Dennison v Refshauge

[2003] NSWSC 78

CITATION:	Dennison v Refshauge [2003] NSWSC 78
HEARING DATE(S):	16/12/02, 17/12/02
JUDGMENT DATE:	19 February 2003
JURISDICTION:	Common Law Defamation
JUDGMENT OF:	Cripps AJ
DECISION:	Verdict for the defendant. Plaintiff to pay the defendant's costs.
CATCHWORDS:	Defamation - Truth - Contextual imputations
LEGISLATION CITED:	The Defamation Act 1974 s 7A The Public Hospitals Act 1929 Part 5 s 24A(1)(f)
CASES CITED:	John Fairfax Publications Pty Ltd v Blake [2001] NSWCA (Unreported)
PARTIES :	Anthony John Dennison - Plaintiff Andrew John Refshauge - Defendant
FILE NUMBER(S):	SC 20165/2000
COUNSEL:	Mr K P Smark - Plaintiff Mr M Lynch - Defendant
SOLICITORS:	Doyle Wilson Solicitors - Plaintiff I V Knight, Crown Solicitor - Defendant

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

Cripps AJ

19 FEBRUARY 2003

No 20165 of 2000 Anthony John Dennison v Andrew John Refshauge

JUDGMENT

1 HIS HONOUR: On 6 March 1998 the Defendant was interviewed by a reporter from the Australian Broadcasting Commission in the course of which he made two statements which a jury in a trial held pursuant to s 7A of the Defamation Act 1974 found to be defamatory of the Plaintiff.

2 The interview related to what was said to be a conflict between Mr Refshauge, the Minister for Health and Mr Dennison, who was, at all relevant times, a member of the New England Area Health Board.

3 A video recording of the whole interview which went to air on 6 March 1998 was tendered before me. The first part (which contains the matter complained of) is:

“ABC NEWS PRESENTER: Health Minister Andrew Refshauge has been summonsed to appear before the Parliamentary Inquiry to respond to allegations he intimidated the witness.
But Dr Refshauge has hit out at the claims saying that the man behind them, Tony Dennison lacks credibility because he had a criminal record.
ABC REPORTER: Andrew Refshauge is fighting back.
DR ANDREW REFSHAUGE: I think his history shows very clearly he is a man that does not tell the whole truth.
ABC REPORTER: Yesterday Tony Dennison of the New England Area Health Board accused Dr Refshauge of trying to intimidate him out of fronting a parliamentary inquiry. But the Health Minister said Mr Dennison’s claims had no credibility.
DR ANDREW REFSHAUGE: My understanding is that he has been found guilty twice of armed robbery and spent time in jail.”

4 The plaintiff nominated two statements of the defendant as being the matter complained of. They were:

1. ”I think his history shows very clearly he is a man that does not tell the whole truth”.
2. “My understanding is that he has been found guilty twice of armed robbery and spent time in jail”.

5 The jury which found the imputations contended for by the plaintiff was not shown the full video tape of the item presented by the ABC on 6 March. In fact although the video tape was shown to it down to the end of the part reproduced above, it only saw and heard the two remarks attributed to the Defendant. It saw but did not hear the remarks of the news presenter or the reporter.

6 The jury found the imputations in the matter complained of were:

a. “That the plaintiff was not a man whose word can be trusted”.
b. “That the plaintiff was not a fit and proper person to be a director of the New England Area Health Service Board”.

7 Although there was some debate about the matter, I record that I take the first imputation found by the jury to mean that the plaintiff is a man who consciously tells lies and for that reason is a person whose word cannot be trusted.

.

8 The defendant alleges that the imputations were matters of substantial truth and both relate to a matter of public interest. It is not in contest in these proceedings that the imputations, if true, relate to a matter of public interest.

