Ferrier v Jones

Case •

[2001] NSWSC 738

•

12 September 2001

No judgment structure available for this case.
CITATION: Ferrier v Jones [2001] NSWSC 738
CURRENT JURISDICTION: Common Law Division
Defamation List
FILE NUMBER(S): SC 20226/97
HEARING DATE(S): 22/08/01
23/08/01
JUDGMENT DATE:
12 September 2001

PARTIES :
Ian Douglas Ferrier (Pl)
Alan Jones (1 Def)
Radio 2UE Sydney Pty Ltd (2 Def)
JUDGMENT OF: Kirby J
COUNSEL : R K Weaver (Pl)
A Leopold (Defs)
SOLICITORS: Watson Mangioni (Pl)
Bush Burke & Company (Defs)
CATCHWORDS: DEFAMATION - Issues of capacity and form in respect of imputations - Identification - Group defamation - Radio broadcast with different segments relating to same subject matter - whether can proceed as one Statement of Claim
LEGISLATION CITED: Defamation Act, 1974
CASES CITED: Burrows v Knightley (1987) 10 NSWLR 651
Broome v Agar (1928) 138 Times Law Reports 638
Morgan v Oldham Press Ltd (1971) 1 WLR 1239
Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348
Mann v The Medicine Group Pty Limited (1992) 38 FCR 400
Abraham v The Advocate Co Ltd [1946] 2 WWR 181
Knupffer v London Express Newspapers Ltd [1944] AC 116
McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485
Allworth v John Fairfax Group P/L & Ors (1993) 113 FLR 254
Hill, Edgar, Christie & Johnson v Taylor (Hunt J, unreported, 25.11.83)
Moore v ABC (Hunt J, 5.7.85, 1985 Aust Def Reps 40,061)
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Rogers v 2UE Sydney P/L (Levine J, unreported, 6.11.98)
Rogers v Whitaker (1992) 175 CLR 479
DECISION: Ref para 121


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

      KIRBY J

      Wednesday 12 September 2001

      20226/97 - IAN DOUGLAS FERRIER v ALAN JONES & RADIO 2UE SYDNEY PTY LIMITED

      JUDGMENT

1   HIS HONOUR: This is an action for defamation by Mr Ian Ferrier, the Senior Partner of Ferrier Hodgson, a firm of Liquidators. The action arises out of comments by Mr Alan Jones on Radio 2UE on 12 and 13 March 1997.

2   The action has had a number of false starts. The matter under review is a document described as the Further Amended Statement of Claim. It replaces an Amended Statement of Claim in which the plaintiffs included not only Mr Ferrier, but his partners at Ferrier Hodgson (thirteen individuals in all). When the matter proceeded before me, the plaintiff sought leave to file the Further Amended Statement of Claim. At the same time, the plaintiffs other than Mr Ferrier, sought leave to discontinue. Orders were made that each of the other plaintiffs file and serve a Notice of Discontinuance, and pay the costs of the defendants. Mr Ferrier is now the only plaintiff.

      The Matters Complained Of

3   On 12 March 1997, Mr Jones began his radio commentary at about 5.30 am. He dealt with a number of matters. They included the actions of Westpac in closing down a clothing manufacturer at Newcastle, known as Rundles. Ferrier Hodgson (or one of its partners) had been appointed as the Receiver, and then the Liquidator, of Rundles. In the course of the morning’s broadcast, Mr Jones returned to the same subject from time to time. The Further Amended Statement of Claim has identified each such occasion as a separate publication giving rise to a number of imputations. Each publication (that is, each segment of the broadcast) has been reproduced in a Schedule to the Statement of Claim. On 12 March 1997, the subject of Rundles was dealt with at the following times:

      5.36 am Schedule A
      6.14 am Schedule B
      7.15 am Schedule C
      7.50 am Schedule D

