Ainsworth v Free Media Pty Ltd
[2009] NSWDC 144
•19 June 2009
CITATION: Ainsworth v Free Media Pty Ltd [2009] NSWDC 144 HEARING DATE(S): 19 June 2009
JUDGMENT DATE:
19 June 2009JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Imputations (a), (b), (c), (d), (e), (k) and (m) struck out.
(2) Imputations (f), (g), (h), (i), (j) and (l) are capable of being conveyed and having a defamatory meaning.
(3) Leave to the plaintiff to file an amended statement of claim in 14 days including a general right of leave to amend in relation to the imputations.
(4) The plaintiff pay the defendant’s costs of the imputations argument.
(5) Decline to make a lump sum order for costs concerning the plaintiff's costs of the motion for summary judgment and direct the plaintiff to prepare a bill in assessable form in the usual way.
(6) These proceedings stood over for further directions to Friday 17 July 2009 at 9:00am.CATCHWORDS: TORT - defamation - imputations - capacity - costs LEGISLATION CITED: Defamation Act 2005 (NSW) CASES CITED: Bik v Australian Consolidated Press Ltd [1973] 2 NSWLR 473
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Favell v Queensland Newspapers Ltd (2005) 22 ALR 186
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293PARTIES: Plaintiff: Phillip Ainsworth
Defendant: Free Media Pty LtdFILE NUMBER(S): 4674 of 2008 COUNSEL: Plaintiff: Mr M McCall
Defendant: Mr A KumarSOLICITORS: Plaintiff: Liston & Clifton
Defendant: Stuart Cook & Braham
Judgment
Introduction
1. The defendants bring an application for the summary dismissal of these proceedings or alternatively an order that some or all of the imputations be struck out. The parties have provided me with written submissions on the issues of capacity and defamatory meaning and agreed that I should determine the issue on those submissions.
2. The plaintiffs also bring an application for the lump sum assessment of costs against the solicitors arising from an order I made on 17 April 2009.
3. The first issue for determination is the question of the form and capacity of the imputations pleaded as having arisen from the publication of the matter complained of, which is set out in a schedule to this judgment.
4. The matter complained of was published on 21 November 2007 and the argument concerning form and capacity of the imputations falls to be considered under the Defamation Act 2005 (NSW).
5. In written submissions the parties have provided me with references to a number of decisions concerning the appropriate test for imputations, with the defendant referring to some of the older decisions setting a very high standard for precision and particularity applicable when imputations were the cause of action. However, the Court of Appeal in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 explains the test for capacity simply and clearly, referring to Favell v Queensland Newspapers Ltd (2005) 22 ALR 186, and I have adopted the tests set out in these judgments as appropriate in these proceedings.
6. The matter complained of is a report of proceedings in the Local Court in which the plaintiff was charged with assault, followed by commentary on the plaintiff’s activities as a radio announcer for 2-TEN FM. The issues raised by the imputations argument include:
(a) whether the matter complained of conveys imputations of guilt, as opposed to suspicion of wrongdoing, by reason of a report of the matters on which the plaintiff has been charged, including interim orders to remain away from the person allegedly assaulted;
(b) whether imputations of other conduct by the plaintiff are conveyed and defamatory; and
(c) whether the imputations differ in substance.
