Di Girolamo v Fairfax Media Publications Pty Ltd (No 3)
[2016] NSWSC 642
•16 May 2016
|
New South Wales |
Case Name: | Di Girolamo v Fairfax Media Publications Pty Ltd (No 3) |
Medium Neutral Citation: | [2016] NSWSC 642 |
Hearing Date(s): | 16 May 2016 |
Decision Date: | 16 May 2016 |
Before: | Adamson J |
Decision: | Documents admitted on the bases indicated in the reasons. |
Catchwords: | EVIDENCE – defamation – admissibility |
Legislation Cited: | Evidence Act 1995 (NSW), s 135 |
Cases Cited: | Kanaan v R [2006] NSWCCA 109 |
Category: | Procedural and other rulings |
Parties: | Nicholas Anthony Di Girolamo (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2013/375294 |
JUDGMENT
Introduction
The plaintiff, Nicholas Di Girolamo, objected to the tender of certain documents in the defendants’ tender bundle. Reasons for my rulings are required in respect of the following three documents or categories of documents:
(1)The transcript of the opening of Mr Watson SC, counsel assisting the public inquiry by the Independent Commission Against Corruption (ICAC), which took place on 12 November 2012 (the ICAC Opening Transcript)(pages 221 to 280 of the defendants’ proposed tender bundle);
(2)Documents relating to the Mount Penny Coal Mine (pages 288 to 545 of the defendants’ proposed tender bundle); and
(3)Documents relating to a proposal that Australian Water Holdings Pty Ltd (or an associated company) engage in a Public Private Partnership (PPP) with Sydney Water (pages 623 to 650 of the defendants’ proposed tender bundle).
My reasons for allowing these three tenders (the first, subject to the limitation that it is not to be used for a hearsay purpose) are set out below.
(1) The ICAC Opening Transcript
Mr McClintock SC, who appeared with Mr Richardson on behalf of the plaintiff, objected to the defendants’ tender of the ICAC Opening Transcript on two grounds: first, that the document has not been shown to be relevant; and, secondly, that it should be excluded under s 135 of the Evidence Act 1995 (NSW) on the ground that it would be unfairly prejudicial to the plaintiff, having regard to its probative value.
Mr Blackburn SC, who appeared with Mr Dawson on behalf of the defendants, submitted that the evidence was relevant to prove the truth of the following imputations:
(a)The imputation, which the defendants accept was conveyed by the article published by Fairfax Media Publications Pty Limited (the first defendant, or Fairfax) in the Sydney Morning Herald in its weekend print edition for 15 and 16 December 2012 and also online (the first and second matters complained of), that:
The plaintiff falsely denied that he had been nominated to act as a front man for the Obeid family in a corrupt coal deal in the Bylong Valley.
[Imputation 1-2, B]
(b)The imputation, which the defendants accept was conveyed by the article published by Fairfax in the Sydney Morning Herald and online on 7 January 2013 (the third and fourth matters complained of), that:
The plaintiff is a liar in that he falsely denied that the Obeids had any interest in Australian Water Holdings.
[Imputation 3-4, C]
(c)The imputation, which the defendants accept was conveyed by the article published by Fairfax in the Sydney Morning Herald and online on 24 January 2013 (the fifth and sixth matters complained of), that:
The plaintiff is a liar in that he falsely denied that the Obeids were involved in Australian Water Holdings.
(d)The imputation, which the defendants accept was conveyed by the article published by Fairfax in the Sydney Morning Herald and online on 2 August 2013 (the eleventh and twelfth matters complained of), that:
The plaintiff dishonestly denied that the Obeids were involved in Australian Water Holdings.
The defendants submitted that the ICAC Opening Transcript was relevant to proving its truth defence to Imputation 1-2, B, as well as to the other imputations. Mr Blackburn confirmed that the ICAC Opening Transcript was not tendered for a hearsay purpose but rather to show the plaintiff’s state of mind (including his awareness) as at 12 December 2012 (the date on which Mr Di Girolamo was interviewed by Linton Besser, the third defendant, who is alleged to have written (with Kate McClymont, the second defendant) the first matter complained of). He submitted that this was relevant to the question of whether he had a motive to deny the association with the Obeid family that is contained within the imputation.
