Bond v John Fairfax Publications Pty Ltd
[2001] WASC 336
BOND -v- JOHN FAIRFAX PUBLICATIONS PTY LTD & ANOR [2001] WASC 336
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 336 | |
| Case No: | CIV:1650/2000 | 22 NOVEMBER 2001 | |
| Coram: | McLURE J | 14/12/01 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application successful in part | ||
| B | |||
| PDF Version |
| Parties: | ALAN BOND JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720) MARK DRUMMOND |
Catchwords: | Defamation Application to strike out defence Extension of time to make application True innuendo Particulars of justification Turns on own facts |
Legislation: | Supreme Court Rules, O 20 r 19(3), O 59 r 9 Criminal Code, s 371 |
Case References: | R v Boyce (1956) 40 Cr App R 62 Birmingham v West Australian Newspapers Ltd [1999] WASC 19 Bristile Ltd v The Buddhist Society and Western Australia Inc and Anor [1999] WASC 259 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Foreman v Federal Commissioner of Taxation (1983) 69 FLR 386 Gardiner v Ray [1999] WASC 140 General Steel Industries v Commissioner for Railways (1964) 112 CLR 125 Girando v Girando (1997) 18 WAR 450 Goody v Odhams Press Ltd [1967] 1 QB 333 Gumina v Williams (No 1) (1990) 3 WAR 342 Gumina v Williams (No 2) (1990) 3 WAR 351 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 Jackamarra v Krakouer (1998) 195 CLR 516 Jones v Skelton [1963] 1 WLR 1362 Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 Lewis v Daily Telegraph Ltd [1964] AC 234 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Moir v Flint & Anor [2001] WASC 183 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Plato Films Ltd v Speidel [1961] AC 1090 Polly Peck (Holdings) Plc v Trelford [1986] 2 WLR 845 Premier Gold & Ors v Ocean Resources NL & Ors, unreported; SCt of WA (Master Adams); Library No 940738; 14 December 1994 Ratnam v Cumarasamy [1964] 3 All ER 933 Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 90 Robinson v Adshead (No 2) (1995) 12 WAR 577 Slayter v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 Smith & Anor v Littlemore & Ors (1996) 15 WAR 289 Sutherland v Stopes [1925] AC 47 Taylor v Jecks (1993) 10 WAR 309 Turner v Bulletin Newspaper Co (1973) 131 CLR 69 Vitale & Ors v Bednall & Anor [2000] WASC 207 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720)
First Defendant
MARK DRUMMOND
Second Defendant
Catchwords:
Defamation - Application to strike out defence - Extension of time to make application - True innuendo - Particulars of justification - Turns on own facts
Legislation:
Supreme Court Rules, O 20 r 19(3), O 59 r 9
Criminal Code, s 371
(Page 2)
Result:
Application successful in part
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Mr R L Le Miere QC
Second Defendant : Mr R L Le Miere QC
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Freehills
Second Defendant : Freehills
Case(s) referred to in judgment(s):
R v Boyce (1956) 40 Cr App R 62
Case(s) also cited:
Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Bristile Ltd v The Buddhist Society and Western Australia Inc and Anor [1999] WASC 259
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Foreman v Federal Commissioner of Taxation (1983) 69 FLR 386
Gardiner v Ray [1999] WASC 140
General Steel Industries v Commissioner for Railways (1964) 112 CLR 125
Girando v Girando (1997) 18 WAR 450
Goody v Odhams Press Ltd [1967] 1 QB 333
Gumina v Williams (No 1) (1990) 3 WAR 342
Gumina v Williams (No 2) (1990) 3 WAR 351
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Jackamarra v Krakouer (1998) 195 CLR 516
(Page 3)
Jones v Skelton [1963] 1 WLR 1362
Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Moir v Flint & Anor [2001] WASC 183
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Plato Films Ltd v Speidel [1961] AC 1090
Polly Peck (Holdings) Plc v Trelford [1986] 2 WLR 845
Premier Gold & Ors v Ocean Resources NL & Ors, unreported; SCt of WA (Master Adams); Library No 940738; 14 December 1994
Ratnam v Cumarasamy [1964] 3 All ER 933
Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 90
Robinson v Adshead (No 2) (1995) 12 WAR 577
Slayter v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Smith & Anor v Littlemore & Ors (1996) 15 WAR 289
Sutherland v Stopes [1925] AC 47
Taylor v Jecks (1993) 10 WAR 309
Turner v Bulletin Newspaper Co (1973) 131 CLR 69
Vitale & Ors v Bednall & Anor [2000] WASC 207
(Page 4)
1 McLURE J: This is the plaintiff's application for an extension of time to apply and to strike out pars 4, 5 and 7 of the defence.
