Scott v Jones & Anor

S Littlemore Q.C. (Plaintiff) COUNSEL : T Blackburn (Defendants) Walter Madden Jenkins (Plaintiff) SOLICITORS : Corrs Chambers Westgarth (Defendants) CATCHWORDS : Defamation - identification - imputations - form and capacity - aggravated damages - deficient particulars Dojas v TCN Channel Nine Pty Limited [2001] NSWCA 398 Cinevest Limited & Anor v Yirandi Productions Limited & Anor [2001] NSWCA 68 CASES CITED : Moore & Brown v Australian Broadcasting Corporation (1985) A Def R 50,010 Moroney v John Fairfax Publications Pty Ltd [2001] NSWSC 1138 Singleton v John Fairfax & Sons Limited (Hunt J, unreported, 20 February 1980) DECISION : See paragraph 46

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

RADIO 2UE SYDNEY PTY LIMITED (Second Defendant)

JUDGMENT (Defamation - identification - imputations - form and capacity - aggravated damages - deficient particulars) 1 By a Statement of Claim filed on 7 November 2001 the plaintiff seeks damages from the defendants for defamation said to arise out of two radio broadcasts, the first on or about 23 July 2001 (in which the plaintiff is not named), the second on or about 9 August 2001 (in which the plaintiff is named). 2 The first objection taken by the defendants is as to the asserted deficiency in the particularisation of the plaintiff's case on identification with respect to the first matter complained of. 3 The particulars identification set out in the Statement of Claim are: " 3(a) The first matter did not name the plaintiff, but referred to her as a 'very senior police officer'; a member of a GREAT panel hearing an appeal against the appointment of a detective Sergeant to a western Sydney Police Station; one of the Police Service's highest-ranking officers; a person promoted during the Ryan years; earning a high salary; being a Commander; working at Police Headquarters. (b) The plaintiff alone bears all the qualities detailed by the first defendant in the first matter. (c) Those to whom the plaintiff was identified by reference to the matters set out at (a) above include (but are not limited to) the entire membership of the New South Wales Police Service; the entire journalistic staff of the mass media of New South Wales; and all those members of the general public who read, hear and watch mass media coverage of police issues and women's employment issues. (d) On or about 9 August 2001, the first defendant emailed one of his correspondents in answer to a query about the matter complained of in paragraph 3 herein the following words: 'To be absolutely blunt with you, John, I was talking about Lola Scott. I made further reference to that yesterday morning". 4 No specific submission was made in relation to particular (d) however it is contended that overall the particulars are inadequate. The plaintiff, as I understand her submission, relies upon a notion of "notoriety". 5 Identification is an issue for the jury: Cinevest Limited & Anor v Yirandi Productions Limited & Anor [2001] NSWCA 68. The jury will determine whether the matter complained of was published of and concerning the plaintiff; this will be done in the light of evidence tendered before it (following an exchange of witness statements under Practice Note 114) to resolve the issue whether or not the publication complained of to persons knowing specified facts would be reasonably understood by those persons as referring to the plaintiff (cf. Dojas v TCN Channel Nine Pty Limited [2001] NSWCA 398 at 31 per Hodgson JA; see also Moroney v John Fairfax Publications Pty Ltd [2001] NSWSC 1138 per Levine J, 14 December 2001). 6 The defendant relies upon the decision of Hunt J in Moore & Brown v Australian Broadcasting Corporation (1985) A Def R 50,010. I do not see any difference between the present litigation and the case his Honour was concerned with. The defendant is entitled to the know the case the plaintiff is making on the issue of publication of and concerning her with respect to the first matter complained of. This cannot be said to be a case of "notoriety" (I would accept that a reference to the "Police Commissioner" - subject to matters of time and location - would fall into the "notorious" category). The identity of some persons, representative of various classes, who on reasonable grounds by reason of their knowledge of specified facts understood the program as being published of and concerning the plaintiff must be supplied. The plaintiff will be directed to provide particulars in accordance with these principles. 7 The plaintiff pleads the following imputations as arising from the first matter complained of: " 4(a) that she acted corruptly, in that she attempted to intimidate an appellant at the Government and Related Employees Tribunal;