9 The defendant, by way of defence, has also alleged that the matter complained of conveyed other imputations which were published contextually to the imputations claimed by the plaintiff. They were:

a. “The plaintiff had been convicted twice of armed robbery to which he had been sentenced to terms of imprisonment.”
b. “The plaintiff engaged in repeated acts of criminal dishonesty in that he had robbed persons.”
c. “The plaintiff has committed such serious and repeated acts of violence that he was sent to prison.”

10 The defendant alleges that each contextual imputation was a matter of substantial truth and related to a matter of public interest. The defendant alleged that by reason of the substantial truth of the contextual imputations (or any one of them) the imputations pleaded by the plaintiff did not further injure his reputation. The plaintiff although challenging the contextual imputations accepts that if they are true they relate to a matter of public interest.

11 The defendant alleged, but later abandoned, a claim that the circumstances of the publication of the matter complained of were such that the plaintiff was not likely to suffer further harm.

12 The plaintiff alleged that the matter complained of was republished by the ABC in its nightly broadcast and on 7 March by the Sydney Morning Herald and the Daily Telegraph. The newspaper articles referred to the defendant’s criticism of the Plaintiff but, in general, as is conceded by the plaintiff, the journalists tended to side with him against the defendant.

13 The plaintiff was born in 1955. In 1975 he was convicted of a number of offences of wilful and obscene exposure and one of assaulting a female. In June 1975 he was sentenced to a lengthy period of imprisonment (later increased by the Court of Criminal Appeal) after he had pleaded guilty to three charges of armed robbery and had asked the Court to take into account another ten allegations of armed robbery. He was released on parole in May 1982.

14 In December 1982 the plaintiff was taken into custody and was charged with armed robbery in September and December 1982 and, as well, with stealing a motor vehicle and having an unlicensed pistol in his possession. On 16 February 1983 he was convicted on two counts of armed robbery, one of stealing a motor vehicle, one of carrying an unlicensed pistol and one of assaulting a female. He was sentenced to jail for a term of 12 years which was to commence at the expiration of the previous sentence imposed in 1975.

15 On 1 December 1986 the plaintiff was released on parole.

16 On 29 June 1995 the plaintiff applied for the position of director of the Barwon District Health Board and in support of his application he attached a resume or CV. On 15 April 1996 he applied for appointment as a director of the New England Health Service. Again he attached a resume or CV to his application. Each application was made on the form provided by the New South Wales Department of Health. Appointments as directors were made by the Minister. The Plaintiff was appointed a director to the Barwon District Health Board and later the New England Area Health Service Board. When making his application the plaintiff was asked to attach his curriculum vitae or short summary of his experience and qualifications and to mark the document “confidential”.

17 The documents in support of the applications to the Department of Health for the positions of director of the Barwon District Health Board and later the New England Area Health Service were almost identical. There is no mention made in either of them of the plaintiff’s criminal record and a person reading them would have thought that the plaintiff had been almost continuously employed during the relevant period and had engaged in community service work. For example he claimed to have been a lecturer at the Muswellbrook College of TAFE for almost the whole of 1988 which, as he admitted was untrue. He also claimed he was employed by the Forestry Commission from January 1984 to December 1986 when, in fact, he was in jail.

18 There was little dispute before me concerning the misleading nature of the plaintiff’s CV’s. The plaintiff has contended, however, that after he was released from prison he was led to believe by an officer of the Commonwealth Rehabilitation Service that he was not obliged to disclose his criminal record. In the course of employment with Arnotts in 1991 or 1992 he injured his back. He was referred to the Commonwealth Rehabilitation Service and later sought employment with that Service. In his application (referred to as an “Induction Record”) he was asked whether he had been the subject of any criminal charges pending or whether he had been the subject of a conviction. He answered “yes” and named the offences as “armed robbery 1977 plus assault; armed 1982; armed conviction.” The defendant admitted he gave no further information orally and made no reference to his convictions in 1975.