Mr Blackburn submitted that the ICAC Opening Transcript was relevant because it was the genesis of the substantial adverse publicity affecting interests associated with Eddie Obeid and his family (including one of his sons, Eddie Obeid Jnr) on and from 12 November 2012, which provided a motive for the plaintiff to lie to Mr Besser about the association.
The defendants submitted that, although there was no direct evidence (such as would be afforded by an admission) that the plaintiff had read the ICAC Opening Transcript, there was circumstantial evidence from which the jury could infer that he had. Mr Blackburn tendered, on the voir dire, the transcript of the interview with the plaintiff conducted by Mr Besser (the 12 December Interview) in which the plaintiff admitted that he had read at least a portion of the transcript of the ICAC public hearing on 14 November 2012, in which Mr Rumore, a former partner of the plaintiff’s in the legal practice of Colin Biggers and Paisley, was publicly examined. I understand that the defendants’ ultimate submission to the jury will be that it is inconceivable that, having regard to matters such as: the plaintiff’s connections with the Obeid family; his diligence as a solicitor; the prospect of his own fortunes being affected by any demise in those of the Obeid family; and the fact that he had read at least part of the examination of Mr Rumore, that he would not have read the ICAC Opening Transcript. If the plaintiff does not give evidence, the jury will also be able to draw an inference against the plaintiff arising from this forensic choice.
Mr Blackburn also put that the ICAC Opening Transcript was relevant on an alternative basis: namely to show the genesis of the widespread adverse publicity regarding the Obeid family, irrespective of whether the plaintiff had read it, on the basis that he must have read reports of the ICAC Opening.
Mr Blackburn also tendered, on the voir dire, admissions made by the plaintiff in interrogatories to the effect that he had entered into an agreement with Eddie Obeid Jnr on 20 November 2012 with a view to quarantining Australia Water Holdings Pty Ltd (AWH) from the damaging effect of publicity linking AWH with the Obeids. This evidence tends to show that he had a motive for denying the association contained within Imputation 1-2, B (and subsequent imputations listed above), but does not, in my view, take the admissibility of the ICAC Opening Transcript any further.
Mr McClintock argued that the relevant issue identified by the defendants is the plaintiff’s state of mind as at 12 December 2012 and that his state of mind cannot be affected by something of which he was unaware. If the plaintiff had not read the ICAC Opening Transcript but had read reports of it, he submitted that it would be the reports he had read which would be relevant to his state of mind and not the transcript itself. Mr McClintock submitted that, in circumstances where there was no evidence that the plaintiff had actually read the transcript (or was present at the public hearing), it ought be rejected.
As the ICAC Opening Transcript was the source of the reports about it, I consider it to be relevant to show what it covered and the matters that were likely to have been reported, even if it cannot be established to the requisite standard that the plaintiff read the whole, or any part of it. I am not persuaded that it could be seriously in dispute that the plaintiff was aware of the ambit of public inquiry as outlined in the opening to ICAC. I consider the ICAC Opening Transcript to be relevant and admissible to the defendants’ defence to Imputation 1-2, B. As the later imputations listed above were similar (in the relevant respect) but were conveyed at a later point of time, it follows that the ICAC Opening Transcript is relevant and admissible with respect to the defendants’ defences to those imputations as well.
Section 135 of the Evidence Act
There remains to be considered whether I should refuse to admit the ICAC Opening Transcript under s 135 of the Evidence Act on the grounds that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the plaintiff, be misleading or confusing or cause or result in undue waste of time.
One difficulty with Mr McClintock’s submission that admission of the ICAC Opening Transcript would be unfairly prejudicial to the plaintiff is that it is part of the plaintiff’s case that the mention of an association between the Obeids and another person implied corruption to readers of the Sydney Morning Herald. He said to the jury, in opening:
You would have had to be living on a desert island or not in Sydney over the last ten years not to have heard the name Obeid and the name Obeid in the eyes of the Sydney Morning Herald has become synonymous with corruption.
I'm not saying that's accurate, that's what the Sydney Morning Herald has portrayed. There's been hundreds of articles about Mr Obeid, mainly written by Ms McClymont, the journalist here. There were findings of corruption made against Mr Obeid by ICAC but he's never been convicted of anything and the principal purpose for his role here is to show just the mere mention of his name in conjunction with other people's names carries a flavour ultimately obviously assumed to you of corruption.
