Buckley v Newcastle Newspapers Pty Limited (No 2)

[2008] NSWDC 102

CITATION:	Buckley v Newcastle Newspapers Pty Limited (No 2) [2008] NSWDC 102
HEARING DATE(S):	6 June 2008
JUDGMENT DATE:	17 June 2008
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Imputations 4(a), (b), (c) and (e) are to go to the jury. 2. Imputations 4(d) and 6 (a) – (d) are struck out with leave to plead imputations of suspicion. 3. Plaintiff’s Further Amended Statement of Claim (if any) to be filed and served in 14 days. 4. Objections to this pleading to be notified 14 days thereafter. 5. Matter re-listed for Friday 8 August 2008 at 9:00am for argument or for allocation of a s 7A jury trial. 6. Costs of this argument to be the defendant’s costs in the cause. 7. Liberty to apply re costs.
CATCHWORDS:	TORT - defamation - imputations - form and capacity
LEGISLATION CITED:	Defamation Act 1974 (NSW) Defamation Act 2005 (NSW)
CASES CITED:	Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Hamblin v Nationwide News Pty Ltd (Supreme Court of NSW, Levine J, 9 February 1998, unreported) Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 Mirror Newspapers v Harrison (1982) 149 CLR 293 Singleton v John Fairfax & Sons Pty Ltd (Supreme Court of NSW, Hunt J, 20 February 1980, unreported) Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273
PARTIES:	Plaintiff: Shane Buckley First Defendant: Newcastle Newspapers Pty Limited Second Defendant: Joanne McCarthy
FILE NUMBER(S):	1570 of 2008
COUNSEL:	Plaintiff: Mr D Harkin Defendants: Mr D Sibtain
SOLICITORS:	Plaintiff: Nicolas Moir & Associates Pty Ltd Defendants: Freehills

Judgment

1. The plaintiff brings proceedings for defamation for two publications by the Newcastle Herald on 22 and 23 December 2005. As they were published prior to the commencement of the Defamation Act 2005 (NSW) the defendants’ challenge to imputations needs to be considered under the law applicable to actions brought under the Defamation Act 1974 (NSW).

2. The plaintiff pleads that the first matter complained of (the text of which is annexure “A” to this judgment) gives rise to the following imputations:

(a) That the plaintiff took unauthorised rest periods whilst working in his professional capacity as nurse.
(b) That the plaintiff was responsible through his negligence for the death of Leona Escreet.
(c) That the plaintiff was grossly negligent in his professional capacity as nurse.
(d) That the plaintiff’s denial through counsel that he was sleeping whilst on duty was a lie, and he in consequence a liar.
(e) That the plaintiff was a person who would lie under oath.

3. The plaintiff pleads that the second matter complained of (the text of which is annexure “B” to this judgment) gives rise to the following imputations:

(a) That the plaintiff was negligent in his professional capacity as nurse in that he took unauthorised rest periods.
(b) That the plaintiff lied under oath.
(c) That the plaintiff made fraudulent entries into a patient’s records.
(d) That the gross professional negligence of the plaintiff led to the death of Leona Escreet at Gosford Hospital’s Mandala Clinic on October 3, 2002.

4. I shall deal with the objections to the capacity and form of the imputations in accordance with the principles set out in Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 and Dennis v Australian Broadcasting Corporation [2008] NSWCA 37.

Capacity

5. Each of the matters complained of is an account of a coronial inquiry. The defendants challenge the capacity of all of the imputations on the basis that an imputation of suspicion, at best, was made out.

6. Counsel for the plaintiff submitted that regard should be had to the whole of the published matter (Malcolm at [10]). While counsel for the defendants agreed that this was so, great emphasis was placed on the headlines and captions which, it was submitted, made it clear that there were two sides to the story: John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at 1662 per McHugh J.

7. Each matter must be considered separately from the other.

The First Matter Complained Of

8. The heading of this article is “Claims senior staff asleep on the job” and a series of pictures appear under the caption “Fight”. It is certainly clear from these parts of the publication that there are allegations which are being investigated.

9. The problem lies in the way the first three paragraphs of the article are presented. I have highlighted the relevant words:

“ A junior nurse fled a court in tears yesterday after evidence of unauthorised two-hour “breaks” by two senior staff on the night a Central Coast mental health patient took her own life.

A barrister for the two male nurses said they would deny sleeping on the job at Gosford Hospital’s Mandala mental health unit, or attempting to coerce the junior nurse to withhold or change her evidence to hospital executives or police.

