Adams v Network Ten Pty Ltd

[2010] NSWDC 198

CITATION:	Adams v Network Ten Pty Ltd [2010] NSWDC 198
HEARING DATE(S):	10 September 2010
JUDGMENT DATE:	10 September 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Imputations 4(a), 4(c), 6(d), 6(h), 6(i) are struck out. (2) Imputations 6(e) and 8(f) are struck out with leave to replead. (3) Imputations 4(b), 4(d), 6(a), 6(b), 6(c), 6(f), 6(g), 8(a), 8(b), 8(c), 8(d), 8(e), and 8(g) will go to the jury. (4) Amended statement of claim by 24 September 2010. (5) Defence to amended statement of claim by 4.00pm 21 October 2010. (6) Matter stood over to Defamation List on 22 October 2010 for argument on that day concerning any outstanding issues arising from the Amended Statement of Claim and to set a date for the Court’s motion requiring the parties to show why trial by jury should not be dispensed with pursuant to s 21(3) Defamation Act 2005 (NSW). (7) Plaintiff pay one half of defendants’ costs. (8) Exhibit A returned. (9) Liberty to restore on 7 days notice.
CATCHWORDS:	TORT - defamation - imputations - form and capacity
LEGISLATION CITED:	Defamation Act 2005 (NSW), s 21(3)
CASES CITED:	Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Darby v Oxford University Press [2000] NSWSC 948 Dey v Victorian Railways Commissioner (1948) 78 CLR 62 Duncan v Nationwide News Pty Ltd [2000] NSWCA 155 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 General Steel Industries Limited v Commissioner for Railways (New South Wales) (1964) 112 CLR 125 Goldberg v Randal [2008] NSWDC 45 Hall v Gould [2002] NSWSC 359 John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606; [2009] HCA 16 Singleton v John Fairfax & Sons Ltd (Supreme Court of NSW, Hunt J, 20 February 1980) Solaiman v Fairfax Media Publications [2008] NSWSC 847 Youssoupoff v MGM Pictures Ltd (1930) 50 TLR 581
TEXTS CITED:	Rares J, "The jury in defamation trials" (FCA) [2010] FedJSchol 2
PARTIES:	Plaintiff: Nick Adams First Defendant: Network Ten Pty Ltd Second Defendant: Brett Mason
FILE NUMBER(S):	126879 of 2010
COUNSEL:	Plaintiff: Mr R Rasmussen Defendants: Mr D Sibtain
SOLICITORS:	Plaintiff: Otto Stichter & Associates Defendants: Blake Dawson

Judgment

[1] These are reasons for the orders I made this morning in an application brought by the defendants to strike out imputations pleaded by the plaintiff as arising from three broadcasts on Channel Ten News in October, November and December 2009, in accordance with the procedure laid down by the NSW Court of Appeal in Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6.

[2] The background to the application is as follows. The plaintiff, by statement of claim filed on 21 May 2010, brings proceedings for defamation against the defendants, a television broadcaster and a journalist employed by the broadcaster, for three broadcasts on Ten News on 14 October, 11 November and 9 December 2009.

[3] These proceedings were first before the Court on 25 June, when a timetable for objections to imputations was set down and the matter stood over to the directions hearing on Friday, 6 August. There is a note on the file that on this occasion Levy DCJ foreshadowed “future discussion concerning whether a jury would be required”. On 1 July 2010 Levy DCJ sent an email to the parties directing them to file and exchange affidavits and submissions as to why the Court should not order that the proceedings should not be tried by a jury pursuant to s 21(3) Defamation Act 2005 (NSW) and listing the matter on 9 July 2010 for the purpose of fixing a suitable date to hear argument concerning this application.

[4] On 9 July 2010, when the matter was before the Court, these orders were varied so that the argument could be heard after the filing of a defence and the matter was stood over to the directions hearing on 20 August 2010.

[5] As the filing of the defence cannot take place until argument concerning the form and capacity of the imputations takes place, the matter was, at the request of the parties and with the permission of the List Judge, listed before me on 20 August 2010 to hear the application. As it was necessary for me to hear the broadcast of the matter complained of, the matter was stood over part-heard to Friday, 10 September so that the argument could proceed.

