Dominello v Harbour Radio Pty Limited t/as 2GB

HIS HONOUR:

The plaintiff alleges that the broadcast carried the following imputations:

The defendant filed a Defence on 14 December 2018 in which it pleaded truth, contextual truth, common law qualified privilege and offered to make amends.

In the Defence, the following three contextual imputations were pleaded as being substantially true (the contextual imputations):

On 7 March 2019 (the evening before the Second Listing of the matter), the plaintiff informed the defendant that he wished to amend his Statement of Claim to plead the contextual imputations as part of his case. The defendant opposed the amendment.

The plaintiff relied upon the affidavit of Paul Martin Etherington, sworn 13 March 2019, (the Etherington affidavit).

The defendant relied upon the affidavit of Bruce Norman Burke, sworn 22 March 2019, (the Burke affidavit).

Mr Etherington deposed that at the time the Statement of Claim was settled, his counsel believed that the imputations contained therein adequately set out the key defamatory stings conveyed by the broadcast concerning the plaintiff. There was no other evidence adduced in support of the plaintiff’s application to amend.

The Burke affidavit set out that on 8 September 2017, The Sydney Morning Herald had published an article under the by-line of Sean Nicholls, “’Threatened and intimidated’: minister accused by deputy mayor” (the SMH article). A copy of the SMH article was annexed to the affidavit. Mr Burke deposed that as of 22 March 2019 the plaintiff had not commenced proceedings in respect of the SMH article.

Mr Burke deposed that he spoke to Cr Jane Stott concerning the events of 26 April 2017. Cr Stott advised that as of that date she was a Liberal Party Councillor on Ryde Local Council and that the plaintiff was then a member of the Legislative Assembly of the Parliament of New South Wales and the Finance Minister of the State. The Council was about to meet to consider a development application from Holdmark Property Group (the DA).

On that date, she received a telephone call from the plaintiff about the DA. The plaintiff was angry during the telephone call and was yelling. He told her to vote against the DA. He intimated that if she did not vote against the DA, the Liberal Party would not endorse her pre-selection. Cr Stott felt threatened and intimidated as a result of the plaintiff’s telephone call.

Mr Burke spoke to Cr Bill Pickering, the Mayor and a member of the Liberal Party, concerning the events of 26 April 2017. Mr Burke was told by Cr Pickering that the plaintiff telephoned him. The plaintiff told him to vote against the DA. The plaintiff threatened that if he did not vote against the DA, the Liberal Party would not support his pre-selection at the next Council election. Cr Pickering said that he was so concerned about the telephone call by the plaintiff that he raised it with the NSW Planning Minister, Mr Anthony Roberts.

Mr Burke deposed that he was informed by Cr Pickering that the plaintiff also telephoned other Liberal Councillors on 26 April 2017. Cr Pickering told Mr Burke that a Labor Councillor on the Council had written to the Independent Commission Against Corruption (ICAC) regarding the conduct of the plaintiff on 26 April 2017.

The SMH article, annexed to the Burke affidavit, was expressed in the following terms:

The plaintiff submitted that imputations are a lawyer’s artefact and that they bore little relationship to real life. He submitted that an imputation is a tool used to assist the logical analysis of text and the operation of various defences to defamation. He submitted that in most cases it was artificial to try to apportion reaction in relation to individual imputations and that on occasions a single imputation affects a special sensitivity beyond others.

The plaintiff submitted that damages in defamation are awarded to compensate for a plaintiff’s distress and damage to reputation. The latter is an objective assessment by the Court and quite independent of the plaintiff’s attitude to the imputation. Accordingly, damages for loss of reputation could, at least in theory, be awarded in relation to an imputation which a plaintiff did not discern or of which he or she could not have been aware as possibly an imputation arising through extrinsic facts.

The plaintiff submitted that as a result of the Defamation Act 2005 (NSW) (the Act) there is a single cause of action for the publication of defamatory matter, however many imputations there might be (s 8). He submitted that it had never been suggested that pleaders should try to find every available imputation in a publication. Therefore, as a practical matter it was sufficient to articulate a group of imputations that captured the essential core of the defamation. He submitted that in almost every case, extra imputations could be created, usually by extending the imputations to a greater level of generality or by pleading imputations based on reasonable suspicion as well as by exploring fine nuances.

