Saravinovski v Fairfax Media Publications Pty Ltd

Judgment 1HER HONOUR: These are proceedings for defamation arising out of the publication of an article in the on-line version of the Sydney Morning Herald. This judgment determines the defendant's objections to the imputations relied upon by the plaintiff. 2The matter complained of reported allegations of corruption against Mr Saravinovski in his capacity as the former Mayor of Rockdale. Specifically, the article reported that Mr Saravinovski had taken visitors cruising on a boat owned by a developer but had not declared their relationship some years later when voting on a contentious development project propounded by the developer. 3The form in which the article was made available to be downloaded from the defendant's website is important. The article consisted of a web page with the headline "Happy memories for corrupt mayor" under a video depicting Mr Saravinovski. The video carried the following description: RAW VISION: former Rockdale Mayor Bill Saravinovski, who is currently being investigated for corruption, is seen indulging on a boat in Darling Harbour. Archival footage. 4Underneath that description appeared the following words in smaller font: "Mayor used developer's boat". Those words were hyperlinked to the body of the article, which appeared under the same heading. The article reported that Mr Saravinovski "took visitors cruising on Sydney Harbour aboard the boat of the developer, but did not declare their relationship when he voted some years later to approve a contentious apartment project in Brighton Le Sands". 5Mr Saravinovski has pleaded nine imputations allegedly conveyed by the article. The defendant objects to all but two of the imputations. In each case, there is an objection as to the form of the imputation. In most cases it is also objected that the imputation is incapable of arising from the matter complained of. 6I have reached the conclusion that, apart from imputation (a) (as to which there is no capacity objection), each of the imputations is bad in form and is liable to be struck out on that basis. In view of that conclusion, it is neither necessary nor appropriate to determine the objections based on the capacity of the matter complained of to convey those imputations. However, where appropriate, I have indicated my views as to the issues raised. 7Imputation (a) is: The plaintiff was a corrupt Mayor. 8The defendant submitted that the imputation is bad in form in that it lacks the required specificity. 9There is almost always room for argument as to the degree of specificity required of an imputation in any particular case. Corruption imputations in particular are frequently challenged on the basis that "corrupt" is a word of imprecise meaning. That complaint finds some support in the relevant authorities. It does not follow, however, that it is a word that can never be used in an imputation. 10The difficulties to which the language of corruption gives rise in the context of a defamation action have been considered in three important decisions of the late 1980's (perhaps reflecting a focus of those times): Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 (a decision of Hunt J); John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 (a decision of the Court of Appeal) and Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (also a decision of the Court of Appeal). 11Two clear principles emerge from a consideration of those decisions. The first is that a dispute as to whether the plaintiff has specified the act or condition allegedly attributed to him by the matter complained of with adequate specificity is to be resolved by considerations of practical justice. An imputation is not liable to be struck out simply on the basis that it is susceptible of further linguistic refinement. The test is "whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends": Whelan at 155F; approved in Drummoyne by Gleeson CJ at 138E. 12Priestley JA in Drummoyne expressly disavowed any need to rely upon the decision in Whelan in order to reach the same conclusion, holding that the appeal depended on the long-established and probably self-evident rule that a pleading must be sufficiently clear to the opposing party to enable that party to plead substantially in answer to it and to prepare for a trial in which the case proved by the evidence will not come as a surprise: at 155F. Kirby P dissented in Drummoyne, bemoaning the requirement of excessive particularity favoured by Hunt J in his Honour's conduct of the defamation list. 13The second clear principle to emerge from those authorities (which is really an aspect of the first) is that the requirement for specificity "cannot go beyond the best that can reasonably be done in the circumstances": Drummoyne at 137E per Gleeson CJ. His Honour noted the decision in Foord in that context. In Foord, the defendant had published a newspaper billboard which read "Govt's war on corrupt judges." 14Hunt J held that the imputation that the plaintiff was a corrupt judge was a proper imputation to leave to the jury. The Court of Appeal upheld that decision: at 726 per Clarke JA; Hope JA agreeing at 707. 15In Drummoyne, however, Hunt J at first instance struck out three imputations where the broadcasts sued on disclosed that there were various significantly different forms of corruption that could be taken from them. Gleeson CJ held that to permit the plaintiff to frame imputations referring to corruption without specifying which of the different possible kinds of corruption was being referred to would, by reference to the test enunciated in Whelan, contravene the relevant rules of pleading: at 140F. 16Against those considerations, two observations may be made as to the matter complained of in the present case. First, a significant feature of the article is the emphasis, in its layout, on the video depicting the plaintiff above the prominent headline "happy memories for corrupt Mayor". 17Secondly, in my view that article only identifies a single kind of corrupt conduct, namely, participating in the approval of a contentious development application without disclosing prior dealings with the developer. The scope for confusion must be considered in that context. 18The significance of the layout and the prominence of the headline is that, in my view, the article conveys a strong impression that the plaintiff is a "corrupt Mayor" which is at least capable of informing the reader's consideration of the balance. I accept, as submitted by Ms Barnett on behalf of the defendant, that the present objections must be determined taking the article as a whole. However, the layout of the article (in particular the prominence given to the photographic images accompanied by the headline) is not to be ignored. 19Having regard to that material, I consider that an imputation that the plaintiff was a corrupt mayor is a proper one to be left to the jury, notwithstanding the fact that the body of the article does provide further specificity to that general allegation. The objection to imputation (a) is rejected. 