DEFAMATION - pleadings - objections to imputations on the grounds of form and capacity
Cases Cited: Webb v Bloch [1928] HCA 50
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DEFAMATION - pleadings - objections to imputations on the grounds of form and capacity
Cases Cited: Webb v Bloch [1928] HCA 50
Judgment (2 paragraphs)
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Judgment
HER HONOUR: These are proceedings for defamation commenced by Mr George Newhouse against News Limited. Mr Newhouse sues that entity as the alleged publisher of articles published in various media forums held within the News corporate group.
The proceedings are governed by Practice Note SC CL 4 and this is the first listing. The Practice Note states that, at the first listing of an action for defamation, the defendant is expected to state whether publication is in dispute and, if it is, to state why.
In correspondence in response to the Statement of Claim, News Limited has disputed that it is liable as a publisher of the matters complained of. The letter states:
"Take notice that News Limited is not the publisher of either the print or on-line versions of the Herald Sun, the Daily Telegraph and news.com.au."
Ms Chrysanthou, who appears for Mr Newhouse, submitted (correctly, in my view) that it was incumbent upon News Limited to state the reason it contends it is not properly named as a publisher of the matters complained of in circumstances where it is, as a matter of public record, the registrant of www.news.com.au and, further, where that website identifies News Limited as the holder of the copyright of material appearing on the site, with the necessary implication that it authorises whatever entity it says is the publisher to publish that material.
Prima facie, each of those contentions taken together would appear to bring News Limited within the scope of person liable for publication as that term is apprehended in the decision of High Court in Webb v Bloch [1928] HCA 50; 41 CLR 331. I think, however, that Mr Lewis, who appears for News Limited, adequately discharged the obligation identified in the practice note in the submissions he made today. What the plaintiff chooses to do with the information given is a matter for him.
Ms Chrysanthou foreshadowed an application for leave to interrogate on that issue, noting the attractive simplicity of there being a single defendant to the proceedings in the circumstance of multiple entities having responsibility as "the publisher" for multiple electronic places for publication. It may well be that a respectable case could be made for leave to interrogate in those circumstances.
The substantive argument heard today was a series of objections taken by the defendant to the imputations pleaded by Mr Newhouse. The parties agreed that those objections could be determined by reference to the first matter complained of, the second and third matters complained of being in substantially the same terms, save for the headline.
The article was written by Mr Bolt, a journalist employed by The Herald Sun. Broadly speaking, the article addresses Mr Bolt's views as to the position taken by a group, to whom he refers to as "the refugee lobby", concerning the Australian Government's treatment of asylum seekers.
The first matter complained of appeared under the headline, "Fearmonger's Hateful Fraud". Ms Chrysanthou submitted that, under that headline and in light of what follows, the article may be seen to be focussed on the conduct of "the refugee lobby" of which Mr Newhouse is clearly identified in the article as a member.
The first imputation is (a):
"that the plaintiff, a lawyer, has fraudulently represented to the public that people whom he represents are refugees when they are not".
Mr Lewis submitted that the imputation is incapable of arising from the matter complained of for a number of reasons. The first was the contention that the matter complained of is:
"An opinion piece highlighting that despite the refugee lobby arguing that the Abbott Government breached its human rights obligations, Australia properly returned 41 Sri Lankan boat people to Sri Lanka as they were economic migrants and not genuine asylum seekers."
That may be Mr Bolt's opinion, and it may well be one that emerges from a reading of the article, but it does not follow logically, or at all, that that is the only thing the matter complained of says. I have previously observed that it is commonly objected in this List that a defamatory article does not say A because it says B. That argument rarely succeeds unless it is sustained by what can be characterised as a true dichotomy. The present article says a lot more than is contained in the submission put by Mr Lewis.
The submission comprehended the proposition that the term "fraudulently" usually denotes "intending to deceive." That much may be accepted. I am of the view that the matter complained of is plainly capable of conveying the meaning that Mr Newhouse intended to deceive by the representation that his clients were refugees. As submitted by Ms Chrysanthou, the whole thrust of the article is to expose the fraud of that representation. That emerges from a number of statements in the matter complained of, including the following:
"The outrage over the forced return of 41 Sri Lankan boat people has been exposed as a fraud by the asylum seekers themselves."
As submitted by Ms Chrysanthou, the article plainly focuses on the proposition that those like Mr Newhouse, who purport to stand on the high moral ground protecting asylum seekers, are in fact engaged in a fraud on the public. A similar theme emerges from a number of the statements in the balance of the article.
Mr Lewis also sought to seek comfort from the fact that the article focusses on the alleged fraud relating to the 41 people returned to Sri Lanka, whereas Mr Newhouse is identified in a different context as having appeared for the 153 people for whom he obtained an injunction in the High Court. I think the distinction is one that would not necessarily be drawn as distinguishing him from the criticisms levelled by Mr Bolt in the article. Certainly, on a capacity basis, I do not think that distinction precludes the imputation from being capable of arising. In my view, the imputation (a) is capable of arising.