4   Mr Jones returned to the issue the following day, 13 March 1997. Again the Statement of Claim isolates each occasion where the subject was discussed as a separate publication, giving rise to separate imputations. The Further Amended Statement of Claim relies upon the following:

      5.39 am Schedule F
      7.15 am Schedule G
      7.45 am Schedule H

5   It will be noticed that there is no Schedule E. The predecessor of the document that I am dealing with (the Amended Statement of Claim) included Schedule E, as well as a Schedule I. Schedule E was the totality of what was said by Mr Jones on 12 March on the subject of Rundles (combining Schedules A, B, C and D). Schedule I incorporated the segments in the broadcast on 13 March (Schedules F, G and H).

6   The defendants objected to Schedules E and I, in these words:

          “Paragraphs 12 and 20 of the Amended Statement of Claim are bad in law: see Burrows v Knightley (1987) 10 NSWLR 651. There is nothing in the matters complained of which evidences an intention on the part of the defendants that the broadcasts be heard together. Nor is there any invitation extended to listeners to do so. Paragraphs 12 and 20 should, therefore, be struck out.”

7   The reference to Burrows v Knightley was a reference to the statement by Hunt J where he said this: (at 657)

          “In my opinion, the law may be stated in this way. Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add ‘true’ innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation.”

8   Here, the segments do include a number of references suggesting a link between one segment and another. For instance, the initial remarks by Mr Jones (at 5.36 am on 12 March), concluded with these words:

          “We’ll be looking at that story this morning but we won’t be giving up I can tell you.”

9   Later segments, to some extent, repeated what had gone before, a concession, no doubt, to those who had recently tuned in. The nature of the medium (broadcasting, where many would listen to the morning’s broadcast), the words spoken, and the proximity of segments, one to another, may well have been enough, in my view, to satisfy the Burrows v Knightley test, as the plaintiff originally asserted.

10   However, that is not the case now pleaded. Each segment is pleaded as a separate publication. Approached in that way, issues arise as to identification and the capacity of a particular segment to give rise to the imputations pleaded. There are also issues of form.


      The Reference to “Tone”

11   Before examining these objections, I should deal with a preliminary issue. The Further Amended Statement of Claim adopted the following sequence of paragraphs when dealing with each publication.

          “3. On 12 March 1997 commencing at around 5.36 am the first and second defendants published of and concerning the plaintiff the matter set out in Schedule A.
          4. In its natural and ordinary meaning, including the tone adopted by the first defendant, the matter complained of in paragraph 3 above conveyed the following imputations defamatory of the plaintiff. …”

12   The defendants sought particulars. If it is said the tone altered the meaning, then the defendants were entitled to know the case they will be required to meet. It drew attention to the statement of principle in Gatley (9th Ed.) para 26.15, where the following was said: (at 656)

          “ 26.15 Ironic remarks, gestures and cartoons .
          Sometimes it will be necessary to plead matter additional to the publication of words. For instance, if the slander was conveyed by signs or gestures, the particular signs or gestures must be described. If the words were spoken ironically they must be set out precisely as spoken, together with an averment that they were spoken ironically. In appropriate cases, for example, where the libel is contained in a cartoon or collage, a photocopy can be appended in place of a description.”

13   In Broome v Agar (1928) 138 Times Law Reports 698, Sankey LJ said this: (at 702)

          “Spoken words divorced from their context and surroundings may appear to be a slander which when controlled by such context and such surroundings are nothing of the sort. Gesture, tone of voice, expression of countenance, all of which are absent in libel, may materially affect the spoken words.”

14   The defendants say, therefore, that if the tone is relevant to meaning, particulars must be supplied. If it is not relevant, the words should be struck out.

15   The plaintiff responded by acknowledging that it was the tone of the whole broadcast, rather than particular words, which was relied upon. Mr Jones’ delivery was “disparaging, censorious and deprecatory”. There was, therefore, no occasion for particulars.

