First matter complained of - capacity - New South Wales contextual imputations
16 It can be seen from the defendants' contextual imputations that they fall into categories. The first two imputations pleaded as contextual imputations are, of course, the imputations pleaded by the plaintiff and found by the jury to be carried. They are "pleaded back" to protect the defendants in circumstances where, having justified pursuant to s15, they might fail in respect of one or other of them. If, of course, they fail to justify both of them, then both will enjoy their original status as imputations pleaded by the plaintiff for the purpose of s16(2)(c) in relation to any remaining contextual imputations in the strict sense.
17 The next category is made up of contextual imputations (C) and (D) which, in shorthand, can be referred to as the "ICAC" contextual imputations.
18 The next category is made up of contextual imputations (E) to (H) which I will describe as the "Minister for Police" imputations.
19 Turning to the "ICAC" imputations: it is to be noticed that contextual imputation (C) uses the phrase "in seeking to influence…" and "afforded reasonable grounds for a finding of … corrupt conduct". Contextual imputation (D) refers to the plaintiff having "conducted himself" as to afford "reasonable grounds for suspicion" that the conduct engaged in was "influencing" Members of Parliament, as opposed to "seeking to influence". To that extent it can be said that as a matter of form the contextual imputations (pleaded as they are both cumulatively and in the alternative) differ in substance, although there presently is no requirement, save in the case where they are pleaded in the alternative, that they do so: Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 at 400F. The difference, shortly stated, is the first imputation, (C), points to "guilt" and the second to "suspicion".
20 It was sought to be suggested by counsel for the defendants that in resolving the issue of capacity I should have regard to what the jury in fact found in the 7A trial, namely the two imputations pleaded by the plaintiff, each of which is an imputation of "guilt" or actual conduct. In the course of submissions I indicated the view that I then held, and still do, that the only appropriate way for me to approach the issue was "afresh" by applying the standard of reasonableness in the ordinary reasonable reader (Amalgamated Television Services Pty Ltd v Marsden [1998] 43 NSWLR 158). It is unsatisfactory to speculate as to any particular reason the jury may have had in coming to the conclusion that the matter complained of carried the imputations of guilt even if it can be understood to have been properly instructed on both the issues of law, the relevant question of fact, and the submissions made to it by counsel for the parties. I am concerned with the determination of defences as required by s7A(4)(a) of the Defamation Act 1974.
21 The imputations pleaded by the plaintiff and found by the jury are "crisp" compared to the convoluted wording of each of the proposed contextual imputations pleaded by the defendants. However the former, of course, make no reference to ICAC whereas the latter are anchored in the role of that body. Notwithstanding these general observations, or even taking them into account, for my part, the whole tenor of this article against which the contextual imputations are to be judged is of allegations, "probes", "ongoing investigations" and "claims" and is incapable of carrying contextual imputation (C). It is however, I am persuaded, arguably capable of carrying contextual imputation (D).
22 I shall return to the s16(2)(c) component in due course.
23 The clutch of contextual imputations made up of (E-H) were described in submissions by counsel for the plaintiff as "devised" and "tendentious" and simply on any reasonable basis cannot be understood as arising from this article.
24 The key paragraphs on which reliance is placed by the defendants are paragraphs 14 and 15 of Schedule A;
14. After years of allegations of conflicts of interests over his part-ownership of three Sydney hotels and his Police Ministry duties, Mr Whelan's family interests now face renewed scrutiny.
15. Mr Whelan has previously denied any conflict, saying he has no involvement in the day-to-day running of the businesses.
25 It is trite to observe that the question of capacity (in this context especially) is concerned with whether or not a matter complained of carries imputations which the defendants hope they can prove, as opposed to whether hopefully the matter complained of carries imputations which the defendants might be convinced they can prove. Again, it must be remarked that these four contextual imputations are extraordinarily verbose. The more is that comment available when particular attention is paid to the two of the paragraphs of the matter complained of on which the defendants particularly rely. This matter complained of is concerned with travel allowances, allegations, claims, probing and so on as I have mentioned above.