Form and capacity of imputations
7. The imputations pleaded as arising from the matter complained of are:
(a) that the plaintiff committed an assault upon Mr Curtis (lines 1- 5, 13 – 20);
(b) that the plaintiff was the subject of a Court Order in regard to an assault on Mr Curtis (lines 13 – 20);
(c) the the plaintiff was the subject of a Court Order that required an appeal by the plaintiff’s solicitors (lines 13 – 20);
(d) that the plaintiff used foul language when announcing for 2-TEN FM (lines 66 – 67, 74 – 76);
(e) that the plaintiff had to be disciplined by the management of 2-TEN FM for using foul language when announcing on 2-TEN FM (lines 66 – 67, 74 – 76);
(f) that the plaintiff used his position as announcer on 2-TEN FM to make personal criticisms of people (lines 66 – 76, 86 – 88);
(g) that the plaintiff had to be disciplined by management of 2-TEN FM for making personal criticisms of people when announcing on 2-TEN FM (lines 66 – 76);
(h) that the plaintiff used his position as announcer on 2-TEN FM to criticize rival media (lines 66 – 70);
(i) that the management of 2-TEN FM had to discipline the plaintiff for criticizing rival media when announcing on 2-TEN FM (lines 66 – 70);
(j) that the Hunter New England Health had made a complaint to 2-TEN FM about a personal criticism of one of its employees made by the plaintiff when announcing on 2-TEN FM (lines 70 – 75);
(k) that the plaintiff knowingly criticised an asbestosis victim when announcing on 2-TEN FM (lines 76 – 81);
(l) that the plaintiff used his position as an announcer on 2-TEN FM to urge people to inappropriately use a telephone service established by an asbestosis victim (lines 75 – 85);
(m) that a valid survey found that the plaintiff was disliked by listeners of 2-TEN FM lines 90 – 96).
Imputation (a) that the plaintiff committed an assault upon Mr Curtis
8. The matter complained of refers to the plaintiff being “accused” of assault after an “incident” and refers to the making of interim orders which were reviewed on appeal. While the article says the magistrate “initially” ordered the plaintiff to avoid any intimidatory behaviour, it goes on to note these orders were “relaxed” by “agreement”. Most refreshingly for a media publication, the defendant goes on to state: “The agreement between the parties is not an admission of guilt on Mr Ainsworth’s part” (lines 19-21). The article goes on to note that both the plaintiff and the person he has been charged with assaulting have “temporarily” departed from the radio station. The publication next states that this is not the first time the plaintiff has fallen foul of management at the radio station, noting a series of incidents involving foul language and personal (but verbal) attacks on politicians.
9. In Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301, Mason J noted:
“As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.”
10. This publication is more than normally careful to say that the plaintiff has been accused and that the interim orders are an agreement between the parties which is not an admission of guilt on the plaintiff’s part.
11. The plaintiff submits that it is enough for the ordinary reasonable reader to read that the magistrate has made “orders” and that in the context of there being an allegation of assault the ordinary reasonable reader would assume that the assault has been proved.
12. The ordinary reasonable reader is someone with a degree of common sense and who has lived in the world. The ordinary reasonable reader would note that these orders are interim in nature, and that the agreement is not an admission of guilt by the plaintiff.
13. Although the plaintiff does not refer to it, there are other references in the matter complained of which are the context in which these allegations appear. These are as follows:
(a) The matter complained of tells the reader that the victim of the assault is the station manager, that the “incident that sparked the court appearance took place in the early hours of Monday morning” after the plaintiff had been given his “marching orders” by Mr Curtis. Radio station board member Marion Saxby had delivered a letter to the plaintiff informing him that his long-time stint as breakfast DJ was over.
(b) The matter complained of then outlines the magistrate, in the course of a “brief” appearance in court, “initially” making orders for the plaintiff to remain away but “on an appeal” from his solicitor, then relaxing the requirements of the interim order. It is in this context that we are told that the agreement between the parties is not an admission of guilt by the plaintiff.
(c) The matter complained of then goes on to state that both the plaintiff and the assault victim have “temporarily” left the station and describes a series of problems the radio station board is having. The board’s other problems are outlines and the comment is then made that the “uncertainty about the future” of both the plaintiff and the person who alleges the plaintiff assaulted him need to be “absorbed”. There are then further comments about the financial difficulties of the radio station after auditors who expressed “serious concerns” were replaced.
(e) Having made a series of comments critical of the board of the radio station and of the victim of the assault, the matter complained of then notes that this is not the first time the plaintiff has fallen foul of the management of the radio station and goes on to note allegations about “personal attacks” by the plaintiff on local politicians, rival media and “other identities” . However, it is quite clear that these are verbal attacks made on air. They do not have any corroborative value in relation to the assault allegations, partly because the nature of these personal attacks is made clear, partly because the alleged victim and the radio station management have been the subject of critical review and partly because of the structure of the matter complained of. By the time the reader gets to this part of the matter complained of, it is clear that the publication is examining the conduct of everyone involved.(d) There is then a series of comments about the victim of the assault, Mr Curtis, noting that he was “trumpeted on his arrival as a real catch for the station” but that there was “some resistance” to some of his reforms from long-term radio station volunteers.