19 The plaintiff does not dispute that he gave misleading information to the Commonwealth Rehabilitation Service but alleges that he was told by a rehabilitation officer in about 1991 that he had no obligation to furnish details of his criminal record. He said the name of the officer was “Sandy”. She has not been called and I am asked by the defendant to infer from her absence an inference unfavourable to the plaintiff. I draw no inference one way or another from the absence of “Sandy”. I do not know if she was available to give evidence nor do I know whether, even if she were, the circumstances surrounding her association with the plaintiff were such that an adverse inference ought to be drawn.

20 Nonetheless I still have to determine whether I accept the plaintiff that he was told by an officer of the Rehabilitation Service that it was not necessary for him to disclose his criminal record in circumstances where he otherwise believed he should and it was for that reason and not because he wanted to deceive that he made no mention of his criminal record. He has admitted in evidence that he knew his CV’s were likely to mislead. He said that the CV which was presented on at least 4 occasions (in its original or modified form) was first drafted by “Sandy” in accordance with the information furnished by him. Two, as I have said were presented to the Minister for Health in support of his applications to become a director of the Health Boards referred to above. Another was to an institution referred to as “Lemon Grove” and the fourth was to the Commonwealth Rehabilitation Service for employment. It is to be noted that in the application for employment with the Rehabilitation Service he is specifically asked to nominate his criminal past. It would seem to me therefore highly unlikely that a member of the Service would tell him that he was under no obligation to do so or if he was told that he believed it and I do not accept the plaintiff’s evidence in this respect.

21 Moreover, as has been pointed out by Mr Lynch on behalf of the defendant the CV’s not only omit reference to the plaintiff’s criminal history but, as amended from time to time, present an employment history (including misleading information concerning community work) inconsistent with his criminal history and his having spent ten years of his working life in jail.

22 Mr Lynch has also referred to interviews given by the Plaintiff to other electronic media about the same time as the interview given to the ABC. He points to the circumstance that in the interview given to John Laws, and after preliminary introduction, the following exchange took place:

JOHN LAWS: “Why do you think Dr Refshauge didn’t want you to attend the Parliamentary Committee into rural health?”

MR DENNISON: “Well, I can’t say that off…John, because it was in the thing yesterday [sic] but I can say that I stand by what I said in the inquiry yesterday which is in public…quite public now.”

JOHN LAWS: “Yes it is quite public, it is quite public. You went through it very directly and yet there seems to be some concern that we shouldn’t accept what you say because back then, I think it was about ’83, you had a bit of a problem with the law.”

MR DENNISON: “1977 to be exact John.”

JOHN LAWS: “Is that when it happened?”

MR DENNISON: “Yes I was … I was … I pleaded guilty to armed robbery charges and I made a mistake, I done the time, I paid the crime. You know, I did the time … I did the crime and I did the time. There was never argument about that, it was no secret. I’ve been public about it for ten years.”

JOHN LAWS: “How old were you in 1977?”

MR DENISON: “Oh …”

JOHN LAWS: “Young?”

MR DENNISON: “Twenty, twenty-one.”

23 The plaintiff agreed that his statement to Mr Laws was misleading to his knowledge.

24 On 6 March he was interviewed by Michael Jeffreys. There was some discussion concerning his assertion (and the defendant’s denial) that he was under some pressure from the defendant relating to the inquiry. Toward the end of the interview the following exchange took place:

