Baker v Nightingale

[2008] NSWDC 103

CITATION:	Baker v Nightingale [2008] NSWDC 103 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	6 June 2008
JUDGMENT DATE:	6 June 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Defendants’ application to strike out imputations (a) and (b) as deficient in form dismissed. 2. The plaintiff pay the defendants’ costs thrown away by reason of amendments to the Statement of Claim. 3. Defendants pay two thirds of the plaintiff’s costs of the argument today. 4. Gibson DCJ’s reasons for judgment to be forwarded to the parties by email. 5. Matter stood over for further directions to Friday 8 August 2008 at 9:00am.
CATCHWORDS:	TORT - defamation - imputations - objections to form - Defamation Act 2005 (NSW)
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW), s 56 Defamation Act 2005 (NSW)
CASES CITED:	Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Holmes v TCN Channel Nine Ltd (2007) 4 DCLR (NSW) 394; [2007] NSWDC 137 John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915; [2007] NSWCA 254 Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273
PARTIES:	Plaintiff: Donna Baker First Defendant: Tom Nightingale Second Defendant: The Wagga Daily Advertiser Pty Ltd
FILE NUMBER(S):	1556 of 2008
COUNSEL:	Plaintiff: Mr S Groch (Solicitor) Defendants: Mr D Sibtain
SOLICITORS:	Plaintiff: Denniston & Day Pty Limited Defendants: Freehills

Judgment

1. The plaintiff brings proceedings for defamation for a publication in the Daily Advertiser headed “Football Wagga president must go” on 2 August 2007.

2. The plaintiff pleads the following imputations:

(a) That the plaintiff rules Football Wagga in a dictatorial style.
(b) That the plaintiff has turned Football Wagga into a ruthless and possessive regime.
(c) That the plaintiff acted dishonestly in performance of her duties as President of Football Wagga.
(d) That the plaintiff is of a callous nature.
(e) That the plaintiff suffers a psychological condition involving feelings of insecurity.

3. Imputation (e) was withdrawn during argument.

4. The defendants challenge only the form of imputations (a) and (b). I have heard argument this morning and made rulings. The parties have kindly agreed that I should provided reasons for my rulings by email by reason of time constraints caused by a long-running trial.

5. The defendants challenge imputations (a) and (b). I should first note that any determination of issues of form and capacity should be dealt with in accordance the principles of the Court of Appeal enunciated in Malcolm v Nationwide News Pty Ltd (2007) Aust Torts Reports 81-915; [2007] NSWCA 254 and Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. This last decision is of particular significance, as the Court of Appeal has explained the appropriate test on a strike out application as well as on a separate trial on the issue of capacity in clear and simple language.

Imputation (a)

6. The references to the plaintiff ruling Football Wagga in a dictatorial style can be found in paragraph 3 (“Donna Baker’s Football Wagga regime”), paragraph 4 (“Donna Baker’s ruled with iron fist”), paragraph 6 (“unrepentant management style”), paragraph 22 (“Baker’s ruthless and possessive regime”), paragraph 29 (“the dictatorship Baker is running”), paragraph 42 (“She is trying to dictate”) and paragraph 44 (“hell-bent on running the competition with an iron fist”).

7. I have set out these passages because an understanding of the portions of the matter complained of which give rise to this imputation is necessary to deal with the defendants’ objection to its form.

8. The defendants, relying on Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [52]-[60] and Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [118]ff, assert that a plaintiff can rarely, if ever, encapsulate the sting of the matter complained of by merely pleading words used in the matter complained of as the imputation for which the plaintiff contends. It is asserted that the word “dictatorial” contains ambiguity, and that the plaintiff must identify what aspect of dictatorial style is being referred to.

9. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688, Hutley JA noted:

“Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable hearer would make of it.”

