependent upon the circumstances of the case. His Honour said (at 137B): "If a problem arises, the solution will usually be found in considerations of practical justice rather than philology."
7. Similarly if an imputation is likely to cause confusion at trial it ought to be struck out, even if it has used the words used in the publication: Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155. The issue which has to be decided in any particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.
8. A plaintiff is required to specify the act or condition which he or she contends was understood by the ordinary reasonable reader as being attributed to him or her by the matter complained: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [129] ('Harvey'). Unless the terms of the matter complained of are so brief or so opaque that they do not permit the distillation of an act or condition, it is not sufficient to simply plead the words of the matter complained of: Harvey at [118]-[129]. This Court has accepted the need for precision in imputations in the same manner as is required in NSW: Baffsky v John Fairfax & Sons Ltd (1991) 106 FLR 21 at 32. However, I should emphasise that the requirement for precision and the avoidance of confusion are manifestations of the ordinary rules of pleading in the particular context of a defamation action. They respond to the requirements for practical justice as between the parties.
8. The article is annexed to the statement of claim. It is not necessary to set it out in full. I will set out some of the critical paragraphs from which the imputations are said to arise. However, in order to understand the context of those paragraphs and hence whether the imputations pleaded could arise, it is necessary to have some understanding of the overall structure of the article.
9. The article has two headings, as it appears over two different pages. The first is "FOI laws resented, resisted". The second appears where the article is continued and provides "FOI laws are resented and resisted, even by former allies".
10. The article commenced by referring to the career of John Wood who is identified as one of the fathers of freedom of information legislation and was at one time Deputy Commonwealth Ombudsman. Paragraphs 1 to6 described his career and his application under freedom of information (FOI) legislation for briefing documents given to the then Prime Minister, Julia Gillard, about the resignation of Alan Asher, a former Commonwealth Ombudsman, after he had been involved in briefing Sarah Hanson-Young, a senator from the Australian Greens.
11. Paragraphs 7 through to 11 referred to Labor and Coalition politicians' hostility to FOI legislation and that view being shared by many senior public servants who "resent and resist" its implications.
12. Paragraphs 12 to 14 referred to the "rubber stamp" given by the Information Commissioner to the reasons for departmental advice to Julia Gillard and Special Minister of State, Gary Gray, being withheld from disclosure. It made some comments on the extent to which the officers of the Australian Information Commissioner were in favour of FOI or disclosure under it within a reasonable period.
13. Paragraphs 15 to 20 described in favourable terms the decision of Deputy President Forgie of the Administrative Appeals Tribunal (AAT) who, in the Wood case, required disclosure of the documents sought.
14. The paragraphs which are of central importance for the present application, paragraphs 21 to 29, were as follows:
21. It is not without interest that the interests of John Wood in the AAT litigation were being advanced by one Alan Asher. But it is also noteworthy that they were appealing a decision made by an agency then headed by Professor John McMillan, a former ombudsman (and, now again an acting ombudsman for NSW).
22. McMillan and Wood were the main civilian advocates for FOI back in the 1970s and, if not the Act's fathers, at least their DNA is all over it. It would not be true to suggest that they fell out. But their paths did seem to diverge.
23. A time came when McMillan, still at that stage an academic, began to have public doubts about whether the administrative reform package of the 1970s and early 1980s had gone "too far".
24. He had reservations about the way that courts and tribunals, in running the rule over immigration decision, were developing a marked tendency to substitute their own view of the best decision. They should have been, he thought, deciding whether bureaucrats had applied the right processes and principles.
25. His doubts, if not apostasy, attracted the attention of politicians, and it would not be overly cynical for an outsider to think that it played a major role in a decision to offer him the position of Ombudsman in 2003. During his seven-year tenure, which included reappointment, the profile of the office dropped and no informed criticism emerged about immigration and refugee matters. This was not because of good immigration culture or administration but, seemingly, a lack of interest by the office or an incapacity to find facts.
26. Refugee issues were big news and soon major scandals, such as the Rau and Solon cases, emerged. Ironically, the independent outsiders then commissioned to get to the bottom of the mismanagement, had to be given the powers of the Ombudsman to do so.
27. To some, McMillan might have seemed a natural choice to be Information Commissioner when the Rudd government began reforming FOI and its appeal processes in 2008. But it would not have been for his management skills, combativeness or capacity to come quickly to a judgment.