(b) that she acted corruptly, in that she sat as a member of the Government and Related Employees Tribunal when she was biased against a party to that hearing;

(c) that she procured a biased decision against a party to a hearing before the Government and Related Employees Tribunal;

(d) that she had only been promoted to the rank of Commander in the New South Wales Police Service by means of nepotism and cheating;

(e) that she is paid an extraordinarily high salary as Commander in the New South Wales Police Service, but does nothing to earn it; (f) that she, a Commander in the New South Wales Police Service, has been guilty of such misconduct that she should immediately be suspended from the Police Service". 8 The plaintiff pleads the following imputations as arising out of the second matter complained of: "6(g) that she won promotion to the rank of Commander only through corruption, in that she was a crony of the Police Commissioner; (h) that she acted corruptly as a senior officer of the New South Wales Police Service, in that she threatened a highway patrol officer who attempted to book her for speeding; (j) that she acted corruptly, in that she prevented the arrest of women police who had been guilty of misconduct;

(k) that she acted corruptly, in that she accepted a bribe to protect the notorious paedophile, Dolly Dunn;

(l) that she acted corruptly, in that she assisted the notorious paedophile, Dolly Dunn, to escape arrest;

(m) that she lied to the community about the true crime situation in New South Wales, because she had colluded with government politicians to do so;