The plaintiff submitted that against that background, the Court of Appeal in Besser v Kermode [2011] NSWCA 174 (Kermode) had made it clear that a plaintiff might adopt contextual imputations pleaded by a defendant. In so deciding the Court of Appeal did not indicate that this would be a rare or exceptional course or subject to conditions different from any other amendment.

The plaintiff submitted that, while it was true that the adoption of contextual imputations prevents a defendant from relying on them as a defence, that is not the only effect of such an amendment. He submitted that a defendant who pleads a contextual imputation that is found to have been conveyed and to be defamatory, but not proved true, has put into play a defamatory imputation for which the plaintiff cannot recover damages (Holt v TCN Channel Nine Pty Limited [2014] NSWCA 90 at [23]). He submitted that a plaintiff should be entitled to amend so as to be able to recover damages for such an imputation.

The plaintiff submitted that in this case the imputations pleaded by him were regarded by his legal advisers as covering the ground of the defamatory allegations. He submitted that there were two dominant themes in the radio item – a connection between the plaintiff and corruption and, as an explanation for that, an attempt to pressure a councillor to approve a development. He submitted that his imputations covered these themes. The contextual imputations covered the same ground from slightly different angles and did not significantly change the nature of the claim.

The plaintiff submitted that there was nothing to suggest that he did not intend in a practical manner to sue for the entire defamatory impact of the radio item. He submitted that there was no reason why the proposed amendment should not be allowed.

In oral submissions, substantially in reply to the defendant’s written submissions, the plaintiff submitted that there was no requirement in all cases for a party seeking an amendment to his or her pleadings to provide an affidavit setting out that the amendment was genuinely sought or that otherwise established that the plaintiff was bona fide in raising an issue which was genuinely in dispute.

The plaintiff submitted that there was not a great deal of difference between the contextual imputations when compared with the existing imputations. The plaintiff submitted that in the existing imputations there was a reference to corrupt behaviour, to attempting to benefit a developer and to using threats and intimidation to achieve those aims. He submitted that the contextual imputations, while focusing on different aspects of the existing imputations, were expressed in somewhat different terms. He submitted that in those circumstances it was difficult to see any prejudice to the defendant.

The plaintiff submitted that the closeness of the content of the contextual imputations to the existing imputations supported the explanation for the amendments set out in the Etherington affidavit.

The plaintiff submitted that contrary to the defendant’s submissions there was no admissible evidence that he knew that any of the contextual imputations were true. The plaintiff submitted that it was not open to the defendant to rely upon the SMH article as establishing the truth of any matters therein reported since there were significant differences between the radio broadcast and that which was set out in the SMH article. Apart from anything else, the most obvious difference was that the radio broadcast stated that he wanted the development to be approved by council when the true position, as set out in the SMH article, was that he strenuously opposed the development being approved.

The plaintiff submitted that the defendant obtained little assistance from the fact that he (the plaintiff) had not brought proceedings against the SMH. This was because there were various explanations for that choice being made by him. For example, the SMH article was much more detailed and might well have given rise to a defence under s 30 of the Act, i.e. reasonable conduct in publishing the story.

The plaintiff submitted that the Court should not speculate as to what his reasons might be for not suing the SMH. He submitted that just because a cause of action is available does not mean proceedings had to be brought. The plaintiff submitted that one only has to establish a lie once in order to vindicate oneself. He submitted that the radio broadcast was obviously more serious than the SMH article in that the approval of a development would be more likely to create profits for someone, in particular the developer, than a rejection.

The plaintiff submitted that there was no evidentiary support for the defendant’s submission that he (the plaintiff) knew that the contextual imputations were true. He submitted that to have that effect the evidence would have to establish that he knew that he had behaved corruptly.

