Creighton v Nationwide News Pty Ltd

[2010] NSWDC 11

CITATION:	Creighton v Nationwide News Pty Ltd [2010] NSWDC 11
HEARING DATE(S):	12 February 2010
JUDGMENT DATE:	19 February 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Grant leave to the plaintiff to file a Further Amended Statement of Claim by 4:00pm Friday 26 February 2010. (2) I make the orders striking out imputations 7(c) and (m) (with leave to replead). (3) I strike out imputations (f) (h) and (j) in the first publication. (4) By reason of the identical nature of the second publication to the article “Jail boss’s son charged”, I strike out imputations 9(c) and (m) (with leave to replead). (5) I strike out imputations 9(h) and (j) (6) Plaintiffs pay defendant’s costs. (7) Matter stood over for further directions in the Defamation List on Friday 5 March 2010 at 9:00am.
CATCHWORDS:	TORT - defamation - imputations - form and capacity - "borderline" imputations
LEGISLATION CITED:	Defamation Act 1974 (NSW) Defamation Act 2005 (NSW)
CASES CITED:	Coleman v John Fairfax Pty Ltd [2003] NSWSC 564 Darby v Oxford University Press [2000] NSWSC 948 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Galea v Amalgamated Television Services Pty Ltd (Supreme Court of NSW, 20 February 1998, Levine J unreported) Hall v Gould [2002] NSWSC 359 Maitland v Nationwide News Pty Ltd [2002] NSWSC 376 Malcolm v Nationwide News Pty Ltd [2007] Aust Torts Reports 81-915 Mirror Newspapers v Harrison (1982) 149 CLR 293 Solaiman v Fairfax Media Publications [2008] NSWSC 847 Waterhouse v Perkins & Ors (Supreme Court of NSW, Levine J, 10 October 1996, unreported)
PARTIES:	First plaintiff: Wayne Creighton Second plaintiff: Cheryl Lee Creighton First defendant: Nationwide News Pty Ltd Second defendant: News Digital Media Pty Ltd
FILE NUMBER(S):	5239 of 2009
COUNSEL:	Plaintiffs: Ms L Evans Defendants: Mr D Sibtain
SOLICITORS:	Plaintiffs: Nyman Gibson Stewart Defendants: Blake Dawson

Judgment

1. The plaintiff commenced proceedings for defamation by Statement of Claim filed on 9 September 2009 concerning an article “Jail boss’s son charged”. The article stated that the plaintiffs’ son had been arrested for allegedly dealing drugs in a hotel, that 20 ecstasy tablets were found in his possession, and that “further stashes of ecstasy” were allegedly found at the home he “shares with his parents”. The article went on to note that Mr Creighton was not only the Supermax prison boss but a close ally of Commissioner Woodham and “a staunch anti-drugs campaigner”. Two publications of this article, one in the Sunday Telegraph and one on the Internet, were pleaded.

2. The form and capacity of the imputations was challenged, as was the form in which the Internet publication was presented. The matter was listed for argument on 1 December 2009. On 1 December, during argument, counsel for the plaintiff sought leave to replead certain of the imputations. I granted leave to amend any or all of the imputations and ordered the plaintiff to pay costs.

3. The amended Statement of Claim, filed on 23 December 2009, goes well beyond this leave, in that as well as amended imputations it includes two further newspaper articles in the first publication, as the attached copy of the matter complained of shows. The article “Jail boss’s son charged” appears in a small “break-out” next to an article headed “How wardens helped a crook become a dad”. A further article “Furor over Facebook Jibe” appears below. A third publication (of an article headed “Wardens helped crook become a dad”) also appears.

4. A PDF file containing the original publications in the newspaper, showing these three articles and their relationship with each other on the layout of page 2 of the defendant’s newspaper, is attached.