The imputations pleaded by the plaintiff

[6] The first matter complained of, broadcast on 14 October 2009, is pleaded as having conveyed the following imputations:

Imputation 4
(a) The plaintiff neglected his duties as a councillor (transcript paragraphs 1, 2, 4, 5, 6, 7).
(b) The plaintiff did not do the work he should have done as a councillor even though he was paid to do that work (1, 2, 4, 5, 6, 7).
(c) The plaintiff is derelict in his duties as a councillor (1, 2, 4, 5, 6, 7).
(d) The plaintiff failed in his obligations to constituents (1, 2, 4, 5, 6, 7).

[7] The second matter complained of, broadcast on 11 November 2009, is pleaded to have conveyed the following imputations:

Imputation 6
(a) The plaintiff faced disciplinary action from the Ashfield Council (paragraph 9).
(b) In 2006 the plaintiff was made to pay back more than $9,000 which he wrongly claimed as taxi and phone expenses (9).
(c) The plaintiff is a cheat (9).
(d) The plaintiff is dishonest (9).
(e) The plaintiff was said to cost ratepayers probably $150,000 for a by-election (1).
(f) The plaintiff risked being sacked by ratepayers (2).
(g) The plaintiff failed to attend to his duties as councillor by missing nine monthly meetings (3).
(h) The plaintiff fails to attend to his duties as a councillor (3).

[8] The third matter complained of, broadcast on 9 December 2009, is pleaded to have conveyed the following imputations:

Imputation 8
(a) The plaintiff missed 32 Council and Committee meetings (paragraph 3).
(b) The plaintiff neglected his duties as a councillor (1, 3, 8).
(c) The plaintiff was sacked as a councillor (on screen).
(d) The plaintiff was absent without leave from the Council (1, 3).
(e) The plaintiff was justifiably suspended from his party for six months (1, 2, 6, 7, 13).
(f) The plaintiff was forced back to Australia because he was neglecting his duties as a councillor (1, 3, 8).

[9] The plaintiff in submissions sought to change or withdraw certain of the above imputations, and in addition proposed additional imputations as follows:

(a) As to the second publication, a further imputation:


“The plaintiff is a self-promoting, globetrotting local Councillor who would be sacked by ratepayers if he did not change his behaviour (2).”

(b) As to the third publication, a further imputation:


“The plaintiff is one of Sydney’s most controversial council members (2)”.

[10] I have dealt with the objections raised by the defendants to the form and capacity of the imputations, in relation to each of the three successive publications, below.

[11] The plaintiff in written submissions dated 23 August 2010 (paragraph 1) puts the test for striking out imputations as being that they are “manifestly groundless”: Dey v Victorian Railways Commissioner (1948) 78 CLR 62; General Steel Industries Limited v Commissioner for Railways (New South Wales) (1964) 112 CLR 125 (“General Steel”); Singleton v John Fairfax & Sons Ltd (Supreme Court of NSW, Hunt J, 20 February 1980). I would add that the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at paragraphs [10] – [11] and [17] has explained the relevant principles in relation to the capacity of imputations, when drafted as particulars of an allegedly defamatory publication, as follows:

“ [10] In determining what reasonable persons could understand the words complained of to mean, the Court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd :


The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.

[11] Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd , that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said:


It is not … correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.


…

[17] Each alleged imputation is to be considered in the context of the entire article. A report that the second appellant gave an account of neighbourhood reaction to the development proposal different from that of her neighbours, if it stood alone, might mean no more than that there were two different points of view. However, when that report appears in the context of an account of a suspicious fire, the grounds for suspicion being based on the development proposal, a different impression may be created. Ultimately, the question is what a jury could properly make of it. In Lewis v Daily Telegraph Ltd , Lord Reid said:


Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.”

[12] I also note the reference to the General Steel test concerning the relatively similar task of examining the form and capacity of contextual imputations in John Fairfax Publications Pty Ltd v Hitchcock (2007) 70 NSWLR 484 at [6] – [7] per Ipp JA, [29] per Tobias JA and [106] – [109] per McColl JA.

[13] These are television broadcasts, and the warning about transient publications by Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 166 should be heeded:

“Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity: Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article ( Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420), and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413.”

[14] It has been important to consider each of these broadcasts separately, and I have been careful to determine capacity issues on the basis of each of the broadcasts individually.