The plaintiff submitted that a further problem with the defendant’s submissions as to truth was that the contextual imputations were subject to a wide range of interpretation. The meaning of the imputations would depend very much upon the interpretation given to them. The plaintiff submitted that whether he was aware of the truthfulness of one or more of the contextual imputations would depend upon how one interpreted the imputation. For example, the reference to 50 odd pre-selectors in the SMH article was to be contrasted with a meaning which asserted direct interference by the plaintiff in the preselection process.

The plaintiff submitted that the proposition that he knew that the contextual imputations were true is “quite extreme”. He submitted that it was perfectly obvious from the wording of those imputations that they were subject to interpretation, e.g. what does “corruptly” mean? What does “linking” mean? What does “as to warrant being referred to the corruption watchdog” mean? This was particularly so with that last imputation, i.e. most people would interpret that imputation as saying that some sort of formal process had taken place to bring about a referral to ICAC.

The plaintiff submitted that the contextual imputations were all capable of a considerable degree of interpretation. He submitted that if the defendant were to say that the plaintiff knew that those imputations were true that would not be a sound proposition for the purposes of these proceedings unless the defendant was able to say that the plaintiff knew that all possible interpretations of the contextual imputations were true. By way of further illustration, the plaintiff relied upon the wide range of interpretations of the word “corruptly”.

The plaintiff submitted that the position adopted by the defendant was an extreme one in the context of this case. This was because when one looked at the scope for interpretation it was not possible to establish that the plaintiff knew that any of the imputations were true. The plaintiff submitted that the better interpretation was that in seeking to amend to add the contextual imputations, he was doing no more than attempting to “cover the territory”. Just because this could have been done in other ways did not invalidate the method actually chosen by him.

The plaintiff submitted that when a person wants to sue on imputations that person is saying that he or she is offended by them and wants damages for them. Where there are multiple possible imputations of different levels of gravity and a person chooses to sue on a convenient handful, that person is doing no more than saying “I’m offended by this but I am willing to summarise my concerns in this way and settle for the damages I can obtain for these imputations”.

The principles which apply to the amendment of a Statement of Claim are well known. In Horton v Jones & Ors (No 2) [1939] NSWSR p 35; (1939) 39 SR (NSW) 305 Jordan CJ (with whom Halse Rogers J and Owen J agreed) said at 309-310:

Statements to similar effect were made by the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; 239 CLR 175:

A body of law has developed relatively recently concerning the amending of Statements of Claim in defamation matters where the amendment sought is the adding of contextual imputations taken from a Defence filed in the proceedings. The relevant principles were conveniently summarised by McCallum J in Chel v Fairfax Media Publications Pty Limited [2015] NSWSC 171 where her Honour said:

The most recent addition to the jurisprudence in this area further complicates the position of a defendant when a plaintiff wishes to adopt a contextual imputation pleaded in the Defence. In Fairfax Digital Australia and New Zealand Pty Ltd v Kazal [2018] NSWCA 77; 97 NSWLR 547 the Court (McColl, Meagher and Gleeson JJA) held that once a contextual imputation has been pleaded by a plaintiff it cannot be relied upon by a defendant. It rejected a proposition which had been raised by Basten JA in Kermode to the effect that once a matter went to trial, even though a defendant had not pleaded contextual imputations, if any contextual imputations were found to be true the defendant could contingently rely upon them as a defence. The present position is that once an imputation is one of which the plaintiff complains, it can never be relied upon by a defendant to make out a defence under s 26 of the Act.

It is against that background that this application by the plaintiff to amend his Statement of Claim must be considered.

Going back to first principles, it cannot be said that there was excessive delay in this matter. This is so despite no explanation being offered as to why (the Defence having been filed on 14 December 2018) nothing was done about amending the Statement of Claim until the notification on 7 March 2019. Nevertheless, that delay of itself is not sufficient to preclude the amendment sought by the plaintiff.

