Darby v Oxford University Press

[2000] NSWSC 948

CITATION:

Darby v Oxford University Press [2000] NSWSC 948

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20246 of 2000

HEARING DATE(S):

18 August 2000

JUDGMENT DATE:

13 October 2000

PARTIES :

MICHAEL JOHN AINSLIE DARBY
(Plaintiff)

v

THE CHANCELLOR, MASTERS & SCHOLARS OF THE UNIVERSITY OF OXFORD
t/as OXFORD UNIVERSITY PRESS
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	B Kinsella (Plaintiff) W Muddle (Defendant)
SOLICITORS:	The Hargreaves Practice (Plaintiff) Hunt & Hunt (Defendant)
CATCHWORDS:	Imputations - capacity - form - published book
CASES CITED:	Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 Knuupffer v London Express Newspapers Limited (1944) AC 116 Wake v John Fairfax & Sons Pty Limited (1973) 1 NSWLR 43
DECISION:	See paragraph 52

DLJ: 1
[2000] NSWSC 948

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

No. 20246 of 2000

JUSTICE DAVID LEVINE

FRIDAY 13 OCTOBER 2000

MICHAEL JOHN AINSLIE DARBY
(Plaintiff)

v

THE CHANCELLOR, MASTERS & SCHOLARS
OF THE UNIVERSITY OF OXFORD t/as
OXFORD UNIVERSITY PRESS
(Defendant)

judgment (Imputations - capacity - form - published book)

1    In 1995 the defendant published the book “The Right Road: A History of Right Wing Politics in Australia” by Dr Andrew Moore. 2    By a Statement of Claim filed on 15 June 2000 the plaintiff claims damages for defamation. It is contended that the book defames him in that it carries 18 defamatory imputations. 3    The plaintiff relies upon the whole of the book as published including the blurbs on the covers. 4    By Notice of Motion filed on 17 July 2000 the defendant seeks to have paragraph 3 of the Statement of Claim struck out on the basis that matter complained of is not capable, as a matter of law, of carrying the pleaded imputations. It is further contended in respect to some of the imputations that they are bad in form, they are “rolled up”, or that they contravene SCR Pt 67 r 11(3) in that they do not differ in substance. 5    The plaintiff pleads that the book, in its natural and ordinary meaning, carries the following imputations defamatory of him:

“3(a) That the plaintiff, as a member of the political ‘Right’ is a neo-fascist and a person whose views and/or activities might beneficially be suppressed.
(b) That the plaintiff as a member of the political ‘Right’ is a person who was suspected upon reasonable grounds of being a neo-fascist and consequently was someone whose views or activities might beneficially be suppressed.
(c) That the plaintiff is a person sympathetic to fascism.
(d) That the plaintiff was a member and/or supporter of the League of Rights and as such was and/or is a person who should be shunned and avoided by decent people.
(e) That the plaintiff in the course of right wing political activities actively took part in the disruption of an anti-war meeting at Mosman Town Hall in March, 1966.
(f) That the plaintiff in the course disrupting an anti-war meeting at Mosman Town Hall in March, 1966, used violence by punching another person or persons.
(g) That the plaintiff as a former officer of the Australian Army without authorisation and in breach of his obligations as a military officer used army records to further his political activities.
(h) That the plaintiff as a former officer in the Australian Army was suspected upon reasonable grounds of having, without authorisation and in breach of his obligations as a military officer used army records to further his political activities.
(i) That the plaintiff was and/or is a Nazi or sympathetic to Nazism.
(j) That the plaintiff was a violent revolutionary who trained vigilantes and armed them for the purpose of carrying out a coup d’etat in Australia.
(k) That the plaintiff was suspected upon reasonable grounds of being a violent revolutionary who trained vigilantes and armed them for the purpose of carrying out a coup d’etat in Australia.
(l) That the plaintiff is a person who was willing to kill people in pursuit of political objectives.
(m) That the plaintiff is a person who was suspected upon reasonable grounds of being willing to kill people in pursuit of political objectives.
(n) That the plaintiff is a person prepared to use violence in pursuance of political objectives.
(o) That the plaintiff is a person suspected on reasonable grounds of being prepared to use violence in pursuance of political objectives.
(p) That the plaintiff is a person who does not support parliamentary democracy.
(q) That the plaintiff is a person who was and/or is opposed to parliamentary democracy.
(r) That the plaintiff is a racist who is opposed to non-white immigration to Australia”.

