Bateman v Fairfax Media Publications Pty Ltd (No 4)

[2015] NSWSC 610

Supreme Court

New South Wales

Medium Neutral Citation:	Bateman v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 610
Hearing dates:	1 May, 6 May, 15 May 2015
Date of orders:	26 May 2015
Decision date:	26 May 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Publication of reserved reasons for various rulings
Catchwords:	DEFAMATION – pleadings – application by plaintiff to amend claim against a source quoted in a newspaper article – where action based on original interview statute-barred – whether amendment to plead original interview based on the same facts as existing pleading – whether arguable that the source is liable for the whole article DEFAMATION – defences – contextual truth – whether defendants should be allowed to amend to plead new contextual imputation – whether capable of arising
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 64(1)(a), 65(2)(c), 65(3) Limitation Act 1969 (NSW), s 14B
Cases Cited:	Bracks v Denoon (Supreme Court of New South Wales, Nicholas J, 14 December 2006, unreported) Bracks v Smyth-Kirk [2009] NSWCA 401 Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 Dank v Cronulla-Sutherland District Rugby League Football Club [2014] NSWCA 288 Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20 Rossen v Airey [2012] WASCA 26 Webb v Bloch (1928) 41 CLR 331
Category:	Procedural and other rulings
Parties:	Edmund Thomas Gregory Bateman (First Plaintiff) Idameneo (No 123) Pty Limited (Second Plaintiff) Fairfax Media Publications Pty Limited (First Defendant) Fairfax Digital Australia &New Zealand Pty Limited (Second Defendant) Natashia Wallace (Third Defendant) Vanda Carson (Fourth Defendant) Jeremy Cumpston (Fifth Defendant)
Representation:	Counsel: S Chrysanthou (plaintiffs) ATS Dawson (defendants) Solicitors: Gilbert & Tobin Lawyers (Plaintiffs) Banki Haddock Fiora (Defendants)
File Number(s):	2013/203163
Publication restriction:	None

Judgment

1. HER HONOUR: This is an action for defamation and injurious falsehood commenced by Dr Edmund Bateman arising out of a number of articles published in The Sydney Morning Herald. The matters complained of were published in October 2010. The action was commenced (in the Supreme Court of the Australian Capital Territory) in November 2010. Since that date, the proceedings have suffered a series of delays not due to the fault of the plaintiff.

2. The plaintiff recently sought expedition of the hearing of the proceedings. The matter is now listed for hearing on 27 July 2015. Since obtaining that fixture, the parties have made a number of further interlocutory applications which, having regard to the approaching hearing date, have had to be heard and determined with a measure of urgency. On 22 May 2015, I indicated my rulings on those applications as follows, reserving my reasons:

1. the plaintiff applied for leave to amend the statement of claim so as to re-plead the case against the fifth defendant, Dr Jeremy Cumpston. I indicated that the application was to be refused;

2. Dr Cumpston applied to have the existing pleading against him struck out and the proceedings as against him dismissed with costs. I indicated that the existing pleading of the defamation case against Dr Cumpston was to be struck out. As to whether it follows that the proceedings against him are to be dismissed with costs, the plaintiff is to be afforded an opportunity to be heard as to the damage element of a proposed claim in injurious falsehood;

3. the defendants applied for leave to file a second further amended defence pleading a new contextual imputation. I indicated that the application was to be refused.

3. This judgment states my reserved reasons for the rulings indicated and formalises those rulings.

Plaintiff’s application for leave to amend

4. In the existing pleading, there are four matters complained of. The first and second are virtually the same, being an article published in the printed edition of the newspaper and the online version of the same article. The article focuses primarily on a dispute between Dr Bateman (described as Australia’s “pioneer” of corporatised GP care) and Dr Cumptson (a GP who sold his practice to that “empire”). The article also reports on related disputes between Dr Bateman and other doctors. It is convenient to refer to the first and second matters complained of collectively as the first article.

5. The third and fourth matters complained of are also virtually the same, being a further article published in the printed edition of the newspaper and the online version of that article. The proposed amendments are concerned only with the first article.