28. The new office, quickly given about 100 staff, was supposed to adopt informal processes to promote a new culture of disclosure. It hardly worked out that way, becoming instead an embuggerance, with delay, bureaucracy and timorous process. Not only were routine cases waiting for more than a year for resolution, but the resolutions, when they came, were surprisingly conservative and anti-disclosure.
29. I cannot think of a single outcome which might be thought to be some sort of signpost or beacon for an open government culture.
15. Paragraph 30 referred to "slow and ponderous" agencies claiming to follow "best practice", as proclaimed by the Office of the Australian Information Commissioner, failing to consult other than through formal written channels and the use of "speculative but extravagant" and discouraging claims of the time it will take to determine whether documents are exempt from disclosure.
16. Paragraphs 31 and 32 of the publication related to the plaintiff's predecessor as Ombudsman in New South Wales, Bruce Barbour, and his inquiry into the conduct of New South Wales police. It referred to attacks made on Mr Barbour and the possibility that if the plaintiff could reach "a widely-accepted conclusion in a timely manner, with exemplary natural justice all-round" "he will have opened the way for fresh material on an extensive CV".
17. The article concluded with the author doubting that such an outcome would match the accomplishments of Mr Wood, including his success in the Administrative Appeals Tribunal case.
18. The defendants characterised the article as a serious opinion piece. The plaintiff emphasised the use of florid language in the article and the extent to which the article made an adverse comparison between Mr Wood and the plaintiff.
19. I will deal separately with the submissions that have been made in relation to each of the pleaded imputations.
Imputation (i): The plaintiff betrayed his principles as a proponent of administrative law reform for the purpose of securing an appointment by the Commonwealth Government
20. This imputation is alleged to have arisen from paragraphs 22 to 25 of the publication.
21. The defendants submitted that this imputation is not capable of arising because, although the publication conveys that the plaintiff has, over time, changed his view in relation to matters concerning freedom of information, there is nothing in the publication to suggest that change of view was for the purpose of securing an appointment by the Commonwealth government. They submitted that the publication does not convey that the change of view was something reached "quickly and temporally with some opportunity to secure an appointment by the Commonwealth government". Further, the publication does not suggest that the plaintiff sought out or encouraged the appointment. Therefore the defendants submitted that the suggestion that the article conveys such a motive on the part of the plaintiff is "fanciful".
22. Further they submitted that the concept of the plaintiff "betraying" his principles does not arise because it is implicit in the allegation of a betrayal that the doubts that the plaintiff developed over time were not genuine. Contrary to that proposition, the defendants submitted that the publication conveys that the plaintiff had a genuine change of view over time.
23. The plaintiff, on the other hand, placed emphasis on the words "his doubts, if not apostasy, attracted the attention of politicians". The plaintiff contended that the word "apostasy" is a loaded word and a loose one. The word suggests that the plaintiff has heretically abandoned his principles and it is this that attracted the attention of politicians and led to his appointment.
24. Counsel for the plaintiff then pointed to the subsequent allegations about the manner in which the plaintiff conducted himself whilst in office as Ombudsman and Information Commissioner, which he submitted indicates that the link between the apostasy and the appointment was no coincidence.
25. I accept the defendants' first submission, namely, that there is nothing in the article from which it might reasonably be concluded that the plaintiff had changed his mind "for the purpose of securing an appointment by the Commonwealth government." In order for this aspect of the imputation to arise it would be necessary not only to conclude that the plaintiff's views made him an attractive candidate for a government appointment, but also that the purpose of his change of views was to secure such an appointment. The high point in favour of the submission that the imputation could arise is the possible link between the expression of "public doubts" (paragraph 23) and this having "attracted attention of politicians" (paragraph 25). There is nothing express in the words of paragraphs 22 to 25 that gives rise to an imputation that the plaintiff changed his views or publicly expressed his doubts for that purpose. Nor could it reasonably be implied from the words used. In my view, the contention that the imputation in relation to the plaintiff's motivation could arise falls into the second category of case referred to in paragraph (i) quoted from Griffith above, namely, a conclusion which a reader could only reach by taking into account his or her own beliefs which were excited by the publication. For that reason the imputation must be struck out.