6    The test to be applied in determining the question of law as to whether the matter complained of is capable of carrying the pleaded imputations, is “reasonableness” (Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 at 166F-G, per Hunt CJ at CL). The ordinary reasonable reader must here be taken to have read the book with more care, less loose thinking and less reading between the lines, than would apply in the case of a newspaper article or radio or television broadcast. That reader, however, will not be “avid for scandal” nor “live in an ivory tower”. Conclusions which could be reached by a reader taking into account that reader’s own beliefs, prejudices or extreme positions, “excited” by what was written, are not to be taken into account. 7    It is to be noted that the book is one of a series published by the defendant (Australian Retrospectives). The foreword informs that the authors have been invited to “examine formative issues in our national history in a style accessible to non-specialists”. 8    The introduction by the author makes it clear that the book is “a work of history, more than political science” (page 6). This is stated after the author has, in effect, set out his own position in the context of definitions. He writes “Political terminology is determined by the individual’s biases, preferences and sensitivities” (page 2). He goes on to say “After shuffling my own deck of marked cards, my working definition of ‘right wing’ encompasses the following attributes …” (page 2). Very briefly stated those attributes are: first, that a right wing group operates from a more extreme position than that of a “mainstream, conservative group” like the Liberal Party; second, right wing groups embrace conspiracy theories as a central organising concept; third, right wing groups often encompass nationalism; fourth, right wing politics invariably involves the suspicion of, or outright contempt for, the ideas and processes of liberal parliamentary democracy (pages 2 - 3). The author then goes on to define “conservatism”, “liberalism” and “fascism” (pages 4 - 6). It is within that context that the author makes tolerably clear his approach and indeed, his own position. 9    He then proceeds “chronologically” to examine the “Right”. The first subject matter is the Bunyip Autocracy 1788 - 1914. The Great War and Bolshevism (1917 - 1930) then receive the author’s attention, introducing Mussolini. There follows the chapter on “The 1930s: Australian Fascism?” 10    Chapter 4 deals with The Cold War and, inter alia, the Liberal Party and the Right. Chapter 5 is devoted exclusively to The “Australia League of Rights”. 11    The next subject matter is described as “The Not-So-Swinging Sixties and Beyond” (Chapter 6). It is in the opening paragraphs of this chapter that there is to be found the first reference to the plaintiff:

“The Australian League of Rights’ role as a boundary rider for the Right can be explained partly by chronology. In 1960, when the League was established nation-wide to counter ‘Lenin’s master plan’, the political climate within Australia was changing. And indeed throughout the 1960s Eric Butler and other elements within the Australian Right were increasingly moving away from the mainstream.
It is true that individuals like Michael Darby, son of the politician Douglas Darby, first became immersed in right-wing politics during the ideological skirmishes of the period. In large measure, however, the protest movements against the Vietnam War signified the end of the period in which Cold War verities held the majority of Australians under their spell. With rising rates of participation in tertiary education, the traditional communist smear was less effective. The values and attitudes of the anti-war protesters increasingly reflected those of middle Australia” (page 80).

