Minus v Harbour Radio Pty Ltd

Supreme Court of NSW|2017-03-03|Before: McCallum J

Solicitors: Corrs Chambers Westgarth (plaintiff) Banki Haddock Fiora (defendants) File Number(s): 2016/176044

Judgment

HER HONOUR: These are proceedings for defamation arising out of a series of broadcasts on Radio 2GB by the well-known radio presenter, Mr Alan Jones. The proceedings were commenced by statement of claim filed on 8 June 2016 but have been adjourned several times at the request of the plaintiff. On 13 February 2017 a proposed amended statement of claim was served. The defendants object to the form of that pleading. This judgment determines the objections. In the circumstances, it is appropriate to treat the application as the plaintiff's application for leave to file the amended pleading.
The broadcasts were concerned with disputes between landholders and mining interests in the Southern Highlands district of New South Wales focussing, in particular, on perceived unfairness in the operation of an arbitration process for the resolution of disputes as to access to properties by mining companies. The plaintiff, Mr Derek Minus, is an arbitrator, mediator and barrister who has been appointed to a panel of arbitrators under the Mining Act 1992 (NSW). At the time of the broadcasts, Mr Minus had been appointed in that capacity as arbitrator of a dispute between Hume Coal Pty Limited and two landholders, Mr and Mrs Roche, regarding access to the Roches' land.

First matter complained of

The defendants maintain a number of objections to the imputations pleaded in the proposed amended statement of claim. The first objection is to imputations (h) and (i) from the first matter complained of, which are: (h) The plaintiff, an arbitrator with the Investigation Unit of the Department of Energy, colluded with the South Korean mining company POSCO to enable POSCO to obtain access to Kathy Roche's land. (i) In the alternative to (h), the plaintiff, an arbitrator with the Investigation Unit of the Department of Energy, was complicit in POSCO's bastardry and mongrel behaviour of forcing Kathy and John Roche into arbitration against their will in order to obtain access to their property.
Whether by way of objection or simple observation, one point taken by the defendants is that imputation (i) does not stand comfortably as an alternative, less serious imputation to (h), being neither framed in the usual form of an alternative nor less serious than that imputation. In light of the conclusion I have reached as to imputation (i), it is not necessary to address that issue, beyond expressing my view that there is force in the observation.
The principal objection to those imputations is that they are not sufficiently precise. While arguments as to precision may appear tedious, the requirement that a plaintiff specify the defamatory meaning he or she contends is conveyed by the matter complained of serves an important function in delineating the issues for trial and determining the scope of any interlocutory steps that should be allowed. Allowing an imprecise or ambiguous imputation to stand can result in considerable waste of time and legal costs.
Mr Richardson, who appears for the defendants, submitted that imputations (h) and (i) are imprecise by reason of the inclusion of the terms "colluded" and "complicit" respectively. I do not think there is any imprecision in the use of the term "colluded" in imputation (h). It may be observed that the imputation as it stands is barely defamatory; it does not attribute the plaintiff with colluding to obtain access to the land wrongfully or unlawfully but that is a matter for the plaintiff.
As to imputation (i), however, there is force in the defendants' objection. The content of the requirement of precision in an imputation is well understood. It is recognised that it is usually possible to formulate an imputation with greater or lesser specificity and that an objection on the grounds of imprecision must ultimately be resolved according to considerations of "practical justice in the circumstances of a particular case, rather than considerations of the possibility of linguistic refinement": Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 at 138E per Gleeson CJ.
In the present case, the range of conduct which could be captured by the imputation of complicity in the conduct of POSCO is extremely wide and, in my view, is likely to generate confusion in the conduct of the proceedings.
Separately, the defendants object to the inclusion of the phrase "bastardry and mongrel behaviour" in imputation (i). That phrase is drawn, in terms, from the matter complained of, in particular the opening words of the presenter: "I have mentioned on many occasions this mining invasion and in particular the bastardry and mongrel behaviour of this crowd, Hume Coal at Sutton Forest in the Southern Highlands."
Standing alone, the phrase "bastardry and mongrel behaviour", while obviously derogatory, does not convey a clear attribution and would not be permitted to stand in an imputation. The reason slang terms are not ordinarily appropriate for inclusion in an imputation was helpfully explained by Simpson J (as her Honour then was) in Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20 at [21] to [26]; applied by me in Luna v Porter [2016] NSWSC 1727 at [10] to [12].
Justice Simpson explained that slang terms are often effective in conveying a defamatory slur without conveying a meaning that is "clear and precise". It is difficult to find a better illustration of that proposition than the lines of Prince Hal in Henry IV Part 1 by William Shakespeare, Act 2, scene 4: "Why dost thou converse with that trunk of humours, that bolting-hutch of beastliness, that swollen parcel of dropsies, that huge bombard of sack, that stuffed cloak-bag of guts, that roasted Manningtree ox with the pudding in his belly, that reverend vice, that grey iniquity, that father ruffian, that vanity in years?
Such language may be used with good effect for purposes outside litigation but has no place in pleadings.
In the present case, the meaning of the slang term "bastardry and mongrel behaviour" is further defined within the imputation as a reference to POSCO's conduct in forcing the landholders into arbitration against their will in order to obtain access to their property. In that circumstance, the characterisation of that clearly specified conduct by the use of a slang phrase, which adds to the insult but not the clarity, falls into the territory of mere rhetorical flourish. I am satisfied that the imputation is bad in form and must be struck out with leave to re-plead.
A further objection to the imputation was that the notion of forcing the Roches into arbitration against their will is incapable of arising from the matter complained of.
It is ordinarily more appropriate to determine an objection as to the capacity of the matter complained of to convey an imputation only after the resolution of any objection as to form. Whilst I am wary of determining a capacity objection in respect of an imputation that is to be struck out for imprecision, it may be helpful to the parties to record my preliminary view that, contrary to the submission put on behalf of the defendants, I do not think the matter complained of draws a clear distinction between the discrete role of the plaintiff and the discreditable conduct attributed to Hume Coal or the Department of Energy.