10. This is the first of many statements by the New South Wales Court of Appeal concerning the entitlement of a party to plead an imputation using the language of the matter complained of. The correctness of Hepburn was restated forcefully by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 148. Ten years later, Hodgson JA in John Fairfax Publications Pty Ltd v Blake; David Syme & Co Ltd v Blake (2001) 53 NSWLR 541 at [52]-[54] referred to both Hepburn and Drummoyne Municipal Council when holding that there were instances where a pleader could use the words of the matter complained of. Another such example is Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 where at [29] McColl JA noted that the use of the words of the matter complained of is permissible. Finally, in Malcolm, it should be noted that the imputation in question, namely that the plaintiff “had abducted and indecently assaulted a seven-year-old boy” is directly drawn from the matter complained of, which referred to the plaintiff as someone who was suspected of “abducting and indecently assaulting a seven-year-old boy”. The entitlement of the plaintiff to use this form appears not even to have been questioned in Malcolm.

11. The technical arguments about forms of imputations should be looked at with particular care in relation to actions brought under the Defamation Act 2005 (NSW) as the imputation is no longer the cause of action.

12. In Holmes v TCN Channel Nine Ltd (2007) 4 DCLR (NSW) 394; [2007] NSWDC 137, I noted at [16] that if there was any philological basis for claims that words such as “dictatorial” were ambiguous, it was surprising that there had never been any references to works on philology or semiotics (other than the dictionary, if that can be called a philological work) in any judgments on this topic. This application is no exception. Mr Sibtain asserts, in an ex cathedra style, that the word “dictatorial” is ambiguous because it is possible for there to be a “benevolent dictatorship” without referring me even to the dictionary.

13. I see no ambiguity in the word “dictatorial”. When seen in the context of the matter complained of, it is quite clear that the plaintiff is being called a dictator. The language of the matter complained of is such that the plaintiff can best encapsulate the defamatory sting of the repeated references to a dictatorial regime by the use of the words “dictatorial”. Accordingly, the application to strike out imputation (a) must fail.

Imputation (b)

14. Again, the capacity of the imputation is not challenged; the objection is to form. The relevant passages for this imputation include many of those set out above.

15. The defendants submit that no act on the part of the plaintiff is specified and that in those circumstances it is possible that the plaintiff has turned Football Wagga into a ruthless and possessive regime by accident, or by some well-meaning act on her behalf. The defendants submit that saying that the plaintiff has done something which has a consequence that Football Wagga has become a ruthless and possessive regime can convey nothing in terms of an act, and further that as a result the imputation cannot be defamatory.

16. To say of any person that they had turned a football club into a ruthless and possessive regime is permissible in circumstances where the matter complained of is similarly non-specific. As Gleeson CJ explained in Drummoyne Municipal Council at 137, an imputation need only be as specific as the matter complained of. Gleeson CJ went on to note that if the matter complained of said “X is disgusting” then the appropriate imputation was that “X is disgusting”. This article is a good example of that principle.

17. I note that imputation (e) was withdrawn during argument. I have taken that into account in relation to submissions on costs.

18. In Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 Simpson J deplored the bringing of unnecessary technical arguments (in that case an assertion that an imputation was rhetorical). It is to be hoped that the introduction of the new Defamation Act, the provisions of s 56 Civil Procedure Act 2005 (NSW) and the wise counsel of the Court of Appeal in Dennis as to the special statutory requirements for parties to conduct defamation cases in an efficient way ensure that arguments of this nature will become less frequent in defamation proceedings.

Orders

1. Defendants’ application to strike out imputations (a) and (b) as deficient in form dismissed.

2. The plaintiff pay the defendants’ costs thrown away by reason of amendments to the Statement of Claim.

3. Defendants pay two thirds of the plaintiff’s costs of the argument today.

4. Gibson DCJ’s reasons for judgment to be forwarded to the parties by email.

5. Matter stood over for further directions to Friday 8 August 2008 at 9:00am.

Schedule

The bottom line

1. Football Wagga President must go

2. [photograph of football players]

3. Caption : DOWN AND OUT : The Riverina’s football community must support Sam Stedman in a bid to topple Donna Baker’s Football Wagga regime.

5. In the past fortnight, Football Wagga president Donna Baker’s integrity has been brought into direct question.

6. The association’s reputation has been dragged through the dirt and those linked with its control blind to the misguiding ways of its unrepentant management style.