(n) that she was exposed as a dishonest person in the Royal Commission into the Police Service". 9 The first matter complained of is constituted by remarks made by the first defendant the general subject of which is police corruption and the promotions system. Mr Jones seeks to exemplify his statements in relation to promotion corruption in the following way: "For example, a position in a Western Sydney Police Station for a Detective Sergeant was advertised in the Police Service Weekly and a large number of hopeful detectives applied. Some were interviewed and eventually one was selected on merit, or so rank and file police were told. Some of the detectives who applied for the position couldn't believe that the nominated detective could possibly have been selected on merit. So they appealed to G.R.E.A.T., which is the Government and Related Employees Tribunal. These detectives prepared their appeals in detail. On the day of the appeal they attended the G.R.E.A.T. hearing rooms, where they waited outside to be called in. A very senior female police officer approached one of these apparent police, we will call him 'Fred' and said, 'you are not going to appeal are you 'Fred'? Fred said, 'yes'. The Senior female officer informed him that he was mistaken, 'you are not going to appeal'. The senior female officer told Fred to withdraw his appeal 'because you wouldn't win'. The Detective refused. Imagine the horror when he entered the hearing room to appear before the supposedly independent panel, and saw the same female police officer sitting on the appeals board ready to hear his appeal. It shouldn't come as any surprise to learn that Detective Fred lost the appeal. After the G.R.E.A.T. decision Fred lodged a complaint to Internal Affairs. Internal Affairs responded, 'that they don't deal with promotions issues, that will have to go to the ombudsman'. The Ombudsman said, 'They wouldn't deal with it either'. So finally it was sent to the Police Integrity Commission. But guess what? They say they only deal with 'serious criminal conduct'. It turns out the very Senior Police Officers Panel was the Court of Last Appeal. What she said went " (emphasis added) . 10 Complaint is made in relation to imputation 4(a): "that she acted corruptly in that she attempted to intimidate an appellant at the Government and Related Employees Tribunal". 11 The defendants submit that the broadcast is incapable of conveying the notion of "intimidation" in the conduct of the senior police officer described. It is argued that intimidate connotes the putting of a person in fear. I do not accept that that is one definition nor do I accept that the fact that there are others makes the imputation in any way ambiguous. The Shorter Oxford Dictionary uses "terrify, overawe, cow - force to or deter from some action by threats or violence". The Macquarie Dictionary refers to make "timid", or "inspire with fear; overawe; cow - to force into or deter from some action by inducing fear". 12 I have no difficulty in concluding that the matter complained of, especially the above extracted part, is capable of conveying the meaning to which objection is taken. A mere recitation of the words (leaving aside any intonation employed in their broadcast) can lead reasonably to the availability of the pleaded meaning. This is an instance, in my view, where the words clearly speak for themselves. 13 The word "intimidation" being one of ordinary usage and understanding amongst reasonable people, presents no difficulty for the defendant in terms of any truth defence. If, as was submitted, the defendant were to call evidence at the trial which accorded precisely with the facts set out in the passage extracted above, the defendant will either have proved that that conduct was "intimidation" or it will not. That is a matter for the tribunal of fact dependent, not upon the meaning of the word "intimidation", but upon the quality of the evidence brought by the defendant. 14 Insofar as it was suggested in the broadcast that intimidation was not one of the allegations of the process of corruption in promotions, I must disagree; as I have remarked above. This is a particular example of what Mr Jones was talking about in the context of promotion corruption. 15 I hold imputation 4(a) capable of being carried by the matter complained of and capable of being defamatory. 16 Objection is taken to imputation 4(c): 'that she procured a biased decision against a party to a hearing before the Government and Related Employees Tribunal". 17 It is argued that the pleading of this imputation contravenes SCR Pt 67 r 11(3) in that it does not differ in substance from imputation 4(b). 18 The imputations differ in substance: imputation 4(a) clearly points to conduct on the part of the plaintiff of the kind described (that is, antecedent to the hearing by the Appeals Board of which she is a member). 19 Imputation 4(c) points to a different kind of conduct: namely, procuring a biased decision as a member of the Government and Related Employees Tribunal against a party. The application of the principle stated by Hunt J in Singleton v John Fairfax & Sons Pty Limited (unreported, 20 February 1980) as to what would be required of the defendant in proof of the imputations does not and cannot bring it about that a finding must be made that the Rule has been breached. The defendant would have to prove conduct on the part of the plaintiff that brought about (procured) the biased decision; this is quite distinct from the defendant having to prove that the conduct in relation to 4(a) (founded in bias) was an act of intimidation. 20 It is also argued that the imputation lacks specificity. It is said that "procured" is a "weasel word". I am of the view that this is an instance where the matter complained of does not permit of any greater specificity and that the word "procured" has an ordinary meaning namely, "brought about". 21 I hold in relation to imputation 4(c) that it does differ in substance from 4(a), is capable of arising and is capable of being defamatory. 22 Objection is next taken to imputation 4(e); "that the plaintiff is paid an extraordinarily high salary as Commander in the New South Wales Police Service, but does nothing to earn it". During the course of submissions, upon my raising the matter, the imputation was reformulated to the following effect: "that she does nothing to earn the extraordinarily high salary she is paid as a Commander in the New South Wales Police Service". 23 It seems to me that the passage in the matter complained of particularly relevant to the question of availability of this imputation in any form is as follows: "Well I can tell you this senior female police officer is one of the Police Service's highest-ranking officers. One who had a very curious rise during the 'Ryan Years' and at the moment she is on a salary, which most Australian's wouldn't dare dream of. Yet she seems to be commanding little more than her desk. What is she doing and how did she get there? What are we getting in return for her salary?" 24 I am satisfied that that part of the matter complained of is capable of carrying a meaning to the purport of that as originally pleaded or as amended. The originally pleaded imputation is defective in form and to an extent has been cured by the rewording. The defendant argues however that that imputation is capable of defaming the people who are paying the plaintiff and not the plaintiff. For the plaintiff it is argued that it is an imputation which can be encapsulated in the expression - "she is a bludger". That is, it is an imputation that is capable, it is conceded for the plaintiff, of identifying the paymaster as well as the payee. After much reflection I am persuaded that the imputation as amended is good in form and capable of arising and being defamatory. 25 Turning to the second matter complained of it deals generally with the New South Wales Police Service, politicians, gangs and a wide range of topics apparently calling for adverse remark or comment. 26 It is to be recorded, in the first instance, that imputation 6(k) has been abandoned. This eliminates any question of difference in substance between imputation 6(l) and imputation 6(k). 27 A particularly relevant part of the second matter complained of is the following extract: "Alan Jones: Was Lola Scott involved in working out a deal in order to get some corrupt cop who supposedly, according to Dolly Dunn, was picked up with all sorts of porno videos and stuff that he paid 40,000 to a few police in order to get away?