But Gosford coroner Gary Cocks told the court that “somebody behind a locked door may not be overly attendant on what’s going on in the outside world…and may not be paying attention to their job.”

The longer bow that could be drawn is that they were sleeping” he said.

10. This crying witness fleeing the court (after giving evidence) is followed by the denials of the plaintiff’s barrister, but it is not clear from the matter complained of whether the barrister’s subsequent denials are made in court or out of court as the crying witness runs away, or indeed whether those denials will ever be a part of the coronial inquiry, as opposed to the coroner making up his mind on the evidence he has already heard.

11. Whether the denials have been, or will be, made in or out of court, is only part of the problem. The denials are followed by the paragraph commencing “But”, in which the coroner “told the court” that the plaintiff and his colleague “may not be overly attendant” and “may not be paying attention to their job”. The “longer bow” (i.e. the unresolved issue) is whether they were in fact sleeping.

12. The use of the word by the journalist “But” contradicts what the barrister is saying by putting forward what the coroner “told” the court. The coroner’s statements come close to sounding like a concluded view or even a finding. To the ordinary reasonable reader, these statements may be capable of creating the impression that negligence may have been decided by the coroner, and that all that remains in doubt is whether or not the plaintiff and his colleague were sleeping.

13. The rest of the publication describes the other part of the conduct of the plaintiff and his colleague of a concerning nature, this being the conduct towards the witness who left the court in tears after giving evidence. This arises from paragraph 9, where the coroner told the court that “matters of a grossly concerning nature” had been raised “after” the whistleblower’s evidence and that he was concerned that there was a “hint of duress”. This evidence is described in some detail, and followed by the comment of the dead woman’s sister that she was “disgusted” (paragraph 23).

14. The article concludes with the words that the inquest “continues today”, which makes it clear that this is an ongoing saga.

15. As the Court of Appeal noted in Dennis at [8], whether or not an imputation is capable of arising from a publication is, to a significant degree, a matter of impression. The test to apply is explained by the Court of Appeal in Malcolm at [10], [14] and [15]. The correct approach to determining the question of whether an imputations of guilt or merely suspicion are conveyed is explained at [16] – [22].

16. The facts in Malcolm were similar to the present. Some of the words in the matter complained of spoke clearly of suspicion only (“suspected”; “detectives believe this man… may be the person they are looking for”) while the headline stated categorically “Sex attacker caught on camera”.

17. The ordinary reasonable person, reading about events in court, well knows that there are two sides to every story. The mere fact that a person is under investigation is not enough to impute guilt: Mirror Newspapers v Harrison (1982) 149 CLR 293. However, where a newspaper account is accompanied by an account of the suspicious circumstances that have aroused authorities, or where the likely result is telegraphed by the use of flavoured language (e.g. the “whistleblower” who came forward, the witness running away from court in tears, the “disgusted” relatives of the deceased, the “concerned” coroner who “told” the court) it is more likely than not for it to be best to leave the question of whether suspicion or guilt is conveyed to a jury.

18. Having noted these general principles, I now turn to a consideration of the submissions in relation to each of the imputations of the first matter complained of.

19. Imputation (a), which states that the plaintiff took unauthorised rest periods whilst working in his professional capacity as a nurse, arises directly from paragraphs 10 – 12. The use of the phrase “the court was told…” that the hospital authorised two breaks of twenty minutes is not the language of suspicion, having regard to the whole of the article as analysed above. This imputation will go to the jury.

20. Imputations (b) and (c) arise from paragraph 6. Although the magistrate uses the word “may” and the article concludes by saying that the inquest will continue, the ordinary reasonable reader, who does not understand the niceties of a judge or coroner not making up his/her mind until hearing all the evidence at the end of the proceedings, could draw the conclusion that the coroner had “told the court” what his views on this issue were, and that the only area of doubt was whether the plaintiff and his colleague were actually sleeping as opposed to not paying attention to their job.

21. It is important, when lawyers and judges consider whether imputations of suspicion or guilt, that they should not factor in their own expert knowledge of the legal system. Reasonable minds may differ as to whether or not the passages in which the coroner “told the court” (paragraph 6) his views, even though the coroner used the word “may” twice. These imputations will go to the jury.

22. Imputation (d) is, however, very much on the borderline. The headline refers to “claims” of sleeping on the job, and the coroner excludes this from his more strongly expressed views, calling it the “longer bow” that could be drawn. The ordinary reasonable reader would read this as a suspicion only, not as fact, in that it sounds as though the coroner is saying that this “longer bow” is what he is looking into. In addition, the plaintiff’s barrister is quoted as saying that this (and the allegation of intimidating a witness to cover it up) is what the plaintiff will deny. Accordingly, this imputation is not conveyed; what is conveyed is an allegation of suspicion only.