26. I do not accept that the imputation is required to be struck out because it refers to the plaintiff having "betrayed his principles". In that regard I accept the submission of the plaintiff that the word "apostasy" leaves open to a reasonable reader the idea of having abandoned one's principles as opposed to merely having had a change of views. Apostasy is an unusual word and a wide degree of latitude should be given in relation to the capacity of the matter complained of to convey the pleaded imputation: see Griffith paragraph (h). Readers will not necessarily undertake a fine analysis of its meaning. However, a dictionary definition of the word is "a total desertion of, or departure from, one's religion, principles, party, cause, etc.": Macquarie Dictionary (6th ed). If the concept was confined to religion then the submissions of the defendants would have more force. A benevolent reading of the article would be consistent with the submissions of the defendant, namely a gradual but genuine change of views over time. However, as the dictionary definition makes clear, it also extends to a desertion of one's principles. It cannot be said, particularly in a context of a newspaper article which may not be analysed to the same degree as a book and which overall presents a substantially negative picture of the plaintiff, that the reference to apostasy is confined in the benevolent manner contended for by the defendant.
Imputation (ii): The plaintiff lacked the proper ability and standing to be Commonwealth Ombudsman, and was only appointed to that office because the government believed he would be sympathetic to the bureaucracy
27. This imputation is alleged to have arisen from the terms of paragraphs 24 and 25 of the publication.
28. During the course of oral submissions counsel for the plaintiff indicated that he wished to amend the imputation so as to delete the word "only" and insert after the word "office", the word "primarily". If that amendment is made the imputation would then be:
The plaintiff lacked the proper ability and standing to be Commonwealth Ombudsman, and was appointed to that office primarily because the government believed he would be sympathetic to the bureaucracy.
29. The defendants submitted that there was nothing in the publication to support the allegation that at the time of his appointment as Commonwealth Ombudsman the plaintiff lacked the "ability" or "standing" for the appointment. The defendants contended that the overall impression created by the article, in particular the reference to the plaintiff's DNA being "all over" the FOI Act and the fact that he was an academic, was that he was eminently qualified and able to fulfil the role.
30. The plaintiff pointed to the contentions in the article as indicating a lack of ability and standing:
(a) the drop in profile of the office: paragraph 25;
(b) the absence of informed criticism about immigration and refugee matters: paragraph 25;
(c) that the above existed because of a lack of interest by his office or an incapacity to find facts: paragraph 25;
(d) that independent outsiders had to be commissioned to get to the bottom of the mismanagement of the Rau and Solon scandals and that they were given the Ombudsman's powers to do so: paragraph 26;
(e) he was reappointed as Commonwealth Ombudsman following his demonstrated and chronic failure to be an independent watchdog: paragraph 25;
(f) when the government considered the plaintiff for the role of Information Commissioner in 2008 this "would not have been for his management skills, combativeness or capacity to come quickly to a judgment": paragraph 27;
(g) the plaintiff's performance in his subsequent role is also characterised as a chronic failure: paragraphs 28-30.
31. It will be apparent that most of the matters pointed to by the plaintiff involve a judgment of his ability and standing based on his subsequent conduct in the role.
32. In my view, the pleaded imputation is capable of arising. The overall tenor of the article is to suggest that by the time of his appointment as Commonwealth Ombudsman, the plaintiff's earlier views had changed to such an extent that the primary reason for his appointment was the attractiveness of his publicly expressed views to the government. It is clear that the author's view is that this is not an appropriate qualification. Thus, by suggesting that the primary reason for his appointment was anticipated sympathy to the bureaucracy and suggesting no other reason why the plaintiff might have been a suitable candidate, the imputation that he lacked the "ability and standing" to fill that office is a reasonably available one.
Imputation (iii): The plaintiff performed negligently in his role as Commonwealth Ombudsman in that he adopted an indolent, neglectful and uncaring approach to immigration and refugee matters
33. This imputation is alleged to arise from paragraph 25 of the publication.
34. In the course of oral submissions counsel for the plaintiff said that he did not press the word "indolent" with the result that the imputation would read:
The Plaintiff performed negligently in his role as Commonwealth Ombudsman in that he adopted a neglectful and uncaring approach to immigration and refugee matters.
35. The defendants made two points about this imputation. First, that it did not arise because the criticism was directed to the office the Ombudsman and not the plaintiff personally. Senior counsel for the defendants submitted that the imputation alleged was distinct from an imputation that the plaintiff had presided over an office which had the characteristics alleged.