16   I believe that particulars are unnecessary in view of the concession by the plaintiff. It is unusual in a pleading to include a reference to tone unless irony is suggested. I believe it is undesirable. The jury will, of course, be told that they are entitled to take into account the tone of voice as part of the context. As will emerge below, the Further Amended Statement of Claim will require amendment. When amended, the references to tone in paragraphs 4, 6, 8, 10, 12, 14 and 16 should be omitted.


      Identification: Schedule B

17   No issue of identification arises in respect of the first segment. Mr Ferrier is named. The segment begins with these words: (Schedule A: 5.36 am 12 March 1997)

          “1. ALAN JONES - ANNOUNCER
          2. I’m just absolutely fed up to the back teeth with banks and liquidators. I’ve spoken before about this outfit in this city, Ferrier Hodgson. Ferrier is the bloke who’s allegedly in charge of the Australian Rugby Union. When I say allegedly, he would know absolutely nothing about that but what a great job to be in. Wouldn’t it be great to be a liquidator? …”

18   Mr Jones then described the plight of Rundles, which included Westpac having “pulled the rug on them last November” (para 5). The broadcast continued:

          “8. … But you can’t beat banks and receivers.
          9. So now the receivers have moved in. Ferrier Hodgson, same crowd, same bloke … oh, hoh, wonderful pe…”

19   People listening to the broadcast then phoned Radio 2UE and spoke with Mr Jones. The second segment (at 6.15 am) is concerned with one such call. The conversation included the following: (Schedule B)

          “38. JONES
          39. Yes, Rundles gone now. Oh well, when you’ve got people like Ferrier Hodgson who make their living as liquidators by pulling the rugs from underneath everybody else at the behest of governments. …”

20   After a short conversation, the segment concluded with Mr Jones saying the following words: (Schedule B)

          “43. … But I mean, Ferrier Hodgson make their money out of this … make their money out of the impoverishment of other people.”

21   The Statement of Claim was required to conform with the requirements of Part 67 Rule 12. That Rule, relevantly, is in these terms:

          “P67 r12(1)
          The particulars required by P16 r1 in relation to a statement of claim shall include:
              (d) where the plaintiff is not named in the matter complained of - particulars of identification of the plaintiff together with, by reference to names and addresses or class of persons, the identify of those to whom any such particulars were known;”

22   The Further Amended Statement of Claim in relation to the second segment (Schedule B) included the following particulars of identification:

      “Particulars of Identification
          (i) The plaintiff is and was at the time of publication the senior partner of the firm Ferrier Hodgson;
          (ii) The plaintiff was identified by the defendants in the matters complained of in paragraphs 3 above and 9 below as the ‘Ferrier’ of Ferrier Hodgson.”

23   Before dealing with the defendants’ arguments, it is instructive to restate the test in respect of identification. In Morgan v Oldham Press Limited (1971) 1 WLR 1239, Lord Morris (reflecting the majority in the House of Lords) said this: (at 1252)

          “The question for the judge at the end of the plaintiff’s case was whether there was evidence upon which the jury could (not would) decide in favour of the plaintiff. That in turn raised the question whether the jury could decide that some readers (having knowledge of certain circumstances) would reasonably understand the words as referring to the plaintiff. If no reasonable reader could have understood the words as referring to the plaintiff, then there would be nothing to be left to the jury.”

24   Having referred to this decision, Samuels JA in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, specified the criteria which must be satisfied in respect of an issue of identification (at 373/374). Paraphrasing his Honour’s words (and, to some extent, refining the criteria stated), the plaintiff must demonstrate the following:

· First, there must be evidence capable of satisfying the jury that persons with particular knowledge of the plaintiff believed the article referred to the plaintiff.

· Secondly, there must be evidence capable of satisfying the jury that the witnesses did possess the particular knowledge of the plaintiff to make the identification which they asserted.