14. This is a very evenhanded piece of reporting. The reader is given background information in a clear and succinct way. The ordinary reasonable reader, reading between the lines, would have a very clear picture of what led to the allegations of assault, what the magistrate did during the brief appearance in court, and why. This is a good example of an imputation of guilt failing to arise from the matter complained of, for the reasons explained by Mason J in Mirror Newspapers Ltd.
15. As I propose to strike out this imputation I do not need to consider the argument as to whether the imputation is defamatory
Imputation (b) the plaintiff was the subject of a court order in regard to an assault on Mr Curtis
16. I repeat the matters set out above concerning whether assault is in fact conveyed. This imputation must also be struck out.
17. The defendant submits that such an imputation is not capable of being defamatory. The test on a strike out application in relation to defamatory meaning means that only in the clearest cases would such an issue not go to the jury: Bik v Australian Consolidated Press Ltd [1973] 2 NSWLR 473. It may be that the plaintiff seeks to plead a new imputation about the plaintiff’s conduct warranting an interim order restraining him from approaching a victim pending the hearing of an assault charge. If so, the defendant is at liberty to raise fresh objections at that time.
Imputation (c) the plaintiff was the subject of a court order that required an appeal by the plaintiff’s solicitors
18. The matter complained of refers to a “brief” appearance in which the magistrate “initially” makes orders but “on an appeal from the defendant’s solicitor, agreed to relax the requirements of the interim order.” This is followed by the statement that this “agreement” is not an admission.
19. The real vice in this imputation is that the sting of the imputation is not at all clear. Is the sting the fact that the magistrate was so repulsed by the plaintiff’s conduct that he made orders that had to be set aside on appeal and if so, does this reflect badly on the plaintiff or the magistrate? Is it defamatory to say of someone that they have had to have orders set aside on appeal? Most people would think the judge rather than the litigant would be at fault in such circumstances.
20. Counsel for the plaintiff submits that the reference to the plaintiff being accused of “shirt fronting and verbally assaulting” Mr Curtis, and repeats the assertion (written submissions, paragraph 8) that to say of someone that they are the subject of a court order in regard to an assault is defamatory. If that is the sting of the imputation then it does not differ in substance from imputation (b), as well as suffering from the same vice that the imputation would include an assertion of guilt rather than suspicion.
21. I strike out imputation (c).
Imputation (d) the plaintiff used foul language when announcing for 2-TEN FM
22. While the matter complained of says that this “is not the first time Mr Ainsworth has fallen foul of management at 2-TEN FM” and goes on to refer to management being forced to intervene after numerous complaints of “inappropriate language on air” and “personal attacks on politicians”. Several examples of this inappropriate language and personal attacks are given. The first is a reference to “attacking” Mr Rolph for being an “absentee councillor” when he had gone to live on the coast because of his asbestosis; the plaintiff also is accused of urging listeners to “abuse the privilege” of using the reverse charges number Mr Rolph set up to enable his constituents to keep in touch with him. The second is a local newspaper, which the plaintiff is asserted to have described as being as good as “toilet paper”. His style is described in the last line as “no-holds-barred”.
23. This is not foul language. Foul language is swearing or using obscene language, as the defendant’s written submissions point out.
24. I strike out this imputation.
Imputation (e) the plaintiff had to be disciplined by the management of 2_TEN FM for using foul language when announcing on 2-TEN FM
25. In light of my ruling concerning (d) this imputation is not conveyed
26. I strike out this imputation.
Imputation (f) the plaintiff used his position as an announcer on 2-TEN FM to make personal criticisms of people
27. While I suspect that what the plaintiff really means is “misused” rather than “used”, the construing of the imputation in terms of the matter complained of makes it clear that the plaintiff has made personal attacks on persons such as an asbestosis sufferer, hospital staff and business rivals and that such attacks are done in a robust, no-holds-barred style that causes a high level of discomfort to some listeners.