[15] A feature of each of the broadcasts is the use of “headlines” at the commencement of the matters complained of (which are not reproduced in the text set out to the statement of claim), either in the form of a text “headline” or a catchy phrase designed to summarise the story. The role of headlines or summaries at the commencement of news stories may be significant, for the reasons explained by Callinan J in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [187]:

“A headline, for example, expressed pithily and necessarily incompletely, but designed to catch the eye and give the reader a predisposition about what follows may well assume more importance than the latter. There are two such headlines here: “It's a Bad Business” and “Caroline's World and the Rivkin Link”. Layout may create its own impression. Some black and white shading which was used for one of the stories does have some sinister overtones. The order in which matters are dealt with can be significant. The capacity of the first paragraph of an article, the “intro”, to excite the reader's attention is a matter upon which editors place store. The language employed is also of relevance. Here for example, the articles speak of “new information”, “details of a secret investigation”, “Sydney has developed an obsession”, “high profile”, “long running … saga”, “black box”, “money trail”, “no negative aspersions were ever drawn”, “bonfire of speculation”, “celebrity stock broker”, “executive assistant” (in quotation marks), “hangout for ex-drug dealers”, “closest cronies”, “a very serious crime”, and “how easy it is to make a murder look like a suicide.” The intrusion of irrelevant information may raise questions as to the meaning intended to be, and actually conveyed: for example: “Rivkin had 18 cars ranging from …” and “… share price jump … after a fire on Christmas Eve …”. True it may be that readers may take an article or articles on impression, but the fact that they may do so is likely to have the consequence that ideas and meanings conveyed by graphic language will create the strongest impressions. Of course publishers are entitled to use colourful and seductive language, but in using it they may run the risk of seducing readers into believing only what is colourful and on occasions scandalous, rather than the facts conveyed by straight reportage.”

[16] Finally, I note that Mason P (with whom Heydon JA agreed) considered a more lenient approach to the striking out of imputations may be permissible in some cases where the tribunal of fact is a judge and not the jury: Duncan v Nationwide News Pty Ltd [2000] NSWCA 155 at 16:

“16 If defamation proceedings are to be heard and determined by judge alone then there may be circumstances in which a particular application to amend by adding fresh imputations ought to be addressed, not on the basis that the matter complained of is capable of conveying the new imputations, but simply on the basis that it is arguably capable of conveying them. This would leave to the judge at trial the task of determining whether or not the imputations are in fact carried by the matter complained of without having to agonise over the ultimately irrelevant issue whether the matter complained of is capable of carrying those imputations. I am not of course suggesting that every application to amend ought to be approached in this manner.”

[17] I have not adopted the more lenient approach suggested by Mason P. As the defendants have requisitioned a jury, I have approached this exercise on the basis that a jury will be the tribunal of fact, but if the court’s motion for the parties to show cause pursuant to s 21(3) why a jury should not be dispensed with is successful, the question of whether this issue would need to be reconsidered may accordingly arise. Mason P’s comments, although made concerning a newspaper publication, may be particularly apt in a transient publication such as a television broadcast as is the case in the present circumstances.

[18] Having noted these preliminary matters I now consider each of the broadcasts in chronological order.

Broadcast on 14 October 2009 - Imputations 4(a) – 4(d)

[19] The defendants’ objections to imputations 4(b) – 4(d) include the complaint that none of these differs in substance from imputation 4(a). The plaintiff has, during the course of argument this morning, responded to this objection by abandoning imputation 4(a) and 4(c) and electing imputation 4(d) as the imputation to be relied upon. I have proceeded on the basis that such an amendment should be permitted.

Imputation 4(b)

[20] The defendants submit that this imputation is not reasonably capable of arising from the matter complained of as the commentator is speaking in hypothetical terms, not making a statement of fact. An alternative submission is made that the imputation does not differ in substance from imputation 4(a) (and, therefore, imputation 4(d)).

[21] As set out in paragraph 4 of the transcript of the first matter complained of, one of the ratepayers is shown saying that the plaintiff should be doing the work he is supposed to be doing, and is paid to be doing. There is then a reference to the plaintiff paying for the trip himself, and the reference in paragraph 7 to the plaintiff’s statement about needing to earn money in another capacity (other than being a councillor) reinforces the impression that the plaintiff is doing work other than what he is supposed to be doing because he is earning money in some other capacity. The opening words are that he “can’t survive on his salary”. A clear picture is painted of a person not doing the council job he is paid for because he is doing other paid work.

[22] There is nothing hypothetical in the ratepayer’s statements about the plaintiff; it is a statement of fact, as are the statements in paragraphs 1 and 7. This imputation is reasonably capable of being conveyed.