23. If the plaintiff wishes to plead an imputation of suspicion in relation to the allegation of sleeping, he should seek leave to do so promptly: Dennis at [26]ff.

24. Imputation (e) does not simply relate to allegations of sleeping on the job. It relates to the evidence generally of the plaintiff, including his barrister’s statements that he would deny attempting to coerce the crying witness (paragraph 5). The crying witness’s evidence is both the highlight (paragraph 4) and the bulk of the story (paragraphs 10 – 22) and is the evidence which “disgusted” the deceased’s family member (paragraph 23). This imputation is, in the context of the whole article, capable of conveying more than suspicion, and will go to the jury.

Objections to form of the imputations

25. The defendants raise a number of objections as to form of imputations. As I have struck out imputation (d) I shall not deal with the objection to form for this imputation.

26. The first objection raised in the letter from Freehills of 15 May is that imputation (b) fails to specify with any or sufficient clarity an act or condition that is defamatory. Secondly, it is rhetorical, because it poses the question of how the plaintiff is responsible. Thirdly, as an allegation of negligence, it does not differ in substance from (c).

27. The imputations says that the plaintiff was responsible “through his negligence” for the death of the patient. That is sufficiently precise, when the imputation is viewed against the context of the matter complained of: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 per Gleeson CJ.

28. No authority was provided in support of the submission that imputation (b) is rhetorical. In Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273 Simpson J at [22] – [24] criticised the bringing of this kind of submission. Imputation that is clear in its content as opposed to a rhetorical restatement or repetition of another imputation, and I endorse Simpson J’s plea that the time has come for defendants’ counsel to bury the practice of attacking imputations pleaded by plaintiffs on the basis that they are “rhetorical”. I have taken into account, on the issue of costs, the defendant’s raising of this unmeritorious argument notwithstanding Simpson J’s admonitions.

29. Imputations can be either an act (“the plaintiff stole two chickens”) or a condition (“the plaintiff is a thief”). Imputation (b) is an act and imputation (c) is a condition. It has always been permissible to frame imputations in this way: Singleton v John Fairfax & Sons Pty Ltd (Supreme Court of NSW, Hunt J, 20 February 1980, unreported).

30. The defendants draw my attention to the decision of Levine J in Hamblin v Nationwide News Pty Ltd (Supreme Court of NSW, Levine J, 9 February 1998, unreported). The reasons for Levine J’s findings relate to the facts of that case. Levine J was not stating that an act and a condition cannot be pleaded as both arising. In the present case, the coroner’s statement that “the issues raised after the whistleblower’s evidence” raised issues of a “grossly concerning nature” is not restricted to the death of the patient. This is not a case, unlike Hamblin, where the act and condition are the same. I reject the submission that these two imputations do not differ in substance.

31. Freehill’s letter of 16 May asserts that imputation (e) gives rise to “an impermissible ambiguity” as whether the plaintiff had committed the act in question or would merely be prepared to do so should the occasion arise was not spelled out.

32. I reject this submission. This imputation is framed as a condition, not as an act. There is no need for a temporal component. In fact the matter complained of also uses the word “would” (“A barrister for the two nurses said they would deny…”) in paragraph 3.

33. In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688B Hutley JA commented that it seemed disingenuous for a defendants to assert a word it had used was a word without meaning. The correctness of Hepburn has never been doubted and it is applicable to the arguments in question here.

Second matter complained of

34. The second matter complained of is headed “Gaps in patient care”. The subheading “Anger at witness accounts prompted nursing head’s evidence, inquest told” appear on the next line. In paragraph 3, the nursing head is described as a “whistleblower”, and this word appears in capital letters. It is made clear that this witness has come forward after being “incensed” by reading about the evidence of witnesses at the inquest, after having herself complained at the time to the hospital staff and being told the matter was being looked into.

35. Although much of the matter complained of consists of restatements of her evidence from her statement, parts of the matter complained of appear to come from other sources, such as the second last paragraph, which recites that in the weeks after the death of the patient, the whistleblower released a policy to the staff reiterating that staff were allowed only two 20 minute breaks.

36. This passage is particularly relevant to the capacity of imputation (a), which Freehills assert, in their letter of 16 May, conveys only that “the allegations have been made but have yet to be tested”. The plaintiff points to the combination of the heading, the reference to unauthorised rest periods and the reference to contemporaneous supporting documentation of this in the second last paragraph are capable of conveying that the plaintiff did take unauthorised rest periods. It is not clear from the publication if this is in the statement or if this is agreed fact.