5. The argument concerning the imputations proceeded in circumstances of real difficulty for the defendant:

(a) First of all, the plaintiff impermissibly sought to run together the second and third electronic publications, although these articles are on different websites and cannot be accessed at the same time. The two other electronic publications do not refer to the plaintiff by name, and there are no particulars of identification. After discussion, the plaintiff abandoned the Internet claim entirely;

(b) The plaintiff had added the two further publications to the first matter complained of without leave, in circumstances where the defendant was in the difficult situation of not knowing whether to oppose a strike-in application or to bring a strike-out application. After discussion, the defendant decided to abandon objection to the inclusion of the two additional publications, with the result that the matter complained of is now the document which is in the PDF format at the end of this judgment;

(c) The second publication consists only of the Internet version of the article headed “Jail boss’s son charged”. The imputations pleaded for this were identical to the imputations pleaded for the newspaper publication of all three articles. This was clearly a problem. Counsel for both parties conferred, and counsel for the plaintiff agreed to abandon imputations 9(f) and (g);

(d) This left the issue of the form and capacity of the remaining imputations for the second publication, and for all of the imputations for the first publication. However, the defendant submits that these imputations still suffer from many of the same problems:



· First of all, the defendant submitted that imputations of knowledge of the plaintiffs’ son’s drug activities were not conveyed (imputations (a), (c), (d), (k) and (m)). As an anti-drugs campaigner the plaintiff would have been “horrified” by his son’s conduct, rather than condoning of it, Mr Sibtain submitted.

· In addition, the fallback imputation of being a bad parent was not a true fallback. If there was to be a fallback, it should be imputations arising from his failure to find out, which was the real sting of the article (as set out in imputation (i), to which the defendant did not object).

· Thirdly, imputations (g) and (h) did not differ in substance.

· Fourthly, imputations (f) and (j) were not conveyed.

6. In the course of argument I indicated that I would strike out imputations (f), (h) and (j) in the first matter complained of, require (e) to be a fallback to (d), and grant leave to replead imputations (c) and (m) and provide my reasons in writing to the parties later in the week. I have similarly struck out imputation (h) and (j), required (e) to be a fallback to (d) and granted leave to replead imputations (c) and (m) in the second matter complained of. It is unclear to me why the plaintiff agreed to withdraw imputation (g) in this publication and to prefer imputation (h), but as this publication is not accompanied by the article referring to embarrassment and the imputation does not arise, this problem becomes irrelevant.

7. I shall first note a preliminary matter. In the course of argument Ms Evans submitted that as imputations are particulars and not the cause of action, plaintiffs do not need to draft imputations with any more care than, for example, the particulars of negligence in a motor vehicle claim. This is not the first time I have heard this submission. It is a submission which is contrary to the principles upon which the courts in all other States and Territories of Australia have determined issue of form and capacity, in circumstances where those imputations were merely particulars of the cause of action, as opposed to the situation in New South Wales when the Defamation Act 1974 (NSW) was in place and imputations (not the matter complained of) was the cause of action. Further, the NSW Court of Appeal has made it clear, in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37, when refusing leave to amend following repeated clumsy attempts at pleading imputations, that courts do not take the indulgent view of imputation pleading urged upon me by the plaintiff. The plaintiff is currently seeking the indulgence of a second imputations argument in circumstances where the confusions and inconsistencies in the pleadings have created considerable difficulties in the pleadings, and this has been reflected in the costs orders I made this morning.

8. The imputations pleaded as arising from the first matter complained of concerning the first plaintiff are:

(a) The first plaintiff condoned illegal drugs being kept at home.

(b) [This imputation was not pressed].

(c) In the alternative to (a), the first plaintiff is a bad parent because he allows his son to keep illegal drugs at home.

(d) The first plaintiff is a hypocrite because although he holds himself out as a staunch anti-drugs campaigner he allows illegal drugs to be kept at home.

(e) The first plaintiff has no credibility as a stanch drugs campaigner because he can’t even keep illegal drugs out of his own home.

(f) The first plaintiff is a key player in the farce that has become the NSW prison system.

(g) The first plaintiff has so conducted his affairs that he is yet another embarrassment to his close ally, Corrective Services Commissioner Ron Woodham.

(h) The first plaintiff is an embarrassment to the NSW Corrective Services Department.

(i) The first plaintiff cannot be trusted to manage the State’s most notorious criminals in Goulburn’s Supermax Prison because he did not even detect alleged criminal activity taking place under his nose at home.

(j) The first plaintiff is derelict in his job of managing Goulburn’s Supermax Prison.

9. The imputations pleaded as arising from the first matter complained of concerning the second plaintiff are:

(k) The second plaintiff condoned illegal drugs being kept at home.

(l) [This imputation was not pressed].

(m) In the alternative to (l), the second plaintiff is a bad parent because she allows her son to keep illegal drugs at home.

10. The imputations pleaded as arising from the second matter complained of are:

(a) The first plaintiff condoned illegal drugs being kept at home.

(b) [This imputation was not pressed].