Imputations 4(a) and 4(c)

[23] The defendants submit that these imputation do not differ in substance from imputation 4(d). The plaintiff concedes this is correct and has elected to proceed with imputation 4(d). As imputations 4(a) and 4(c) are not pressed, they will be struck out.

Imputation 4(d)

[24] As a result of imputations 4(a) and 4(c) being abandoned during argument, the defendants effectively withdrew their objections to imputation 4(d).

Result:

[25] The plaintiff has accordingly lost two of the four imputations pleaded, namely 4(a) and 4(c), but imputations 4(b) and 4(d) will go to the jury.

Broadcast on 11 November 2009 - Imputations 6(a) – 6(h)

Imputation 6(a)

[26] The defendants object to this imputation on the basis that it is bad in form, as it conveys no act or condition on the part of the plaintiff. The defendants also submit this imputation is ambiguous, as it is not clear whether the plaintiff should be pitied or scorned as a consequence of the Council’s action.

[27] The first issue to determine is the attack on defamatory meaning. The defendants submit that if a person is only to be pitied, the imputation cannot be defamatory. The plaintiff, relying upon Youssoupoff v MGM Pictures Ltd (1930) 50 TLR 581, submits that any allegation that casts a stigma upon a plaintiff is capable of being defamatory.

[28] In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 254 ALR 606; [2009] HCA 16 at [3] – [4] French CJ, Gummow, Kiefel and Bell JJ considered Youssoupoff and noted that all that was necessary was for the plaintiff’s reputation to be diminished “in some respect” (at [3]). This is a relatively low threshold. Judges should not lightly take issues of defamatory meaning away from a jury, who bring community standards to bear on such issues.

[29] The second issue is whether or not the imputation conveys any act or condition. The imputation clearly states that the plaintiff, a person in public office, faces disciplinary action from the organisation for which he works. I see no ambiguity or error in form in such an imputation.

[30] I reject the submissions concerning form, capacity and defamatory meaning for this imputation, which is reasonably capable of being conveyed.

[31] No objection being made to imputation 6(b), the next imputation under attack is imputation 6(c).

Imputations 6(c) and 6(d)

[32] Imputation 6(c) is objected to on the basis of capacity and that it does not differ in substance from 6(d).

[33] A person who has been made to pay back a sum which he has “wrongly” claimed as expenses may arguably be called either a cheat or a thief, especially in the context of this “not being the first time” that the plaintiff has been in trouble for such conduct. Accordingly, imputation 6(c) is reasonably capable of being conveyed.

[34] The plaintiff has agreed, in written submissions, to abandon imputation 6(d), and it will accordingly be struck out.

Imputation 6(e)

[35] This imputation is objected to on the basis that it is not reasonably capable of arising. The defendants submit that a comment is speculatively made as to the consequences if a by-election were required, as opposed to a statement that one is to occur. An objection is also taken to the form of the imputation on the basis that it does not convey an act or condition on the part of the plaintiff.

[36] Although not set out in the transcript of the broadcast, the statement that the plaintiff’s action “will open the door” to the risk of a by-election costing up to $150,000 is in fact broadcast three times: first, in the summary of the news to come; secondly, at the opening of the broadcast; and, thirdly, in the course of the broadcast.

[37] Leaving aside the obvious typographical error (“said” should be “set”), the plaintiff now offers to withdraw this imputation and plead: “The plaintiff is a globetrotting councillor set to cost ratepayers dearly”.

[38] This imputation, either in the form originally selected by the plaintiff or as redrafted, is reasonably capable of being conveyed. Counsel for the plaintiff did not definitively elect which version of this imputation he proposed to plead. I have taken this into account in making orders for the filing of an amended statement of claim to permit this decision to be made at that time.

Imputation 6(f)

[39] The defendants submit that this imputation is bad in form as it conveys no act or condition on the part of the plaintiff and it suffers from the same vice as imputation 6(a) in that it is not clear whether the plaintiff should be pitied or scorned if he was sacked by the ratepayers.

[40] As to form, the imputation clearly refers to the plaintiff’s behaviour. As to defamatory meaning, I reject these submissions for the same reasons as imputation 6(e).

[41] This imputation is reasonably capable of being conveyed.

Imputations 6(g) and 6(h)

[42] The defendants object to imputation 6(h) on the basis that it does not differ in context from imputation 6(g) (“the plaintiff failed to attend to his duties as Councillor by missing nine monthly meetings”). The plaintiff in oral submissions accepted this submission and elected to proceed with imputation 6(g).

