Moroney v John Fairfax Publications Pty Ltd

DLJ: 1 [2001] NSWSC 1138 IN THE SUPREME COURT OF NEW SOUTH WALES common law DIVISION Defamation list 20178 of 2001

14 December 2001 KENNETH EDWARD MORONEY ( Plaintiff)

John Fairfax Publications Pty Ltd ( Defendant )

Judgment (Imputations - capacity - identification - particulars - verification) 1 The plaintiff (who is described in paragraph 1 of the Statement of Claim as "one of two deputy Commissioner's of the New South Wales Police Service") sues the defendant in respect of a publication in The Sydney Morning Herald of 21 October 2000. Proceedings were commenced on 14 March 2001. 2 The plaintiff is not named in the matter complained of. The Particulars of Identification are as follows: "At the date of publication: (a) the Commissioner's Executive Team consisted of six members: three being the Commissioner and the two Deputy Commissioners (including the Plaintiff) and three civilian members; (b) the two positions of deputy Commissioner in the NSW Police Service were filled by the Plaintiff and Deputy Commissioner Jeff Jarratt". 3 The defendant contends that these particulars are inadequate. 4 It is submitted that the plaintiff has failed to include particulars of persons to whom the matter complained of was published and who knew the matters set out in the Particulars of Identification above. 5 Since the filing of the pleading there has been a further exchange of correspondence constituted by a letter from the plaintiff's solicitors dated 9 August and a response thereto from the defendant's solicitors dated 15 August 2001. By their letter of 9 August 2001 the plaintiff's have certainly provided a lot of "information" in relation to the issue identification. What the plaintiff has failed to do, however, is to particularise clearly persons or categories of persons to whom the matter complained of was published, that is, read it knowing the matters set out in the "Particulars of Identification". That the plaintiff is required so to do is clear from Moore v Australian Broadcasting Corporation (1985) A Def R [50,010]. 6 The defendant also submits that the plaintiff be required to verify the particulars, relying on what is said to be the authority of the decision of Hunt J in Lazarus v Deutsche-Lufthansa AG (1985) 1 NSWLR 188 at 195. Lazarus was an oral defamation which his Honour described (at 190C) as a "veritable tempest in a teacup". There were compelling reasons, as I read his Honour's judgment, for ordering verification in that case; I do not see there to be a necessity as a general rule in mass media communications of the kind with which I am concerned to require verification. There is no question of the plaintiff being the beneficiary of a significant indulgence in the context of not knowing the names of persons to whom an oral publication was made (Lazarus at 195C). Nor particularly in the circumstances of the "information" hitherto provided is there any real question of fairness. 7 The plaintiff will not be required to verify the Particulars of Identification in this action. The plaintiff will, in due course, be required to give outlines of evidence in accordance with Practice Note 114. Ultimately, it will be a matter for the jury, properly instructed, to determine whether in the circumstances the plaintiff has established that the publication would reasonably lead persons to understand it to be referring to him: Dojas v TCN Channel Nine Pty Limited [2001] NSWCA 398. 8 The imputations pleaded as being carried by the matter complained of are: "(a) That the plaintiff used his position as a Deputy Commissioner of the NSW Police Service to engage in a sustained campaign of intimidation and interference to divert and damage reform of the NSW Police Service. (b) That the plaintiff used his position as Deputy Commissioner of the NSW Police Service to conduct a vendetta against key reformers in the NSW Police Service. (c) The Plaintiff as a Deputy Commissioner of the NSW Police Service engaged in drunken, threatening, bullying conduct towards other members of the NSW Police Service". 9 The defendant submits that each of the imputations is not reasonably capable of arising. Its primary submission is that the article, read reasonably, is not capable of identifying the plaintiff as one of the persons who were "running a vendetta" or who were involved in a "sustained campaign of intimidation and interference" or as "threatening" or "bullying" anybody. 10 The headline and text of this article are appended to these reasons. 11 The defendant's analysis of the article (the article, in my view, is poorly structured) leads to the conclusion that the reader would understand the article to be reporting upon a "civil war" the parties to which are a senior Internal Affairs officer and the Police Crime Management Support Unit. The fair, unstrained and reasonable reading of the matter complained of indicates that the source of the "vendetta" and the attempt to divert and damage the reform process, is the senior officer in the Police Internal Affairs. I accept these propositions. On no reasonable basis therefore can the first or second imputations be carried. 12 The third imputation, it can be seen arises from lines 28 to 33. What is there being described is the content of emails from the unnamed Internal Affairs officer which had been released by Mr Ritchie. Those emails, from the unnamed Internal Affairs officer to Mr Seddon could be understood as providing a component at least of two years of documentation to prove the conduct in quotes. The structure of the sentence in quotes is painful. It is tolerably clear however that "world of total incompetence" is made up of the drunken, threatening, bullying, handpicked members of the Police Commissioner's Executive Team, of the Deputy Commissioner's meeting Senior Constables in pubs and of constant last minute scrambling to make the Commissioner look good. 13 Of whom is that being said? To my mind it could be understood as being said of the whole Commissioner's Executive Team and secondly, of all Deputy Commissioners. The Particulars of Identification place the plaintiff in both categories. It will be for the plaintiff to prove his case in that regard at trial. I do not see that the plaintiff having tied his Particulars of Identification to the "date of publication" precludes him from running a case otherwise available. I am not persuaded further, that the so called "rule" in McCormick v John Fairfax & Sons Pty Limited (1989) 16 NSWLR 485 at 491 operates to preclude the plaintiff from advancing a case. I am of the view that the extract of the matter complained of to which reference is made above expressly can be interpreted as asserting that each member of the class of "the Commissioner's Executive Team" and "Deputy Commissioner's" could be understood as behaving in the way alleged. 14 The formal orders are:

1. The matter complained of is incapable as a matter of law of carrying imputations (a) and (b). It is capable of conveying imputation (c), which is capable of being defamatory.

2. With respect to imputations (a) and (b) I enter a verdict for the defendant.

Schedule A 1 Ryan pushes for inquiry on 'civil war'

3 The Police Commissioner, Mr Peter Ryan, challenged the police watchdog yesterday to "expedite" 4 any inquiry" into claims that senior officers were running a vendetta to "stitch-up key reformers". 5 The Opposition spokesman on police, Mr Andrew Tink, said that the allegations were the most 6 serious since the Police Royal Commission and suggested a "civil war" developing in the upper 7 echelons of the police Service. 8 Three members of the police crime management support unit - two chief inspectors and a senior 9 public servant - yesterday delivered internal documents to the Police Integrity Commission alleging 10 a sustained campaign of intimidation and interference by senior officers. 11 Mr Ryan said in a statement that he had asked the Police Integrity Commission chief, Judge Paul 12 Urquhart, to fast track the inquiry "that might arise from material delivered to him today alleging 13 any attempt to divert or damage the reform process". 14 One unit member, Mr James Ritchie, said a senior Internal Affairs officer was "misusing" his 15 investigative powers to conduct a "personal vendetta" against the head of the crime management 16 support unit Detective Superintendent Ken Seddon. 17 Mr Seddon, who was recruited from England by Mr Ryan in 1998, and five other members of his 18 unit are under investigation by internal affairs for alleged breaches of travel allowances. 19 The unit has been involved in developing reform and cultural change with front line police officers 20 and was recently called in to help officers in the troubled command of Cabramatta. 21 Mr Ritchie said Mr Seddon was being investigated for a sudden trip he took to England to attend his 22 mother's funeral which was approved by Mr Ryan. "It is a stitch up," Mr Ritchie said. 23 Mr Ritchie, an academic and consultant, was under the spotlight for using a police car for private 24 travel and conducting a domestic violence seminar in Goulburn. He said he had approval to us the 25 car and undertake secondary employment and had conducted the seminar in his own time. 26 Despite no members of the unit being questioned, Mr Ritchie and Internal Affairs had "briefed 11 27 regional commanders" about the investigation. 28 He yesterday released emails from the unnamed Internal Affairs officer to Mr Seddon and said he 29 and colleagues had collected two years of documentation to prove the undermining. 30 "It reveals a world of total incompetence; of drunken, threatening, bullying, hand-picked members 31 of the Commissioner's executive team; of deputy commissioners meeting senior constables in pubs 32 to correct their own … posting errors; of constant last minute scrambling to make the commissioner 33 'look good'", Mr Ritchie said. 34 In the June email to Mr Seddon, the Internal Affairs officer said: "Your attitude could be perceived 35 that this is why we are continually publicly sanctioned by the oversight agencies". 36 internal affairs was harshly criticised in May by the integrity commission in the first review of the 37 reform process since the May 1997 report of the royal commission. 38 The report revealed that junior officers had investigated senior officers, potential conflicts of 39 interest exists and said it was "unreasonable" that 43.5 per cent of complaints against police were 40 not investigated. 41 Mr Tink called on the Integrity Commission to set up immediately an investigating taskforce 42 headed by interstate police. 43 "The allegations in essence suggest that there's something of a civil war developing within the 44 NSW police service over reform and that the fight is taking an extremely nasty turn" Mr Tink said. 45 Requests to speak to Mr Seddon and the officer in charge of Mr Seddon's unit, assistant 46 commissioner Mr Clive Small, were refused by the Police Media Unit. **********

Last Modified: 12/17/2001 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.