Cunningham v Nationwide News Pty Ltd

[2000] NSWSC 616

CITATION:	Cunningham v Nationwide News Pty Ltd [2000] NSWSC 616
CURRENT JURISDICTION:	Defamation
FILE NUMBER(S):	SC 20497/99
HEARING DATE(S):	26 May 2000
JUDGMENT DATE:	4 July 2000
PARTIES :	Joanna Cunningham - Plaintiff Nationwide News Pty Limited - Defendant
JUDGMENT OF:	Bell J at 1

COUNSEL :	Mr B McClintock, SC - Plaintiff Mr Blackburn - Defendant
SOLICITORS:	Gilbert & Tobin - Plaintiff Blake Dawson Waldron - Defendant
DECISION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

BELL J

Tuesday 4 July 2000

20497/99 - Joanna CUNNINGHAM v NATIONWIDE NEWS PTY LTD (ACN 008 438 828)

JUDGMENT

1    HER HONOUR: The plaintiff brings proceedings in defamation against the defendant arising out of the publication of an article in the Daily Telegraph on 25 November 1998. The plaintiff contends that the article in its natural and ordinary meaning conveyed seven imputations defamatory of her. Those imputations are set out in paragraph 4(a)-(g) of the Statement of Claim. The text of the matter complained of is set out in numbered paragraphs in the schedule to the Statement of Claim.

2 The defendant objects to the each of the imputations. By consent the parties agreed to the separate determination of these issues prior to the trial of the matter pursuant to Part 31 r 2 of the Supreme Court Rules 1970. The imputations are pleaded as follows:

“4(a) That the plaintiff has perverted the course of justice;
(b) that the plaintiff has committed a gross breach of public trust;
(c) that the plaintiff is corrupt;
(d) that the plaintiff is a heroin user;
(e) that the plaintiff conducted drug and alcohol sessions with prison inmates in gross dereliction of her duties;
(f) that the plaintiff had sexual relations with prison inmates in gross dereliction of her duties;
(g) that the plaintiff wrote a false reference for a lover so as to help him avoid a gaol term on a drug related conviction.”

3    The defendant objects to imputation (a) upon the grounds of capacity. Mr Blackburn, who appears on behalf of the defendant, relies on the authority of Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293.

4    Broadly, the article reports on findings made by the Commissioner of the Independent Commission Against Corruption against two health workers employed at correctional institutions. It is said that the Independent Commission Against Corruption found both health workers “corrupt”. The article goes on to recite that Commissioner O’Keefe found former nursing unit manager, Joanna Cunningham, had sexual relations with at least three inmates at the John Moroney Correctional Centre at Windsor. Arising out of one of these liaisons she is said to have agreed to write a “glowing” but false reference for a prisoner named Poole. She is said to have confessed to writing the reference in the hope that she might continue a sexual relationship with Mr Poole. The two are described as having celebrated his release with a weekend spent at the Regent Hotel where they engaged in sex and the use of heroin. It is noted that Commissioner O'Keefe recommended that Cunningham be criminally charged with perverting the course of justice.

5    Mr McClintock SC, who appears for the plaintiff, submits that this case differs from Mirror Newspapers v Harrison in that when one reads the matter complained of as a whole it goes beyond the mere statement that the Commissioner has recommended that the plaintiff be charged with the offence of perverting the course of justice. The article sets out as a matter of fact that the plaintiff had agreed to write a false reference for the prisoner, Poole (lines 11-16). It asserts, again as a matter of fact, that the reference helped Poole to avoid a fresh gaol term on a drug related conviction after his release from the John Moroney Correctional Centre. The reference to the Commissioner’s recommendation that the plaintiff be criminally charged with the offence of perverting the course of justice needs to be seen against this background.

6    Mr McClintock accepts, on the authority of Mirror Newspapers v Harrison, that the mere statement that a person has been charged with a criminal offence is not capable of sustaining an imputation as to his or her guilt of that offence. However, in the light of the statements to which I have referred, he submits that the imputation is reasonably open in the circumstances of this case.

7    As I understood Mr McClintock’s submission, it was that the ordinary reasonable reader would conclude that the Commissioner’s recommendation that the plaintiff be criminally charged with perverting the course of justice was referable to his finding concerning the provision of the false reference which was used in subsequent court proceedings. The latter allegation is taken up by the terms of imputation 4(g). The defendant submits, as an alternative basis of objection to imputation 4(a), that it does not differ in substance from imputation 4(g).

8    Standing alone the statement that the Commissioner has recommended that the plaintiff be criminally charged with perverting the course of justice is not reasonably capable of conveying her guilt of that offence. The plaintiff seeks to overcome this by reference to the matters set out in lines 11-16 as tending to show her guilt of the offence of perverting the course of justice. Those matters are captured by imputation (g) (including the assertion that it was the plaintiff’s purpose in providing the false reference to help Poole avoid a jail term). To the extent that it is submitted that on a proper analysis imputation (a) is made out because in the body of the matter complained of it is asserted that the plaintiff wrote a false reference for another so as to help him avoid a gaol term on a drug related conviction it does not differ in substance from imputation (g). To the extent it is submitted that imputation 4(a) conveys something more, namely that the plaintiff is guilty of the offence of perverting the course of justice, it seems to me that it is bad for the reasons set out in Harrison v Mirror Newspapers. Imputation (a) will be struck out.

