Robertson v John Fairfax Publications Pty Ltd & The Development and Environmental Professionals' Association v John Fairfax Publications Pty Ltd

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

20003/03 IAN ROBERTSON v JOHN FAIRFAX PUBLICATIONS PTY LTD

20004/03 DEVELOPMENT AND ENVIRONMENTAL PROFESSIONALS' ASSOCIATION v JOHN FAIRFAX PUBLICATIONS PTY LTD

JUDGMENT 1 HER HONOUR: Two proceedings are before the court. They are:

(i) Ian Robertson v John Fairfax Publications Pty Ltd: Number 20003 of 2003;

(ii) The Development and Environmental Professionals' Association (formerly Environmental Health and Building Surveyors' Association) ("the Association") v John Fairfax Publications Pty Ltd: Number 20004 of 2003. 2 The Association is an organisation registered under the Industrial Relations Act 1996 (NSW). Mr Robertson is its secretary. Each sues the defendant in defamation as a result of the publication of an article in the Sydney Morning Herald on 11 December 2001. 3 The article appeared on the opinion pages of the newspaper under the headline: "Some in the union boys' club still don't get the point" 4 Underneath the headline appeared a synopsis of the thesis of the article, in the following terms: "To get a better deal at work, women still have to battle male privilege entrenched by dinosaur union attitudes, writes Leonie Lamont ." 5 In bold type, and appearing at the margin of the body of the article appear the words: "Money talks - and women workers deserve more proactive work by their unions to deliver it."

This in fact is a highlighted repetition of a sentence which appears towards the end of the article. 6 The principal factual subject matter of the article concerns a claim made by five female librarians employed by the Wollongong City Council that they had suffered unlawful discrimination in the allocation of benefits. According to the article, the Administrative Decisions Tribunal upheld their complaint of indirect discrimination and awarded them damages. The discrimination consisted in the allocation of motor vehicles, which worked disproportionately in favour of male employees. 7 Entwined in that factual report is the clear comment of the author. (I use the word "comment" in a non-technical sense. It should not be taken as any indication about the availability or likely success of a defence of comment, if raised.) This comment was to the effect that women employees tend not to be well served by the trade unions to which they belong, and which, according to the author, supported the entrenched discrimination exposed in the case the subject of the article. Towards the end of the article, reference is made to the Association and to Mr Robertson. It is as well to extract some paragraphs: "The principle appears to have eluded [the Association]. Ian Robertson, the secretary of the union, told the tribunal he was very concerned that any decision to award cars would jeopardise the position of those who already had use of them. 'This is because of the expense that would be involved, not only providing cars or the financial equivalent, but also to other groups of workers who do not currently enjoy such motor vehicle access but who would then press for them industrially,' he said. If this were to happen in Wollongong, he said, it would spread across the state, putting at risk 'the historic conditions of private use of motor cars enjoyed by [the Association's] members.'" 8 Earlier in the article, at the end of the introductory paragraph, the author stated that five female librarians had taken their employer to court over a system that gave male employees better access to cars: "and a union has spoken out against them because it is worried that the blokes will lose their vehicles."

It became clear in the later passage that the union there referred to was the Association.

Number 20004 of 2003: Development and Environment Professionals' Association v John Fairfax Publications Pty Ltd 9 The Association claims that the article, in its natural and ordinary meaning, conveyed two imputations which defamed it. They are pleaded as follows: "(a) [The Association] actively intervened in legal proceedings in an attempt to deny female workers equal employment conditions.

(b) [The Association] maintains an unfair policy based solely on gender, of putting the interests of its male members ahead of the interests of its female members." 10 Mr Robertson claims that in its natural and ordinary meaning the article conveyed three imputations which defamed him. They are pleaded as follows: "(a) Ian Robertson, in his capacity as Secretary of [the Association], actively intervened in legal proceedings in an attempt to deny female workers equal employment conditions. (b) Ian Robertson as Secretary of [the Association] maintains an outdated, discriminatory stance against female workers. (c) Ian Robertson as Secretary of [the Association], belongs to a 'union boys' club' that discriminates against female workers." 11 The defendant has raised a number of objections to each statement of claim. I shall deal firstly with the claim made by the Association.