36. Second, the defendants contended that the criticism in the article is a "lack of interest by the office or an incapacity to find facts". These words were not capable of confining the notion inherent in the combination of a "neglectful and uncaring approach". The defendants pointed to other reasons why there might have been a lack of interest or an incapacity to find facts, such as a lack of resources or priorities that differed from that of the author.
37. In response to the defendants' first point the plaintiff submitted that the statement in paragraph 25 about lack of interest and an incapacity to find facts was bookended by the reference to the plaintiff's personal apostasy at the commencement of paragraph 25 and the plaintiff's lack of management skills, combativeness or capacity to come quickly to a judgment in paragraph 27. The plaintiff submitted that the imputation was clearly open that the conduct of the office was a result of the performance of the person who was leading it. Counsel also pointed to the earlier references to other holders of the office, Mr Asher and Mr Neave, being indicative of the author attributing the poor performance of the office to the performance of the leader.
38. In relation to the defendants' second point, the plaintiff submitted that the words "neglectful and uncaring" appropriately captured the sting of the cumulative allegations contained within paragraph 25: the drop in profile, the absence of informed criticism about immigration and refugee matters, a lack of interest by the office in such matters or an incapacity to find facts.
39. I do not accept the defendants' first submission. In my view it is clearly open to a reasonable reader to understand that the failings of the office are being attributed to its leader. That is clear from the manner in which the commentary about the office is embedded in a description of the history of the plaintiff's recent career. While it would have been open to the plaintiff to have pleaded the imputation that he presided over an office which performed in a particular way, a reasonable person with knowledge of the world could understand that the Ombudsman is in charge of the office and ultimately responsible for the conduct of that office. As a consequence, in my view, the imputation that the plaintiff performed negligently in his role is reasonably capable of arising out of statements about the failings of his office.
40. In relation to the defendants' second submission, following the modification of the imputation so as to delete the word "indolent" the issue is whether the publication might reasonably be understood as suggesting a "neglectful and uncaring approach to immigration and refugee matters". In attempting to distil the sting which arises from the words used there may clearly be different formulations reasonably available. Paragraph 25 advances the proposition that notwithstanding that there was not a good immigration culture or administration, there was no informed criticism emerging from the Ombudsman's office. That seemed to the author to be because of an inappropriate "lack of interest" by the office or an "incapacity to find facts" in circumstances where there were facts available to be found. While "neglectful and uncaring" might not be the most obvious formulation of the sting arising from the words used, whether or not it actually arises is a matter on which reasonable persons may differ and hence it is not appropriate to strike it out on that basis.
Imputation (v): The plaintiff performed with such incompetence in his role as Commonwealth Ombudsman, that independent outsiders had to be commissioned and give the Ombudsman powers to examine major scandals such as the Rau and Solon cases
41. This imputation is alleged to be based upon paragraph 26 of the publication.
42. The defendants' submission was that the imputation was not available because the publication was directed to the conduct of the office and this says nothing about the conduct of the plaintiff. The plaintiff, however, submitted that the Ombudsman himself could not be quarantined from any failures on the part of his office to properly handle major scandals or from any systemic failure that required others to step in and do his job.
43. I do not accept the defendants' submission. It is clear in the context in which paragraph 26 appears, which immediately follows the allegation about a lack of interest or incapacity to find facts, that the failings of the office are sought to be laid at the foot of the plaintiff. It would involve an artificial quarantining inconsistent with the overall thrust of the publication to suggest that the criticisms of the office were not targeted at the conduct of the plaintiff.
Imputation (v): The plaintiff lacked the management skills and ability to be appointed Australian Information Commissioner
44. This imputation is alleged to arise from the terms of paragraph 27 of the publication.
45. The defendants submitted that the imputation is not reasonably capable of being conveyed because although criticisms are made of the plaintiff they do not suggest that he generally lacked the ability to be appointed to the role. The defendants drew attention to the use of the words "management skills, combativeness or capacity to come quickly to a judgment" in the publication and the apparent substitution of "ability" for the words "combativeness or capacity to come quickly to a judgment" in the particularised imputation. The defendants submitted that "ability" was self-evidently a much broader concept and as a consequence the pleaded imputation was not a final distillation of the meaning carried by the articles. For example, the defendants submitted that combativeness may indicate a lack of ability as opposed to a desirable trait.