28. Whether or not the ordinary reasonable reader would think less of the plaintiff is a matter for a jury to decide. While some members of the community may consider that an imputation of being an abortionist, or a communist, is no longer defamatory, that is not the test. These are matters for consideration by the tribunal of fact when issues of capacity and defamatory meaning fall to be determined.
29. This imputation is capable of being conveyed and of being considered defamatory by the tribunal of fact.
Imputation (g) the plaintiff had to be disciplined by the management of 2-TEN FM for making personal criticisms of people when announcing on 2-TEN FM
30. The defendant submits:
(a) this is a variation of the previous imputation (which I assume means that the imputation does not differ in substance). I do not accept this submission. The fact that a person has been disciplined for conduct can of itself be defamatory, independently of an imputation that a person has committed that conduct.
(c) this imputation is not defamatory. For the reasons set out above in relation to other imputations, I do not accept that an imputation of discipline by an employer is so obviously not defamatory that this question should be taken from the tribunal of fact.(b) “no proper imputation is pleaded and this imputation must be struck out” – this is a rhetorical submission.
31. The imputation is clearly conveyed. The matter complained of states that the alleged assault incident is “not the first time the plaintiff has fallen foul of management” and that “management was forced to intervene” after “numerous complaints” including “personal attacks” on local politicians, rival media and other identities.
32. The matter complained of also refers to “complaints” and that he had been warned about inappropriate on-air language as recently as last month.
33. These references all paint a clear picture of the plaintiff having to be disciplined by management for this conduct, the most recent such occasion being the month before publication of the matter complained of.
34. The circumstances in which the plaintiff has had to be disciplined is a separate act from the circumstances of his having criticized these persons. It is not a variant of the imputation but an imputation in its own right.
35. This imputation is capable of being conveyed. As I have indicated, any imputation of conduct warranting disciplining by an employer is capable of being considered defamatory. Such an issue is a question for the tribunal of fact.
Imputation (h) the plaintiff used his position as an announcer on 2-TEN FM to criticize rival media
36. At lines 70 and 85 – 90 there are references to criticisms of rival media, with a reference to the Free Times Newspaper and its editor as a “favourite punching bag” and the plaintiff’s unflattering comparison of it to “toilet paper”.
37. The objection that this imputation is “a variation of the above imputations” (defendant’s submissions, paragraph 41) appears to be a complaint that the imputation does not differ in substance. However, each of the charges laid against the plaintiff is a matter for which the plaintiff is entitled to plead a separate imputation, since the subject matter is quite different.
38. The defendant’s objection that “it is not defamatory to criticize one’s rival” is misconceived. The question of whether what is said is defamatory or not will depend on what is said. The matter complained of makes it clear that the criticism is of the “punching bag” variety and includes insults such as a comparison to toilet paper.
39. This imputation is capable of being conveyed and defamatory.
Imputation (i) the management of 2-TEN FM had to discipline the plaintiff for criticizing rival media when announcing on 2-TEN FM
40. This imputation clearly conveys a separate act, namely that the plaintiff was disciplined by his employer who was “forced to intervene” on “numerous” occasions in relation to this and other complaints about the plaintiff’s conduct.
41. This imputation is capable of being conveyed and defamatory.
Imputation (j) that Hunter New England Health made a complaint about personal criticism of one of its employees made by the plaintiff when announcing on 2-TEN FM
42. The matter complained of says that the plaintiff “was the subject of complaints from Hunter New England Health over attacks on one of the authority’s former local employees”. In the context of the plaintiff having “numerous complaints” about his inappropriate language on air and personal attacks, this imputation is capable of being considered as defamatory by the tribunal of fact.
43. This imputation is capable of being conveyed and of being found to be defamatory by the tribunal of fact.
Imputation (k) that the plaintiff knowingly criticized an asbestos victim when announcing on 2-TEN FM
44. This imputation suffers from a lack of clarity, chiefly from the use of the word “knowingly”. What the pleader probably means is that the plaintiff attacked Mr Rolph for being an absentee councillor despite knowing that he had moved to the coast as a consequence of his battle with asbestosis. Even though imputations are no longer the cause of action, this imputation must be struck out in its present form. The defendant should not have to guess what the plaintiff’s imputation means.