6. The first article was published under the headline “GPs hauled into court by medical centre giant”. It was introduced with the following remarks:

Dozens have been sued, felt harassed to work longer hours or otherwise fallen foul of Australia’s richest doctor, writes Natasha Wallace.

7. The first part of the article describes the “David and Goliath legal battle” between Dr Cumpston and Idameneo, the company that manages the Darlinghurst Medical Centre. It continues with a description of disputes between Idameneo and other doctors who have been sued by Idameneo, stating:

A Herald investigation has revealed that Idameneo is involved in dozens of court cases across the country, suing everyone from its former GPs to the Tax Commissioner.

8. Dr Bateman is identified as the man behind Idameneo.

9. The article includes a small number of direct quotes attributed to Dr Cumpston. It also features a photograph of him which it may readily be inferred was taken and used with his consent.

10. The existing statement of claim (which is the original statement of claim, filed on 30 November 2010) pleads a cause of action against Dr Cumpston as a publisher of the first and second matters complained of, that is, as a publisher of the whole of the first article. The only particular provided in support of the contention that Dr Cumpston is liable as a publisher of the whole article is as follows:

The fifth defendant was the source of, gave an interview for and was quoted in the first matter complained of.

11. Within a month of receiving the statement of claim, the defendants sought particulars of that allegation, asking the plaintiff to specify the particular passages of the matter complained of in relation to which it was alleged Dr Cumpston was the source and the facts, matters and circumstances to be relied upon in support of that contention. The plaintiff responded by simply repeating the allegation that Dr Cumpston was the source for the article, “not merely a part or parts of it”.

12. In March 2011, the defendants replied:

In the circumstances, we fail to see how your client could have any basis for alleging that our client the fifth defendant published the entirety of the first matter complained of.

13. The correspondence on that issue ended there and no application was made by the plaintiff to amend his pleading at that stage.

14. In March 2015 the defendants notified the plaintiff of their application to strike out the existing pleading as against Dr Cumpston (the second application determined in this judgment, considered below). The amendment now proposed was propounded in response to that application. It was noted on behalf of Dr Bateman that Dr Cumpston’s strike-out application was brought “some three and a half years” (in fact more) after receipt of the statement of claim. It may equally be observed that the amendment application itself was brought some four years after the plaintiff was put on notice by Dr Cumpston of the contention that there was no basis for holding him responsible as a publisher of the whole of the article.

15. The proposed amendment seeks to address that contention by removing the allegation that Dr Cumpston is a publisher of the whole of the first article; adding a new cause of action, being the “initial publication” by Dr Cumpston to the journalist; pleading that Dr Cumpston is liable for the republication of the initial publication (his words alone) in the first and second matters complained of and adding a new cause of action in injurious falsehood based on representations allegedly made in the initial publication.

16. Ms Chrysanthou, who appears for Dr Bateman, characterised the new cause of action as doing no more than to alter the characterisation of Dr Cumpston’s liability, “from Webb v Bloch to republication”.

17. The first hurdle to that course is the fact that the initial publication (the publication of any defamatory words said by Dr Cumpston to the journalist) is statute-barred. The limitation period for an action in defamation is one year from the date of publication: s 14B of the Limitation Act 1969 (NSW). Ms Chrysanthou submitted, however, that the Court has power under s 64(1)(b) of the Civil Procedure Act 2005 (NSW) to grant leave to amend on the basis that the new cause of action “arises from the same (or substantially the same) facts as those giving rise to an existing cause of action” so as to fall within s 65(2)(c) of the Act. An amendment made under that provision is taken to have had effect as from the date on which the proceedings were commenced: see s 65(3) of the Act.

18. Ms Chrysanthou submitted that both the existing cause of action and the new cause of action arise from the facts alleged in the particulars given in the original pleading (that Dr Cumpston “was the source of” and “gave an interview for” the first matter complained of). The contention that he was the source of the article was explained as meaning, in effect, that Dr Cumpston proposed the story to the newspaper.

19. While that argument has some superficial attraction, I do not think it withstands careful analysis. The task under s 65(2)(c) is not to inquire whether the pleader has had the ingenuity to plead a new cause of action specifying the same or substantially the same particulars but whether, properly analysed, the two causes of action actually arise from the same or substantially the same facts.

