Russell v Win Corporation Pty Ltd, Nine Network Australia Pty Ltd, McKinnon and Bailey [2013] ACTSC 159

a) Pursuant to r 425 of the Court Procedures Act 2006 (ACT) paragraphs 5(a), 5(b), 5(c), 5(d), 5(h), 5(j) and 5(k) of the Amended Statement of Claim be struck out.

3. Paragraph 5 of the Amended Statement of Claim pleads the imputations the plaintiff says arise from the published material:

5. The segment was defamatory of the plaintiff.

Particulars of defamatory imputations conveyed by the segment:

(a) that the plaintiff while Chief Executive Officer at Airservices Australia; spent more than $240,000 of taxpayers' money in a manner that was absolutely mad;

(b) that the plaintiff wasted more than $240,000 of taxpayers' money on himself while Chief Executive Officer of Airservices Australia;

(c) that the plaintiff spent more than $240,000 of taxpayers' money on himself while Chief Executive Officer at Airservices Australia on such self-indulgent things as luxury hotel accommodation and fine dining;

(d) that the plaintiff lived a high life at the expense of taxpayers;

(e) that the plaintiff selfishly spent more than $118,000 of taxpayers' money on his personal accommodation, including the most expensive room at the Cable Beach Resort in Broome;

(f) that the plaintiff self-indulgently wasted more than $2,500 of taxpayers' money on taxis;

(g) that the plaintiff selfishly spent thousands of dollars of taxpayers' money on fuel for his own use;

(h) that the plaintiff selfishly spent taxpayers' money by treating himself to the absolute best accommodation, food and wine when away from home on work duties;

(j) that the plaintiff self-indulgently spent $61,000 of taxpayers' money on himself at the best restaurant[s] and on the best wine;

(k) that the plaintiff was unfair to taxpayers in the way he self-indulgently spent more than $240,000 on his travelling and entertaining expenses.

Particulars of imputations:

These imputations were conveyed by the segment, taken in its entirety, and particularly the following parts of the matter complained of:

Imputations (a), (b) and (c): the first passage attributed to Leila McKinnon;

Imputation (d): as for imputation (a), plus the image of the newspaper article and its headline;

Imputation (e): the words attributed to Robin Bailey starting "But this particular man..." and ending "...to be the absolute best?" paragraphs 1, 2, 6 and 7.

Imputations (f) and (g): the words attributed to Robin Bailey starting "But this particular man..."and ending "...we are paying for it."

Imputation (h): the words attributed to Robin Bailey starting "But this particular man..." and ending "...I'm just so..."

Imputation (j): the words attributed to Robin Bailey starting "And the same with..." and ending "...I'm just so..."

Imputation (k): the entirety of the words attributed to Robin Bailey.

[Amendments deleted]

4. The defendants' application was initially based on propositions concerning the form of the imputations, the capacity of the material to convey the alleged imputations, and that some of the imputations do not differ in substance. During the course of hearing the application, the parties reached agreement on the form and capacity objections, leaving only the issue of whether some of the imputations did not differ in substance to be resolved by the Court. The resolution of the form and capacity arguments required some amendment of some of the imputations, so that I will set out the relevant imputations in their amended form when considering whether they differ in substance.

5. The defendant submits that imputations (b) and (c) do not differ in substance.

(b) that the plaintiff wasted more than $240,000 of taxpayers' money while Chief Executive Officer of Airservices Australia;

(c) that the plaintiff spent more than $240,000 of taxpayers' money while Chief Executive Officer of Airservices Australia on such self-indulgent things as luxury hotel accommodation and fine dining.

6. Each of these imputations refers to the plaintiff allegedly spending the same amount of money, referred to as "more than $240,000". Each alleges it was taxpayers' money. Imputation (b) alleges the money was wasted by the plaintiff, whereas imputation (c) alleges that it was spent on "self indulgent things". Imputation (b) is general, providing no particulars of on what the money was said to have been wasted, whereas imputation (c) provides some non-exclusive particulars.

7. I am satisfied that there is no real, or sufficient, difference in substance between those imputations. In each case the sting of the imputation is the wasting of taxpayers' money by the plaintiff. Effectively, imputation (c) is a particular of imputation (b). Imputation (c) will be struck out.

8. The defendants also alleged that there is no difference in substance between imputations (d), (h) and (k). These imputations read:

(d) that the plaintiff lived a high life at the expense of taxpayers;

(h) that the plaintiff selfishly spent taxpayers' money by treating himself to the absolute best accommodation, food and wine when away from home on work duties;

(k) that the plaintiff was unfair to taxpayers in the way he self-indulgently spent more than $240,000 on his travelling and entertaining expenses.

9. In my opinion, although it is a close run thing, these imputations should be allowed to go forward. Imputation (k) raises the issue of "unfairness", which is not specifically raised by either imputation (d) or (h). Whether it will ultimately prove to be different from those imputations in the context of the evidence is debatable. Imputations (d) and (h), whilst similar, may potentially raise different issues.

10. The formal orders I make are that imputation (c) be struck out. The costs of the application will be reserved.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Counsel for the Defendant-Applicants: Mr M Richardson

Solicitor for the Defendant-Applicants: Johnson Winter & Slattery

Counsel for the Plaintiff-Respondent: Mr K.P Smark SC

Solicitor for the Plaintiff-Respondent: Malcolm Johns & Company Lawyers