Noble v Phillips

Supreme Court of NSW|2018-04-27|Before: McCallum J

Judgment

HER HONOUR: This is an action for defamation arising out of an article published in The Guardian newspaper concerning the impact of a popular annual music festival known as "Bluesfest" on the local koala population in Byron Bay. The plaintiff, Mr Peter Noble, is the sole director of the company that owns the land on which the festival is held. The article in The Guardian claimed that noise from the festival had destroyed the local koala population, attributing the claim to Dr Stephen Phillips, an ecological consultant. Mr Noble sues Dr Phillips, his company, Biolink Pty Ltd, the proprietor of The Guardian and a journalist, Mr Slezak for defamation in respect of the article itself and a series of anterior communications between Dr Phillips and the journalist.
Dr Phillips and Biolink are the first and second defendants. Mr Slezak and the proprietor of The Guardian are the third and fourth defendants.
A previous attempt to plead a case against Dr Phillips and Biolink was struck out by me with leave to re-plead: Noble v Phillips (No 2) [2018] NSWSC 25. Mr Noble has filed a further amended statement of claim, parts of which the defendants contend are either caught by my earlier rulings or otherwise liable to be struck out. The defendants also took a series of objections as to the form of the imputations and their capacity to be carried by the matters complained of. In accordance with the ordinary practice in the Defamation List in this Court, the objections on the ground of form will be determined as strikeout points under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and the objections on the ground of capacity will be determined as a separate question in the proceedings.

First matter complained of

In the further amended statement of claim, the plaintiff now pleads four causes of action against Dr Phillips and Biolink. The first matter complained of is schedule A2 standing alone, which consists of statements made by Dr Phillips to Mr Slezak as recorded in Mr Slezak's notes produced by The Guardian.
Dr Phillips and Biolink submit that the statements recorded in those notes are incapable of defaming Mr Noble at all, whether in the natural and ordinary meaning of the matter complained of or together with extrinsic facts pleaded at paragraph 6C of the further amended statement of claim. Mr Richardson, who appears for Dr Phillips and Biolink, submitted that the first matter complained of says nothing about Mr Noble at all and that it does not criticise him, directly or by implication.
Alternatively, Mr Richardson submitted that none of the pleaded imputations is capable of arising from the first matter complained of. The imputations specified by Mr Noble are: 1. The plaintiff who ran the annual Bluesfest music festival was to blame for the loss of the local koala population because he permitted loud music which drove the koalas from their home range and exposed them to predatory attacks. 2. The plaintiff as director of the Bluesfest music festival failed in his moral obligation to protect the local koala population against harm from his staging of the festival. 3. The plaintiff as director of the Bluesfest music festival caused loud music to be played on the site in disregard of the known risk of disruption of the local koala habitat, and as a consequence the local population died off.
Mr Tobin QC, who appears with Mr Connell for Mr Noble, submitted that the statements made by Dr Phillips to the journalist are capable of being defamatory of Mr Noble, even though he is not the subject of any overt reference during the interview. Mr Tobin adopted the analogy of an outbreak of disease at a large hospital, which would prompt people to think the less of the CEO on the basis that the events happened "on his [scil: or her] watch". As to whether the attribution of responsibility for such an event was capable of being defamatory, Mr Tobin submitted that koalas are, "by universal agreement, lovable" and that people would think the less of a person said to be responsible for the death of koalas.
The test as to whether a publication is capable of conveying the imputations specified by the plaintiff is ultimately one of reasonableness: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 at [8]-[11] (citing Jones v Skelton [1963] 1 WLR 1362 at 1370-1371). The Court of Appeal has emphasised that "great caution" must be exercised before striking imputations out on the grounds of capacity. Unless an imputation is clearly incapable of arising, it should go to the jury: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [134]-[137].
Mindful of the caution mandated by those principles, I have concluded that the material set out in schedule A2 is incapable of defaming Mr Noble. The statements made to the journalist were not about Mr Noble. It was not suggested that he had knowingly committed any act or caused any outcome. The subject of the discussion is the findings of the "inaugural events", evidently a reference to a first round of study, after a particular festival, of the impact of the festival on local koalas. Dr Phillips is recorded as saying that it is "quite a complex story". He explains that the study has enabled scientists to document some distances for planning purposes and refers to a loss of habitat that needs to be offset.
He then proceeds to explain the mechanism by which he believes the koalas are affected by noise. He discusses his findings that they leave their home ranges during "the music phase of the event" which he suggests would expose them to various risks. He also posits a "hypothesis" about the bass having the biggest impact because male koalas communicate at low frequency, the suggestion being that the low frequency of the bass component of music from the festival may be interfering with the communications by which the animals find each other in the bush.
There is no reference in those remarks to the organisers of the festival or any attribution of responsibility other than the fact that the festival is the source of the loud music. There is an oblique reference to "the presentation that there is some good stuff happening", which might be taken to refer to a representation made by the organisers of the festival. Dr Phillips says that is "sort of true but is masking the bigger story". Dr Phillips' side of that story is presented as a hypothesis based on the results of the inaugural study involving a population of about 20 koalas; there is no suggestion that the findings of the study had previously been identified or communicated to any person or that they ought to have been predicted. There is no suggestion that any person (let alone Mr Noble) should have done anything different after learning any particular information. It is simply a discussion of the results of Dr Phillips' study. In my view, the remarks made by Dr Phillips to the journalist as recorded in schedule A2 are simply incapable of defaming Mr Noble.
In the alternative, Mr Noble contends that those imputations are conveyed as true innuendos in view of the following facts known to Mr Slezak (being facts stated in the journal paper, which Mr Slezak saw): 1. In 2009 planning authorities approved the use of the festival site to conduct an annual five-day musical festival event namely the Bluesfest festival. 2. There was a koala population in or in close proximity to the site of the festival. 3. It was a condition of the approval of the festival that studies be conducted to monitor the possible impact of the festival on biodiversity values in the area including the koala population. 4. That monitoring might disclose the need for consideration of ameliorative measures to protect the koalas.
Mr Richardson submitted that the extrinsic facts cannot do the "heavy lifting" and could not assist on the question of the capacity of the first matter complained of to convey the plaintiff's imputations. I agree. If anything, the fourth extrinsic fact would tend to derogate from the meanings contended for, emphasising the degree of hypothesis in the study under discussion. I do not think a person with knowledge of those additional facts could reasonably conclude any past failing on the part of the person who ran the festival. It is a discussion of a scientific thesis and its evaluation based on the first round of field research undertaken after a particular festival.
For those reasons, I have concluded that the claim based on the first matter complained of must be dismissed on the grounds that it discloses no reasonable cause of action.