26 As to contextual imputations (E) and (F), the defendants were obliged to argue that if there exists a conflict of interests (as referred to in paragraph 14) then it must follow that the person in whom the conflict exists has failed to take steps to avoid the conflict (assuming a contemporaneous awareness of existence of the conflict in that person, I add): the two things are, in substance, the same. It is acknowledged by the defendants that the two extracted paragraphs from the article contain references to "allegations" of conflicts of interests and to the first plaintiff (Mr Whelan) having "previously denied" that conflict. It is submitted however that those matters are not sufficient to overcome the conclusion that the two contextual imputations are capable of arising. It is necessary to look at the whole of the article which makes it plain, it is submitted, that the allegations have gone on "for years" and that Mr Whelan's family interests now face "renewed scrutiny". True it is that there are such statements made in the matter complained of. But the statements are made in a context, overall, of the travel agency and refer but historically and elliptically to the plaintiff's asserted part-ownership of three hotels and his duties as Police Minister. The last mentioned factor, however, it is submitted, suggests, or is capable of suggesting, to the ordinary reasonable reader that the first plaintiff is a person who failed to understand his public duties as the Police Minister. By that I understand the defendants to be saying that he failed to understand his public duties as the Police Minister vis-à-vis the police. These matters, it is said, are sufficient to found an imputation based upon an actual conflict of interest (or a failure to avoid it) and not merely allegations of such a conflict. Recourse is had to the general discussion in Lewis v Daily Telegraph [1964] AC 234 at 284 in relation to rumours founding imputations of guilt (see also Rigby v John Fairfax Group Pty Ltd, unreported, NSWCA, 1 February 1996 at 3 and 8; Dunsec Pty Ltd v Nationwide News Ltd [2000] NSWCA 155 at paragraphs [13] to [20]; Keating v Newcastle Newspapers Pty Ltd (No 2) [2001] NSWSC 106 at paragraphs [8] to [21] per Kirby J).
27 I have little difficulty in concluding that this matter complained of is incapable of carrying contextual imputation (E) and (F). How any ordinary reasonable reader could extract from paragraphs 14 and 15, which commence with "After years of allegations of conflicts…" positive assertions in so convoluted a manner giving rise to the concept of failing to take steps to avoid a conflict, escapes me. The description on the part of counsel for the plaintiff, "tendentious" and "devised" is apt.
28 With respect to contextual imputations (G) and (H), these go further than (E) and (F) by introducing the notion of the New South Wales Police Officers being placed in positions of what I will call "embarrassment".
29 It is argued for the defendants that the matter complained of, particularly paragraphs 14 and 15, makes it plain to the reader that Mr Whelan was a person who was not only the Police Minister but also was part-owner of three Sydney hotels. It is then submitted that the reader would have no difficulty in concluding as a direct consequence of Mr Whelan having public duties and private interests in conflict, at the same time, that he was acting inappropriately and therefore contrary to the public interest and/or in abuse of his position as Police Minister, and was acting inappropriately in that position by placing police in the invidious position, not referred to in the matter complained of, but referred to in a set of appended particulars. It is argued for the defendants that the ordinary reasonable reader would understand that the Police Minister cannot oversee how the police police him and his hotel interests.
30 In response to the essence of the plaintiff's submissions that there is nothing alluded to in any way in the first matter complained of that could reasonably be encompassed by the proposed contextual imputations, recourse is had (on a capacity basis) to the attributes of the ordinary reasonable reader who is said to be not naïve, can read between the lines in the light of the reader's general knowledge and experience of the affairs of the world, that the readers capacity for implication is much greater than that of a lawyer and is capable of a degree of loose thinking: Farquhar v Bottom [1980] 2 NSWLR 380 at 386. It is argued that these contextual imputations are neither strained nor forced nor utterly unreasonable (see Jones v Skelton (1963) 63 SRNSW 644 at 650; Marsden, above, at 165C). I disagree with this last proposition; the contextual imputations are strained, forced and utterly unreasonable.
31 I have no difficulty in coming to the view that the first matter complained of is incapable of carrying, as a matter of law, the "Minister of Police" contextual imputations. I will strike out (E) - (H).