(i) capacity to sue 12 On behalf of the defendant it is asserted that the Association lacks the capacity to sue for defamation. The principle upon which the defendant relies to support that proposition is stated in Ballina Shire Council v Ringland (1994) 33 NSWLR 680, as subsequently extended (on the defendant's argument) in NSW Aboriginal Land Council v Jones (1998) 43 NSWLR 300. 13 In Ballina, the NSW Court of Appeal (Gleeson CJ with whom Kirby P agreed, Mahoney JA dissenting) held that a council incorporated under the predecessor of the Local Government Act 1993 (the Local Government Act 1919) lacked the right, power or authority to commence and maintain an action for damages for defamation. The rationale for this conclusion can be found in the judgment of the Chief Justice at, in particular, pp. 690 - 691, and in the judgment of Kirby P at, in particular, p. 707. In the passages to which I have referred, Gleeson CJ adopted the reasoning of the House of Lords in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 which had, the year before Ballina was decided in the Court of Appeal, held that a local council whose members were popularly elected was not entitled at common law to maintain an action for damages for defamation. Gleeson CJ stated the essence of the reasoning in Derbyshire to be the inconsistency between the principles which underlie the law of defamation, and assumptions as to the nature and role of democratically elected governmental institutions. He concluded that to maintain that an elected governmental institution has a right to a reputation as a governing body is to contend for the existence of something that is incompatible with the very process to which the body owes its existence. 14 In Derbyshire reference was made to "a governing reputation" possessed by a local government corporation. Gleeson CJ observed that what was meant by this was not elaborated but was of central importance to the problem under consideration by the Court of Appeal in Ballina. 15 Gleeson CJ used this expression interchangeably with "governmental reputation" (see, for example, Ballina, p. 690 - 691). I mention this, having regard to a submission that was put on behalf of the Association, to which I will refer when I come to deal with the competing arguments advanced. 16 At p. 691 Gleeson CJ said: "The idea of a democracy is that people are encouraged to express their criticisms, even their wrong-headed criticisms, of elected governmental institutions, in the expectation that this process will improve the quality of the government. The fact that the institutions are democratically elected is supposed to mean that, through a process of political debate and decision, the citizens in a community govern themselves. To treat governmental institutions as having a 'governing reputation' which the common law will protect against criticism on the part of the citizens is, to my mind, incongruous. I regard the matter as turning upon the concept of reputation, and the nature of the reputation which the law of defamation sets out to protect." 17 In his reasons Kirby P drew attention to certain features of a local government authority, such as its capacity to convene meetings, to publish assertions which will often be privileged, to respond to criticism by media releases, to set up local inquiries, to conduct public hearings and investigations, and to pass ordinances dealing with matters the subject of controversy. His Honour held that it was entirely misconceived for such a public organ of government to use public funds, levied from ratepayers, to sue a ratepayer (as was the defendant in that case) for publication of statements (even though they may be false and unfair) by which the public body had been criticised or condemned. It was of some significance to his Honour that the local council was "a unit of the government". 18 In Jones, the Ballina principle was applied to an Aboriginal Land Council constituted under the Aboriginal Land Rights Act 1983. Counsel for the defendant urged that the Association was of a character sufficiently analogous to an Aboriginal Land Council to come also within the prohibition. He seized upon one passage in the judgment of Handley JA (with whom Powell JA agreed) which reads as follows: "This analysis leads me to the conclusion that this case is covered by the ratio of Ballina . Gleeson CJ considered that the reputation which the law of defamation seeks to protect does not extend to the reputation, there described as the 'governing reputation', of an elected body … and agreed with the reasoning in Derbyshire ." (p. 310) 19 The NSW Aboriginal Land Council is a statutory authority by reason of its incorporation under the Aboriginal Land Rights Act. It consists of members elected from Regional Aboriginal Land Council ("RALC") areas, whose members, in turn, are elected from members of the Local Aboriginal Land Councils. 20 Handley JA referred to the statutory foundations of Local Aboriginal Land Councils. The Minister is empowered to constitute an area as an Aboriginal Land Council area, and a Local Aboriginal Land Council ("LALC") is, by statute, a body corporate "for that area". All adult Aborigines on the local Aboriginal roll for the area are members of the LALC, the LALC is required to hold ordinary meetings at least quarterly, and an annual meeting; at each annual meeting officers are to be elected. The functions of a LALC include the acquisition, management, control and use of its land, the acquisition, establishment and operation of enterprises, and the provision of residential accommodation for Aborigines in its area. 21 RALCs also must comply with statutory requirements concerning meetings and elections of office holders. 22 The functions of the NSW Aboriginal Land Council include administering funds, making grants to RALCs, the acquisition of land, making claims to Crown land, and, perhaps most significantly for present purposes, supervising RALCs and LALCs to ensure their compliance with the statute. 23 Counsel for the defendant in the present case sought to show that the position of the Association is analogous with that of the NSW Aboriginal Land Council. Should he succeed in this endeavour, by the same processes of reasoning that led Handley JA and Powel JA to apply the Ballina principle to the NSW Aboriginal Land Council, so is the Association precluded from suing in defamation. In order to establish the analogy, he pointed to a number of provisions of the Industrial Relations Act, to the rules of the Association, and to the Association's own statement of its functions and the services it provides to members derived from its web site. Of particular importance in counsel's argument was the fact that the Association is a corporation by reason of statutory provision, and that it is required to conduct elections for office holders. From the extract from the Association's web site it can be seen that the Association perceives its function as providing a wide variety of advice and assistance to its members. It is, of course, axiomatic that the Association represents members in relation to industrial matters, including in the resolution of industrial disputes (s130). In order to enable it to undertake its functions (recognised by statute), an organisation registered under the Industrial Relations Act is authorised to do a number of things which it (or its officers or members) would not otherwise be able to do, such as entering upon premises on which members are employed and investigating alleged breaches of industrial laws. There is nothing that is remotely comparable between the powers and functions of the Association and the NSW Aboriginal Land Council, nor the powers and functions of a local council incorporated under the Local Government Act 1919. 24 In arguing that the decision in Jones extended the Ballina principle so as to encompass elected bodies such as an industrial organisation as is the Association, counsel for the defendant relied heavily upon the reference by Handley JA to the 'governing reputation' of an elected body. Counsel for the Association sought to draw some comfort from the use of the words "governing reputation" contrasted with the words more commonly used in Ballina, "governmental reputation". There is no distinction between the two, and the phrase of origin, drawn from Derbyshire, is that used by Handley JA, "governing reputation". Gleeson CJ used both terms. This distinction is of no substance. It is to be noted that the passage upon which reliance was so heavily placed on behalf of the defendant is a passage in which Handley JA summarises, or paraphrases, the conclusion of Gleeson CJ in Ballina. Handley JA does not purport to lay down a new or extended principle. Further, while Handley JA refers to "an elected body" (this in the context of restating the Ballina principle), the phrase consistently used in Ballina is "an elected governmental institution". In the decisions of both Gleeson CJ and Kirby P the governmental nature of the local council was of prime importance. 25 It was that that Handley JA considered to be sufficiently analogous to a LALC. His Honour wrote: "An evident purpose of the 1983 Act is to provide for a measure of self-determination and self-government by Aboriginals living within the area of a Local Aboriginal Land Council or Regional Aboriginal Land Council, particularly in relation to the management and use of 'their land'. … In my opinion the 1983 Act established a system of local government for Aboriginals who reside in a local Aboriginal Land Council area (s7(2)(a)) or a Regional Aboriginal Land Council Area (1514, 15) although land vested in a Local Aboriginal Land Council is not withdrawn from the jurisdiction of councils established under the Local Government Act 1993. … This system of local self government is, of course, based on race, but this is only an acknowledgment of the obvious purpose and effect of the 1983 Act. It reflects the tribal or clan structure of Aboriginal communities and the communal nature of their land ownership. …" (p. 310) 26 In my opinion there is no analogy between the powers and functions of the Association and the powers and functions of the NSW Aboriginal Land Council. The latter is, as Handley JA demonstrated, far closer to a council constituted under the Local Government Act than is an organisation constituted under the Industrial Relations Act. There is no real relevant parallel between the two. I reject the defendant's first argument.