Second matter complained of

As already noted, in Noble v Phillips (No 2), I struck out a claim based on all five schedules pleaded as a single publication. As stated at [28] of the judgment, I determined the objection to that composite pleading applying the test stated by Simpson J in Phelps v Nationwide News Pty Ltd [2001] NSWSC 130, which holds that a plaintiff is entitled to select the manner in which to present the case, subject to "unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen".
I held at [37] that it was not reasonably open to plead the matter set out in the five schedules as a single publication owing to their disparate nature. I further held at [38] that the composite pleading was likely to cause prejudice in the conduct of the defence, for reasons largely cured by the amendment.
The further amended statement of claim seeks to re-plead the case by pleading, as the second matter complained of, schedule A3 together with schedule A5. Schedule A3 is a transcript of a telephone conversation between Dr Phillips and the journalist said to have taken place on 19 or 20 January 2016. Schedule A5 consists of two emails, one sent by Mr Slezak to Dr Phillips at 11:41 am on 20 January 2016 and one sent by Dr Phillips to Mr Slezak at 12:03 pm the same day.
Mr Richardson submitted that the permissibility of pleading the claim in that way has already been determined against the plaintiff in Noble v Phillips (No 2) at paragraphs [36]-[39]. Mr Tobin submitted that the defendants' submission mischaracterises that part of my decision, in that it would read my decision as stating that the principle in Burrows v Knightley (1987) 10 NSWLR 651 cannot be applied at all to the chain of communications between the defendants. He submitted that my judgment in Noble v Phillips (No 2) avoided any such statement of principle and that the pleading together of those two publications is consistent with what I said in that judgment at [28]-[29].
In that context, Mr Tobin noted that the emails, as pleaded, specifically followed up statements made during the telephone conversation, as made plain by paragraphs 5I and 5G of the further amended statement of claim as follows: "On Wednesday 20 January 2016 at about 11:41 am, by email under the heading 'Confirmation of the death of 20 Animals etc', Slezak requested Phillips' help regarding the assertion that all 20 of the koalas originally surveyed were dead. He sought from Phillips confirmation of the death of all 20 koalas and enquired as to the reason for doubting that dogs were the main cause of deaths of koalas in the area. Those matters had been the subject of discussions in the conversation in paragraph 5G(b), (c) and(g) above. A copy of the email forms part of Annexure A-5 hereto. Attached to the email which Slezak sent to Phillips was a copy of the University of Queensland/FitzGibbon 'Bluesfest Koala Monitoring Program 2013 Report' with a footer 'Geolink Tygarah Events Site-Statement of Environmental Effects 18961068', which Slezak said suggested predation by dogs was at least sometimes responsible for deaths and seeking Phillips' response." "On Wednesday 20 January 2016 at about 12:03 pm, by email under the heading 'Confirmation of the death of 20 Animals etc', Phillips responded providing information refuting the suggestion that deaths might have been caused by dogs and confirming the fact that animals were no longer living in the north of the site where the festival occurs. A copy of the email forms part of Annexure A-5 hereto."
Mr Richardson noted that there is no internal reference in the emails to the conversation. However, he accepted that the subject of the emails was the question of dog predation which was touched on in the conversation.
Separately, Mr Richardson noted (by reference to other parts of the pleading) that, on the plaintiff's own case, there appears to have been a further conversation after the conversation pleaded in schedule A3 but before the two emails set out in schedule A5. If I have understood the submission correctly, that was relied upon as an aspect of the prejudice of allowing the pleading to stand in its present form.
Mr Richardson further submitted, as he had when this issue was argued in Noble v Phillips (No 2), that the way in which the publication is pleaded causes prejudice to the defendants because of the difficulty in pleading defences. In particular, he submitted that the defence of opinion will obviously be a significant defence in this case and that Dr Phillips ought to be able to plead the defence in respect of the separate publications that he made.
I am not persuaded that the pleading is liable to be struck out on the basis that the two schedules are incapable of falling within the principle in Burrows v Knightley. That was a case involving the serialisation of a book in a newspaper; the likelihood that readers would return to read the several parts turned on their presentation as a series. The requirement that publications made on different occasions reflect an intention that they be understood together is more easily met in the circumstances of the present case. In the new pleading, there is a connection between the two publications in that, as submitted by Mr Tobin, the emails in schedule A5 pick up on aspects of the conversation recorded in A3. In my view, those exchanges are at least capable of meeting the requirement that those publications be intended to be understood together.