[43] Imputation 6(h) is withdrawn, and accordingly will be struck out.

A further imputation (imputation 6(i))

[44] The plaintiff sought leave to plead a further imputation that “the plaintiff is a self-promoting, globetrotting, local Councillor who would be sacked by ratepayers if he did not change his behaviour” but abandoned this application in the course of oral submissions.

Result:

[45] Imputations 6(d) and 6(h) are struck out. Imputation 6(e) is struck out with leave to replead. I note the proposed imputation 6(i) referred to in the plaintiff’s written submissions has been abandoned. Imputations 6(a), 6(b), 6(c), 6(f) and 6(g) will go to the jury.

Broadcast on 9 December 2009 - Imputations 8(a) – 8(f)

Imputation 8(a)

[46] The defendants’ objections were withdrawn during argument; the broadcast clearly shows the plaintiff, who is shown giving speeches, has been giving speeches (i.e. talking) across America. Use of the words of the matter complained of is not objectionable here because this descriptive phrase accurately captures the sting of the imputation.

[47] This imputation is reasonably capable of being conveyed.

Imputation 8(c)

[48] No objection being made to imputation 8(b), the next imputation under attack is imputation 8(c).

[49] The defendants object to this imputation on the basis of capacity. The words “councillor sacked”, although not on the transcript, appear on the screen, and it is clear the other references to his being suspended are for his suspension for six months from the Liberal Party. The broadcast states the plaintiff is facing disciplinary proceedings and under investigation. In addition, a local resident calls for the whole council to be sacked (paragraph 12).

[50] This is something of a “borderline” imputation (Solaiman v Fairfax Media Publications [2008] NSWSC 847 at [7] – [9] and [25]; Hall v Gould [2002] NSWSC 359 at [27]; Darby v Oxford University Press [2000] NSWSC 948 at [42]) but if reasonable minds may differ, it is appropriate that the imputation should go to the jury, and I consider the imputation is reasonably capable (if only just) of being conveyed.

Imputation 8(d)

[51] The defendants object to this imputation on the basis that it is not reasonably capable of arising from the matter complained of and in fact that the contrary is stated. The question is whether the consent already obtained from other councillors should be revoked.

[52] However, the opening words of the matter complained of are “And the Ashfield Councillor who went AWOL [a reference to the well-known phrase “absent without leave”] suspended for six months.” The council meeting is described as an “explosive meltdown” where the police were called in, as the man “who’s missed 32 council and committee meetings” returns to a “noisy meeting”.

[53] This imputation is reasonably capable of being conveyed.

Imputation 8(e)

[54] The plaintiff raises the same objection to capacity as imputation 8(d). This is directly stated in the text. As to “justifiably”, there is ample material in the matter complained of to warrant the use of this word.

[55] This imputation is reasonably capable of being conveyed.

Imputation 8(f)

[56] The defendants object to this imputation on the basis that it does not differ in substance to imputation 8(b); the words at the commencement of the imputation are of no assistance in helping this imputation to differ in substance.

[57] The plaintiff sought leave to withdraw and replead this imputation, the form of which would depend upon how other imputations requiring redrafting would be pleaded, and I granted the plaintiff leave to do so.

The proposed new imputation 8(g)

[58] Counsel for the plaintiff sought leave to plead an additional imputation:

“(g) The plaintiff is one of Sydney’s most controversial council members.”

[59] No objection to this imputation was raised by the defendants.

Result

[60] Imputations 8(a), 8(b), 8(c), 8(d), 8(e) and 8(g) will go to the jury. Imputation 8(f) is struck out with leave to replead.

Costs and the future conduct of these proceedings

[61] The defendants have enjoyed significant success and after hearing submissions from the parties, I ordered the plaintiff to pay one half of the defendants’ costs.

[62] It will be necessary for the plaintiff to file an amended statement of claim which will attach a revised transcript of the broadcast to include the “headlines” for the first and second matters complained of and the text appearing on the screen in each of the broadcasts.