(c) In the alternative to (a), the first plaintiff is a bad parent because he allows his son to keep illegal drugs at home.

(d) The first plaintiff is a hypocrite because although he holds himself out as a staunch anti-drugs campaigner he allows illegal drugs to be kept at home.

(e) The first plaintiff has no credibility as a staunch drugs campaigner because he can’t even keep illegal drugs out of his own home.

(f) [This imputation was not pressed].

(g) [This imputation was not pressed].

(h) The first plaintiff is an embarrassment to the NSW Corrective Services Department.

(i) The first plaintiff cannot be trusted to manage the State’s most notorious criminals because he did not even detect alleged criminal activity taking place under his nose at home.

(j) The first plaintiff is derelict in his job of managing Goulburn’s Supermax prison.

11. The imputations pleaded for the second plaintiff in this publication are the same as for the first publication.

Imputations (a), (c), (d), (k) and (m) in each of the matters complained of

12. The second defendant’s principal objection is that no imputation of condoning drugs can arise, either from the article “Jail boss’s son charged” or from this article read in conjunction with the whole of the matters complained of, because the matters complained of do not impute knowledge or condonation at all. I shall deal with each of these in turn.

Imputations 7(a) and 9(a), imputations 7(k) and 9(k) and imputations 7(d) and 9(d)

13. The matter complained of describes the plaintiff’s 18 year-old son as having been arrested while supplying drugs, in circumstances where, as well as having a number of tablets on his person, “further stashes of ecstasy” were allegedly found at the home he “shares” with his parents. The first plaintiff is described as a “staunch anti-drugs campaigner” and the defendant submitted that for this reason, I should read into the matter complained of the well-known propensity of teenagers to keep things from their parents, and assume that the plaintiffs’ son hid his activities from his parents in the way that teenagers often do.

14. The matter complained of does not say that the plaintiffs’ son was hiding his activities from his parents. The word “stashes” suggests there was more than one “stash” of drugs kept at home, but does this connote a hidden supply?

15. I was not taken to the dictionary meaning of “stash”, or to its slang use. The word “stash” does connote items hoarded secretly, but generally in the sense of being hidden from the authorities as opposed to being hidden from, for example, other occupants of the house.

16. The other occupants of the house are the plaintiffs. The reader is told the son “shares” the home with his parents, but that the first plaintiff is currently “in Indonesia on a work assignment”.

17. The fact that the first plaintiff is a staunch anti-drugs campaigner does not mean that an imputation of knowing about and condoning his son’s activities cannot be conveyed. Imputation (d) clearly conveys the sting of hypocrisy in that he holds himself out as a staunch anti-drugs campaigner while allowing illegal drugs to be kept at his home.

18. When considering the test for capacity, whether for actions brought under the Defamation Act 2005 (NSW) or its predecessor, it is important to exercise caution and to strike out imputations only in very clear cases: Solaiman v Fairfax Media Publications [2008] NSWSC 847 at [7] – [9], citing Malcolm v Nationwide News Pty Ltd [2007] Aust Torts Reports 81-915. The question of whether an imputation of knowledge of the plaintiffs’ son’s drug-dealing activities was known to each of the plaintiffs (as opposed to an imputation of failing to notice this illegal activity being carried on in the home they share) is a good example of what is sometimes called a “borderline” imputation (Coleman v John Fairfax Pty Ltd [2003] NSWSC 564 at [9] per Levine J, citing Waterhouse v Perkins & Ors (Supreme Court of NSW, Levine J, 10 October 1996, unreported, at p. 4)).

19. Where an imputation appears to be “borderline”, courts have exercised caution and left the imputation to the jury in certain circumstances: Solaiman, supra, at [7] – [9] and [25]; Hall v Gould [2002] NSWSC 359 at [27]; Darby v Oxford University Press [2000] NSWSC 948 at [42]. Such an order is more likely to be made where there are “fallback” imputations of lesser conduct: Solaiman at [10], referring to Mirror Newspapers v Harrison (1982) 149 CLR 293, or where the question of language, tone, tenor or presentation is part of the fact-finding process for the tribunal of fact: Maitland v Nationwide News Pty Ltd [2002] NSWSC 376 at [10] per Levine J. Both these factors are relevant here.