37. I note the reference to the inquest being adjourned in the final paragraph. However, for the reasons set out in more detail above, it is important not to make the mistake of attributing to the ordinary reasonable reader the sophistication to understand that the coroner would wait until he had heard all the evidence and that these were allegations only.

38. A great deal of weight must be attached to the reference to “alleged” in paragraph 5 and to “alleged” comments (paragraph 9) from a junior nurse that the plaintiff was “sleeping on the job”. In addition, Ms Crowley is quoted as having conceded she did not use the word “sleeping” in her statement (paragraph 15).

39. The ordinary reasonable reader, reading the whole of the publication, would take into account that these were matters that were being looked into, and were not yet decided. The references to the failure to take departmental action because the hospital and the lawyers were also “looking into” this matter tend to reinforce this impression.

40. This publication conveys that the plaintiff was suspected of taking unauthorised rest periods by Ms Crowley, but the overall impression is one of suspicion, not guilt. The basis for the suspicion was the reference to the deceased having a “restless night” when she had in fact hanged herself at 4 am, which Ms Crowley said was an indication that the night report had been written well before her death.

41. Taking all of these features into account, the allegations in (a) convey suspicion but not guilt and accordingly imputation (a) is not capable of being conveyed. Imputation (a) is struck out.

42. Imputation (b) is asserted to arise from paragraphs 2 and 3, and from the language of the headline, which speaks of “gaps”, not alleged gaps.

43. Paragraph 5 says that the plaintiff is “alleged” to have taken the unauthorised breaks and paragraph 9 refers to allegations by a junior nurse that the plaintiff and his colleague were sleeping on the job.

44. For the same reasons as (a), this imputation is not capable of being conveyed and is struck out.

45. The first objection to (c) is that it would require the drawing of an inference that the person who made the fraudulent entry was the plaintiff.

46. This is not an inference case but a group libel case, where the plaintiff is one of two persons who could be the author of the fraudulent entry: McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485. Not only should this imputation be pleaded as arising as suspicion, but it should be pleaded in accordance with the principles for allegations against a member of a small group where one of that group is asserted to be the person who did something. For the same reasons as imputations (a) and (b), this imputation is not capable of being conveyed.

47. Imputation (d) suffers from the same problem. In addition to the problem of suspicion rather than guilt, I note the objection of form concerning the use of the phrase “led to”. If this imputation is to be repleaded as an imputation of suspicion, it needs to be drafted with greater precision.

Costs

48. The defendants have been entirely successful concerning the second publication but successful in relation to only one of the imputations in the first publication. However, the defendants made some quite unmeritorious objections, such as the claim that one of the imputations was rhetorical. Taking all of this into account, the costs order I have made is that the costs be the defendant’s costs in the cause, but I grant liberty to apply to the parties if they wish to address me further on costs.

49. The plaintiff should provide any amended Statement of Claim within 14 days, so that a s 7A jury trial can be set down for hearing.

Orders

1. Imputations 4(a), (b), (c) and (e) are to go to the jury.

2. Imputations 4(d) and 6 (a) – (d) are struck out with leave to plead imputations of suspicion.

3. Plaintiff’s Further Amended Statement of Claim (if any) to be filed and served in 14 days.

4. Objections to this pleading to be notified 14 days thereafter.

5. Matter re-listed for Friday 8 August 2008 at 9:00am for argument or for allocation of a s 7A jury trial.

6. Costs of this argument to be the defendant’s costs in the cause.

7. Liberty to apply re costs.

Annexure A

1. Claims senior staff asleep on the job

By Joanne McCarthy

2. [Main picture]

3. [FIGHT: Leona Escreet’s sister Tracey, left, and mother Val Carter outside the coroner’s court in Gosford yesterday. Four other smaller pictures with captions from top to bottom – Leona Escreet – Yvonne Wilson – Shane Buckley – Hendrik Holtman]

4. A JUNIOR nurse fled a court in tears yesterday after evidence of unauthorised two-hour “breaks” by two senior staff on the night a Central Coast mental health patient took her life.

5. A barrister for the two male nurses said they would deny sleeping on the job at Gosford Hospital’s Mandala mental health unit, or attempting to coerce the junior nurse to withhold or change her evidence to hospital executives or police.

6. But Gosford coroner Gary Cocks told the court that “somebody behind a locked door (for two hours) may not be overly attendant on what’s going on in the outside world… and may not be paying attention to their job”.