12    The next reference to the plaintiff (page 81) is within the same chapter:

“On the home front during the Vietnam War ‘Friends of Freedom’, led by Owen Warrington, organised ‘counter demonstrations’ to the anti-war protests. In addition its members took photographs of protesters which were duly passed on to ‘the correct authorities’. ‘Friends of Freedom’ also liaised with the Australian Action Coordinating Committee, whose leader was a youthful Michael Darby. Film shot by ABC television showed Darby prominent in the disruption of an anti-war meeting at Mosman Town Hall in March 1966. However, that a left-wing anti-war meeting should take place at all in an elite suburb like Mosman, indeed in a venue used by the New guard thirty-five years earlier, was symbolic of the problems faced by the Right in 1960s Australia”.

13    The author then deals with what he refers to as the “Uglies” associated with the Liberal Party; it is here that the plaintiff is mentioned again:

“By 1978 the Uglies’ branch-stacking had become a subject for alarmist media comment. There were suggestions that because they controlled between forty and sixty branches in Sydney and Newcastle that it was already too late to resist the Uglies’ quest for power. The Liberal Party Right may not have been, as Andrew Hamilton points out, a monolithic group. However, its leaders, including Urbanchich, Michael Darby (whose career since the Mosman Town Hall fisticuffs incident had included a stint with Military Intelligence), and the map curator Major Richard Ashley-Riddle, were united in their activism.
What motivated the Uglies? Was ‘principle … [rather than power] their motive and master’? Was it a case, as Michael Darby would have it, of the Establishment ‘versus the grass roots of the party’? To a great extent all political wirepulling within political parties is about ‘getting the numbers’. For his part Urbanchich did not concur with the sinister implications attached to the term ‘takeover’. As he was reported as saying in the Bulletin on 9 May 1978: ‘What is a take-over? It’s some sort of magical word. If we have the numbers to express a particular point of view, and it’s within the constitution, that should not be called a ‘take-over’”.

14    Within the same chapter having dealt with “Australian Nazis” the author proceeds to deal with the subject he describes as “A Common Enemy: the Whitlam Labour Government” (page 89). 15    On page 90 there is the next reference to the plaintiff:

“The traditional warriors of the Right also warmed to the task of opposing Whitlam. In May 1974 Eric Butler argued, ‘We are as close to Nazism in Australia as we’ve ever been. Whitlam wants a central dictatorship’. Inflation, the League contended, was being encouraged to hasten the centralisation of power in Canberra. Michael Darby stood against Gough Whitlam in the 1974 elections, but after a series of fiery meetings in north-western New South Wales he was accused of training vigilantes and arming them in preparation for a coup d’etat in Autumn 1975. Later the League of Rights campaigned in support of Sir John Kerr, the governor-general who dismissed Whitlam on 11 November 1975”.

16    The seventh chapter of the work is entitled “Religion and the Right Since 1945”. It is followed by a chapter on “Race, Racism and the Right Since 1945”. Racism as a component of nationalism had been mentioned (page 3) by the author when discussing his attributes of the Right wing. 17    Chapter 9 deals with the “New Right”. Amongst various institutions and personalities dealt with is Brian Wilshire, a broadcaster. The chapter concludes with the final reference to the plaintiff as follows:

“In the Australian context Wilshire’s is the ultimate conspiracy theory. While it neglects to explain the sheer malevolence of the oft-mentioned ‘they’, specifically why ‘they’ should hate ‘us’ so deeply, its concern about the Orwellian potential of big government is clearly shared by many Australians. Similar allegations concerning national surveillance centres have been made by Peter Sawyer, a former clerk in the Social Security Department who briefly became ‘the nation’s champion conspiracy theorist’. In 1988 Sawyer predicted that a fascist totalitarian state would be in place by May. He also predicted a total economic collapse and an Aboriginal revolution which would be put down by an international peace-keeping force. For a time the League of Rights championed Sawyer, dropping him only when his highly specific chronology of disasters failed to eventuate. Sawyer now belongs in the LaRouchite camp. Yet one of Sawyer’s 1988 meetings in suburban Brisbane was chaired by the former Uglies apparatchik, Michael Darby. As the nearly sixty-year career of Eric Butler suggests, the Right can inspire an enduring commitment” (page 136-7).