Richard Basham: What happened was the police arrested Dolly Dunn with porno videos with a young boy in his presence and he was let go. A couple of years later he was arrested again with plenty of evidence that he was starring in various porno videos with young boys and he said he'd paid money to the first set of police. Lola Scott was instrumental in getting him a grant of immunity.

Alan Jones: So she ticked the form that Dolly Dunn didn't have a criminal past?

Alan Jones: She may not have known he had a criminal past.

Richard Basham: Of course she knew he had a criminal past. She'd interviewed him. I have Justice Davidson's report before me. She'd interviewed him on 15, 16, 17 January. She was in possession of pornographic tapes showing him acting on the tapes. She knew that he was in possession of amphetamines.

Alan Jones: So she knew she was dealing in drugs? (sic)

Richard Basham: Yes - well, she knew he was a serial paedophile of great danger to children. He had priest robes in his car apparently at the time he was picked up. He masqueraded as police to get close to boys and the Justice said that he found her evidence unconvincing when she stated that she - because he didn't have any recorded convictions that he wasn't a criminal.

Alan Jones: So at the end of the day he got immunity.

Richard Basham: He got immunity and the Justice was quite scathing of her role.

Richard Basham: Well, it supposedly is and supposedly it's been checked on, but this has gone on for years. You will remember the Wood Royal Commission and the reference into paedophile (sic). Dolly Dunn was called before it, and there were whole issues about where this is going in the Police Service. Someone seems to have tipped Dunn off and he left the country and went to Indonesia and then later went to Honduras, and if it hadn't been for Steve Barrett and the 60 Minutes crew going out and effectively arresting him in Honduras, we would have probably never seen him again. He would have just been molesting little kids off in…" 28 The defendant argues on the usual bases that the matter complained of as a whole and that part of it referred to above is incapable as a matter of law of reasonably giving rise to an imputation that it was the plaintiff who tipped off Dolly Dunn. The issue of capacity was argued as a separate question of law pursuant to SCR Pt 31 r 2. 29 Mr Littlemore Q.C. in his written submissions "edited down" the various matters in the broadcast to come to this position: "Scott ensured Dunn was given immunity from prosecution by certifying that Dunn did not have a criminal past. She knew that was untrue. She had the pornographic tapes showing Dunn; she knew he had illegal drugs. A judge held she gave false evidence about why she gave Dunn the certificate, and - thus - immunity. Dunn was to appear before the Royal Commission, but some police officer tipped him off and he fled the jurisdiction". 30 The broadcast as a whole represents, so it is said, the defendants saying that Dunn was helped by a police officer to flee rather than face the Royal Commission and arrest; the plaintiff knew Dunn to be guilty of sexual offences and drug offences; she dishonestly procured immunity from prosecution for Dunn; she gave untruthful evidence explaining her conduct (that she believed he did not have a criminal past) and has been condemned by a judge for her explanation of why she aided Dunn. 31 The contention as to capacity, in this instance, really leads to a question of impression. In the end I am persuaded that the matter complained of is capable of carrying this imputation. It involves a process of going through the whole of the material published and especially that extracted above. It is to be a matter for the jury. 32 Imputation 6(l) I hold to be capable of arising and capable of being defamatory. 33 Objection is then taken imputation 6(m): "that she lied to a community about the true crime situation in New South Wales because she had colluded with government politicians to do so". 34 The "form" of this imputation was the subject of agitation during the course of submissions. As pleaded, the defendant in my view correctly submitted that the act or condition which the plaintiff has attempted to capture is unclear. There seems to be a suggestion of 'vicarious lying". The imputation, as framed, rightly could be understood as saying either the plaintiff lied to the community about the true crime situation or that she colluded with government politicians in their lying to the community. With those submissions in relation to the then formulated imputation I agree. 35 The imputation on that basis would be struck out as embarrassing. 36 However the real issue is whether the broadcast complained of is capable of giving rise to the imputation at all however formulated whether the plaintiff lied to the community about the true crime situation there or whether she lied as an instrument of politicians (whatever that might mean). 