Parker v Laws

Supreme Court of NSW|2002-04-22|Before: Kirby J

CITATION : Parker v Laws [2002] NSWSC 311 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20483/98 HEARING DATE(S) : 15/04/02 JUDGMENT DATE : 22 April 2002

PARTIES : David Parker (Pl) John Laws (Def) JUDGMENT OF : Kirby J

COUNSEL : Bruce Donald (Pl) T Blackburn (Def) SOLICITORS : Bruce Donald (Pl) Blake Dawson Waldron (Def) CATCHWORDS : Defamation - Pleading - Imputations - Form - Whether differ in substance - Test LEGISLATION CITED : Defamation Act 1974 Morris v Newcastle Newspapers Pty Limited (1985) 1 NSWLR 260 CASES CITED : Singleton v John Fairfax & Sons Limited (unreported, 20.2.80) Hepburn v TCN Channel 9 Pty Ltd (1984) 1 NSWLR 386 Singleton v Ffrench (1986) 5 NSWLR 425 DECISION : Ref para 30

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION list

JUDGMENT 1 KIRBY J: This is an application by the defendant (John Laws) to strike out certain imputations relied upon by the plaintiff (David Parker) in an Amended Statement of Claim.

The Publication 2 The defendant wrote a regular column in the Sunday Telegraph newspaper, "John Laws - From Behind the Golden Microphone". On 5 October 1997, the following article appeared in that newspaper: "PLAGUED BY PARKER It's time for NRMA members to get angry and bury the squabbling, divisive activists who bedevil the NRMA. They're at it again. As I told you they would be when I wrote about the NRMA elections some months ago. I said then that the NRMA's only hope for peace, stability and progress was to support the board candidates endorsed by Nicholas Whitlam, the NRMA president and a respected Sydney banker. Mr Whitlam's 1997 President's Team comprises Rosemary Foote, Susan Ryan, Tim Gavin, Mary Easson, Bill Hilzinger, Catherine Harris, Michael Tynan and Gary Beltrame. Now, with voting in the board election just completed, the NRMA faces yet another drama. A requisition for a special general meeting on October 28 has been delivered to the NRMA by one David Parker. It seeks to remove Mr Whitlam and seven other directors, but gives no reason. NRMA members will remember the noisy Parker. He's the bloke whose supporters requisitioned another special general meeting last year seeking to remove seven other directors. He failed then, and he will fail now. But the total cost of the two SGMs to the NRMA will be more than $750,000. I'm sure NRMA members have had enough of Mr Parker and his ilk. Members voted him off the NRMA board in 1988, and refused to elect him in 1991 - as, undoubtedly, they will refuse to elect him this year. At great expense, the NRMA is sending its two million members information packs and proxy forms for the annual general meeting, on October 29 and 30 and for the special general meeting on October 28. If each member were to take the pink proxy form from the SGM pack and make it out in favour of Mr Whitlam, or deputy president Dominique Collins, and send it back to the NRMA in the reply-paid envelope provided, Mr Parker and his pals could finally be consigned to NRMA oblivion. Which I'm sure most members would see as being an excellent result. This is the members' best opportunity to put an end to this wasteful nonsense." (emphasis in original)

The Amended Statement of Claim 3 The plaintiff asserts that the article gave rise to the following imputations: "(a) The Plaintiff deliberately acted contrary to the welfare of the NRMA by causing it to spend more than $750,000 to call special general meetings which he and his supporters had requisitioned. (b) The Plaintiff was an irresponsible person in that he cost the NRMA more than $750,000 by requisitioning special general meetings without justification. (c) The Plaintiff in delivering a requisition for a special general meeting for the removal of directors without giving any reason deserves the condemnation of the members of the NRMA. (d) The Plaintiff was unworthy to be elected to the NRMA Board in that he was prepared to waste more than $750,000 of the NRMA's money." 4 The defendant acknowledged that each imputation was capable of arising. It was said, however, that they did not differ in substance, and were therefore bad in form (Pt 67 r 11(3)). The plaintiff must elect, identifying the imputation he will rely upon.

