Peluso v TCN Channel Nine Pty Limited

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DUNFORD J WEDNESDAY 22 MARCH 2000 20403/97 - John PELUSO & anor v TCN CHANNEL 9 PTY LIMITED & 2 ors JUDGMENT 1 HIS HONOUR: On 6 May 1997 the third defendant, Alan Jones, made certain remarks in a broadcast over radio station 2UE, which is owned and operated by the second defendant, Radio 2UE Pty Limited, which the first plaintiff, a barrister, claims were defamatory to him. 2 The broadcast, the text of which is set out in Schedule A1 to the Statement of Claim, related to certain proceedings in the Local Court where 4 Koreans had received what the third defendant had regarded as light sentences for a number of serious burglaries on the basis that they were persons of previously good character with no prior convictions, whereas they were in fact seasoned criminals with convictions for serious offences in Korea, and the non-disclosure to the Magistrate of their criminal records by either the prosecuting police or by their barrister, the first plaintiff. Mr Jones' introductory remarks indicated that the subject had been discussed on the radio the previous day. 3 On 29 August 1997 Levine J ordered that a number of the imputations as then pleaded be struck out, but gave the plaintiff leave to re-plead, which has now been done by the fourth Amended Statement of Claim. Once again, the defendants object to the imputations pleaded and this is a hearing pursuant to s 7A(1) of the Defamation Act 1974 and SCR Pt 31 to determine whether the matters complained of are reasonably capable of carrying the imputations pleaded. 4 I shall deal with the imputations seriatim. There is no imputation (a). Imputation (b) is: "The first plaintiff so wrongly conducted himself as a lawyer that he warranted an investigation by the Bar Association."

This imputation was ruled on by Levine J as imputation 4(c) in the original Statement of Claim and he allowed it to go to the jury. 5 Imputation (c) is: "The first plaintiff's conduct in the Magistrate's Court fell below the standards the public expected from barristers."

It is submitted this is rhetorical and meaningless, and does not specify the conduct said to fall below the standards that the public expect from barristers; and I was referred to Morris v Newcastle Newspapers Pty Limited (1985) 1 NSWLR 260 at 272 and Kermode v John Fairfax Publications Pty Ltd (unreported - Levine J - 29 August 1997). Although the use of so called "rhetorical imputations" is discouraged and, unless they differ in substance from the other imputations, are prohibited by Pt 67 r 11(3), I do not see imputation (c) as rhetorical. It cannot be said to be general and not different in substance from the other imputations pleaded, and in particular, it is different in substance from imputation (b) because whereas (b) relates to the standards set or considered appropriate by the Bar Association, imputation (c) relates to standards expected by members of the public. 6 I also reject the submission that the conduct and standards are unspecified. The conduct referred to is the plaintiff's conduct in the Local Court and the standards are those the public expect from barristers, the latter a matter appropriate for determination by the representatives of the public, namely, the jury. I allow imputation (c) to stand. 7 Imputations (d) and (e) may conveniently be dealt with together. They are: "(d) The plaintiff so conducted himself that Mr Jones suspected him of offering a bribe.

(e) The first plaintiff was the sort of barrister who could offer a bribe."

The plaintiff has agreed that imputation (e) contains a typographical error and has agreed to amend it to read: "The first plaintiff was the sort of barrister who would offer a bribe."

The imputation in such amended form was allowed as imputation (g) in Levine J's earlier judgment. It seems to me that the new imputation (d) is a modification of the former imputation (f) which was, "The first plaintiff offered a bribe to the prosecution", which was also allowed by Levine J. 8 It was submitted that there is nothing in para 5 or elsewhere in the text of the broadcast suggesting that it was the plaintiff, as opposed to his client or other intermediaries on their behalf, who might have been involved in bribing anyone. Although I was initially attracted to this argument, it seems from pp 8 and 9 of Levine J's judgment that a similar submission was put to his Honour, who rejected it, and I would not purport to reconsider the matter on an application of this nature. Imputations (d) and (e) as amended may stand. 9 Imputation (f) is: "The first plaintiff sought to cover up his wrongdoing by not talking to Mr Jones or answering his questions."

It was submitted that the only references to people "not talking" are incapable of referring to the plaintiff and that it is embarrassing as it is not specifying the alleged wrongdoing, and it was pointed out that nowhere in the broadcast was it suggested that Mr Jones had applied to the plaintiff for a statement or comment that the latter refused to give. 10 There is no suggestion anywhere in the broadcast that the plaintiff had heard, or was aware of, the previous broadcast on the same subject matter, or that he had been asked by or on behalf of Mr Jones to make a statement or answer questions and had declined. Indeed, at the end of para 1, Mr Jones said that he had struggled the previous day to find someone to talk about it, and in para 33 he refers to applying to the Attorney-General and the Police, but he made no reference to the plaintiff in that context. 11 True it is that the ordinary reasonable listener hearing the programme may have got the impression that a reply from the plaintiff should have been forthcoming, but that would not, in my view, be a reasonable response of the ordinary reasonable listener in the absence of some suggestion or inference that the plaintiff knew of the broadcast, or that of the previous day, or had been invited or asked to contact the third defendant, and there is no evidence of this nature and there is no such suggestion in the broadcast, and it follows that the material is not capable of bearing the imputation alleged. 12 Imputation (g) is: "The first plaintiff lied to the Magistrate's Court."