(ii) actionable defamation? 27 Paragraph 5 of the amended statement of claim is in the following terms: "By reason of the publication of the matter complained of in paragraph 4, the Plaintiff has been held up to public ridicule and contempt and has been damaged in their reputations (sic) and has suffered and continues to suffer loss and damage." 28 The issue raised by this challenge concerns what is said to be the limited capacity of a corporation to bring an action for defamation. In Ballina, Gleeson CJ quoted from Fleming, The Law of Torts, 4th edition (1971) in which the following appears: "Corporations may vindicate attacks upon their reputation in civil actions no less than criminal prosecutions. Doubts that at one time stemmed from unrealistic notions flowing from their artificial status have long been dispelled by their significant role in commercial life which necessitated that they be treated as far as possible like ordinary individuals in their relations to society. A corporation may have a character for stability, soundness and fair dealing, as essential to its commercial success as it is vulnerable to attack, quite like the business reputation of a natural person. It may accordingly complain of any defamation calculated to damage its business interests, such as false imputations of insolvency, mismanagement or improper, unfair and dishonest conduct of its affairs." (p. 685) 29 The proposition for which the defendant contends is most clearly stated in Lewis v Daily Telegraph Ltd [1964] 1 AC 234 at 262. Lord Reid said: "A company cannot be injured in its feelings, it can only be injured in its pocket. Its reputation can be injured by a libel but that injury must sound in money. The injury need not necessarily be confined to loss of income. Its goodwill may be injured." 30 There is a useful discussion of the principle in Tobin and Sexton: Australian Defamation Law and Practice at [3017]. It will be observed that, in a number of the cases to which reference is there made, the corporation under consideration is described as a "trading corporation", although in others mere corporate status appears to be sufficient. The Association, of course, is not a trading corporation but it nevertheless, in my opinion, comes within the principles stated by Lord Reid in Lewis. 31 The amended statement of claim makes no reference to any financial loss or injury. That was also the case in Jones, which prompted Handley JA to remark upon its absence, and to observe that the statement of claim in that case could have been struck out on that point alone. 32 The absence of any pleading to this effect, or particularisation thereof, is not a matter which would lead me to strike out a statement of claim without giving the Association the opportunity to plead appropriately. However, having read the authorities to which I was referred, and the passages in Tobin and Sexton, I have come to the view that there is merit in the point. It will be for the Association to obtain advice as to the manner in which it should remedy the deficiency.