45. This imputation is struck out. If the plaintiff intends to replead it, the conduct must be identified with more precision so that the defendant knows what evidence to lead if (as is clearly the defendant’s intention, according to the defendant’s submissions) a defence of justification is to be pleaded.
Imputation (l) that the plaintiff used his position as announcer on 2-TEN FM to urge people to inappropriately use a telephone service established by an asbestos victim
46. The matter complained of described how when Mr Rolph moved to the coast because of his asbestosis, he set up a reverse charge number so that his constituents could stay in touch with him. The matter complained of goes on to say that the plaintiff “urged listeners on air to abuse the privilege”. The inference clearly is that he told them to use this number to ring up Mr Rolph about matters for which the reverse charge number had not been established. If so, that could be an inappropriate use of the reverse charge telephone service.
47. The defendant submits that the matter complained of simply says the plaintiff was encouraging listeners to contact Mr Rolph “in the context of being an absentee councillor”. Such a submission completely disregards the words “abuse the privilege”.
48. This imputation is capable of being conveyed and of being considered defamatory by the tribunal of fact.
Imputation (m) that a valid survey found that the plaintiff was disliked by listeners
49. The matter complained of says that the plaintiff’s style has “divided listeners”, with a 2001 survey of local business people showing a “high level of discomfort” about his on-air style, but noting there is a “core of emphatic support from fans”.
50. The matter complained of simply does not say that a survey (valid or otherwise) found that the plaintiff was disliked by listeners.
51. This imputation is not conveyed and is struck out.
Concluding remarks
52. I have struck out the majority of the plaintiff’s imputations. Some of these imputations are not conveyed, while others, such as (k), are simply poorly drafted and need to be repleaded. However, the plaintiff may prefer to replead the imputations for the whole of the statement of claim as one set of particulars. Consequently, the orders that I will make will be to strike out certain imputations individually, but grant a general leave to file an amended statement of claim to enable the plaintiff to refine the imputations to ensure they cover the field. In those circumstances, it is appropriate that the plaintiff pay the defendant's costs of this application.
Costs issues
53. The plaintiff also seeks costs of an earlier application by the plaintiff for summary judgment. On 17 April I made an order that the costs of 24 October and 7 November 2008 and 6 February, 3 and 17 April 2009 be assessable forthwith and be paid by the solicitors for the defendant, who repeatedly failed to appear until April 2009. The solicitors for the defendant, according to Mr Kumar’s written submissions, conceded their obligation to pay these costs.
54. The solicitors for the plaintiff claim $8,660.50 legal costs in relation to this application. They sent their bill to the solicitors for the defendant but have received no reply. These solicitors’ costs are in narrative form and I have no information about how their costs and the costs for the city agent are calculated. The sum involved is substantial and appears likely to include a solicitor/client component as the costs relate to 100% of the legal fees for the application.
55. While I granted leave for the parties to bring an application for a lump sum costs order, the information I have is insufficient for me to determine what costs are payable in relation to the specific matters provided for in my orders of 17 April 2009. In my opinion the best course is to direct the plaintiff to proceed to have this bill assessed by a costs assessor in the usual way. The costs assessor, who will have access to the solicitor’s file and costs agreements, will be able to determine these issues from that material.
Orders
1. Imputations (a), (b), (c), (d), (e), (k) and (m) struck out.
2. Imputations (f), (g), (h), (i), (j) and (l) are capable of being conveyed and having a defamatory meaning.
3. Leave to the plaintiff to file an amended statement of claim in 14 days including a general right of leave to amend in relation to the imputations.
4. The plaintiff pay the defendant’s costs of the imputations argument.
5. Decline to make a lump sum order for costs concerning the plaintiff's costs of the motion for summary judgment and direct the plaintiff to prepare a bill in assessable form in the usual way.