37 Mr Littlemore helpfully went through, in effect, the whole of the programme to build up what he submitted was a clear course of suggestion, insinuation and commentary that would rationally lead to the inference that this plaintiff lied in the way suggested. 38 Again, I have considered this component of the application carefully and sought to follow the process embarked upon by Mr Littlemore. Whilst it is the case that a radio broadcast is "transitory" in the sense that it does not receive the same level of attention as a newspaper article from the ordinary reasonable person, even taking that factor into account, I am simply unable, by following the program and the analysis of it, to be impressed that it is capable at all of carrying any imputation, whether in the form as presently pleaded in imputation (m) or any other, of this plaintiff that she lied to the community herself or upon collusion with the government politicians. 39 Accordingly, I hold that imputation (m) is incapable of being carried. 40 Of the particulars of aggravated damages objection was take to the following: "7(b) … (ii) the first defendant's express malice in publishing the matter, which malice includes his ulterior motives being his hated of police, as evidenced by his serial defamations of serving and former police officers; (v) the excessive publication of the program to audiences with no legitimate interest in its subject matter; (vi) the sensational nature of the program, as evidenced by the first defendant's tone and language; (vii) the defendant's publication on or about 6 September 2001 at about 7.16am of a further edition of the programme containing a discussion between the first defendant and a Dr Basham, of and concerning plaintiff, that was calculated to intimidate the plaintiff in relation to her bringing this action". 41 Whilst it is not necessary at this stage to formalise any deficiencies in particulars of aggravation of damages to permit the listing for hearing of the s 7A jury trial, it is not inappropriate, and Mr Littlemore consented, for the defendant to raise some fundamental matters about these particulars. 42 Sub-particular (ii) is an allegation of serious personal misconduct but really tells the defendant little in relation to the facts, matters and circumstances upon which it is contended that publication was actuated by "express malice", "the ulterior motives", or the "serial defamations". 43 The particular is struck out with leave to re-particularise. 44 As to sub-particular (v) this is quite meaningless. Whether it is a purported particular in aggravation of damages in the strict sense is open to question. This sub-particular and the following sub-particular might be viewed as pointing to an area that could be raised in another context. In any event, both (v) and (vi) will be struck out with leave to re-particularise as embarrassing particulars providing no information of all relevant facts, matters and circumstances. 45 As to sub-particular (vii) (which I have renumbered) the particular is satisfactory to the extent that the defendant knows that in some way the plaintiff is going to rely upon a particular program at a particular time on a particular date. What that particular does not provide is either the text or substance of the program nor a clear statement of the facts, matters and circumstances leading to the assertion that the program (whatever it was) was calculated to intimidate the plaintiff, and in what way, in relation to her bringing this action. This is a very serious allegation and one that the defendant is entitled, even at this stage, as with particular (ii) to full and proper particulars. The particular is struck out with leave to re-particularise. 46 The formal orders are:

1. Imputation 4(a) is capable as a matter of law of being carried by the first matter complained of and is capable of being defamatory.

Imputation 4(e), as amended, is as a matter of law capable of being carried by the first matter complained of and is capable of being defamatory.

Imputation 6(k) having been abandoned is struck out.

Imputation 6(l) as a matter of law is capable of being carried by the second matter complained of and is capable of being defamatory.

Imputation 6(m) is as a matter of law incapable of being carried by the second matter complained of and I enter a verdict for the defendants in respect of that cause of action.

Particulars of Aggravation of Damages 7(b)(ii), (v), (vi) and (vii) are struck out with leave to re-particularise.

The plaintiff has leave to file an Amended Statement of Claim within 14 days of today.

In any Amended Statement of Claim the plaintiff is to provide proper particulars of identification in relation to the first matter complained of.

The defendants are to pay two thirds of the plaintiff's costs.

The action is listed for directions in the Registrar's Defamation Directions List on 19 April 2002.

Last Modified: 03/22/2002 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.