As to unfairness, a significant part of my reason for striking out the previous composite pleading was the inclusion of the disputed schedule 4, which has now been omitted. If there was a further conversation between the two parts of the exchange now sought to be sued on as one, I do not think that precludes the approach taken. As to defences, it is difficult to see any practical difficulty for the defendants based on the narrowed case now presented; the emails reflect a continuation of the conversation. For those reasons, I do not think it is open to me to strike out the claim based on the second matter complained of applying the test in Phelps.
However, for the reasons addressed by Mr Richardson, I am of the view that schedules A3 and A5 taken together are incapable of conveying the imputations specified by the plaintiff and indeed are incapable of being defamatory of Mr Noble. The imputations specified in the further amended statement of claim are: 1. Despite the fact ecologists engaged by the Bluesfest festival had since 2010 reported to Council ongoing deaths in the local koala population resulting in its destruction, the plaintiff as the festival's director made excuses for the deaths and continued to hold the festival. 2. The plaintiff as director of the Bluesfest festival caused it to falsely deny that the festival's continuing activities caused significant harm to the koala population which was dying off as a result of the festival. 3. The plaintiff as director of the Bluesfest caused loud music to be played on the site in disregard of the known risk of causing the death of members of the local koala population, with the consequence that most of the local koala population died. 4. In the alternative if (c) is not found to be conveyed: the plaintiff as director of the Bluesfest caused loud music to be played on the site, in disregard to the known risk of causing the death of members of the local koala population. 5. The plaintiff has knowingly misrepresented to Byron Shire Council that the local koala population was doing well when the fact is that it was steadily dying off, eventually to extinction. 6. In the alternative if (f) is not found to be conveyed: the plaintiff had continued to represent to Byron Shire Council that Bluesfest Pty Ltd of which he was sole director that the local koala population was doing well whereas the company's own monitoring had informed it that the koala population was steadily dying off (sic).
As with the first matter complained of, the first and second defendants submitted that the second matter complained of does not say anything about the plaintiff and that it does not criticise him directly or by implication.
As to imputation (a), in my view, the highest the matter is capable of reaching is that the scientist has a particular view as to the cause of death of the koalas and that people associated with the festival had offered a contrary view. To say that the statements made by Dr Phillips attributed Mr Noble personally with knowledge of the deaths and with giving false excuses for the deaths simply stretches the content of the conversation too far. As submitted by Mr Richardson, I consider the conversation to have been a scholarly discussion of the results of Dr Phillips's study. He is presenting an argument; he does not purport to present a fact the contradiction of which must necessarily be dishonest.
Imputation (b) is also an attribution of false denial of an established fact. In my view, neither imputation (a) nor (b) is capable of being conveyed by the combination of schedules A3 and A5.
Imputation (c) similarly seeks to found a cause of action on an attribution on the part of Mr Noble of knowledge of a fact and deliberate conduct in disregard of that fact. There is simply nothing in what was said by Dr Phillips to Mr Slezak capable of attributing Mr Noble with such a state of mind, except by an overly suspicious or strained reading of the matter complained of. The assessment of this issue must not be infected by knowledge of what was later published in the article in The Guardian, where Mr Noble was named and his comments reported. It cannot be reasoned in reverse that Dr Phillips's discussion of the results of his study had anything to say about the festival's response to the study. Imputations (c) and (d) are, in my view, incapable of arising.
Imputations (e) and (f) similarly seek to make a claim on the strength of an attribution to Mr Noble personally of a state of mind which is simply incapable of being conveyed by the words Dr Phillips said to Mr Slezak. For those reasons, I have concluded that the second matter complained of is incapable of defaming Mr Noble and that the pleading of that part of the claim must be dismissed as disclosing no reasonable cause of action.