18    The final part of the text of the book is “Conclusion: An Overview”. In respect of one element of the argument as to “capacity” this is an important component of the work. In the course of it the author asks the following questions (page 142):

“Despite this relative impotence, when discussing the Right it is easy to overreact. Has not the Right been dangerous? Have not groups like the New Guard in 1932 and the ANM in 1989 plotted armed rebellion? Have not its members promoted hatred and a climate of fear? Have not people been assaulted and intimidated? Have not Jewish survivors of the Holocaust been affronted by the Right’s ‘holocaust revisionism’? Has not the right exerted a malign influence which ought to be curtailed? What, after all, has the Right contributed other than divisiveness and racial tension?”

19    On page 143 the author states:

“Finally, the argument that, in a democratic society, all shades of political opinion have the right to have their voice heard, is a powerful one in favour of ongoing toleration of the Right. Violence and intimidation is one matter, expressing opinions, perhaps those that are not ‘politically correct’, views that may even be regarded by some as racist,, vicious, or simply silly, does less harm, it may be argued, than suppression”.

20    On page 144 he writes:

“Whatever stance is taken about banning or tolerating extreme right-wing forces, once of the implications of this study is that it is misguided to expect mainstream conservatives like Alexander Downer or Peter Costello to counter the Right, ‘lunar’ or otherwise. The history of Australian conservatism is inextricably entwined with right-wing impulses. The New Right created the economic dislocation upon which the ‘lunar right’ has capitalised. Thus Gerard Henderson’s 1994 call for Liberal Party leaders and New Right cadres to curtail inroads made by LaRouchite and League of Rights elements is misdirected”.

21    On the back cover the question is asked: “Against an emerging neo-fascist backdrop in Europe, should the Right be suppressed?”; the blurb goes onto say that the book “addresses this and other questions regarding the impact and role of the Right in Australian society…” 22    It is convenient, at this point, to dispose of one component of the argument in this case. It will be seen that the first two imputations pleaded (leaving aside any question of form) include the suggestion of “beneficial suppression”. 23    On no “fair and reasonable” reading of this book could it be understood that the author is making any suggestion along these lines at all. The principal reason for this is the content of the author’s conclusions from which I have extracted some parts referring to the question of suppression. Nowhere does he state that the Right should be suppressed and any view that he does so would be “far-fetched and extreme”. There is a second reason why the reasonable reading of this book would not lend itself to that conclusion: even accepting that the author’s study is from a particular viewpoint, (and one not sympathetic to the Right), it would be an astonishing exercise in hypocrisy on the part of the author to make a suggestion along the lines of the imputations pleaded by the plaintiff in the case. 24    For the defendant it was argued that the work as a whole makes plain that the political terminology is entirely subjective and based upon the author’s frame of reference. It was submitted that the ordinary reasonable reader would understand the label “right wing,” not as a statement of objective fact, but the author’s own “tag” after he has brought to bear his own biases and frames of reference. 25    It is submitted that this approach by the ordinary reasonable reader is all the more available, for example, by the five references to the Menzies government in the context of fascism. The last reference is at page 139:

“It might sound melodramatic to suggest that in 1951 Australian fascism’s headquarters were in ‘The Lodge’, Canberra but that is not so very far from the truth”.