Second matter complained of

The next objection relates to two imputations pleaded as arising from the second matter complained of, as follows: (g) The plaintiff, appointed by the Department of Energy to arbitrate a dispute between POSCO and Kathy and John Roche, was irreparably compromised in his position as arbitrator because he was biased in favour of the South Korean vandals, POSCO. (h) The plaintiff, appointed by the Department of Energy to arbitrate a dispute between POSCO and Kathy and John Roche, breached his duties as an arbitrator to act impartially and fairly to both parties by favouring the interests of the South Korean vandals POSCO over the interests of the Roches.
The first objection is that those first two imputations do not differ in substance, contrary to the prohibition contained in r 14.30(3) of the Uniform Civil Procedure Rules 2005. Mr Jedrzcjczyk, who appears for Mr Minus, accepted that the distinction is subtle. He submitted that imputation (g) is directed to the condition of being unfit to act as an arbitrator whereas imputation (h) is an attribution of conduct in breaching the duty of an arbitrator to act impartially and fairly.
The distinction is indeed a subtle one and, in the circumstances of this case (where the conduct in imputation (h) is framed in general terms not dissimilar to the condition attributed to the plaintiff in imputation (g)), it is difficult to understand the desire to take both imputations to trial. However, recent appellate authority suggests that the test is undemanding: see Fairfax Media Publications v Zeccola [2015] NSWCA 329 at [79] to [85] per McColl JA; Macfarlan JA and Sackville AJA agreeing at [112] and [117]. While trial judges may despair at the proliferation of imputations in proceedings for defamation, I think I would be wrong to put the plaintiff to an election in the present case.
The second objection is to the inclusion of the word "vandals" in those two imputations. As with the objection to "bastardry and mongrel behaviour" in imputation (i) from the first matter complained of, the objection is that the imputation is insufficiently precise by reasons of the inclusion of the term "vandals". I agree. The matter complained of explains the conduct for which POSCO is accused of being a vandal. I accept that the inclusion of some characterisation of that conduct is appropriate, since it adds force to the imputation (the proposition being that the plaintiff was not only biased but biased in favour of the "bad guys"). However, clearer language is required, in my view.
The next objection is to imputation (k) arising from the second matter complained of, which is: The plaintiff, an arbitrator with the Investigation Unit of the Department of Energy, was complicit in POSCO's bastardry and mongrel behaviour of forcing Kathy and John Roche into arbitration against their will in order to obtain access to their property.
For the reasons given above in respect of imputation (i) arising from the first matter complained of, the imputation should not be allowed to stand with the inclusion of the phrase "bastardry and mongrel behaviour".
Secondly, the defendants contend that the imputation is incapable of arising because the matter complained of does not suggest that the plaintiff personally forced the Roches into arbitration. It was further submitted that the description of the plaintiff as "the nominated arbitrator by the Department" is inconsistent with the notion of his having forced Mr and Mrs Roche into the arbitration process. Other parts of the matter complained of were identified as also being inconsistent with that suggestion.
In my view, while there are arguments that could be put to the jury on that issue, the distinction between the role of the plaintiff as distinct from the role of the POSCO or the Department is not so clear as to render the imputation incapable of arising. It must be borne in mind in this context that the matter complained of is in the form of a radio broadcast which would have been heard (not read) and then only once. I am not persuaded that the ordinary reasonable listener could not reasonably take imputation (k) from the matter complained of.