Third matter complained of

The third matter complained of is schedule A4, which is a collection of quotes taken from the article that appeared in The Guardian. Mr Richardson noted that the schedule includes words in addition to those attributed to Dr Phillips as quotes in the article. In particular, line 1 of schedule A4 is "the Byron Bay Bluesfest noise has destroyed the local koala population". That is plainly drawn from the headline of The Guardian article, which is "Byron Bay Bluesfest noise has destroyed local koala population, says ecologist". As forcefully submitted by Mr Richardson (but without adopting the forceful language of his submission), it is difficult to see how the headline (traditionally the work of the editor) has come to be attributed to Dr Phillips as if it were a quote. The first and second defendants have made plain that they deny publication of schedule A4. However, I am bound to determine the defendants' objections on the assumption that the plaintiff can prove the allegations made in the pleading. The pleading is presumably founded on the inclusion in the headline of the words "says ecologist". Whether that is something Dr Phillips said, in terms, must be a matter for the trial.
Separately, the defendants submit that the imputations pleaded in respect of the third matter complained of are incapable of arising or else bad in form. The imputations are: 1. The plaintiff, who ran the annual Byron Bay Bluesfest festival, was to blame for the extinction of the local koala population because he permitted loud music to be played, which drove them from their home area and exposed them to attacks by other animals. 2. The plaintiff as director of the annual Byron Bay Bluesfest caused loud music to be played on the site in disregard of the known risk of causing the death of members of the local koala population, with the consequences that most of the local koala population died. 3. In the alternative if (b) is not found to be conveyed: the plaintiff as director of the annual Byron Bay Bluesfest caused loud music to be played on the site, in disregard of the known risk of causing the death of members of the local koala population.
Mr Richardson submitted that imputation (a) is imprecise in that the word "permitted" suffers from the same vice as the word "caused" in a similar imputation struck out by me in Noble v Phillips (No 2) at [65]. He submitted that it is not clear whether the plaintiff is said to have known or intended the consequences to the koalas when he permitted the music to be played.
In my view, it is clear that imputation (a) does not assert knowledge or intention. That is the plaintiff's position; the written submissions confirmed that the imputation is said to be defamatory irrespective of any element of knowledge or intention of the consequence. Mr Tobin submitted that the responsibility attributed to Mr Noble is, again, akin to that of the CEO in the example of a hospital who would be held responsible for something that happened on his or her watch. So understood, it is an imputation of a relatively low order of seriousness, attributing the plaintiff with permitting the very thing the festival was all about (playing loud music) and asserting an adverse environmental impact. On that basis, although it is perhaps tenuous, I do not think I can properly take the step of striking the imputation out on the grounds of capacity, having regard to the authorities to which I have referred.
Mr Richardson submitted that imputations (b) and (c) are incapable of arising as there is nothing in schedule A4 that supports the concept of a "known risk", that is, a risk known to Mr Noble. I agree. None of the quotes collected in schedule A4 suggests that the festival continued after its principal (or indeed anyone) was made aware of the risk; that connection was drawn in the article in The Guardian in the comments attributed to Mr Noble.
The only matter pointed to in the plaintiff's submissions to support the notion of "known risk" in schedule A4 was the last paragraph, as follows: "After the 2010 festival headed by Crowded House and Jack Johnson, two of the tracked koalas died - one named Renee and the other named Sonny Boy. Their cause of death couldn't be established, but I thought it was caused by the music. To confirm that, the animals' stress hormone level during the festival needed to be studied."
The plaintiff submitted that the reference to the "thought" in 2010 indicates that the risk was known from then on. However, the "thought" referred to is that of Dr Phillips. To conclude from those words that the thought crystallised into a risk that was known by Mr Noble but disregarded by him stretches the meaning beyond what is reasonably capable of being conveyed.
For those reasons, imputation (a) will go to the jury. I rule that imputations (b) and (c) are incapable of being carried by the third matter complained of. Those imputations will not go to the jury.

Liability for publication of The Guardian article (fourth matter complained of)