26    It was submitted for OUP that “to impute that the longest serving Prime Minister since Federation, who was elected by plebiscite on eight occasions, was a fascist, says a great deal about the author’s frame of reference. That would not be lost on the ordinary reasonable reader”. It was argued that the work is “self evidently polemic and written from a Left wing perspective”. That perspective fashions the content of the imputation conveyed. This submission is exemplified as follows: “The imputation conveyed to a reasonable reader would be very different in the following situations: (a) the Chairman of the People’s Republic of China writes that X is a fascist; and, (b) Jean-Marie Le Penn writes that X is a fascist”. Also it was argued that when an author who repeatedly imputes in a work that “the late Sir Robert Menzies was a fascist” writes in the same work that Mr Darby is a member of the Liberal Party Right, the imputation about Mr Darby’s political views is measured by the ordinary reasonable reader against the known views of the author. 27    It was suggested that the ordinary reasonable reader in Australia would not consider the late Sir Robert Menzies to be a fascist and would conclude that the author’s statements were to be measured from his own standpoint, considerably to the left of centre; and the reader would draw from the work that Mr Darby was more Right than the author but not as right as the late Sir Robert Menzies. 28    I have great difficulty in accepting submissions along these lines; the submissions seems to be from a standpoint that simply could not be available to the ordinary reasonable reader. It appears to me to be being suggested that because such “nonsense” is written about Sir Robert Menzies, the author’s standpoint is so patent that no serious view could be formed as to what he says about Mr Darby let alone whether he says anything disparaging about Mr Darby (that is, conveys a defamatory imputation). 29    If an argument along these lines is available, it might be made to a jury. It is not available on any rational basis to determine whether or not the ordinary reader - upon the application of the test of reasonableness - could understand the book to be conveying defamatory imputations of Mr Darby. 30    I have further difficulty in accepting this proposition advanced on behalf of the defendant when it also submitted that the book makes plain that all the statements concerning events in the last thirty years dating back from the time of publication, namely 1995, which covers almost the entirety of the period in which the plaintiff is concerned, is subject to a caveat as to reliability (page 89), namely, the non-availability, by operation of the thirty year rule, of all relevant documents. 31    This inherent acknowledgment of what an ordinary reasonable reader would understand to be a proper historiographical approach by a writer, simply does not make any sense in the face of or sit comfortably with the first broad submission for the defendant. Again I state this in the context of the determination of the “capacity” issue. 32    It is finally submitted that it is of significance that the more serious allegations levelled at the Right at large, on which the plaintiff seeks to rely, are described by the book as “sensational allegations” (page 84) and “lurid claims” (page 85). It is then suggested that referring to an allegation as “sensational” and “lurid” does not (and cannot) convey that the allegation (imputation) is true, reliance being placed upon something said to have been said by the Court of Appeal (which I cannot quite see) in Wake v John Fairfax & Sons Pty Limited (1973) 1 NSWLR 43 at 49. There the Court was dealing with repetition of rumour. Even if the writer describes an allegation as sensational and lurid, the question is not whether the allegation is true but whether the imputation contained in the allegation can be fairly understood as being carried. 33 I reject the submissions for the defendant on the issue of “capacity”. As I have said (subject to the form of the imputations being finalised), if the defendant chooses to make such submissions to the jury as to whether “in fact” any such imputations are carried, it will be free so to do. 34    For the plaintiff it was argued (again subject to the form of the imputations), that this is quintessentially a jury case. The submissions for the defendant are of “having your cake and eating it” nature. Views may differ as to whether imputations currently pleaded are in fact conveyed, they are capable of being conveyed and thus should be left to the jury (see Marsden (supra) at 164G). 35    Further it was argued for the plaintiff that insofar as the author repeats “allegations” what the decision in Wake (supra) at 49-50 does make clear is that there is no general rule that a reporter of a defamatory statement of another is not liable for defamation unless that reporter adopts it or reaffirms it. 36    As I have said, the plaintiff relies upon the whole of the book including the blurbs. The plaintiff, it is acknowledged, is identified by the author at those locations to which I have referred. 