46. The plaintiff submitted that the suggestion that combativeness can be indicative of a lack of ability as opposed to a desirable trait completely missed the point of the article. The plaintiff submitted that the central point of the article was that combativeness was an integral part of an office such as the Information Commissioner and that this virtue was absent in the plaintiff. The plaintiff submitted that when combined with the other express and implied criticisms in the balance of the publication, the attack on the plaintiff's skills and ability was a broad one. The plaintiff asked rhetorically whether any reader would understand the article to mean that the plaintiff had the ability to be appointed as the Information Commissioner.
47. Notwithstanding that the imputation differs from the words used in paragraph 27, its terms are, in my view, reasonably capable of arising from the terms of the publication. I do not accept the defendants' submission that the article is neutral on the value of combativeness or the capacity for quick judgment when it comes to the question of ability. The article is reasonably open to the interpretation that the author is propounding the view that combativeness and quick judgment are essential capacities of a person holding the office of Information Commissioner and that a person without those capacities lacks the ability necessary to be appointed to that office. In those circumstances whether or not the imputation arose is, at the very least, a matter of upon which reasonable minds might differ and hence the imputation should not be struck out.
Imputation (vi): The plaintiff performed negligently in his role as Information Commissioner, in that he displayed poor management skills, timidity and poor judgment
48. This imputation is alleged to arise from paragraphs 27 to 29 of the publication.
49. In his written submissions counsel for the plaintiff indicated that the plaintiff wished to amend this imputation to:
The plaintiff displayed poor management skills, timidity and poor judgment in his role as Information Commissioner.
50. The defendants made two submissions. The first was that the criticism was only capable of extending to the Ombudsman's Office and not the plaintiff personally. The second was that the words "poor management skills, timidity and poor judgment" are not a faithful encapsulation of the words "delay, bureaucracy and timorous processes" in the publication.
51. The plaintiff submitted that the phrase "delay, bureaucracy and timorous process" was not the sole source of the imputation. The plaintiff submitted that when paragraphs 25 to 27 and 29 were examined together the imputation was amply capable of being conveyed.
52. In my view the imputation is clearly capable of arising. For the reasons given above the terms of the article are clearly capable of being directed to the plaintiff rather than the office. While paragraph 28 refers to delay, bureaucracy and timorous process, the references to timidity and poor judgment are capable of arising from paragraphs 27 to 29 even though they do not match the formula used in paragraph 28. Timidity is clearly an available reading of the reference to a lack of combativeness and timorous process. A lack of judgment is an available meaning to be drawn from poor management, allowing the office to become "an embuggerance" involving "delay, bureaucracy and timorous process", allowing "routine cases" to wait for more than a year for resolution, permitting resolutions which were "surprisingly conservative and anti-disclosure". Characterising these matters as giving rise to an imputation of poor judgment is at least a matter upon which reasonable minds might differ. As a consequence this imputation should not be struck out.
Imputation (vii): The plaintiff performed with such incompetence in his role as Information Commissioner that the office became crippled by bureaucracy and delay
53. This imputation is said to arise from the terms of paragraph 28 of the publication.
54. The defendants contended that the imputation could not arise because it sought unreasonably to attribute criticism levelled at the office to the plaintiff personally. They also submitted that the imputation was embarrassing because it was so vague and general that it failed to distil a clear defamatory act or condition of the plaintiff.
55. The plaintiff repeated his submissions in relation to criticisms of the office being criticisms of the plaintiff. So far as the objection to form was concerned, the plaintiff submitted that the act was incompetent performance with the consequence that the office became crippled by bureaucracy and delay. In answer to the criticism of the defendants, the plaintiff pointed to the florid language used in the article itself, most notably the reference to the office becoming "an embuggerance".
56. (The term "embuggerance" demonstrates the benefit of having a national dictionary. The word is defined in the Macquarie Dictionary (6th ed) as an colloquial military term meaning "1. an unnecessary or irrelevant interruption in the completion of a task. 2. an insignificant or irksome factor which will not prevent the achievement of the overall objective." There is no entry for "embuggerance" in the Shorter Oxford English Dictionary (6th ed).)
57. Consistently with my earlier reasons, I consider it clearly open to understand paragraph 28 as being a criticism directed at the plaintiff who was the person in charge of the office.
58. I do not consider that the imputation is embarrassing in that the reference to incompetence is clearly tied to the consequences for the office, namely, it becoming "crippled by bureaucracy and delay". In circumstances where the article impliedly involves criticism of the head of the office, the act alleged in the imputation is incompetent performance of the plaintiff's role that had the identified consequences.