6. These proceedings stood over for further directions to Friday 17 July 2009 at 9:00am.
Southern Free Times
Wednesday 21St November 2007
Headline: Office passion lands Ainsworth in court
1 Outspoken Tenterfield radio identity Phil Ainsworth has appeared in the Tenterfield Magistrates Court accused of assault by communi- ty station 2-TEN FM station manager Steve 5 Curtis. The incident that sparked the court appearance took place in the early hours of Monday morn- ing, after Mr Ainsworth had been given his marching orders the previous Friday by Mr Curtis, who was only appointed to the stations’ top job back in September. In a letter deliv- 10 ered by board member Marion Saxby, Mr Ainsworth had been informed that his long-time stint as breakfast DJ was over. In a brief appearance, the magistrate initially ordered Mr Ainsworth, who was accused of shirt-fronting and verbally 15 assaulting Mr Curtis, to avoid any intimidatory behaviour, as well as avoid coming within 100 metres of the station premises or Mr Curtis’ current address. However on an appeal from the defendant’s solicitor, agreed to relax the requirements of the interim order. The agreement 20 between the parties is not an admission of guilt on Mr Ainsworth’s part With the two key personalities at the station temporarily off the premises in the wake of the incident – Mr Curtis departing until further notice – former manager Alan 25 Bennett, who resigned for health reasons, has returned to the station for the interim. Mr Bennett emphasised, howev- er, that he was not acting as interim manager. It has been a bruising two months for the now-captainless station, which is continuing to transmit. The station has a 30 strong market presence in Tenterfield and is believed to be the number one media in the federation town based on rev- enue support from local advertisers, more than holding its own despite facing competition from Beaudesert-based Rebel FM. 35 Beneath the surface, however, problems continue to During the recent, fiery board meeting of 2-TEN FM, sitting secre- tary Clive Graham resigned, citing serious procedural concerns. Now, there is uncertainty about the future of both Mr Curtis and Mr 40 Ainsworth at the station as the full implications of the incident are absorbed. The Free Times also understands that financial statements from the radio have not been lodged 45 with the state Department of Fair Trading since 2002, and new audi- tors of the station were appointed after the previous auditors expressed serious concerns about the station’s 50 books. That decision has now been reversed, following pressure from Tenterfield Shire Council. President of 2-Ten FM Glen Taylor has not been available for comment, 55 however a meeting tonight is expect- ed to clarify the situation. Mr Curtis was trumpeted on his arrival as a real catch for the station, with top-level big city experience 60 including stints with 3KZ in Melbourne, and holding down the prime position of newsreader at Channel 7 in Perth. He announced that he would be intro- ducing workshops for potential volunteer presenters, and increasing the role played by Stanthorpe. There was some resistance at the station from long-term volunteers to some of 65 Mr Curtis’ proposed reforms. It is not the first time Mr Ainsworth has fallen foul of management at 2-TEN FM. Management was forced to intervene after numerous complaints against Mr Ainsworth for use of inappropriate language on air, as well as his personal attacks on local politicians, 70 rival media, and other identities. Recently, Mr Ainsworth was the subject of complaints from Hunter New England Health over attacks on one of the authority’s former local employees, and he had been warned again 75 about inappropriate on-air language as recent- ly as last month. Notable amongst his previ- ous targets was former Tenterfield councillors Alan Rolph, attacking the latter for being an absentee councillor after Mr Rolph moved to 80 the coast as a consequence of his battle with asbestosis. When Mr Rolph advertised a reverse charges number in the Tenterfield Star to allow constituents to stay in touch with him at no expense to themselves, Mr Ainsworth 85 urged listeners on air to abuse the privilege. Another favourite punching bag of Mr Ainsworth was Free Times editor Olav Muurlink and the newspaper itself, with Mr Ainsworth claiming on one occasion it was as 90 good as “toilet paper”. His style has divided listeners, with a survey of local business peo- ple conducted by board members in 2001 at the behest of the board uncovering a high level of discomfort about Mr Ainsworth’s on- 95 air style, along with a core of emphatic sup- port from fans of the no-holds-barred DJ.
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