Feeney v TCN Channel Nine Pty Ltd

[2016] NSWSC 1848

Supreme Court

New South Wales

Medium Neutral Citation:	Feeney v TCN Channel Nine Pty Ltd [2016] NSWSC 1848
Hearing dates:	14 December 2016
Decision date:	14 December 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Rulings as to defendant’s objections to imputations
Catchwords:	DEFAMATION – imputations – objections as to form and capacity – no question of principle
Category:	Procedural and other rulings
Parties:	John Feeney (plaintiff) TCN Channel Nine Pty Ltd (defendant)
Representation:	Counsel: R Rasmussen (plaintiff) M Richardson (defendant)     Solicitors: Friend & Cos Lawyers (plaintiff) Marl O’Brien Legal (defendant)
File Number(s):	2016/243342

Judgment

1. HER HONOUR: These are proceedings for defamation originally commenced in the District Court by a solicitor, Mr John Feeney, against TCN Channel Nine Pty Ltd, the proprietor of the television programme A Current Affair. The proceedings were transferred to this Court in circumstances where it had been indicated by the defamation list judge in the District Court, Gibson DCJ, that her Honour knows Mr Feeney and apprehends a number of the judges of that Court might also know him, since he has worked at the Court. I should record that Mr Feeney is unknown to me.

2. The proceedings have come before the Court today for argument of the defendant's objections to the form of the statement of claim, as contemplated by the Defamation List Practice Note provisions relating to the first listing.

3. Broadly speaking, the broadcast concerned what was described as the exposure of the conduct of Mr Feeney as being a person "caught up with celebrity conman Gerard Vamadevan and using innocent soapie stars to lure young women with fake career promises".

4. The programme presents what is plainly to be perceived as a broad and savage attack on both Mr Vamadevan and Mr Feeney. The content of the attack is in some respects unclear - the programme does not always have a coherent story line - but the gist of the attack appears to be that Mr Vamadevan represented himself to attractive young women with aspirations of a career in television as a person in a position to offer such careers while in fact intending to lure them into sexual relationships. The allegation against Mr Feeney is that he assisted in the perpetration of that scam by preparing a fake video bolstering Mr Vamadevan’s credibility.

5. From what I am told is a six-minute programme, the plaintiff originally brought forward 22 imputations allegedly conveyed by the broadcast. The imputations have, through correspondence between the parties, undergone a series of iterations and amendments. There remain, for today's purposes, only a small number of objections taken by the defendant.

6. The first imputation objected to is imputation (a):

The plaintiff uses innocent soapie stars to lure young women with fake career promises.

7. As the introduction to this judgment will reveal, those words are drawn directly from the opening words of the presenter of the programme, Ms Tracy Grimshaw. Mr Richardson, who appears for the defendant, submitted that the imputation is bad in form.

8. A number of decisions in this list have discussed the circumstances in which the plaintiff may or may not draw an imputation in terms from the matter complained of. The guiding principle is the requirement of specificity. An imputation must distil what it is the plaintiff alleges is attributed to him or her by the matter complained of with sufficient clarity and specificity to avoid confusion at the interlocutory stages and at the hearing.

9. The opening words of the presenter in terms attribute Mr Feeney with being caught up with the con, using innocent soapie stars to lure young women with fake career promises. However, from the balance of the programme, it is clear that the nature of the scam, as represented in the programme, is that it is Mr Vamadevan who does the “luring” while Mr Feeney is attributed only with having bolstered Mr Vamadevan’s credibility with the preparation of fake videos.

10. In my assessment this is a matter in which simply lifting the words of the presenter fails to distil what it is said the programme attributes to the plaintiff with sufficient clarity to avoid embarrassment at the interlocutory stages and at the trial. The imputation must be struck out as being bad in form.

11. Imputations (b) and (c) are objected to on the same basis. They are:

The plaintiff knowingly participated in the activities of celebrity conman Gerard Vamadevan.

The plaintiff knowingly participated in a perverted celebrity scam.

12. Again, those imputations are drawn more or less in terms from paragraphs 2 and 8 of the matter complained of respectively. As with imputation (a), I am persuaded that those imputations fail to distil with adequate clarity the attribution complained of. One can only have a measure of sympathy for the pleader in that respect since, as I have said, the programme presents something of an atomised attack on the two men, the import of which is not always entirely clear. Nonetheless, I think the two imputations (b) and (c) will only add confusion at this trial by reason of the use of the term “knowingly participated”. The range of conduct that could be denoted by that term is extremely broad and is not made clear in the balance of either imputation.

13. The plaintiff has in many other imputations successfully distilled clearer attributions. Imputations (b) and (c) will be struck out as being bad in form.

14. The next objection is to imputation (h)(i). It is appropriate to set out both imputations (h)(i) and (ii), which are pleaded in the alternative. They are:

The plaintiff facilitated young girls being forced into sexual relationships with Gerard Vamadevan.

The plaintiff facilitated young girls being tricked into sexual relations with Gerard Vamadevan.

15. Mr Richardson takes no objection to imputation (h)(ii), which attributes the plaintiff with having facilitated trickery, but submitted that imputation (h)(i), which attributes the plaintiff with having facilitated young girls being “forced” into sexual relationships, is not capable of arising from the matter complained of.

16. In my view, that imputation is capable of being conveyed. It is alleged to be conveyed in particular by paragraphs of the matter complained of which describe Mr Vamadevan's alleged practice of flying girls in from around the country, booking them a hotel room and offering a deal which "came with a catch". The matter complained of says "they had to travel alone and when they arrived give him sexual favours" (my emphasis). That sentence alone in my view is capable of conveying a notion of compelled sexual activity.

17. The notion of consent in allegations of sexual misconduct is complex. In my view the matter complained of is capable of conveying the notion that girls who engaged in sexual relations with Gerard Vamadevan did so without consent in the sense of being forced to do so, with the suggestion of trickery (as opposed to force) being a proper alternative. It is an issue which I think should be left to the jury. The objection to that imputation is rejected.

18. An objection on the grounds that imputations (l) and (m) do not differ in substance was cured by Mr Rasmussen indicating he would elect imputation (l) and not press imputation (m).

19. The final objection is to imputation (p), which is:

The plaintiff is a fraudster.

20. That imputation is alleged to arise from the following paragraph, which in the matter complained of are words spoken by Mr Sam Macedone, a respected lawyer:

This is just one big con, it's a fraud, these are illegal, charges should be laid.

21. From those words the plaintiff has purported to distil three separate meanings, namely, that the plaintiff is a conman, that he is a fraudster and that he engaged in illegal activities warranting the laying of charges.

22. In my assessment the words spoken by Mr Macedone would be understood as being in the nature of effectively saying the same thing in several different ways for emphasis. I do not think the imputation that the plaintiff is a fraudster is conveyed separately or is one which has any different substance from the imputation that the plaintiff is a conman. Each assertion by Mr Macedone appears in context to be saying the same thing. Imputation (m) will be struck out on that basis.

23. I order the plaintiff to pay the defendant's costs of the determination of the first listing issues. I direct the parties to bring in short minutes of order with a view to bringing the proceedings back before the Court for a second listing.

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Decision last updated: 22 December 2016