It was submitted that an imputation in the same terms had been struck out by Levine J, whereas the plaintiff submitted that such imputation was allowed to stand. This imputation was imputation (a) in the original Statement of Claim whereas (b) was, "The first plaintiff deliberately deceived the Court", and his Honour said at p 6 that the two imputations did not differ in substance and accordingly both were struck out with leave to re-plead. 13 The plaintiff relies on paras 1, 29, 35 and 36 to support this imputation and I am satisfied that paras 29 and 36, particularly 29, with its reference to a lawyer knowingly providing false information to a Court, and whether what he said was the truth as he knew it, are capable of giving rise to the imputation alleged. 14 It was further submitted by the defendant that there is no evidence that the plaintiff knew of the records and prior associations of his clients and that the broadcast cannot rise above an imputation that the third defendant suspected him of lying, but in the context of the whole broadcast with references, particularly in para 56, to such matters as where did the lawyer get his information, and whether it was a deliberate lie or an accidental lie, I am satisfied that the imputation should go to the jury. 15 Imputation (h) is: "The first plaintiff so conducted himself as a barrister that he failed to disclose the fact that his clients had criminal records and had been engaged in criminal conduct in Korea."

The defendant submits: (a) That the broadcast is incapable of giving rise to an inference that the alleged non-disclosure would be a breach of duty, whether or not the plaintiff had knowledge of the criminal records of his client. (b) That the imputation is embarrassing because it does not assert any knowledge by the plaintiff of the undisclosed facts. (c) That it is not capable of suggesting more than that the third defendant suspected the plaintiff of failing to disclose the criminal records of his clients with knowledge of them. 16 True it is that the broadcast does not assert any knowledge on the part of the plaintiff of the undisclosed facts, but there is the reference already referred to in para 56 to an "accidental lie" and the whole tone of the broadcast suggests to me that it would be open to the ordinary reasonable listener to regard the broadcaster saying that the plaintiff did what is alleged, rather than merely that he suspected him of doing so. 17 As to the other objection, namely, whether the broadcast is capable of giving rise to an inference that the alleged non-disclosure would be a breach of duty whether or not the plaintiff had knowledge of the criminal records of his clients, I consider that what the community would regard as a breach of a barrister's duty involves a question of community expectations and is therefore a matter for the jury. 18 Imputation (i) is: "The first plaintiff so conducted himself that Mr Jones suspected him of deliberately withholding evidence from the Court."

It was submitted that this imputation is incapable of a defamatory meaning because it contains with it a false assumption that a lawyer is obliged to disclose to the Court everything he knows about his client, whereas the ordinary reasonable listener could have such a view; and that it is embarrassing not to specify the conduct. 19 Although not worded in similar terms to imputation (h), I regard this as a fall back imputation to that imputation, in that whereas imputation (h) alleges that the plaintiff withheld the information, this imputation alleges that the third defendant suspects the plaintiff of withholding the information. As to whether the ordinary reasonable listener could have a view that a lawyer is obliged to make inquiries about his clients, I consider this is an appropriate matter for the jury, but as to the objection that the imputation failed to specify the conduct, although it is not as elegantly worded as it might be, I consider that it is the failing to disclose the conduct referred to in imputation (h) which is referred to, namely, the failure to disclose the fact that his clients had criminal records and had been engaged in criminal conduct in Korea. That this is the meaning is quite clear, but I am also satisfied that this conduct should be specified in the imputation itself, so that the imputation is whole and complete. The imputation should therefore be struck out but leave given to re-plead so as to specify the conduct. 20 Imputation (j) is: "The first plaintiff failed to make proper inquiries about his clients before making submissions to the Court."

Once again, it is submitted that it contains a false assumption that a lawyer is obliged to make inquiries about his clients, and the ordinary reasonable listener could not have such a view. For the reasons previously indicated, I consider this a matter for the jury. I am satisfied, notwithstanding the other objections raised at this stage, that the broadcast is capable of giving rise to the imputation. This imputation, now imputation (j), was in the original Statement of Claim as imputation (i) as appears from Levine J's earlier judgment, but it does not appear to have been dealt with by his Honour. In particular, after dealing with imputation (h) in that case, at p 9 his Honour went on to deal with the imputations alleged by the second plaintiff, and when making formal orders as to which imputations were "in" and which were imputations were "out", on p 12 there is no reference to imputation (i). I therefore regard it as not having been previously dealt with by his Honour. 21 I therefore order that imputation (i) be struck out with leave to the plaintiff to re-plead, and I enter judgment for the defendants on imputation (f). 22 I order that the costs of the application be the plaintiffs' costs in the cause. oOo

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