Third matter complained of

Imputation (c) pleaded in respect of the third matter complained of is: The plaintiff is a disgraceful, Putin-like bully who intimidated and bullied Kathy Roche, an elderly woman with cancer receiving chemotherapy treatment, and John Roche, her 87 year old husband.
As with earlier imputations, this imputation is drawn in terms from the words of the matter complained of, which refers to "disgraceful, Putin-like behaviour".
The defendants initially objected to the form of that imputation on the basis of the inclusion of the term "Putin-like". In a commendable attempt to narrow the scope of the matters for argument, a number of the defendants' initial objections were withdrawn, including that one. I nonetheless called upon the plaintiff to defend the inclusion of that phrase within the imputation.
Mr Jedrzcjczyk sought to defend its inclusion on the basis that the matter complained of was published not long after the shooting down of Malaysian Airlines Flight MH17, which attracted a great deal of media focus in Australia including focus on the president of the Russian Federation, Mr Vladimir Putin. Mr Jedrzcjczyk also relied upon the fact that the Prime Minister of Australia at that time, Mr Tony Abbott, famously pledged to "shirt-front" the Russian leader, drawing a response from the Kremlin to the effect that Mr Abbott would fare poorly in a judo contest between the two men.
In my view, it is undesirable for an imputation to be framed by reference to the attributes of a political figure. The plaintiff's resort to particular world events to lend meaning to the phrase "Putin-like" illustrates the difficulty. The various attributes of Mr Putin may be understood or perceived differently from listener to listener. Coincidentally, Australia's perception of Mr Putin is back in the press this week following comments by Senator Pauline Hanson. Senator Hanson is attributed with having expressed her respect for the Russian leader, saying: "He is very patriotic towards his country, the people love him, he is doing so well for the country. So many Australians here want that leadership here in Australia,"
Our current leader, Mr Malcolm Turnbull, disagrees. He is attributed with having responded by condemning Senator Hanson's remarks, saying Mr Putin's Russia was responsible for the "shocking international crime" of shooting down the MH17 airliner killing 298 people, including 38 Australian citizens, and that Mr Putin was not worthy of the Senator's admiration.
In that fraught political context, the prospect of having to determine interlocutory disputes or direct a jury as to how to determine issues concerning whether the brand of bullying allegedly attributed to Mr Minus by the matter complained of is to be likened to that to be attributed to Mr Putin is unattractive.
The final objection is to imputation (g) alleged to arise from the third matter complained of, which is: The plaintiff is a contemptible person who prefers the interests of the mongrel mob at POSCO to those who fight for justice and who serve the wider community.
For the reasons already stated in respect of the other imputations which include slang terms, that imputation should be struck out by reasons of its inclusion of the phrase "the mongrel mob".
For those reasons, leave to file an amended pleading that includes imputations in the form of 5(i), 6A(g), 6A(h), 6A(k), 7A(c) and 7A(g) in the proposed amended statement of claim is refused.

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. Decision last updated: 16 April 2018

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