There is no mention in the ICAC Opening Transcript of the plaintiff himself. However, the transcript is redolent with references to members of the Obeid family. If the jury is satisfied, on the balance of probabilities, that the plaintiff read it, or otherwise became aware of its contents, then it seems to me to have relatively high probative value on the issue of the plaintiff’s state of mind, on 12 December 2012, and thereafter. It would tend to provide a significant motive for the plaintiff to distance himself and his companies (Australian Water Pty Ltd and Australian Water Holdings Pty Ltd) because of the allegations that had been made in the ICAC Opening. Any incidental prejudicial effect of the jury’s reading the transcript could be, in my view, ameliorated by a direction as the use to which it could be put. Neither the robustness of a jury nor its capacity to follow directions as to the use to which evidence can be put should be underestimated: see the summary of authorities in Kanaan v R [2006] NSWCCA 109 at [24]-[33] per Hunt AJA, Buddin and Hoeben JJ. I was not satisfied that the probative value of the ICAC Opening Transcript is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party.
I was not satisfied that the ICAC Opening Transcript would be misleading or confusing or that it would result in an undue waste of time (as it comprises a mere 61 pages).
Accordingly, I allowed the ICAC Opening Transcript but limit the use to which it can be put to the non-hearsay purpose. In other words, it is not admissible to prove the truth of the statements recorded in it.
(2) Documents relating to the issue whether coal deal was corrupt
The plaintiff objected to several documents (at pages 288-545 of the defendants’ tender bundle) tendered by the defendants which were said to be relevant to the issue whether the Obeid family had been involved in a corrupt coal deal in the Bylong valley. Mr McClintock submitted that the documents were irrelevant because there was no suggestion that his client was involved in the coal deal (whether or not it be corrupt) and many documents pre-dated his involvement with Australian Water Pty Ltd or Australian Water Holdings Pty Ltd. He contended that what the defendants were seeking to do was to rerun the ICAC inquiry and that the Court ought not permit them to do so.
Mr Blackburn relied on the defence pleaded in answer to Imputation 1-2, B, which is that the imputation is substantially true. Mr Blackburn submitted that, in order to make out this defence, the defendants would have to prove that the coal deal in the Bylong valley was corrupt, since this was part of the sting of the defamation. He contended that the documents went squarely to that issue and had been set out in the particulars.
I allowed the documents to be admitted since they are relevant on the basis indicated by Mr Blackburn.
(3) Documents relating to the Public Private Partnership proposal involving Australian Water Holdings
The defendants sought to tender correspondence and other documents relating to a proposal that Australian Water Holdings Pty Ltd (or an associated company) engage in a PPP with Sydney Water. These documents were created in the period prior to the March 2011 election in which the Government changed hands from Labor to Liberal. The documents showed that the plaintiff approached the Government in 2009 with a view to engaging in a PPP for the provision of water to the north west area of Sydney. The proposal had been rejected by Mr Schur, the Secretary of the Treasury, and was not favourably entertained by the then Government, of which Ms Keneally was, ultimately, the Premier. However during this period Barry O’Farrell, the then Leader of the Opposition (whom the plaintiff admitted was expected to be Premier as a result of the election in March 2011), wrote to the plaintiff and gave him some expectation that his PPP would be met with a more favourable reception by a Liberal Government, if elected in March 2011. At that time, Katrina Hodgkinson was the Opposition spokesperson for water issues.
This material, according to Mr Blackburn, forms the background to, and provides context for the following imputation which the defendants admit was conveyed and which they contend was substantially true:
The plaintiff caused a cash donation of $10,000 to be made to Nationals MP Katrina Hodgkinson in order to influence future decisions made by her as a Member of Parliament.
Mr McClintock argued that the precise wording of the imputation made the documents irrelevant because it was confined to Ms Hodgkinson’s role “as a Member of Parliament” as opposed to her role as a future Minister with responsibility for a portfolio which was likely to include water infrastructure. I reject this argument as unduly pedantic. I am not satisfied that such a technical interpretation of the imputation is appropriate or that it has the effect of making the documents irrelevant. I allow the tender.
I am satisfied that the documents objected to are relevant to the jury’s determination of the defence relied upon by the defendants in respect of this imputation and ought, accordingly, be allowed into evidence.
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