A striking feature of the plaintiff’s application is the almost complete absence of any explanation of why the amendment was being sought. All that was said in the Etherington affidavit was “[we thought] that the imputations as contained in the Statement of Claim adequately distilled the key defamatory stings conveyed by the matter complained of concerning the plaintiff”. This is despite the fact that on any analysis of the evidence, if this amendment were allowed, the defendant would be seriously prejudiced in that it would be precluded from relying upon what appears to be a strong contextual truth defence under s 26 of the Act.

A comparison of the present imputations with the contextual imputations makes clear that they are significantly different. The difference goes much further than a subtle or nuanced interpretation. The difference is such as to require some explanation. Most obviously, the present imputations have as their sting ‘corruptly benefiting a developer’. The contextual imputations, however, have as their sting ‘threats and intimidation by a Minister to members of a Council to try and get his way’.

It is also clear that the present imputations are based on the obvious mistake in the radio news item that the plaintiff wanted the DA approved. By contrast, the contextual imputations are of a more general kind and do not adopt a position either favouring or opposing the DA. There is a focus on the threat concerning party preselection and an assertion that the conduct was so serious that it deserved to be referred to ICAC. It follows that the contextual imputations differ in important respects from the present imputations. That places considerable doubt on the only explanation offered by the plaintiff for the amendment.

It is accepted that looked at in isolation the contextual imputations are subject to interpretation and may have a different meaning depending upon background and other factors. In this case, however, the capacity for such differences in interpretation is significantly reduced when one has regard to the content of the SMH article. When one considers the contextual imputations against that background, as already indicated, the sting becomes obvious. Similarly, the issues to which words such as “corruptly” and “linking” are directed, are significantly narrowed. The scope for interpretation is, therefore, also similarly limited.

It is not without importance that the contextual imputations are fully consistent with the SMH article. Moreover, there is no evidence that the plaintiff believes that the contextual imputations are untrue. This is in circumstances where the evidence in the Burke affidavit strongly tends to establish that they are true.

The Burke affidavit establishes that:

The plaintiff’s attack on this evidence, and on the Burke affidavit generally, is to the effect that its content is based on hearsay and is therefore inadmissible in these proceedings. That submission is incorrect. These are interlocutory proceedings and the evidence therefore comes within the exception to the hearsay rule in s 75 of the Evidence Act 1995 (NSW). The contents of the Burke affidavit and the SMH article itself are also admissible pursuant to s 70 of the Civil Procedure Act.

On that state of the evidence, and given the content of the SMH article, it is surprising that no proceedings in defamation have been brought against Fairfax Media. On its face the SMH article appears to be significantly more damaging to the plaintiff than the radio broadcast. Importantly, there is no evidence that anything in the Burke affidavit or in the SMH article is untrue. Finally, there is no evidence, in particular from the plaintiff, to the effect that anything in the contextual imputations is false.

While there is no obligation on the plaintiff to file an affidavit in support of the application to amend, in the circumstances of this case the plaintiff needed to satisfy the Court that there is a proper purpose for the amendment. The failure to do so means that there is no evidence to support a finding that there is a proper purpose for this amendment. This provides a further basis for the inference that not only are the contextual imputations substantially true but that the only purpose of the amendment is to prevent the defendant using them as a defence under s 26 of the Act.

Further, on that state of the evidence, I am not persuaded that the intention behind the proposed amendment is for the plaintiff to vindicate his reputation against the defamatory meanings in the defendant’s contextual imputations. In the absence of any evidence to the contrary, and in the absence of any assertion either in these proceedings or in the interview given by him to the SMH that the contextual imputations are false, I am led to the conclusion that on balance there is no proper basis for the amendments sought and that this application gives rise to an abuse of process.

As McCallum J said in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 (Basten JA and Sackville AJA agreeing):

McCallum J made observations to similar effect in YZ v Amazon (No 7) [2016] NSWSC 637 where her Honour said:

I am persuaded that the situations described by McCallum J in those decisions are analogous to the present matter where the plaintiff is seeking an amendment that is intended to prevent the defendant raising a defence to which it would otherwise be entitled rather than vindicate any attack on his reputation.

For the above reasons, the application for leave to amend the Statement of Claim to include the contextual imputations is refused.