Extension of Time
2 The defence was filed and served on 3 April 2001. Under O 20 r 19(3) of the Supreme Court Rules ("Rules") a strike-out application must be made within 21 days of the service of any pleading. That period expired on 24 April 2001. The plaintiff filed its chamber summons seeking orders extending time and to strike out the defence on 28 May 2001.
3 The plaintiff relies on an affidavit of Jason MacLaurin sworn on 28 May 2001 to explain the plaintiff's failure to comply with the Rules.
4 The defendants were first made aware of the plaintiff's objections to the defence on 24 April 2001. Thereafter the parties conferred as required by O 59 r 9 of the Rules. In the period between service of the defence and 24 April 2001, it appears the pleading was considered by the plaintiff's legal advisers and instructions were obtained from the plaintiff concerning the application. However, there is no evidence which satisfactorily explains the reasons for the delay which occurred prior to the commencement of conferral with the defendants.
5 However, it was accepted by both parties that the merits of the strike-out application may be a material consideration in the exercise of the discretion to extend time. In particular, if the defence raises false issues or otherwise prejudices the plaintiff, that will weigh heavily in the balance in favour of extending time.
Merits of the Application
6 At the commencement of the hearing, counsel for the plaintiff informed the Court that he did not press the objection to par 7 of the defence. The only matters in issue relate to pars 4 and 5 of the defence. Those paragraphs of the defence respond to the words complained of by the plaintiff and the imputation he relies on. The publication the subject of the action is in the following terms:
"Who would have figured on Bell Resources being a stellar share market performer after Alan Bond had been convicted of stealing more than $1 billion in cash from the company in Australia's biggest corporate heist?
(Page 5)
- Well, Alan Bond, for one.
According to a document obtained by the Australian Financial Review - a document Bond claims must have been stolen from him for this newspaper to have received it - the Perth corporate criminal appears to have almost doubled his money on an investment in Bell Resources a few months after October 1998.
Ironically, Bond was still in the maximum-security Casuarina Prison in Western Australia at the time, serving a 7 year sentence on the Bell Resources conviction."
7 The plaintiff says that the matter complained of in its natural and ordinary meaning was that:
"… the plaintiff has been convicted of stealing $1 billion in cash from the Bell Resources Corporation."
8 Paragraphs 4 and 5 of the defence materially provide:
4. The matter complained of was meant and understood by all readers of the First Defendant's newspaper to mean that the Plaintiff had been convicted of failing to act honestly and with intent to defraud in his capacity as a company director by participating in transfer of $1 billion from Bell Resources Ltd (or its subsidiaries) to companies in which the Plaintiff had a personal interest, which funds were never repaid, which convictions had been widely and extensively publicised throughout Western Australia such that they were and are notorious facts, in which meaning it was true in substance and in fact.
Particulars of Truth
- By reason of the facts admitted by the Plaintiff and set out in the schedule hereto, the Plaintiff was convicted of two offences of contravening s 229(1)(b) of the Companies (Western Australia) Code because he, as a director of Freefold Pty Ltd, with intent to defraud that company and its shareholders, failed to act honestly in the exercise of his power and the discharge of his duties as an officer of that company by causing it to enter an arrangement whereby it granted a loan facility of
(Page 6)
- $700,000,000 to Bond Corporation Holdings Ltd and then extending that facility to an amount of $1 billion.
- 5. Further and alternatively, the matter complained of in its natural and ordinary meaning meant and was understood to mean that the Plaintiff stole $1 billion from Bell Resources Ltd, in which meaning it is true in substance and in fact.
Particulars of Truth
The facts set out in the Schedule hereto and which have been admitted by the Plaintiff constitute the fraudulent conversion by the Plaintiff of approximately $1 billion the property of Bell Resources Ltd (or its subsidiaries) to the use of Bond Corporation Holdings Ltd.
9 The statement of facts in the schedule (referred to in pars 4 and 5) is a document of 19 pages containing 51 paragraphs of facts presented in narrative form.
10 The plaintiff says of par 4 of the defence that what in form may appear to be a plea of true innuendo is in substance a plea of false innuendo which is incapable of arising from the matter complained of. It is said the plea that the convictions were "notorious facts" had the consequence that the relevant language had acquired a secondary meaning in general usage.