(iii) capacity 33 The remaining matters concern the capacity of the article to convey the imputations pleaded.

imputation (a) 34 This imputation is that the Association "actively intervened in legal proceedings in an attempt to deny female workers equal employment conditions". 35 The defendant contends that the matter complained of is incapable of conveying this imputation. Counsel for the defendant pointed out that there are three components to the imputation: the first that the Association actively intervened in legal proceedings; the second that it did so "in an attempt" - that is, deliberately and with a stated purpose; and the third that that purpose was to deny female workers equal employment conditions. 36 I have, in the introductory section of this judgment, outlined the nature of the article of which the Association complains. It does make reference to legal proceedings brought by five female librarians, and to the outcome of those proceedings. It also makes reference to "a union" speaking out against them "because it is worried that the blokes will lose their vehicles". When it refers directly to the Association it quotes its secretary, Mr Robertson, telling the tribunal that he was very concerned that any decision to award cars would jeopardise the position of those who already had use of them. There are some direct quotes attributed to him. The article does not state the capacity in which Mr Robertson attended the tribunal, that is whether he was a witness, or an advocate making submissions, or was there in some other role. 37 What is not at any time stated, or even hinted at, is that the Association took any steps to intervene in the proceedings. The article gives no indication of the circumstances in which Mr Robertson was addressing the tribunal, but the most obvious inference is that he was called as a witness. The proceedings to which reference is made were between the female librarians and the Wollongong City Council. Nowhere is it suggested that the Association was a party to those proceedings, whether on its own instigation or otherwise. The matter complained of is simply incapable, and clearly so, of conveying the imputation that the Association actively intervened in those proceedings. 38 It follows that the balance of the imputation, that such active intervention was for the purpose asserted, also cannot be conveyed. 39 Imputation (a) will be struck out.