The fourth cause of action pleaded by Mr Noble is The Guardian article itself. Mr Noble seeks to bring a cause of action against Dr Phillips and Biolink as primary publishers of the whole of the article on the basis of the principles stated in Webb v Bloch (1928) 41 CLR 331; [1928] HCA 50.
Mr Richardson objected to the pleading of that cause of action on the basis that I have already determined this point against Mr Noble in Noble v Philips (No 2); that in doing so, I applied the correct principle and that the claim as now pleaded, although the particulars have been recast in various ways, adds virtually nothing new. He submitted that it is difficult to see the new pleading as anything other than an attempt to cavil with the previous ruling.
Certainly, the arguments brought forward rehearsed much of what had been put on the last occasion. But the issue is complex and, as Mr Tobin reminded me, it is one that stands to be determined in accordance with the principles stated in a half-century old case, General Steel v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69. In deference to the arguments put by Mr Tobin, who did not argue the previous round in Noble v Phillips (No 2), it is appropriate to explain my reasons for concluding, for a second time, that the pleading discloses no reasonable cause of action against Dr Phillips and Biolink as primary publishers of an article published in a newspaper.
I have addressed this issue in a number of judgments. The parties' submissions addressed some of those, and other authorities, at length. Against the background of that jurisprudence, the relevant principles can be stated relatively briefly, as Mr Richardson demonstrated in his careful but succinct submissions on this point.
In Dank v Whittaker (No 1) [2013] NSWSC 1062, after considering Webb v Bloch and the decision of the Full Court of the Supreme Court of Queensland in Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 QdR 156 and the other decisions referred to in the judgment at [25], I said at [26]: "In my view, the authorities relied upon by Mr Richardson establish that, where a person merely contributes material to an article but has no control over the publishing process, liability as a publisher will not ordinarily be established unless he or she has assented to its final form."
The day after publication of that judgment, I applied the same principle in separate proceedings also brought by Mr Dank in Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 at [14] and again in Dank v Cronulla-Sutherland District Rugby League Football Club (No 3) [2013] NSWSC 1850 at [31].
Mr Dank sought leave to appeal against the two judgments in the Cronulla-Sutherland proceedings. In a lengthy judgment published following a concurrent hearing of the application for leave to appeal and the appeal, the Court refused leave: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288. The Court said at [137]: "The difficulty with these proposed grounds of appeal is that they are predicated on her Honour having applied some new form of control test, whereas, properly understood, what her Honour was doing was applying the test in Webb v Bloch and Thiess; namely that, for there to be liability as a publisher of defamatory material, the defendant must in some way knowingly 'conduce' and be responsible for the publication complained of. Her Honour was going no further than saying that mere contribution to an article by someone with no control over the publishing process will not ordinarily establish liability as a publisher 'unless he or she has assented to its final form'. Her Honour's comments in Dank v Whittaker (No 1), which were incorporated by reference into her Honour's judgment, made reference not merely to control but also to assent to the publication."
In the present application, Mr Richardson submitted (correctly) that I did not intend to state an absolute rule requiring control or assent. However, in the situation where a source is sought to be held liable for the whole of a newspaper article which has been written by someone else, compiled with the inclusion of additional material and then subjected to the editing process, the mere contribution of quotes for attribution will not ordinarily attract liability for the final product.
The plaintiff's submissions included reference to the principles stated in Thiess v TCN Channel Nine Pty Ltd (No 5) at 194 to 196. I was taken in particular to the following statement at 195-196: "It would also have been necessary as part of that process for the jury to consider the extent to which the published matter corresponded with the information supplied. For 'the mere furnishing by one person of some of the materials used by another in the preparation of a libellous article does not constitute a publication of it by the former, if when printed, the article as a whole is something very different from the material so furnished by him'". (Citations omitted.)