Imputation (viii): The plaintiff is a hypocrite who once advocated open government and Freedom of Information, but who later upon assuming government office, deliberately worked to defeat those ideals
59. This imputation is alleged to have arisen from paragraphs 22 to 25 and 28 to 29 of the publication.
60. The defendants submitted that this imputation is not reasonably capable of being conveyed because the concept of hypocrisy necessarily requires that the person simultaneously holds themselves out as holding one view whilst holding another, or saying one thing then doing another. There must, therefore, be a temporal connection between two inconsistent things. The defendants submitted that it is not reasonably open to understand the article as conveying such a situation. Instead the article conveys that the plaintiff's views have altered over time.
61. The plaintiff submitted that the defendants' contention involved too fine a distinction as to what is involved in the concept of a hypocrite. He submitted that a person who sells out the ideals of her or his youth when opportunities present themselves in adulthood may fairly be described as a hypocrite. The plaintiff also noted what he described as the "often snide and sarcastic tone of the article", which contrasts adversely the plaintiff's career to that of Mr Wood.
62. Having regard to the terms of paragraphs 23 and 24 of the publication it is reasonably apparent that the article is asserting that the plaintiff came to have doubts about whether the administrative reform package of the 1970s and early 1980s had gone too far. The criticisms which are then made of his conduct in the two offices which he held involves conduct which is open to be viewed as generally consistent with that change of view. The article does not appear to advance the thesis that the plaintiff's conduct in office was inconsistent with his then current opinions. As a consequence, in my view, the availability of this imputation depends upon what meaning is given to the concept of "a hypocrite". Is it sufficient that somebody might be characterised as having "sold out" or is it necessary that they think or say one thing but do another.
63. "Hypocrisy" is defined in the Macquarie Dictionary (6th ed) as:
1. the act of pretending to have a character or beliefs, principles, etc that one does not possess.
2. pretence of virtue or piety; false goodness.
64. The Shorter Oxford English Dictionary (6th ed) defines "hypocrisy" as:
The practice of falsely presenting an appearance of virtue or falsely professing a belief to which one's own character or conduct does not conform; the dissimulation, pretence; an instance of this.
65. Each of these definitions emphasises, consistently with the defendants' submission, the need for a discontinuity between contemporaneous thoughts or statements on the one hand and actions on the other. In my view, because the concept of a hypocrite involves the temporal connection between two inconsistent things, the imputation is one which could not arise from the article. The imputation could only arise if the concept of "a hypocrite" extended beyond the reasonably available meaning of that term. As a consequence it must be struck out.
66. For the reasons given above, imputations (i) and (viii) are to be struck out. The plaintiff also wishes to amend imputations (ii), (iii) and (vi). In circumstances where the plaintiff may reasonably be able to plead imputations which properly arise from the publication I consider it appropriate to grant the plaintiff leave to file an amended statement of claim.
67. While the defendants have not been completely successful, they have compelled the plaintiff to seek to amend some aspects of his pleading and have been successful in a contested application in having two of the imputations struck out. Having regard to the defendants' success, but also the number of matters upon which they were not successful, the appropriate order is that the plaintiff pay 75% of the defendants' costs of the application. I will therefore order that the plaintiff pay 75% of the defendants' costs of the application, but order pursuant to r 1701(2) of the Rules that those costs not be assessed until the proceedings end.
1. Imputations (i) and (viii) in paragraphs 9, 11, 13, 15, 17 and 19 of the statement of claim dated 20 May 2016 are struck out.
2. The plaintiff is to file and serve an amended statement of claim within 14 days.
3. The plaintiff is to pay 75% of the defendants' costs of the application, but those costs are not to be assessed until the proceedings end.
4. The proceedings are listed for directions before the Deputy-Registrar on 13 October 2016 at 10.00am.
I certify that the preceding sixty-eight [68] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop.
McMillan
The Federal Capital Press of Australia Pty Ltd [2016] ACTSC 286
(2012) 269 FLR 182
(1998) 43 NSWLR 158
(2003) 77 ALJR 1657
(2005) 79 ALJR 1716
(1999) 197 CLR 269
(1990) 21 NSWLR 135
(1988) 12 NSWLR 148
(1991) 106 FLR 21