11 That is not the defendants' case. What the defendants say is that by reason of its readers' pre-existing knowledge, they would regard the matters complained of, and in particular the reference to "stealing", as a shorthand reference to the actual convictions of which they were aware. I regard the defendants' position as arguable.
12 There is no dispute between the parties as to the test to be applied. An imputation will be struck out if it is untenable or manifestly groundless. The imputation pleaded in par 4 of the defence does not satisfy that test.
13 Although the pleading is not in orthodox form, it contains all of the necessary elements of a true innuendo, being the imputation, the relevant extrinsic facts (the imputation and the extrinsic facts overlapping) and the knowledge of all readers of those extrinsic facts . In this case the defendant must plead (and then prove) that all the persons to whom the
(Page 7)
- words were published were aware of the relevant extrinsic facts. The pleading satisfies the requirement. Whether and, if so, how it is to be proved is another matter. Although the defendant does not fully particularise the basis of its assertion that the extrinsic facts were "notorious", any omission in that regard can be cured by request for particulars.
14 There is another matter. I was initially unclear as to the role and purpose of the particulars to par 4. However, I was informed by the defendants that par 4 performs the dual function of identifying the true innuendo and then justifying the innuendo. No objection was taken by the plaintiff to that course. For these reasons the plaintiff's challenge to par 4 fails.
15 After some discussion, counsel for the defendant said par 5 of the defence is to be regarded as a Polly Peckplea. Whereas the imputation relied on by the plaintiff refers to the plaintiff having been "convicted" of stealing, the defendants' imputation is that the plaintiff stole $1 billion.
16 The plaintiff says that the defendants' imputation is incapable of arising from the words complained of because it is "an impermissible abstraction from the clear meaning and defamatory sting of the publication complained of". I disagree. It is at least arguable that a statement that a person was convicted of stealing carries the imputation that the person is guilty of stealing. That is in substance what the defendant has pleaded.
17 The plaintiff also contended that the word "stealing" or "stole" was incapable of conveying to the ordinary reasonable reader anything other than property being wrongly acquired for the direct benefit of the thief. It followed, according to the plaintiff, that an imputation of stealing could not be justified by proving fraudulent conversion to the benefit of a third party. As the defendant points out, fraudulent conversion of this nature falls within the definition of stealing in s 371 the Criminal Code.
18 Regardless of the definition in the Criminal Code, I do not accept the plaintiff's submission that an ordinary reasonable reader would necessarily understand "stealing" in the limited way he seeks to define it. This may be an indirect way of raising an issue as to whether the defendant's imputation is the final distillation of the sting, an argument the plaintiff would find difficult to advance in view of its pleaded imputation.
19 A further ground of objection to par 5 is that the plaintiff is embarrassed by the defendants reliance on the statement of facts in the
(Page 8)
- schedule. The plaintiff complains that the schedule deals with a number of transactions over significant periods of time involving a number of different parties and companies and it is unclear precisely what the act of "stealing" is alleged to be. I accept that contention. The defendant relies on fraudulent conversion. Fraudulent conversion occurs, inter alia, where money or property entrusted to a person for a particular purpose is used for some other purpose, the misuse being fraudulent and dishonest: R v Boyce (1956) 40 Cr App R 62.
20 It is difficult to identify the separate elements of the offence of fraudulent conversion from the statement of facts. Intent to defraud is only one element. The plaintiff suggested that the facts did not justify the "conversion" element of the offence. The argument was not developed in detail and was responded to with the same level of generality by the defendant. I do not propose to deal with that submission in this application. It is incumbent on a defendant pleading justification to clearly identify the specific facts on which it relies in support of the plea. It is embarrassing, unfair and potentially prejudicial to provide a narrative history compiled for a particular purpose (and in relation to different offences) where the reader is left to speculate as to what the defendants' say are the material facts, the particulars to support those material facts and what, if any, material is evidence or irrelevant surplusage. The appropriate course is for an extension of time to be granted and for par 5 to be struck out with the defendant being given leave to replead. Once the defendant has identified the material facts on which it relies to prove fraudulent conversion (supported by any necessary particulars), an assessment of whether the facts are capable of justifying the imputation can be made.
21 Accordingly, I propose to order that the plaintiff be granted an extension of time to bring its application and that par 5 of the defence be struck out with the defendant having liberty to replead that paragraph.
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