[63] As there may be further imputations which are the subject of objection, I have included an order to permit the taking of further objections. However, the timetable is a short one as this is one of a number of defamations in this court where the court has brought a motion requiring the defendants to show cause why a jury trial should not be dispensed with. This must be dealt with expeditiously, so that the parties know, when preparing for a hearing, whether they are preparing for a jury trial or for a judge-alone trial, as this is a matter of great significance in defamation actions: Duncan v Nationwide News Pty Ltd, supra; Goldberg v Randal [2008] NSWDC 45 at [20]. When determining whether legal or factual issues concerning freedom of speech and defamation law in Australia are too complex to be explained to the members of our community who make up our juries, Rares J’s article "The jury in defamation trials" (FCA) [2010] FedJSchol 2 may be of assistance.

[64] Although it has not been the practice in the Supreme or District Court defamation lists to ask for liberty to restore, the parties have asked me to include this order, on the basis of uncertainties about having matters relisted in the Defamation List, so I have done so.

(1) Imputations 4(a), 4(c), 6(d), 6(h), 6(i) are struck out.
(2) Imputations 6(e) and 8(f) are struck out with leave to replead.
(3) Imputations 4(b), 4(d), 6(a), 6(b), 6(c), 6(f), 6(g), 8(a), 8(b), 8(c), 8(d), 8(e), and 8(g) will go to the jury.
(4) Amended statement of claim by 24 September 2010.
(5) Defence to amended statement of claim by 4.00pm 21 October 2010.
(6) Matter stood over to Defamation List on 22 October 2010 for argument on that day concerning any outstanding issues arising from the Amended Statement of Claim and to set a date for the Court’s motion requiring the parties to show why trial by jury should not be dispensed with pursuant to s 21(3) Defamation Act 2005 (NSW).
(7) Plaintiff pay one half of defendants’ costs.
(8) Exhibit A returned.
(9) Liberty to restore on 7 days notice.

Schedule A

Transcript

Ten NEWS

DATE: Wednesday, October 14, 2009, 5pm News

ANCHORS: Deborah Knight and XXXX

REPORTER: Brett Mason

TRANSCRIPT

HEADLINE

ANCHOR:

NOT AVAILABLE

SEGMENT

ANCHOR (Deborah Knight): OPENING SEGMENT:

A local Councillor from Sydney ahs gone on an unusual tour of the United States. Nick Adams, who has been granted leave from Council meetings, says he can’t survive on his salary.

REPORTER, BRETT MASON:

It’s been dubbed “Nick’s Excellent Adventure”, a two month tour across thirteen US states, all so 25-year old Ashfield Councillor, Nick Adams, can tell Americans why their country is the greatest in the world.

NICK ADAMS:

Ladies and Gentlemen, your country is the land of opportunity.

REPORTER, BRETT MASON:

The self-proclaimed Top Gun patriot has even made a movie about his US expedition.

But 12000km away, on the streets of Ashfield, his constituents aren’t impressed.

VOX POP 1:

“Better come back here, mate, and sort out the issues here, mate ... yeah ... so he looks like he’s living the life ...”

VOX POP 2:

“He should be doing the work that he’s supposed to be doing, that he’s paid to be doing ...”

REPORTER, BRETT MASON:

The former Deputy Mayor who infamously tried to ban pigeons has paid for the trip himself with Councillors approving a leave of absence for seven meetings this year. The aspiring Federal MP posted on his website that the trip ahs been so much fun; he’s obliged to write a book about it.

Ashfield Councillors are seething about their colleague’s two month jaunt across America, and in a statement, they admitted they have no idea where he is, or when he’ll be back here at work, because he’s not returning their calls.

Late this afternoon Councillor Adams defended his right to travel, issuing a statement from Washing DC:

(Reading out statement from Nick Adams)

“I must earn money in another capacity to survive. I can and will choose to do that any way I wish”.

Brett Mason, Ten News

Schedule B

Transcript

DATE: Wednesday, November 11, 2009, 5pm News

ANCHORS: Deborah Knight and Bill Woods

REPORTER: Brett Mason

TRANSCRIPT

HEADLINE

ANCHOR (Deborah Knight):

A globetrotting Councillor set to cost ratepayers dearly:

Mayor Ted Cassidy, Mayor of Ashfield: “We will open the door to a by-election that would cost this council probably $150,000”.

SEGMENT:

ANCHOR (Deborah Knight): OPENING SEGMENT:

A self-promoting, globetrotting, local Councillor has been ordered back to Sydney, or risk being sacked by ratepayers. They’re warning a by-election would cost them almost ten times his salary.

REPORTER, BRETT MASON:

Nick Adams has become Ashfield’s invisible Councillor missing nine monthly meetings to embark on a lengthy publicity tour of America.