imputation (b) 40 This imputation is that the Association maintains an unfair policy, based solely on gender, of putting the interests of its male members ahead of the interests of its female members. 41 The same complaint is made of this imputation as was made of the first - that is, that it is incapable of being conveyed by the natural and ordinary meaning of the words published. What is attributed to the Association in the article is an expressed concern that, should the female complainants be successful in their complaints about the Wollongong Council's allocation of motor vehicles, that success would rebound against the interests of other workers; and a failure to understand the discriminatory impact of the Council's car allocation policy. 42 Counsel for the defendant pointed out that it was also stated in the article that while about seventy-five per cent of male assistant managers had rights of private use of vehicles, only fifty per cent of women assistant managers qualified. From this, he contended, the ordinary reasonable reader would infer that any policy of the Association in the terms attributed to Mr Robertson protected not only the interests of male members, but also the interests of some female members. There is nothing from which it could reasonably be inferred that any policy of the Association was gender-based or discriminatory. I think this is correct. I am conscious that an astute reader, alive to issues of discrimination, might understand the article to be accusing the Association of gender-based discriminatory attitudes. But the astute reader, alive to such issues, is not the yardstick by which the capacity to convey an imputation is to be judged. I am not satisfied that the ordinary reasonable reader would read gender-based discrimination into the words published. 43 Moreover, the article is not capable of conveying the imputation that the Association "maintains a policy" of behaving in the manner described. What the article does attribute to the Association is concerns - outdated and discriminatory as they may be - about the impact of a proposed, more progressive, policy of the Wollongong Council upon the established rights of its existing members. The focus of the article is on allegedly unenlightened attitudes, not policies. 44 Accordingly, I am satisfied that imputation (b) is not capable of being conveyed by the matter complained of and will be struck out.

Number 20003 of 2003: Ian Robertson v John Fairfax Publications Pty Ltd 45 The challenges to this statement of claim concern only the capacity of the matter complained of to convey the imputations pleaded and whether imputations (b) and (c) differ in substance.

(i) imputation (a) 46 This imputation, as drafted, is in parallel terms to imputation (a) as pleaded in the Association's proceedings. For the reasons there given the imputation is not capable of being conveyed. It will be struck out.

(ii) imputation (b) 47 This imputation is that Mr Robertson, as secretary to the Association, maintained an outdated, discriminatory stance against female workers. When the article is read as a whole it is plain that what is being said is that the Association resisted any proposed change in the allocation of motor vehicle privileges that would equalise the access of women and men to those privileges and that, whatever the motivation for that stance, in real terms it operated to the disadvantage of women. The article concludes with the pithy sentence: "The blokes still don't get it." 48 This follows a detailed reference to what was attributed to Mr Robertson. At an earlier point in the article the author had written: "We thought the union boys' club had got the message 20 years ago …"

Also not to be overlooked are the sub-headline, containing the assertion that women still have to battle male privilege, and the reference to "dinosaur union attitudes"; and the headline itself, stating that: "Some in the union boys' club still don't get the point." 49 All of this, in my opinion, is capable of conveying the imputation that Mr Robertson, in his capacity as secretary of the Association, maintains an outdated, discriminatory stance against female workers. I reject the challenge to imputation (b).

(iii) imputation (c) 50 This imputation is that Mr Robertson, as secretary of the Association, belongs to a "union boys' club" that discriminates against female workers. Just as the article is capable of conveying the imputation that Mr Robertson holds discriminatory views and supports discriminatory practices, the article is equally capable of conveying the imputation that the Association discriminates against female workers. It is then a short step to infer that Mr Robertson, as secretary of that Association, belongs to a discriminatory organisation. 51 The only argument advanced on behalf of the defendant was that the matter complained of cannot reasonably be read as suggesting general criticism. Rather, it criticises both the Association and Mr Robertson for their stance on a particular issue. I accept that this is so, but I do not read the imputation as asserting a more general discriminatory stance or policy. One instance of discriminatory conduct is sufficient to convey the imputation. I am satisfied that the matter complained of is capable of conveying imputation (c).

(iv) difference in substance 52 The final argument put on behalf of the defendant was that imputations (b) and (c) do not differ in substance. After some hesitation, I have come to the conclusion that the imputations do differ in substance. Imputation (b) is focused upon Mr Robertson's own attitudes, although specifically in his capacity as secretary of the Association. Imputation (c) focuses upon his belonging to an association, pejoratively described as a "union boys' club" that is discriminatory. It is true, again, that the imputation is directed to what he does in his capacity as secretary of the Association but that does not affect the sting of the imputations. I reject this challenge to imputations (b) and (c). 53 The orders I make are: (i) Proceedings 20003 of 2003: Imputation (a) is struck out. The plaintiff is to have liberty to replead. (ii) Proceedings 20004 of 2003: Imputations (a) and (b) are struck out. The plaintiff is to have liberty to replead.

Last Modified: 06/24/2003 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.