MR DENNISON: “Okay. I just want to, you know, that you for giving me the time to have my say. And oh, there was … I think … I remembered what it was. Can I tell you?”
MR JEFFREYS: “Mm-hm. Sure, go ahead.”
MR DENNISON: “Well, the thing is, they bought up this thing about my past, as you know, right? Now, they did a full criminal check on the New England Health Services and all their staff, their volunteers, Meals on Wheels, everybody, including the board. Now that report was done last year in October, November.”
MRJEFFREYS: “And you were appointed by Dr Refshauge.”
MR DENNISON: “And I was appointed by Dr Refshauge. Now, if it troubled him so much now, why didn’t it trouble him when the report was handed in, because they did a criminal check on everybody and they got the information that he produced yesterday. Well, if it troubled him so much then, why didn’t they remove me from the board then?”
MR JEFFREYS: “Well, I think that’s a very good point.”
MR DENNISON: “You know?”
MR JEFFREYS: “I think that’s an excellent point.”
MR DENNISON: “And he’s turned around and saying that Tony Dennison lied on his application. There was nowhere on the application, the regional application that I sent in that said you had to disclose it, you know. And the point was they lost my original application and they sent me a fax and just told me to fill it out and send it back to them after the applications closed. Now, they still went ahead and appointed me. “

25 On the material before me I conclude that when the plaintiff told Mr Jeffreys that there had been criminal record checks of directors he was not telling a conscious untruth. In fact no criminal record checks had been undertaken. Criminal record checks had been undertaken of other members of staff but not of board members. Consequently I do not regard the statement he made to Mr Jeffrey as being a deliberate untruth. In my opinion he was mistaken.

26 As I have said the plaintiff, generally speaking, does not deny what is alleged against him with respect to the false information included in his CV’s and other statements by him (with the exception referred to above). He asserts however, that for the past 8 years or so he has made no secret of his criminal past. He said he has made public speeches referring to his criminal record. He also refers to the fact that he was place eighth or ninth on the Liberal Party’s Upper House Ticket in circumstances where the selectors were fully aware of his criminal past.

27 The essence of the plaintiff’s response to the allegations that the imputations were true is that the defendant has not discharged the onus of establishing general bad conduct simply because one or two instances of it have been advanced. He has submitted that I should determine, on the evidence, that in 1998 it had not been established that he was a man whose word could not be trusted or that he was not a fit and proper person to be a member of the New England Area Health Service Board.

28 I accept that a defendant cannot establish the truth of a general allegation of bad conduct simply by proving the truth of a single instance. Mr Smark on behalf of the plaintiff has submitted that I should regard the CV’s presented by the plaintiff to the Minister and prospective employers as but a single instance of untruthful conduct. I do not accept this submission having regard of the fact that the CV was presented on 4 separate occasions and was, in fact, updated. At all times the defendant knew that what was being presented in the document concerning his employment history was incorrect and that he was deliberately concealing his criminal past.

29 Moreover as I have said he made statements on the day the ABC published (or republished) the matter complained of that were not true to his knowledge.

30 Mr Smark has also asked me to have regard to the circumstance that the offences in 1975 were trivial and did not attract a custodial sentence. He endeavoured to support his case by pointing to the many other times the plaintiff had the opportunity to tell lies but did not. However I cannot determine this issue by reference to the supposed occasions when the plaintiff could have told lies but did not. In my opinion the accumulation of instances referred to establishes the truth of the imputation that the plaintiff is not a man whose word can be trusted. Accordingly I find the imputation to be a matter of substantial truth.

31 Mr Smark has submitted that I should not find the plaintiff was not a fit and proper person to be the Director of the New England Area Health Service Board in 1998. To do so according to the submission advanced by Mr Smark would be to assume a person having a criminal history was not able to be rehabilitated. He submits that the imputation is not that in the opinion of a particular person he was not a fit and proper person to be a member of the Board. It was that in effect, no person could reasonably hold the opinion he was a fit and proper person to be a member of the New England Area Health Service Board.

32 Part 5 of the Public Hospitals Act 1929 deals with the constitution and function of boards of directors of health services. Relevantly it provides that the duties of the Board are to achieve and maintain adequate standards of patient care and services provided by the hospital and to ensure the efficient and economic operation of the hospital consistent with those standards.

33 Of particular relevance to the present issue is s 24A(1)(f) which provides that a director shall be deemed to have vacated office:

“if he is convicted in New South Wales of a felony or a misdemeanour punishable by imprisonment for a fortnight or upwards of if he is convicted elsewhere other than in New South Wales of an offence which, if committed in New South Wales, would be a felony or a misdemeanour so punishable”.