20. The real difficulty for the plaintiff in the present case is that, in truth, the new cause of action is not an alternative cause of action arising from the same facts but rather the only cause of action arising from those facts. For the reasons explained below in respect of Dr Cumpston’s strike-out application, I have concluded that the current particulars are not capable of sustaining an existing cause of action (that currently pleaded as Webb v Bloch liability). In my view, this is not a case of adding an alternative legal analysis of the facts giving rise to an existing cause of action but rather of pleading (at last) the only available legal analysis of those facts. It is for that reason alone that Ms Chrysanthou is able to point to similarity in the facts from which the two causes of action are alleged to arise.

21. Dr Cumpston submitted that, properly analysed, the new cause of action does not arise from the same facts. That argument finds support in the decision of the Western Australia Court of Appeal in Rossen v Airey [2012] WASCA 26; applied by Beech-Jones J in Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20.

22. In Rossen v Airey the Court rejected an application to amend where the plaintiff had mistakenly sued the wrong entity as proprietor of the relevant newspaper. The Court said (at [31] per Newnes JA; Pullin JA and Allanson J agreeing at [1] and [42] respectively):

A fundamental fact necessary to give rise to a cause of action in defamation is the fact of publication of defamatory material to a third party. The fact that defamatory material was published by X to A is a quite different fact to the publication of the same material by X to B.

23. In Linnell, Beech-Jones J relied on Rossen v Airey as authority for the proposition that publication by a person giving an interview to a journalist is a different fact from publication by the journalist of a subsequent article, telling “decisively” against an application of the present kind: at [24].

24. Ms Chrysanthou submitted that, if the decision in Linnell is against the plaintiff’s application, it is wrongly decided. I do not accept that submission. I would respectfully agree with Beech-Jones J’s analysis in that case. For that reason alone, the application to amend so as to include the initial publication should be dismissed.

25. A further reason for refusing that application is that the plaintiff still does not know, and so cannot plead, the terms of the initial publication. So much was, in effect, acknowledged by the plaintiff. It was proposed that, in order to address that difficulty, the Court should direct the fifth defendant to answer interrogatories of the kind allowed in Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101. That was an application made close to the outset of the proceedings in response to an objection to the form of the pleading. The objection raised essentially the same point as was raised by the defendants in these proceedings in early 2011.

26. The fact that the new cause of action in these proceedings (the initial publication to the journalist) cannot be pleaded in terms and is dependent upon the administration of such interrogatories militates strongly against the grant of leave at this stage, in my view. That is particularly so given the short time until the hearing (expedited on the application of the plaintiff).

27. For those reasons, I do not think the amendment can properly be allowed insofar as it adds the initial publication as a new cause of action.

28. Ms Chrysanthou submitted that, even if the initial publication does not fall within s 65(2)(c) of the Civil Procedure Act, the amendment should be allowed in relation to the first and second matters complained of. The form of the amendment in respect of those causes of action is to plead that the words said by Dr Cumpston to the journalist were republished by the newspaper in the article. The matter complained of by way of republication accordingly consists only of the words said by Dr Cumpston, not the whole article.

29. The defendants submitted that this approach (of suing other defendants for the whole of the article while suing Dr Cumpston only for part) is forbidden by common law rules of pleading and by ss 4 and 8 of the Defamation Act 2005 (NSW) (which provide that a newspaper article is a “matter” and that there is a single cause of action in respect of a matter). Ms Chrysanthou resisted that proposition, submitting that the authorities are to the contrary.

30. With great respect to Ms Chrysanthou, I do not think the authorities to which she referred support the course now sought to be taken by the plaintiff. In my view, the determination of this issue is settled by the authority of Bracks v Denoon (Supreme Court of New South Wales, Nicholas J, 14 December 2006, unreported); considered with apparent approval by the Court of Appeal in Bracks v Smyth-Kirk [2009] NSWCA 401 at [53] to [55] per McColl JA; Allsop P agreeing at [1]. Nicholas J was firmly of the view that the act of publication of “the Denoon segment” in a letter could not be seen as separate and distinct from the act of publication of the whole of the letter. I would respectfully adopt his Honour’s reasoning in that case.