9    Objection was taken to imputation (b) on the grounds that it does not differ in substance from imputations (a), (c) and (f). Imputation (a) has been struck out. I consider the defendant’s objection, in the light of imputations (c) and (f). The reference to a “gross breach of public trust” picks up the terms of the matter complained of at line 7. Mr McClintock submits that it is clear from reading lines 7 and 8 that the matter the subject of the alleged gross breach of public trust is the assertion that the plaintiff was a party to a weekend jaunt at Sydney’s Regent Hotel with one of the inmates with whom she had an affair. At lines 9 and 10 the matter complained of recites that the plaintiff had sexual relations with at least three inmates at the John Moroney Correctional Centre. To my mind, although there is overlap between imputations (b) and (f), it cannot be said that they do not differ in substance. Imputation (f) is concerned with the charge that the plaintiff’s sexual relations with inmates were conducted in gross dereliction of her duties. Imputation (b) takes up a concept which is not dependent upon any issue of dereliction of duties. The gross breach of public trust might be thought to be made out by the weekend jaunt to the hotel, notwithstanding that there is no suggestion that the plaintiff was then on duty. Imputation 4(b) will go to the jury.

10    Objection was taken to imputation 4(c) upon the ground that it is imprecise. It is capable of conveying a range of meanings. As pleaded the imputation does not make clear the meaning for which the plaintiff contends. Both plaintiff and defendant referred me to Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 in support of their varying contentions concerning imputation 4(c). Mr Blackburn relied on the observations of Gleeson CJ at 140 where his Honour noted that although in the first broadcast complained of there had been general references to corruption, it was nevertheless possible to discern particular forms of misconduct said to have been attributed by the broadcaster to the council and that it flowed from this that it was possible for the pleader to be more specific. It was appropriate to require that greater degree of specificity to avoid confusion at trial.

11    Mr McClintock responded by taking me to the frequently cited passage in the same judgment at 137 where his Honour observes:

“The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non specific abuse … the requirement upon a plaintiff cannot go beyond doing the best that can be reasonably done in the circumstances.”

12    Mr McClintock points to line 5 which asserts that the ICAC had made a finding that the plaintiff was corrupt. The article did not specify in which of the various senses that word was used. The plaintiff had pleaded the imputation with as much specificity as the matter complained of allows.

13    In Drummoyne Municipal Council v The ABC Gleeson CJ noted the range of possible meanings of the word “corrupt”. In this context he drew attention to the expanded definition of “corrupt conduct” provided by the Independent Commission Against Corruption Act 1988 (at 138). His Honour approved the test formulated by Hunt J (as he then was) in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155:

“… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.”

14    In Drummoyne Municipal Council v The ABC Gleeson CJ and Priestley JA considered that the order striking out imputations which were framed by reference to corruption without specifying the kind of corruption were justified. Gleeson CJ drew a distinction between the facts of that case and those in John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706. In the latter case a billboard which read “Govt’s War on Corrupt Judges” was held to be capable of conveying an imputation which pleaded that the plaintiff was a corrupt judge.

15    The matter complained of asserts that the Independent Commission Against Corruption found the plaintiff corrupt. It goes on to detail some further findings said to have been made by the Commissioner. These include that the plaintiff had supplied a knowingly false reference to the prisoner, Poole, and that this had helped him to avoid a fresh gaol term on a drug related conviction and that the plaintiff had engaged in drug and alcohol sessions with prisoners at the prison during which kissing, mutual fondling and removing of portions of each other’s clothing had taken place. It may be that the plaintiff contends that the matter complained of conveys that she is corrupt because the Independent Commission Against Corruption made a finding in those terms, or it may be that the plaintiff contends the matter complained of conveys that she is corrupt in the sense that she was a party to placing knowingly false material before a court (in which case the imputation may not differ in substance from (g)) or it may be that the plaintiff contends that the matter complained of conveys that she is corrupt in the moral sense. As presently pleaded, the imputation fails to identify the sense in which the word “corrupt” is used. This is capable of causing confusion at trial. I do not consider it meets the test imposed in Whelan. I propose to strike it out and to give the plaintiff leave to replead.

16    There was no challenge to imputations (d) or (e).

ORDERS:

1. Imputation 4(a) is struck out.

2. Imputation 4(b) will go to the jury.

3. Imputation 4(c) is struck out. The plaintiff is given leave to

replead.

4. Imputations 4(d), (e), (f) and (g) will go to the jury.

5. The proceedings are stood over to the defamation list on 7 July 2000 for further directions.

6. Each party to bear her/its own costs.

Last Modified: 09/26/2000