Wendy Waller v Nationwide News Pty Ltd

HER HONOUR: 1These are proceedings for defamation arising out of the publication of an article in the Sunday Telegraph newspaper and in the Internet version of that publication. This judgment determines the defendant's objections to the imputations pleaded by the plaintiff. 2The article concerns the conduct of the plaintiff in her capacity as the Mayor of Liverpool. Published under the headline "Life's Little Extras", the article reports that the plaintiff and "two fellow Labor councillors" have been "billing ratepayers for the cost of their car washes, groceries and hotel movies". 3As to the plaintiff, the article states: Ms Waller has been forced to repay $283 she wrongly claimed for car-washing services for her purple Chrysler, which features her personalised number plates. While the car is provided by the council, all running costs, including cleaning, have to be met by the Mayor under its expenses policy. Cr Waller told the council she had been informed that she could claim the services - and had reimbursed the council in April when she learned that car washing was not included in her Mayoral expenses. She could not remember who had told her she could make the claim because she "picked up a lot of information when I first took up the position of mayor". Asked if she had read the council's car policy, Cr Waller replied she had not. But other petty expenses have been approved by council officers, including Ms Waller's claim of $16.95 for the hiring of a Blockbuster in-room video while interstate. 4After then reporting details of the expenses claims of the other two councillors (which I note parenthetically reveal a measure of exaggeration in the opening paragraph of the article, set out above), the article returns to the affairs of the plaintiff, stating: "On her Melbourne trip, Cr Waller claimed more than $1000, including three nights between September 2 and 4 at the Intercontinental Hotel at $308 per night, and three amounts of between $9 and $22.50 spent on meals. It was during this trip that she also claimed for the movie, the title of which was not revealed. "She went to Melbourne without our knowledge" Cr Hadid said. "The ratepayers are very upset about [expense claims]", adding he would move at the next council meeting for Cr Karnib and Cr Stanley to repay claims for groceries and phone bills." 5The defendant gave notice of a series of objections to the imputations initially pleaded by the plaintiff, to which the plaintiff responded by propounding a further set of imputations. During the course of argument Mr Rasmussen, who appeared for the plaintiff, conceded that some of the new imputations do not differ in substance from each other, namely, imputations (c) and (f) and separately (g) and (j). The plaintiff will have to elect as between those imputations. 6Two of the imputations are imputations of dishonesty and it is convenient to consider those together. They are: imputation (a): that the plaintiff dishonestly billed ratepayers for the cost of her car washes, groceries and hotel movies; and imputation (c): that the plaintiff dishonestly claimed more than $1,000 for her accommodation on her Melbourne trip and three amounts between $9 and $22.50 spent on meals. 7It was submitted on behalf of the defendant that the matter complained of is not reasonably capable of conveying a charge of dishonesty against the plaintiff. My initial reaction was that there was some force in that objection. The article certainly does not allege dishonesty in terms. The primary thrust of the article may be seen to be that Councillors were taking liberties, claiming for expenses of a personal nature that ought not properly be borne by their constituency of ratepayers. There is no doubt that a forceful case could be put to that effect before a jury. On balance, however, I have concluded that the dishonesty imputations are capable of being conveyed. 8The question of capacity is not determined by what I myself make of the article, but by what a jury could properly make of it: see Favell v Queensland Newspapers Pty Limited [2005] HCA 52; (2005) 221 ALR 186 at [17]. 9In making that assessment, particularly in respect of an article of the kind under consideration in the present case, it is important to bear in mind that the ordinary reasonable reader may more readily jump to conclusions pointed to but not openly asserted. That is precisely the caution given by the joint judgment in Favell , especially at [11]. 10There is a measure of similarity in the structure of the article considered in Favell and that complained of in the present proceedings. In the present case, although ostensibly a piece about councillors' lurks and perks, the article does, by the subtlety of the language used, point a finger of suspicion at the Mayor, in my view. This primarily arises from the scepticism that pervades the passage set out above, from which I think a jury could properly conclude that it was to be inferred that the Mayor must have known she was claiming expenses to which she was not entitled, being forced to repay them only by reason of having been found out. The suggestion of those paragraphs is that the Mayor's explanation that she was not aware of her being unallowed to claim the expenses in question should be disbelieved. 11Accordingly, for those reasons, imputation (a) may go to the jury. 12As to imputation (c), there is a discrete problem. The imputation is that the plaintiff dishonestly claimed more than $1,000 as well as the three amounts spent on meals specifically referred to. The words of the imputation are drawn directly from the matter complained of. For reasons to which I will return, that is often a vice in itself. It is compounded in the present case by the fact that the words have not been lifted accurately. The matter complained of refers to Councillor Waller claiming more than $1,000 including an identified amount for accommodation and the three amounts specified for meals. A simple mathematical calculation reveals that the amount claimed for meals was included within, and not in addition to, the $1,000. 