20. This is not a general licence for plaintiffs to plead imputations of a borderline nature. For example, cases where a “borderline” imputation may be more quickly reached would include an imputation based solely on the misconduct of a third person: Galea v Amalgamated Television Services Pty Ltd (Supreme Court of NSW, 20 February 1998, Levine J, at p. 11). In Galea the matter complained of described the criminal history of two members of a family and added that their other brother was “the radio producer Clive Galea”.

21. Levine J went on to note:

“In this context the defendant relied upon a dictum of Jacobs JA in Livingstone-Thomas (supra) 232C where his Honour says, (and it is to be noted in the context of s 5 of the Defamation Act, 1958) "I think, that imputations concerning a man's relatives, even though they were not directly imputations concerning him, were always possibly capable of being defamatory of the man himself, provided the other conditions for defamation were present - those conditions now set out and in some respects augmented by the terms of s 5. I think it was always capable of being defamatory to say, naming the man or not, that his mother was a whore. So also to say that a man's father was a murderer or a traitor.

What is significant is that the borderline of capacity to defame is reached much sooner when the imputation is one concerning a man himself and very much sooner - as it were by a geometrical profession - when the imputation is one concerning a more distant relative".

22. In the present case, the imputation is not asserted to be conveyed merely because the plaintiffs are related to a person who is a drug dealer but because of the first plaintiff’s position as boss of the Supermax and his anti-drugs position, and because of the second plaintiff’s position as the boy’s mother. In relation to the first plaintiff, I am satisfied that these additional features have some weight considering the impact of the tone and layout of all three articles, but even without these factors (for the second publication, in which they do not appear) these references, although borderline, are sufficient. In relation to the second plaintiff (imputations 7(k) and 9(k)), the same principles apply.

23. Insofar as imputation (a) imputes knowledge of the activities to the first plaintiff, whether read in conjunction with the attached articles or by itself, I cannot be satisfied that the imputation should not go to the tribunal of fact, having regard to the principles enunciated by Levine J. If ordinary reasonable persons may differ as to whether an imputation is conveyed, the issue is one which should be determined by the jury. I accordingly decline to strike out this imputation. This is even more the case in relation to imputation (d), where the circumstances in which the plaintiff is described as a staunch anti-drugs campaigner, and I also decline to strike out imputation (d).

Imputations 7(c) and 9(c) and imputations 7(m) and 9(m)

24. This brings me to the issue of the fallback to imputations (a) for each of the plaintiffs, which would be expected to be an imputation to the effect that each of the plaintiffs was so unobservant as not to have known that their son was keeping stashes of drugs in their house and dealing drugs.

25. The problem is that the imputations pleaded in (c) and (m) are not “fallback”, but different imputations imputing knowledge, namely one of being a bad parent because of permitting this conduct.

26. In the course of argument, it transpired that what Ms Evans was aiming at in (c) was a fallback of the first plaintiff being so unobservant, despite his knowledge of drugs, that he did not notice his son keeping a drug supply and dealing in drugs, and a similar imputation for the second plaintiff on the basis of some asserted maternal obligation. Whether such an imputation is conveyed will depend upon how it is framed, so I have struck out the imputations with leave to replead.

27. This brings me to a consideration of imputation (f), which is asserted to arise from the whole of the three articles. It is submitted (written submissions, p. 2) that the “inescapable conclusion” of the three articles is that the NSW prison system suffered a series of “farcical capers” which have caused embarrassment to Commissioner Ron Woodham and the department, particularly since the plaintiff is Commissioner Woodham’s “close ally”.

Imputations 7(f) and 9(f)

28. The first plaintiff is identified as the boss of the Supermax prison, a close ally of the Commissioner and a staunch anti-drugs campaigner whose son was arrested for drugs offences while he was in Indonesia on a work assignment. If he is not referred to in some way in the article “How wardens helped crook become a dad” (referred to hereafter as “the main article”) or “Furore over Facebook jibe” (referred to hereafter as “the third article”), is an imputation that he is a key player in the farce that has become the NSW prison system open?

29. The highest that the plaintiff’s conduct can be put at is that his 18 year old son was caught dealing drugs while he was out of the country. The plaintiff is a staunch anti-drugs campaigner, and a close ally of Ron Woodham, as well as holding a very senior position. However, can this article alone impute this imputation?

30. In her written and oral submissions, Ms Evans relied on the other two publications, and she abandoned this imputation for the second publication, which consists of the Internet version of the article “Jail boss’s son charged”.