Colleagues have dubbed him Australia’s “Borat” after his starring role in online videos.

VIDEO OF NICK ADAMS SPEAKING (official speaking engagement):

“God Bless Australia and God Bless the best country in the world, the United States of America”.

COUNCILLOR MARK DRURY, ASHFIELD COUNCIL

He wanted to stand for Council. He stood for Council. He got elected. We don’t see him that often.

REPORTER, BRETT MASON:

Either do ratepayers who form out $16,000 a year for him to be their voice at this table. And last night Council had enough, rejecting the controversial Councillor’s application for leave, forcing him to return to Australia, or risk losing his day job.

MAYOR TED CASSIDY, MAYOR OF ASHFIELD

“We will open the door to a by-election that would cost this council probably $150,000”.

BARBARA PERRY, LOCAL GOVERNMENT MINISTER

“If you’re elected to public office, then the community expects you to turn up to work”.

REPORTER, BRETT MASON:

This is not the first time Councillor Adams has faced disciplinary action from Ashfield Council. In 20065, he was made to pay back more than $9000 which he wrongly claimed as taxi and phone expenses.

The Liberal Party is understood to be considering his future.

LIBERAL PARTY STATEMENT (read out by Brett Mason):

“We expect those who stand as Liberal endorsed Councillors to serve their community well”.

REPORTER, BRETT MASON:

Councillor Adams was surprised by our request for a comment, and he didn’t provide one.

VIDEO OF NICK ADAMS SPEAKING (official speaking engagement)

“The entire world looks to you to rescue us ...”

REPORTER, BRETT MASON:

Brett Mason, Ten News.

Schedule C

Transcript

DATE: Wednesday, December 9, 2009, 5pm News

ANCHORS: Deborah Knight and Ron Wilson

REPORTER: Brett Mason

TRANSCRIPT

HEADLINE

ANCHOR (Deborah Knight):

And the Ashfield Councillor who went AWOL suspended for six months:

Nick Adams: “I’ve got something really nice to say to you, Brett Mason ...”

Brett Mason: “Let’s ... (inaudible) and get it out of the way ...

SEGMENT:

ANCHOR (Ron Wilson): OPENING SEGMENT:

One of Sydney’s most controversial council members has been suspended from his party for six months after an explosive meltdown. Police were called in as the Ashfield Council meeting descended into chaos.

REPORTER, BRETT MASON:

“Councillor Adams, welcome back to Australia”.

He’s the local councillor and aspiring federal MP who’s missed 32 council and committee meetings to talk his way across America. USA! USA! USA!

But as Nick Adams returned to a noisy meeting:

NICK ADAMS:

I’ll wai to the applause finishes.

REPORTER, BRETT MASON:

The man who claims to be one of Australia’s finest orators only offered these choice words:

NICK ADAMS:

I would just like to say that Brett Mason is a (beep- expletive deleted) ... good for nothing ... beep- expletive deleted). Thank you.

REPORTER, BRETT MASON:

Councillor Adams, that’s not very presidential of you.

REPORTER, BRETT MASON:

The twenty-five year old was forced back to Australia after colleagues voting to approve his extended leave bowed to public pressure. Publicity, the usually photogenic Liberal was clearly unimpressed with.

First calling his father, then the police, in an unsuccessful attempt to have us removed from the meeting, which descended even further into chaos when one ratepayers spotted another Councillor “Twittering” as she spoke.

MAYOR TED CASSIDY, MAYOR OF ASHFIELD:

“... five minutes, if you keep on ...”

JULIE PASSAS, RESIDENT:

“This Council should be sacked”.

MAYOR TED CASSIDY, MAYOR OF ASHFIELD

“... I’ll adjourn the meeting. The meeting is adjourned for five minutes”.

JULIE PASSAS, RESIDENT:

“It should be sacked, you hypocrites. You do nothing but play games all night. You people are disgusting”.

REPORTER, BRETT MASON:

The circus was played out in front of Education Minister Verity Firth and overshadowed the triumph of people power over plans for a McDonalds at Haberfield.

The Liberal Party State Director visited Network Ten this afternoon to view video footage of last night’s meeting. He has since informed Councillor Adams that he’s been suspended from the party for six months.

Ashfield Council is also investigating the Councillor’s conduct.

REPORTER, BRETT MASON:

Brett Mason, Ten News.

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