7. While Cootamundra’s captain-coach Sam Stedman was hung out to dry, Baker and her committee encountered little resistance over their decision to suspend the much-loved striker for eight weeks.

8. It’s a ban which permits Stedman minimal contact with the club and its players until the second week of this season’s final series.

9. He has been stripped of his role as coach, his passion for the game bottled up and taken away.

10. Stedman’s comments, the association claims, were a direct and loaded attack on Football Wagga and the rules and regulations governing the game.

11. The captain-coach did little more than question the cancellation of a fixture and suggested his team would feel hastened to travel to Wagga for its completion.

12. The punishment doesn’t fit the crime, despite Baker’s best efforts in justifying the heavy-handed suspension.

13. The Football Wagga boss says the association made the correct decision, following strict guidelines set down by the game’s governing body, Football NSW.

14. She claims the association worked closely with Football NSW in delivering a suitable punishment for the so-called lippy Cootamundra skipper.

15. Guidelines were adhered to and fundamental processes followed during the judicial hearing, according to Baker.

16. She has openly lied to Wagga’s football community for the past fortnight.

17. People have taken Baker’s word as gospel. She has many faults as an administrator; dishonesty is one of them.

18. When contacted by the Advertiser late last week, Football NSW claimed they knew nothing of Stedman’s battle with Baker and the association-run judiciary.

19. “That was the first time we heard about the suspension”, Football NSW spokesperson Angela Habashy revealed last week. “Football NSW didn’t have anything to do with directly suspending the player involved.”

20. Habashy dismissed suggestions that the game’s governing body played any role in rubbing out Stedman for the remaining weeks of the home-and-away season.

21. Despite falling under the same banner, Football Wagga and Football NSW are worlds apart.

22. Football NSW is as much to blame for Stedman’s current situation as Baker’s ruthless and possessive regime.

23. They refused to speak on the matter, instead replying through a short three-paragraph email, 24 hours after initial contact was made seeking clarification on the suspension.

24. Football NSW did everything they could to distance and remove themselves from Stedman’s case.

25. It was a pathetic showing of leadership, considering the severity of the ban.

26. The head office in Sydney appears to have a set method of dealing with its member associations. They hand out a complimentary booklet with a list of dot points and imaginary guidelines at the start of each season.

27. Football Wagga, Baker continues to tell us, regularly turns to the colourful brochure when making important decisions.

28. Given the developments of the past fortnight, Football NSW doesn’t know what is happening in its own backyard.

29. They are blind to the dictatorship Baker is running in the Riverina and, rightly or wrongly, has [sic] no intention of intervening.

30. In essence, Football Wagga is calling the shots, not the state’s governing body in Sydney.

31. Stedman will launch an appeal in the coming weeks. However, his chances of having the suspension overturned seem unlikely.

32. The captain-coach needs the support of the Riverina’s football community.

33. Letters and emails backing Stedman have been endless. Few lauded Baker’s decision to ban him.

34. One Pascoe Cup first-grade coach did. Wagga United’s Andrew Douglas took a swipe at those who questioned the outcome.

35. He placed his full support behind the under-siege association.

36. He also refused to let the comments run in the Advertiser. He wished to remain unnamed.

37. Douglas is out of touch with his own club; two of his most senior players have slammed Baker on countless occasions.

38. Shame on you. Your comments serve little purpose.

39. Supporters of football in the Riverina must find their voice. Too long have they feared being targeted by Baker and her callous actions.

40. The code remains a laughing stock while the current plight is allowed to continue.

41. Baker has barred Stedman from speaking to the media for the next eight weeks.

42. She is trying to dictate terms and manage the competition like it’s her own personal playground.

43. We run the agenda, not Football Wagga.

44. Football and the Advertiser will last far longer than an insecure president, hell-bent on running the competition with an iron fist.

******

18/06/2008	-	Typographical error - Paragraph(s) 10
18/06/2008	-	Typographical error - Paragraph(s) 10 and 18