31. Ms Evans took me to a number of references in the main article, “How wardens helped a crook become a dad”, to security becoming a “joke” and an “embarrassment”. I have no difficulty with this submission.

32. The problem lies in the choice of the words “key player”. That clearly imputes someone who is a major reason for the NSW prison system becoming a farce, and clearly the participants in the activities referred to in the article “How wardens helped a crook become a dad” (and the other events identified as farces) would fit such a description.

33. The plaintiff is not named in this article. Ms Evans made it clear that it was not part of her case that the prison referred to is the prison for which the plaintiff is the boss, and that although the main article is all about the conduct of notorious criminals, this is nothing to do with the conduct of any criminals in the Supermax jail.

34. The fact that an adjoining article refers to conduct which has made “a joke of security in NSW prisons” does not mean that the allegations about the plaintiffs’ son being arrested for drug dealing while the first plaintiff was on a work assignment outside the county in some way makes the plaintiff a “key player” in the “farce” of the prison system.

35. The imputation conveyed is that the plaintiff is yet another embarrassment to a beleaguered Commissioner, and this is the sting captured by imputation (g). Accordingly imputation (f) is struck out but imputation (g) survives the challenge.

36. Imputation (h) substitutes the NSW Corrective Services Department. I see no difference between causing embarrassment to the Commissioner and to the Department so I strike this imputation out as not differing in substance from imputation (g).

37. I have struck out imputation (m) for the same reasons as imputation (c), but with liberty to replead. Again, it is a matter for the plaintiff to identify an appropriate fallback imputation in the event of actual knowledge being rejected by the jury.

38. I should briefly noted the connecting factors between the publication in which the plaintiff is named and the main article:

(a) Both articles are about high-ranking prisons with notorious prisoners, and the very senior prison officials who run them. The prison and the three prison officials in the main article, who are “three of the State’s highest ranking prison officials (paragraph 14 in the main article) are not identified. Paragraph 18 says that this is “for legal reasons”. This is repeated in paragraph 19 (noting that the “legal restrictions” enable Mr Woodham to “avoid public scrutiny”), paragraph 22 (where the Corrective Services Minister gives this as the reason he cannot comment) and the claim by the “senior prison source” in paragraph 27 that all the officers of the jail had been “sworn to secrecy”.

(b) These senior officials are all “close” allies of Commissioner Woodham

(c) Both articles refer to events occurring in a prison housing “notorious” criminals.

(d) “Prison sources” are given as the source for information in the article in which the plaintiff is named (paragraph 8), the source for information that the prison officials are some of Mr Woodham’s closest allies, and what these officials did (paragraphs 24, 25 and 26) and this is followed by a third article (also written by Yoni Bashan) about a private invitation-only Facebook site where prison staff have been posting material that “poked fun at prison bosses” in addition to comments another officer made about Mr Woodham (paragraphs 35 – 37).

39. I note that notwithstanding these common themes, and the hints about not being able to name the jail, Ms Evans stated no imputation is or would be pleaded that the plaintiff was identified as one of the unknown officers who are the subject of the main article.

Imputations 7(j) and 9(j)

40. I agree with the defendant’s submission that there is nothing in either of the matters complained of asserting that the plaintiff is derelict in his job of managing Goulburn’s Supermax jail. Ms Evans made it plain that she did not assert there was any imputation conveyed about the plaintiff arising from the descriptions of conduct involving the unnamed notorious criminal, the Skaf brothers and the prisoner who escaped from the hospital. These decisions are matters for the pleader. I accordingly strike out this imputation.

Imputation 9(h) in the second matter complained of

41. I accept the submission of the defendant that without the accompanying two articles describing embarrassment caused to the NSW Corrective Services Department this imputation cannot be conveyed; the plaintiff’s counsel conceded as much in not pressing imputation (g).

42. This imputation is struck out.

ORDERS

(1) Grant leave to the plaintiff to file a Further Amended Statement of Claim by 4:00pm Friday 26 February 2010.

(2) I make the orders striking out imputations 7(c) and (m) (with leave to replead).

(3) I strike out imputations (f) (h) and (j) in the first publication.

(4) By reason of the identical nature of the second publication to the article “Jail boss’s son charged”, I strike out imputations 9(c) and (m) (with leave to replead).

(5) I strike out imputations 9(h) and (j)

(6) Plaintiffs pay defendant’s costs.

(7) Matter stood over for further directions in the Defamation List on Friday 5 March 2010 at 9:00am.

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