The plaintiff placed emphasis in that context on the words "something very different from the material so furnished", submitting that those words mean that the tribunal of fact will have to compare the supplied information with the matter complained of as ultimately published in order to determine whether the matter supplied had been conveyed in the final product. However, as submitted by Mr Richardson, I would understand those remarks to refer to a case of republication in accordance with the principles stated in Speight v Gosnay [1891] 60 LJQR 231 rather than a case based on responsibility as a primary publisher of the kind discussed in Webb v Bloch.
The plaintiff then put what I would regard to be an ambitious argument that consent to the use of quotes amounts to consent or assent to the final publication. The written submissions put the argument as follows: "If a source provides a journalist with information which is not supplied 'off the record' but in the knowledge and with the expectation that it will be used by the journalist in an article or programme to be distributed to the public, the source agrees to such use of the information so supplied. He or she has consented to its publication. That is a separate issue from whether there is a sufficient identify between what was supplied and what was ultimately conveyed in the published matter (Thiess). It is a separate issue from whether there was consent to all or part of the defamatory matter. Questions of assent - to the final product - do not arise where the conduct of the source shows consent to the publication. That was the very issue determined in Parkes v Prescott and approved in Webb v Bloch."
With respect, the submission misconceives the principle for which Webb v Bloch stands as authority. An aspect of the decision in Webb v Bloch that is often overlooked when reliance is placed on the well-known passage from the judgment of Isaacs J is that the publication to which the defendants were found to have assented or given their consent in that case was a fixed form of words in a circular drafted by a solicitor. One defendant saw the circular and then authorised its distribution; others ratified that act after the event (some having seen it, one not having seen it).
The application of those principles in the very different context of the supply of material by a source to a journalist must be approached with care. I had occasion to consider that issue in my decision in Zeccola v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1007 particularly at [30]-[31]. I adhere to the views I expressed in that case.
The plaintiff's written submissions referred to my remarks in that case at [19], as follows: "What is critical to each case is the fact that there was a request to publish combined with the fact that what was ultimately published was either a correct account of what was requested to be published or was authorised without the defendants having or exercising the opportunity to confirm that it was a correct account."
The plaintiff's submissions interpreted those remarks to hold that, "if a person requests or authorises another to make a publication and does not reserve the right to check the final version, or the reservation is made but not availed of, then the person is liable as a publisher of the material when made by the other as requested or authorised".
I did not intend, in Zeccola, to state a principle in those terms. The remarks quoted in the plaintiff's written submissions must be read in the context of the first half of the same paragraph, which said: "However, what is significant about the facts of Webb v Bloch is that each of the defendants was a member of a committee that had condoned or joined in the instruction to the solicitor Nolan to issue the circular. Upon analysis, it can readily be seen that each of the decisions in The Queen v Cooper, Parkes v Prescott and Webb v Bloch is ultimately a decision turning on the principles of agency."
The particulars in the present case are incapable of establishing a case on that basis. As submitted by Mr Richardson, they establish no more than that Dr Phillips spoke to a journalist and provided quotes for attribution. As also submitted by Mr Richardson, I have in substance already ruled on the issue of the capacity of the particulars to meet the test approved by the Court of Appeal in Dank. Senior counsel for the plaintiff was, with respect, perfectly entitled to address the Court as to the relevant principles and I do not mean to suggest that the submissions cavilled with the earlier ruling. However, the submissions have not persuaded me to adopt any different approach.
For those reasons, I remain of the view that the case as pleaded discloses no reasonable cause of action against Dr Phillips as a primary publisher of the article that appeared in The Guardian. The claim on that basis must be dismissed.