31. For those reasons, I have concluded that the proposed pleading of the republication, if it can be said to fall within s 65(2)(c), fails to disclose a reasonable cause of action and should not be permitted.

Fifth defendant’s strike-out application

32. It remains to consider whether Dr Cumpston can be held liable on the basis of the existing pleading, that is, as a publisher of the whole of the first article on the strength of the principles stated in Webb v Bloch (1928) 41 CLR 331. As already indicated, in my view it is clear that he cannot.

33. The argument on this issue focused to a degree on whether the plaintiff should be allowed to rely on further particulars provided after he received answers to interrogatories from other parties to the proceedings. It is not necessary to determine that question since, in my view, the proposed new particulars are not capable of sustaining or saving the Webb v Bloch pleading.

34. As submitted by Mr Dawson, the case against Dr Cumpston proposed in the new particulars (plaintiff’s letter dated 4 May 2015) fails to articulate an arguable case that he is liable for the whole of the final form of the first article, as required in accordance with the principles considered by me in Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 (upheld by the Court of Appeal in Dank v Cronulla-Sutherland District Rugby League Football Club [2014] NSWCA 288 at [137]).

35. There is nothing in the proposed particulars to support an arguable case that Dr Cumpston had control over, or assented to, the final form of the publication. I do not think there is any other basis identified for holding Dr Cumpston liable as a publisher of the whole article. Ms Chrysanthou sought to make good the proposition that it was enough to say he was a contriver or procurer of the article. As promised, the authorities cited to support that proposition were entertaining but they shed little light on the content of any such principle.

36. Ms Chrysanthou further submitted that it is not “just, quick and cheap” to seek preliminary discovery whenever a source is sued. She submitted on that basis that a plaintiff should be entitled to plead the allegation of publication (presumably on the strength of direct quotes appearing in the matter complained of) and to supplement the pleading after discovery and interrogatories, at least in circumstances where the precise events are within the exclusive knowledge of the defendants. I do not find that a persuasive argument. To the extent that the argument appeals to case management considerations of expedition and economy, it is difficult to see why those considerations should not equally favour containing such interlocutory steps, at least where there is an effective remedy against the undoubted publishers of the final form of the article ( the media defendants). Case management considerations and the principle of proportionality favour keeping the action simple, particularly as a hearing date approaches.

37. For those reasons, I consider that the existing pleading as against Dr Cumpston fails to disclose a reasonable cause of action against him and should be struck out.

Proposed new contextual imputation

38. The defendants seek to amend their defences so as to rely upon a new contextual imputation in the following terms:

The first plaintiff engages in deception by using his substantial resources to entice doctors to move their practices to Primary Health Care and then to force them to work beyond the term of their contract.

39. I accept, as submitted on behalf of Dr Bateman, that the imputation is incapable of arising. In particular, I am not persuaded that the matters complained of are capable of conveying any element of deception. There is nothing in either article to suggest that Dr Bateman represented the position to be other than it was. Certainly, it is suggested that he forced doctors to work beyond the term of their contract but that is a sting amply captured in a number of the plaintiff’s imputations. Except perhaps at the level of philosophical debate, it cannot be said that the lure of wealth or reward is intrinsically deceptive.

40. Even if the matters complained of were capable of conveying any further contextual imputation, I would not be inclined to allow the defendants to amend their defences at this late stage. In my view, the time has come for these parties to bunker down and prepare for a trial on the existing issues.

Injurious falsehood

41. The defendants noted that the claim in injurious falsehood as against the fifth defendant is liable to be struck out in its present form, since it fails to plead the element of special damage. Ms Chrysanthou said that was due to oversight and would be cured. While it is difficult to see how the claim can survive the rulings given in this judgment, I did not think it would be appropriate to make an order dismissing the proceedings (as sought by Dr Cumpston) without first affording the plaintiff an opportunity to be heard on that issue.

41. The orders are:

1. that the plaintiff’s application to amend the statement of claim be dismissed.

2. that the existing defamation action as against Dr Cumpston be struck out;

3. that the defendants’ application to amend the defence to rely on contextual imputation 15(iii) be dismissed.

**********

Decision last updated: 27 May 2015