20It is convenient to consider the next two objections together. Imputation (c) is: The plaintiff as Mayor of Rockdale corruptly arranged for Greg Gav's development at 344 Bay Street Brighton-Le-Sands to be approved by Rockdale Council. 21Imputation (d) is: The plaintiff was currently being investigated for corruption in that as Mayor of Rockdale he corruptly arranged for Greg Gav's development at 344 Bay Street Brighton-Le-Sands to be approved by Rockdale Council. 22The defendant objects to each of those imputations on the basis that the meaning of the term "corruptly arranged" is unclear. In my view, each of those imputations is liable to be struck out on that basis. Whilst there may be some tension between that conclusion and my determination to allow the general imputation to stand, the difficulty with imputations (c) and (d) is that they purport to deal with a particular instance of corruption but fail to identify any conduct capable of meeting that characterisation. In doing so, they leave the transaction identified in each imputation open to more than one interpretation. I am satisfied that those imputations are capable of causing confusion in the relevant sense. 23Imputation (e) is: The plaintiff had a corrupt relationship with Greg Gav. 24That imputation was objected to on the same basis. Ms Barnett noted that I struck out a similar imputation in Kelly v Fairfax Media Publications [2012] NSWSC 690 at [33] on the basis that the nature of the alleged "corrupt relationship" was not identified in the imputation. In the present case, the body of the article identifies several aspects of the alleged relationship between the plaintiff and Mr Gav. In my view, greater specificity is required of the imputation in order to avoid confusion. 25In light of that determination it is not necessary to consider the separate objection that the imputation is incapable of arising. It may be observed, however, that as submitted by Ms Barnett on behalf of the defendant, there is nothing corrupt in itself in the existence of a business association or friendship between two men. The notion of corruption lies in permitting such a relationship to influence the proper discharge of a function or duty. 26Imputation (g) is: The plaintiff was a dishonest Lord Mayor in that he was in a compromised position with developer Greg Gav and wrongly facilitated the approval of a development of Greg Gav in exchange for favours from Mr Gav. 27The defendant submitted that imputation (g) was defective in form for a number of reasons. In particular, it was submitted that the meaning of the term "in a compromised position" is unclear; that the meaning of the term "wrongly" and the nature and degree of wrongfulness involved is unclear and that it is unclear whether the second half of the imputation is intended to explain the sense in which the plaintiff was dishonest or whether, rather, the imputation impermissibly rolls up two separate and distinct defamatory charges. 28In my view, there is force in each of those complaints. The imputation should be struck out on the basis that it is likely to cause confusion in relation to the meaning for which the plaintiff contends. 29Imputation (h) is: The plaintiff corruptly arranged for Greg Gav's development at 344 Bay Street, Brighton-Le-Sands to be approved in exchange for the use of Mr Gav's luxury launch. 30The defendant submitted that this imputation is defective in form in that the meaning of the term "corruptly arranged" is unclear. As already explained, the kind of corrupt conduct attributed to the plaintiff in the body of the article is that he voted on a controversial development without disclosing his prior dealings with Mr Gav. The imputation appears to suggest an alternative kind of corruption in arranging for the approval of the development in effect as a reward for a bribe (the use of the launch). However, as submitted by Ms Barnett on behalf of the defendant, the article makes plain that the use of the launch was some years earlier. In my view, the suggestion that the plaintiff's participation in the approval of the development was "in exchange" for those earlier benefits could arise only from a strained reading of the matter complained of. In that context, I would accept that the meaning of the term "corruptly arranged" as intended in the imputation is unclear. In my view, the imputation must be struck out on that basis. 31A separate objection taken by the defendant was that the imputation is not capable of arising in any event. As I understood the submission, it was based on the proposition that the article says no more than that the plaintiff voted to support the development project. The submission appears to be that nothing in the matter complained of suggests that the plaintiff otherwise arranged for the approval of the development. 32The critical paragraph of the article starts at paragraph 15, as follows: When the Bay Street development came to Council in June 2011, Manager of Development Services Luis Melim recommended its refusal. The report revealed that the reason it had come before the Council was "at the request of a councillor". Fairfax Media does not suggest that it was Councillor Saravinovski. The Council voted to defer the application for further information and when it came back to Council, a new report by the director of City Planning and Development Stephen Kerr recommended approval. 33Although the article disavows pointing to the plaintiff at that point, having regard to the overall tone of the article and its focus on the relationship between the "corrupt Mayor" and a developer, I would think that those passages are capable of giving rise to a meaning including the proposition that the Mayor arranged for the development to be approved. The vice of imputation (h) is that the kind of corrupt arrangement alleged is not capable of being sustained by the article or is otherwise unclear. As already noted, the corruption alleged in the article in my view is the fact that the plaintiff is attributed with having supported the development application (possibly including arranging for its approval) without disclosing his relationship with the developer. On that basis, I would strike out imputation (h) but the plaintiff should have leave to replead. 34The last objection is to imputation (i), as follows: The plaintiff wrongly compromised his independence and honesty as Rockdale Lord Mayor by using Greg Gav's luxury launch. 35The defendant takes several objections to that imputation but in my view it is enough to refer to one, which is that it is not clear what it means to compromise one's honesty, nor how the use of the vessel in question of itself can have that effect. I accept that submission. Any compromise comes in later supporting the development application without making the appropriate disclosure. 36For those reasons, I order that imputations (c), (d), (e), (g), (h) and (i) be struck out with leave to replead.