Objections to imputations conveyed

As to the imputations conveyed by the article, the Court was addressed by Mr Potter, who appears for Mr Slezak and the proprietor of The Guardian (the third and fourth defendants). The plaintiff has specified five imputations in respect of the article, two of which were addressed in the previous judgment and were not the subject of the present dispute. The new imputations are: 1. "The plaintiff as director of the Byron Bay Bluesfest continued to hold an annual festival with loud music despite the disturbance which the noise caused to the koala population close to the festival site, forcing them to abandon their home habitats during the festival. 2. The plaintiff as the director of the Bluesfest music festival had it falsely deny that the festival's annual events caused significant harm to the local koala population despite knowing that the koala population had been almost wiped out since he first staged the festival. 3. The plaintiff as director of the Bluesfest festival continued to allow the playing of loud music and wilfully ignored the fact that the initial koala population in habitats at or near the festival site, had been almost wiped out since the festival began."
Mr Potter submitted that imputation (a) is bad in form. First, he submitted that the imputation contains no defamatory act or condition concerning the plaintiff; rather, it is a statement of fact that the festival "continued" despite disturbance to the koala population. Mr Potter submitted that, as held in Noble v Phillips (No 2) in respect of the former imputation (a), the imputation fails to specify whether the consequence was "one the plaintiff knew or intended would flow from his production of a loud music event or whether he was reckless or negligent or none of the above".
Separately, Mr Potter submitted that the imputation is imprecise in that the plaintiff is said to have continued to hold an annual festival without making clear the necessary chronology of when the koala population had allegedly been forced to abandon their habitats. To illustrate the ambiguity, he submitted that it is possible to read the imputation as if the abandonment and continuation occurred during the same Bluesfest festival. I do not accept that submission. The meaning is clear enough from the reference to the festival as an annual festival. It would be understood to mean that the festival was held in consecutive years despite the disturbance.
However, there is force in the first point. The only hint of any criticism of Mr Noble comes in the use of the word "despite", but no act or condition is attributed to him. It is impossible to understand what is alleged to be the imputation against his reputation. It was submitted for Mr Noble that the imputation clearly conveys the meaning that the plaintiff knew of the disturbance. However, it fails to distil what is to be imputed to a person on that account. In my view, imputation (a) is bad in form and is liable to be struck out.
As to imputation (b), Mr Potter submitted that the imputation is both bad in form and that it is incapable of arising. First, Mr Potter submitted that the imputation is bad in form by reason of the vagueness and ambiguity of the phrase "had it falsely deny". I do not accept that submission. It is tolerably clear that the imputation sought to be relied upon is that Mr Noble authorised the denial to be published in the name of the festival knowing it to be false.
As to the objection on the grounds of capacity, I think there is a question to be tried by the jury. The newspaper article squarely pits Dr Phillips' assertion against the denial; it should be for the jury to determine whether what was said on behalf of the festival was mere disagreement with one man's opinion or the denial of an obvious truth.
As to imputation (c), Mr Potter objected on the ground of form. He submitted that, if the defamatory act is the act of wilfully ignoring the fact that the initial koala population had been wiped out by the noise of the festival then that should be stated. In its present form, it was submitted the imputation is imprecise and confusing due to the use of the conjunction "and" which suggests two separate acts of continuing to allow loud music and wilfully ignoring a known fact of the cause and effect of that noise. I do not accept that submission; an imputation can stand asserting a combined or composite act.
It was further submitted that the imputation is bad in form because it does not state what the cause for wiping out the koala population was. The plaintiff's response is that the complaint seeks to force the pleader to be more precise than the matter complained of permits. However, the article clearly attributes the deaths to noise. In its current form, the imputation contains a non-sequitur. Mr Potter submitted that if the defects were cured the imputation would not differ in substance from imputation (d). The plaintiff declined to address the substance of that submission (written submissions par 3.2(c)). If the imputation was pressed with clarification as to the cause for wiping out the koala population, I do not see how it could differ in substance from (d).
Mr Potter further submitted that imputation (c) is incapable of arising. Consistently with my earlier ruling as to imputation (d), I do not accept that submission.
Mr Potter also addressed a new pleading which seeks to make a case in true innuendo based on the article published in The Guardian. The complaints were directed both to the form of the particulars of extrinsic facts in paragraph 9A of the further amended statement of claim and on the ground of capacity.
Regrettably, although the issue was raised by Mr Potter, I do not think I can determine those disputes. The third and fourth defendants' complaints were set out in a letter from Baker and McKenzie tendered at the hearing. The plaintiff responded in separate written submissions dated 27 April 2018 in the briefest of terms including the statement that documents would be provided to answer some of the defendants' concerns. The claim in true innuendo certainly appears to be ambitious and is not presently well formulated. However, I am not persuaded that it is so obviously untenable as to be liable to be struck out. Further, as acknowledged by Mr Potter during argument, there is traditionally a resistance to determining questions of capacity where they turn on extrinsic evidence: cf Bolten v Stoltenberg [2016] NSWSC 596 at [25]. In my view, it is necessary to leave the issues sought to be ventilated concerning the new true innuendo case to be determined at trial or at least following the provision of the promised documents.