7. “The longer now that could be drawn is that they were sleeping” he said.

8. Two further Northern Sydney and Central Coast Health Service staff were subpoenaed to give evidence after a statement by a “whistleblower” who came forward after newspaper articles about the inquest into the hanging death of Leona Escreet, 32, in October 2002.

9. In court yesterday Mr Cocks said he was concerned about the “hint of duress” about the matter, and described issues raised after the whistleblower’s evidence as “matters of grossly concerning nature”.

10. The court heard Shane Buckley took a “break” between 12:30am and 2:30am on October 3, 2002, and junior nurse Yvonne Wilson took her break between 2:45am and 3:50am.

11. The breaks were not recorded.

12. The court was told the hospital authorised two breaks of 20 minutes each.

13. Senior nurse Henk Holtman planned to take his break between 4am and 6am after telling Ms Wilson a patient round had “not long been don”.

14. Ms Wilson could not tell the court why she went to check on Ms Escreet a few minutes later, despite Mr Holtman’s statement.

15. The court had earlier heard evidence of Ms Escreet’s severely depressed condition and suicidal comments in the weeks leading to her death.

16. Ms Wilson told the court she went to the locked room where Mr Holtman had retired and knocked on the door for unknown period until he opened the door.

17. She told him Ms Escreet was not in her room and was probably in a locked bathroom.

18. Ms Escreet’s body was found hanging from a shower rail.

19. Ms Wilson said she told nursing unit manager Helen Crowley about the breaks when she was interviewed on the day of Ms Escreet’s death, and of her concerns about Mr Holtman’s practice of not including all patients in nightly observation rounds.

20. Ms Wilson said Mr Buckley left a message on her answering machine after the incident “along the lines of wanting to get together” in relation to the matter.

21. She told the court she did not read “something Henk did up of what they (Mr Holtman and Mr Buckley) were going to say” when they were interviews by hospital executives.

22. Mr Holtman gave it to her but she did not read it until after she gave her police statement, she said.

23. Ms Escreet’s sister Tracey, who fought for three years to have an inquest, said yesterday she was “disgusted”.

24. The inquest continues today.

Annexure B

1. Gaps in patient care

By Joanne McCarthy

2. Anger at witness accounts prompted nursing head’s evidence, inquest told

3. A WHISTLEBLOWER who told senior hospital management that staff were on unauthorised two-hour breaks the night a mental health patient took her life told police she stopped pursuing the matter because “it appeared that nothing was happening”.

4. She told police she came forward three years later because she was “incensed” after reading what witnesses were saying at an inquest on the patient’s death.

5. “To my knowledge no departmental action has been taken against either Shane Buckley or Henk Holtman,” nurse unit manager Helen Crowley said in a statement to police about two mental health nurses alleged to have taken the unauthorised breaks.

6. The statement was tendered at an inquest on the death of Leona Escreet at Gosford Hospital’s Mandala mental health unit on October 3, 2002.

7. The court was told yesterday that Ms Crowley, who retired in July, continued to ask Mandala service director Sandie Carpenter about “what was happening (but) she kept giving me vague responses telling me that they were looking into it and that the lawyers were looking into it as well”.

8. “After a while I just let it be, as it appeared that nothing was happening,” Ms Crowley said.

9. In her statement, she said she spoke informally with hospital lawyers “and told them everything”, including alleged comments from a junior nurse that the male nurses were sleeping on the job and that a surveillance video showed a gap of more than 1½ hours in nurse rounds, during which Leona Escreet died.

10. “The lawyers actually told me that they would try and stop Henk from leaving the country, as he was going overseas at the time,” Ms Crowley said in her statement.

11. “I actually thought, great, something is going to happen.”

12. Ms Crowley said she checked hospital records when she arrived at the unit two hours after Ms Escreet’s body was found hanging from a shower rail in a bathroom.

13. She said she was surprised to find a note on Ms Escreet’s records timed at 6am and stating the patient had had a “restless night”. Ms Escreet is though [sic] to have died soon after 4am.

14. “This indicated to me the night report had been written well before her death,” Ms Crowley said.

15. In court, she agreed she had not used the word “sleeping” in a report to the hospital’s critical incident review team in 2002 but had referred to the two-hour breaks.

16. In the weeks after Ms Escreet’s death, Ms Crowley released a policy to Mandala staff reiterating that staff were allowed two 20-minute breaks each shift.

17. Gosford coroner Gary Cocks adjourned the inquest to April 26 and 27.

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