13Subject to that difficulty, I accept that an imputation along the lines of imputation (c) may go to the jury, but it should not go in its present form. In particular, the plaintiff might see fit to omit the words: "and three amounts between $9 and $22.50 spent on meals." 14Imputation (b) is: That the plaintiff was forced to repay $283 she wrongly claimed for car washing services for her purple Chrysler which features her personalised number plates. Those words are drawn directly, in terms, from the matter complained of. Ms Brown, who appeared for the defendant, submitted that the imputation is a classic illustration of the vice deplored in the decision of the Court of Appeal in Harvey v John Fairfax Publications Pty Limited [2005] NSWCA 255, particularly at [118] to [129] per Hunt AJA; Santow JA agreeing at [7]. In Harvey , Hunt AJA explained, in his Honour's customary learned and instructive way, the importance of distilling the act or condition which the plaintiff alleges is attributed to him or her by the matter complained of. 15As his Honour noted at 121: What is clear, beyond the possibility of any contradiction, is that in very few cases will the words of the matter complained of plainly identify the act or condition attributed to the plaintiff of which he complains. 16Mr Rasmussen objected that if he had known the defendant would rely on that decision, he would have come armed with the decision of the Court of Appeal in Mahommed v Channel Seven Sydney Pty Limited [2006] NSWCA 213. He submitted, in effect (as I understood it), that that decision is authority that a contrary position has been adopted in the Court of Appeal since the decision in Harvey . By leave, and indeed at my request, Mr Rasmussen sent a point reference to the decision in Mahommed after I reserved my decision in the present case. 17The passages to which Mr Rasmussen referred were [21] to [23] of the decision of McColl JA. I have read the whole of the judgment with particular attention to those paragraphs. I do not think the judgment in any way undermines the principles carefully exposed by Hunt AJA in Harvey . Although his Honour's remarks were obiter dicta they should, in my view, be compulsory reading for any lawyer seeking to practice in this field. 18It does not follow that words used in the matter complained of are prohibited from use in any imputation sought to be relied upon by a plaintiff. The decision of the Court of Appeal in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 is an example of the kind of instance where the plaintiff may be permitted and may indeed have little option but to use the terms used in the matter complained of. 19As explained by Hunt AJA in Harvey at [128]: The requirement that the plaintiff specify the act or condition he claims was attributed to him raises questions of degree, and the satisfaction of that requirement depends on the circumstances of the particular case. 20Those circumstances necessarily, of course, include the language of the matter complained of. An article attended by a degree of vagueness and innuendo may convey an imputation similarly lacking in specificity of which a defendant in those circumstances could not complain. 21Ultimately, however, it must be recalled that defamation is a cause of action which has, at its core, the meaning of the words used. The task of distilling the defamatory sting of the words insofar as they concern the plaintiff is critical. The approach of simply lifting whole phrases from the matter complained of is no substitute for that important step. 22In my view, there is force in the defendant's complaint in the present case that the lifting of imputation (b) from the matter complained of has resulted in reliance upon an imputation that wholly fails to distil any act or condition or defamatory sting of the article. Imputation (b) will not go to the jury. 23The next imputation to be considered is imputation (g) which is: That the plaintiff misused her position as Mayor to bill ratepayers for non-council expenses. 24It was complained by the defendant that the phrase "misused her position" is ambiguous. In my view, however, the use of that phrase falls within the category of "questions of degree" discussed by Gleeson CJ in Drummoyne Council and reiterated in Harvey . 25The matter complained of does have a measure of imprecision as to the precise contention made about the plaintiff, although there is a hint of criticism, and in my view the phrase "misused her position" understood in the context of the matter complained of is of sufficient precision that the plaintiff should be allowed to rely upon an imputation in those terms. 26A second objection to imputation (g) was that the imputation describes the expenses as "non-council", whereas the matter complained of says that the claims were legitimate and were allowed. 27For the reasons given in respect of the imputations of dishonesty, I do not agree. I think there is a suggestion in the matter complained of from which a jury could properly infer that it was being contended that the plaintiff was claiming expenses to which she was not entitled. 28Imputation (h) is: That the plaintiff tried to swindle ratepayers by making a wrong claim for car washing services for her purple Chrysler. 29Ms Brown objected to the inclusion of the word "swindle", which she submitted is a slang or ambiguous term. I think there is force in that complaint; but in any event I do not see any difference, in substance, between imputation (h) and imputation (a). Although it would perhaps be a matter for the plaintiff to elect, it would be preferable if imputation (h) did not go to the jury because of the use of the potentially ambiguous term referred to. 30Imputation (i) is: That the plaintiff claimed expenses on her Melbourne trip that were not for council business. 31Mr Rasmussen, I think, accepted that there is some difficulty in that imputation in that it does not identify any act or condition attributable to the plaintiff by reason of which she may complain that she has been defamed. That imputation will not go to the jury. 32I grant leave to the plaintiff to file an amended statement of claim in accordance with these reasons. 33I direct there be no order as to costs.