Republication in The Guardian

The plaintiff pleads a claim in republication in the alternative. The way the claim is pleaded is that, if the first and second defendants were not publishers of the article, the first second and third matters complained of were republished in and by the article. Mr Richardson submitted that no tribunal of fact properly instructed could hold that the Guardian article is a republication of the sense and substance of schedule A2 (the first matter complained of) and A3 and A5 (the second matter complained of). He submitted on that basis that the plea in republication should be allowed to stand only in respect of schedule A4, and not in respect of the material in the other schedules.
I do not think it is appropriate to require the plaintiff to sever his claim in that way. Although the material in the other schedules is not defamatory, the information provided may inform (and indeed be inseverable from) the question to be determined by the jury concerning sense and substance.

Republication in The Echo

Finally, the plaintiff relies on a further republication in The Echo Online. Unlike the plea of republication in The Guardian, the way the claim is pleaded is not contingent upon the first and second defendants being liable as publishers of the article in The Guardian. The pleading asserts that the first, second, third and fourth matters complained of were "further republished" in The Echo Online.
Mr Richardson submitted that no tribunal of fact properly instructed could hold that The Echo Online article at schedule C of the further amended statement of claim is a republication of the sense and substance of schedules A2 (the first matter complained of), A3 and A5 (the second matter complained of) and A4 (the third matter complained of). There may be force in that submission. However, the position is complicated by the fact that the pleading also invokes the fourth matter complained of (The Guardian article). The submissions did not address that issue. The position is further complicated by the conclusion I have reached as to that publication (namely, that the first and second defendants cannot be liable as primary publishers of the article but that a case of republication should be left to the jury).
In the circumstances, in my view, the question of liability for republication of the alleged republication in The Echo Online is ultimately a question as to remoteness of damage which should properly be left for the trial.

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: 25 March 2019

At a glance

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Judgment (9 paragraphs)

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Cases Cited (16)

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