The Defendant's Argument 5 Each imputation, it was submitted, essentially restates the sting of imputations already pleaded, so that, after the first, they are essentially rhetorical. Counsel drew attention to Morris v Newcastle Newspapers Pty Limited (1985) 1 NSWLR 260, where the plaintiff relied upon the following imputations: (at 270/1) "(a) That the plaintiff had abused his position as a member of the Federal Parliament by improperly interfering in the affairs of the Newcastle City Council. (b) That the plaintiff had abused his position as a member of the Federal Parliament by improperly attempting to interfere in the affairs of the Newcastle City Council. (c) That the plaintiff was not a fit and proper person to be a member of the Federal Parliament." 6 In the context of imputation (c) Hunt J said this: (at 272) "It is admitted by the plaintiff that this was intended to be no more than a rhetorical flourish. He did not seek to demonstrate that it differed in substance from imputation (b), in so far as that imputation is to be amended and based upon the suggestion that the plaintiff had abused his position as a Federal Member. A rhetorical imputation is not in general different in substance from the more precise imputations which inevitably accompany it; Hepburn v TCN Channel Nine Pty Ltd (reported in part only (at [1983] 2 NSWLR 696(n)) (at 20-21 of the unreported part of the judgment). Part 67, r 11(3), was intended to preclude this practice of pleading rhetorical imputations which formerly prevailed; Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 771)." 7 The test, it was suggested, as to whether one imputation differs in substance from another, was as follows: what would the defendant need to prove to justify the imputation? If the same matters would prove the truth of two imputations, then, according to the defendant, they do not differ in substance. This was the test, according to the defendant, identified by Hunt J in Singleton v John Fairfax & Sons Limited (unreported, 20.2.80). In that case his Honour was considering, amongst other things, the following imputations: "(a) That the Plaintiff was a homosexual. (b) That the Plaintiff had made amorous approaches to and had attempted to solicit a man at Kings Cross on 1st March, 1979." 8 In that context his Honour said this: "Imputation (b) is conceded by the plaintiff to be no more than a particular instance of the general allegation made by Imputation (a). In the light of this concession, the defendant argues that the two imputations are not different in substance, as required by Rule 11(3). As any imputation pleaded must be taken to include all other imputations which do not differ in substance ( Morosi v Newspapers Ltd (1977) 2 NSWLR 749, at 771), it is wrong in principle, it is said, to plead both the general and the particular applications of the same allegation." 9 Hunt J then identified the test upon which the defendant in this case relies. He said this: (p 6) "In my view, such a principle is stated too broadly. It may be tested by considering that must be proved by way of justification to each such imputation." (emphasis in original) 10 His Honour added: (p 7) "Another way by which the principle contended for by the defendant may be tested is by considering what may be proved by way of justification to each such imputation. Where the imputation consists of a general allegation, it is open to the defendant to establish the truth of that allegation by proof of matters entirely unrelated to the specific instance identified in the matter complained of." (emphasis in original) 11 A general imputation will usually be different from one which is specific. Hunt J said this: (p 7) "The question is whether the general allegation is different in substance from the particular. In most cases, in my opinion, it would be. In many cases, the allegation in the matter complained of that the plaintiff was guilty of misconduct on a particular occasion will not support an imputation alleged in general terms." 12 In the context of Pt 67 r 11(3), the test formulated by Hunt J is useful. However, it will not always be determinative. For instance, it will often be appropriate for the plaintiff to plead different gradations of seriousness in separate imputations, so that the jury may select the way in which the matter would have been understood by the ordinary reasonable reader (Hunt J, Hepburn v TCN Channel 9 Pty Ltd (1984) 1 NSWLR 386 at 398). The same evidence may prove the truth of each imputation, and yet they will differ in substance. That simply is a reminder that one must attend to the wording of the imputation, as well as the issues raised by it. 13 A further illustration may assist. People can and do draw more than one conclusion from the same statement of fact. Assume that it was reported that a barrister had deliberately insulted a judge. That report may carry a number of imputations. It may suggest that the barrister was guilty of boorish behaviour. It may also suggest incompetence, it being the barrister's function to persuade the judge to his or her point of view. The same facts would prove each imputation, even though each differs in substance.