37    It was also argued that he has been clearly identified by the author as a person who falls within the term “right wing” as the author has defined it and thus, the more general statements made about members of the “Right” in the book as a whole are clearly capable of being understood as embracing the plaintiff (cp. Knupffer v London Express Newspapers Limited (1944) AC 116 at 119). 38 The submissions for the plaintiff on the broad basis find favour. Thus, I can now turn to the imputations pleaded. 39 As to imputations (a) and (b) these are bad in form and will be struck out as embarrassing. They are clearly rolled up. As I have mentioned above, if in proper form, I would hold that the matter complained of is incapable of conveying any suggestion of “beneficial suppression”. As to imputation (c) I am satisfied that the ordinary reasonable reader could understand the matter complained of as conveying this meaning. 40    As to imputation (d): this imputation will be struck out as embarrassing by reason of form; it is clearly rolled up. Further, I am persuaded that absent any defect in form there is nothing in the matter complained of that suggests that the person should be “shunned and avoid by decent people”. 41    As to imputation (e); contrary to the submissions of the defendant, there will be no occasion on which the jury will see any film. The legal question of capacity and the factual questions are each determined by what is written. I am satisfied that this imputation and the following imputation (f) are capable of being conveyed. 42    As to imputation (g); there are several references in the course of the book to people associated with “security” having been army intelligence officers. The specific reference to the “plaintiff’s stint” is in the passage cited at page 84. Whilst I am of the view that this may be described as a “borderline imputation,” minds may differ upon the capacity of the book as a whole to convey it and therefore it shall be left to the jury. Similarly shall imputation (h). 43    Imputation (i) shall be struck out as bad in form. It involves four concepts, two of which are temporal. 44    As to imputation (j) and imputation (k) I am not persuaded that they are bad in form in the sense of being “rolled up”. The concept of a violent revolutionary who trained vigilantes and armed them for the purposes of carrying out a coup d’tat is a simple straightforward one. Is the matter complained of capable of conveying to the ordinary reasonable reader these imputations? These again, and I take account of what the defendant has said in relation to them and a posited alternative imputation, are capable of being carried and they will go to the jury. 45    Imputation (l) and (m) are fairly stark. They are not, however, in my view, far-fetched. Minds certainly will differ as to whether page 90 in the book as a whole in fact gives rise to them; I am satisfied that they are capable of being carried. 46    I am satisfied that imputations (n) and (o) are capable of being carried and will go to the jury. 47    It is contended for the defendant that imputations (p) and (q) do not differ in substance. Imputation (q) in any event is bad in form being a rolled up imputation. Imputation (q) will be struck out. 48    The plaintiff relies upon the whole of the book, but in particular the fourth attribute to which I have referred as being set out in the introduction to the work on page 3. Arguably there is a difference in substance between a person who does not support parliamentary democracy and a person who is opposed to parliamentary democracy. It is a fine line. Imputation (p) is capable of arising in my view. 49    In the exercise of the liberty to replead which I propose to grant, consideration should be given as to whether or not it is appropriate in this case to adopt the language of the author to make more clear a distinction the plaintiff wishes to draw between mere non-support of democratic institutions and active opposition to them. 50    Imputation (r) is capable of arising and will go to the jury. 51    The plaintiff has been fundamentally successful on the Motion. 52    Accordingly, the formal orders are:

1. I decline to make Order 1(a) in the Notice of Motion.

2. I make Order 1(b) in the Notice of Motion.

3. I make Order 1(c) in the Notice of Motion.

4. The following imputations are struck out: 3(a), 3(b), 3(d), 3(i) and 3(q).

5. The following imputations are held to be capable of being carried and of being defamatory and will go to the jury: 3(c), 3(e), 3(f), 3(g), 3(h), 3(j), 3(k), 3(l), 3(m), 3(n), 3(o), 3(p) and 3(r).

6. The plaintiff is to file an Amended Statement of Claim within 21 days.

7. The matter is listed in the Defamation List on 10 November 2000.

8. By no later than 4pm on Thursday 9 November 2000 the parties are to have exchanged outlines of submissions in relation to any objections to be taken to the Amended Statement of Claim.

9. I direct that Practice Note 114 applies to this action.

10. The defendant is to pay the plaintiff’s costs.

11. Exhibit 1 (the book) will be kept with the Court file.
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Last Modified: 10/16/2000