The second objection is that the imputation is imprecise or bad in form. Specifically, it was complained that the imputation does not distil precisely what it is that the plaintiff is said to have done fraudulently and what representations he is said to have made to the public. I do not accept that submission. The imputation plainly specifies that the representation attributed to Mr Newhouse is that "boat people" whom he represents are refugees. The objections to imputation (a) are accordingly rejected.
Imputation (b) is:
"The plaintiff, as a lawyer, has lied to the High Court in order to obtain a temporary injunction of his clients."
The specific part of the article dealing with Mr Newhouse's involvement in proceedings in the High Court states:
"Mr Newhouse and barrister Ron Merkel QC have persuaded the High Court to issue a temporary injunction against returning these 153 to Sri Lanka and the same superheated rhetoric is heard about torture, the 'disappeared' and Nazis."
The article then asks, rhetorically, whether those boat people are any more likely to be true refugees than the 41 Mr Bolt describes as having been rightly returned to Sri Lanka, and answers unequivocally "no". Whilst the paragraph I have set out does not, in terms, accuse Mr Newhouse of lying to the High Court, in my view the overall tenor of the article, which is to expose the "fraud" of persons in the lobby in which Mr Newhouse is named to participate, does at least on a capacity basis give rise to an imputation of deliberate dishonesty in what was said to the High Court. The article is written in strident terms and concludes with a plain allegation of dishonesty, as follows:
"So if a crime against morality has been committed, it is surely this: that so many atrocity mongers and moral posers have inflicted upon us a gigantic fraud."
I accept, as submitted by Ms Chrysanthou, that in the context of the article as a whole, that paragraph plainly refers to Mr Newhouse. The lying imputation is in my view capable of arising.
Imputation (c) is:
"The plaintiff is despicable in that he has made fraudulent representations to the public about his clients being refugees."
For the reasons stated in respect of imputation (a), I am satisfied that the imputation is capable of arising. A separate objection is that the imputation is bad in form because the word "despicable" does not distil precisely what it is said the plaintiff is said to have done fraudulently and what representations he is said to have made to the public.
I have already dealt with the imprecision objection to imputation (a). In my respectful opinion, the term 'despicable' neatly distils precisely what it is the article says of the character of a man who would make such a representation. The form objection must be rejected, in my view.
Finally, it was objected that imputation (c) does not differ in substance from imputation (a).
Mr Lewis relied on the decision of the Simpson J in Griffith v Australian Broadcasting Corporation [2002] NSWSC 86, where her Honour suggested that the appropriate test is to consider what the matter complained of is really saying. Her Honour concluded in that case that an inspection of the matter complained of revealed:
"When they are read in the proper context of the matter complained of, it can be seen that the two imputations are no more than different ways of complaining of the same message."
I think, on balance, however, that Ms Chrysanthou is right in contending that, whereas imputation (a) identifies an act attributed to Mr Newhouse, imputation (c) identifies the condition one would attribute to a person who engages in that act. I am satisfied that the two imputations do differ in substance and each can properly stand.
Imputation (d) is:
"The plaintiff, a lawyer, is motivated by deceit in representing boat people from Sri Lanka."
In one passage of the matter complained of, Mr Bolt describes statements made by the asylum seekers themselves as "conclusive proof that our refugee lobby is motivated by deceit, self-pruning and self-hatred of the Abbott Government."
The basis for the defendants' objection appears to be that, although named three times in the matter complained of, Mr Newhouse somehow escapes inclusion in the class of people referred to as belonging to the refugee lobby. In my view, imputation (d) is plainly capable of arising.
Separately, it was objected that the imputation is imprecise and bad in form. For my part, I do not have any difficulty understanding what condition is attributed to Mr Newhouse as captured in the imputation. The objections to imputation (d) must be rejected.
Imputation (e) is:
"that the plaintiff, a lawyer, has acted immorally in his representation of the Sri Lankan boat people."
That imputation is plainly capable of arising, having regard to the concluding paragraph of the article, to which I have already referred.
I do not think it is bad in form. In my view, it plainly differs in substance from imputations (a) and (c). I do not accept Mr Lewis' submission that the notion of being fraudulent means the same thing as being despicable or immoral. It follows that the defendant's objections to the plaintiff's imputations are rejected.
A separate issue was raised in the correspondence as to the need for the plaintiff to provide particulars of the persons or any person who downloaded, viewed and comprehended the first matter complained of. I understood Mr Lewis to put a submission that no reader of The Daily Telegraph comprehended the article and that may be so. In any event, the parties propose to engage in correspondence as to what further steps should be taken by the plaintiff to address that issue.
The plaintiff, having been entirely successful in respect of the objections to his Amended Statement of Claim, seeks his costs of the argument.
Mr Lewis, who appears for News Limited, noted that the Practice Note contemplates an exchange of correspondence in which a plaintiff pressing an imputation in the face of an objection will, where appropriate, state brief reasons for doing so. The chronology of the exchange of correspondence in the present matter, coupled with my view as to the strength of the imputations and the merit of the objections, persuades me that although the plaintiff's response was brief, bordering on curt, he is nonetheless entitled to the costs of the argument today.
I order the defendant to pay the plaintiff's costs.
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Decision last updated: 10 March 2015