Imputations (a) and (b) 14 The defendant makes the following submissions in the context of imputations (a) and (b): "2. Imputation (a) imputes that in requisitioning (with his supporters) special general meetings of the NRMA, he acted contrary to the welfare of that organisation. Imputation (b) simply says that by requisitioning special general meetings without justification, the plaintiff was an 'irresponsible person'. 3. Why was the plaintiff irresponsible? The only possible answer to that question was that he was irresponsible by causing the NRMA to spend more than $750,000.00 to call special general meetings, which was contrary to the NRMA's welfare. The only reason that the calling of such meetings was contrary to the NRMA;s welfare was that the meetings were unnecessary." 15 It was said that, to prove the truth of (b), the defendant would need to prove the same matters as (a), namely: "... it would need to be shown that the plaintiff had requisitioned special general meetings at a cost of $750,000.00 without justification." 16 However, I believe that the two imputations differ in substance. There are aspects of imputation (a) which do not arise in imputation (b), although plainly there is overlap. The plaintiff's actions in imputation (a) are characterised as deliberate, involving his (subjective) state of mind. To justify that imputation, the defendant would need to demonstrate more than simply the cost of calling the meeting, or the fact that the proposed resolution would almost certainly fail. The defendant would need to prove that Mr Parker set out to harm the NRMA, as an organisation, in requisitioning the meeting. Questions are raised concerning his belief in the cause he was pursuing, its importance to the welfare of the organisation, whether he entertained hope that reason, as he saw it, may yet prevail, the size of the organisation (and, hence, the impact of $750,000), and so on. 17 Some, but not all, of these issues may arise in respect of imputation (b). Imputation (b) suggests an objective standard. Look at the cost of calling the meeting ($750,000). Look at the reasons given by Mr Parker for having called the meeting. Whatever his private view, there was no reasonable justification. He therefore, objectively, should be regarded as an irresponsible person. 18 The two imputations, in my view, are different in substance. Both (a) and (b) should go to the jury.

Imputation (c) 19 For convenience, I repeat imputation (c): "(c) The Plaintiff in delivering a requisition for a special general meeting for the removal of directors without giving any reason deserves the condemnation of the members of the NRMA." 20 This imputation, no doubt, derives from the following paragraphs in the article: "A requisition for a special general meeting on October 28 has been delivered to the NRMA by one David Parker. It seeks to remove Mr Whitlam and seven other directors, but gives no reason." 21 The article also included the following: "At great expense, the NRMA is sending its two million members information packs and proxy forms for the annual general meeting, on October 29 and 30 and for the special general meeting on October 28." 22 The defendant argued that imputation (c) is a rhetorical imputation (Morris v Newcastle Newspapers (supra)). Counsel put the following submission: "Again, it is no more than an allegation that the plaintiff, as a member of the NRMA, acted with a high degree of irresponsibility in requisitioning a special general meeting without justification. Again, how would the truth of this imputation be proved? By proving that the plaintiff requisitioned the meeting, at great expense, without any justification. The imputation thus once again fails the test in Singleton ..." 23 However, I believe the imputation does differ in substance from (a) and (b). It focuses upon the absence of reasons provided by Mr Parker when requisitioning the meeting. Voters were being asked to consider an issue, and exercise proxy votes, without Mr Parker having provided reasons why Mr Whitlam and his fellow directors should be removed. 24 During argument it was suggested that the formulation of the imputation was ambiguous. It may mean, on the one hand, that the requisition was procedurally deficient. Reasons should have been included, but were not. It may mean, on the other hand, that no reasons were given because there were none. Where there is ambiguity it should be removed, lest it cause confusion (Singleton v Ffrench (1986) 5 NSWLR 425). 25 At first I was attracted to that argument. However, upon reflection, I believe the imputation is clear. It is not ambiguous. It suggests that Mr Parker requisitioned a special general meeting. He should have given reasons (so voters could rationally consider the issue). He did not do so. It is an expensive process to call a meeting. He is therefore to be condemned by members. The imputation does not suggest that he had no reasons. 26 I believe that such an imputation does differ in substance from (a) and (b). It is capable of arising. It should go to the jury.

Imputation (d) 27 Again, for convenience, I repeat imputation (d) which is these terms: "d) The Plaintiff was unworthy to be elected to the NRMA Board in that he was prepared to waste more than $750,000 of the NRMA's money." 28 The defendant asserted that such an imputation was a rhetorical flourish, indeed similar to that in Morris (supra). Counsel for the defendant made the following submission: "It says no more than that the plaintiff acted irresponsibly or disgracefully by wasting $750,000.00 of the NRMA's money." 29 This imputation certainly focuses upon the re-election of Mr Parker to the NRMA Board, which is something entirely absent from preceding imputations. However, the reasons he is said to be unworthy are specified, namely, his preparedness to waste more than $750,000 of NRMA money. I do not believe that such an imputation really adds anything substantially different from the imputations which preceded it. It is, I believe, rhetorical in the Morris sense. It should therefore not go to the jury.

Imputations (a), (b) and (c) should go to the jury.

The defendant should pay 75% of the plaintiff's costs. **********

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