It is fairly clear, I think, that had the Minister been aware of the plaintiff’s criminal history and that he was presenting a misleading and deceitful CV in support of his application he would not have been appointed. In my opinion the defendant has established that the plaintiff was not a fit and proper person to be a director of the New England Area Health Service by reason not only of his criminal past but his deception with respect to his application.

CONTEXTUAL IMPUTATION

34 Because I have found that the imputations were substantially true and because it is conceded that if true they were matters of public interest I need not deal with the question of contextual imputations. However I think it appropriate I express an opinion concerning them in the event that other minds might consider that it was not established as at 1998 that the Plaintiff was not a fit and proper person to be a director of the New England Area Health Service Board. Mr Smark has submitted that the imputations go beyond armed robbery and hence beyond the “matter complained of”. For example he has submitted that there is nothing in the matter complained of capable of raising the imputation that the plaintiff engaged in “repeated acts of criminal dishonesty”. He also submits that there is nothing in the matter complained of that could lead to an imputation that the Plaintiff had committed serious and repeated acts of violence.

35 The first contextual imputation plainly arises from the matter complained of. Moreover, in my opinion, an assertion that a person has been convicted of armed robbery and sentenced to a term of imprisonment would carry to the mind of an ordinary recipient of that information that that person had committed a premeditated criminal act and his act was associated with an act of violence actual or apprehended. The second imputation attaches “criminal dishonesty “ to robbery and the particulars are directed to his criminal record. Relevantly they all arise out of the matter complained of.

36 Accordingly I am of the opinion that imputations 1 and 3 are for practicable purposes that same.

37 In John Fairfax Publications Pty Ltd v Blake [2001] NSWCA (Unreported) there was dispute concerning the meaning of s 16. The majority view articulated by the Chief Justice denied the proposition that the task involved under s 16 involved weighing of one imputation against another. The Chief Justice said:

“S 16(2)(c) does not focus attention on a contextual imputation as such but on the proposition that such an imputation is a “matter of substantial truth”. It is “by reason” of such “substantial truth” that a defence to an imputation pleaded by the plaintiff can be made out on the basis that the plaintiff’s imputation does not “further injure the reputation of the plaintiff”. For the purpose of determining whether s 16’s defence is capable of being made out, the Court must focus on facts, matters and circumstances said to establish the truth of the contextual imputation, rather than on the terms of the contextual imputation itself.”

Blake was concerned with whether a defence’s contextual imputation was capable of being raised. In the present case the question I must ask myself is whether the imputations asserted by the defendant had the consequence that the imputation that the plaintiff was not a fit and proper person to be a director of the New England Area Health Service Board did not further injure his reputation.

38 Mr Smark has submitted that accepting the seriousness of the imputations relied on by the defendant the assertion that the plaintiff was not a fit and proper person to be the director of the New England Area Health Service Board in fact further injured his reputation. In the present case although it is a serious imputation to say of a person that he was not a fit and proper person to be the director of an Area Health Service Board it is an extremely serious imputation to say that he has been convicted of armed robbery and sent to prison in circumstances particularised. A reasonable minded person in the community, in my opinion, would conclude that the damage done to a person’s reputation by truthfully asserting that he was a convicted armed robber would have the consequence that the plaintiff’s reputation was not further injured by an assertion that he was not a fit and proper person to a director of an Area Health Service Board.

39 In my opinion the plaintiff has established the truth of the imputations found by the jury. I am also of the opinion that the defendant has established the truth of the contextual imputations which, in my opinion, had the consequence that the imputation complained of by the plaintiff did not further injure his reputation. It is unnecessary for me to determine other defences or the question of damages.

40 Accordingly there shall be a verdict for the defendant.

The plaintiff to pay the defendant’s costs.

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Last Modified: 02/27/2003