· Thirdly, there must be evidence capable of satisfying the jury that those with particular knowledge of the plaintiff who, as ordinary sensible readers, read the article with the degree of latitude permitted, and who honestly identified the plaintiff as the person referred to, could reasonably come to that conclusion.

25   Here, the defendants, in careful submissions, appeared to assert two things. First, that the plaintiff’s particulars in respect of this and other schedules did not meet the requirements of Pt67 r12(1)(d), and, secondly, that even were particulars ordered, one may doubt the capacity of the material to give rise to defamatory imputations, “of and concerning” Mr Ferrier.

26   I will come back to the issue of the particulars of identification which accompanied the Further Amended Statement of Claim in a moment. It is convenient, at this point, to deal with the second issue. The defendants’ argument appeared to rest upon the following propositions:

· First, the reference in Schedule B to Ferrier Hodgson is not a reference to Mr Ferrier (the plaintiff). It is not, as such, capable of satisfying the test in respect of identification.

· Secondly, even with extrinsic fact (i) (that Mr Ferrier was the Senior Partner of the firm of Liquidators, Ferrier Hodgson), it was incapable of defaming Mr Ferrier.

· Thirdly, even if that be wrong, the ordinary reasonable listener would understand that the Liquidator or Receiver of Rundles was not a firm, Ferrier Hodgson. It was an individual within that firm. There was nothing in Schedule B to suggest that Mr Ferrier was that individual.

27   Dealing with each of these propositions, the first appeared to be common ground. The plaintiff has not, in respect of Schedule B, simply relied upon the reference to Ferrier Hodgson as satisfying the requirement of identification. Paragraph 6 (dealing with Schedule B) is accompanied by particulars of identification.

28   Turning to the second proposition, the defendants relied upon the judgment of Wilcox J (with whom Neave J agreed, Miles J dissenting) in Mann v The Medicine Group Pty Limited (1992) 38 FCR 400. It is convenient to quote from the headnote where the following principle is identified in respect of group defamation.

          “A defamatory statement concerning members of a class generally is actionable at the instance of a member of that class only if the member is able to point to circumstances which would indicate to a reasonable reader or hearer that the statement refers particularly to him or her.”

29   Ferrier Hodgson was a partnership. No particular partner was said, in Schedule B, to have done anything blameworthy. Nor, according to the defendants, can the entire partnership be said to have been the subject of Mr Jones’ statement.

30   The submission is directed, appropriately, to two aspects of group defamation. The words, although referring to a group, may be aimed at a particular member of that group, or may single out a member. In Abraham v The Advocate Co Limited [1946] 2 WWR 181, the Privy Council said this: (at 185)

          “… if on a fair construction the words are spoken of a class or body of persons, an individual member of the class or body cannot sue in respect of them unless there are circumstances that show that they may be aimed at him.”

31   Alternatively, the words may refer to each member of the group. In Knupffer v London Express Newspapers Ltd [1944] AC 116, Viscount Simon LC stated the principle in these words: (at 119)

          “There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action.”

32   In McCormick v John Fairfax & Sons Limited (1989) 16 NSWLR 485, Hunt J referred to the principle in these words: (at 487/88)

          “A libel upon the whole of a class may be the subject of complaint by a member of that class who is not otherwise individually pointed to in what was published only if the matter complained of can fairly be read as defaming each member of that class. In determining whether the matter is capable of such an interpretation, the size of the class, the generality of the charge and the extravagance of the accusation may all be considered, although none is conclusive.”

33   Here, I believe Schedule B is capable of satisfying each aspect of the test. The firm, Ferrier Hodgson, carries Mr Ferrier’s name. He is the Senior Partner. The statements made by Mr Jones are capable, in my opinion, of being viewed by the jury as being aimed at Mr Ferrier. But whether that be right or wrong, the class of persons within Ferrier Hodgson is small. It comprises thirteen individuals, including Mr Ferrier. In my view, Schedule B is capable of defaming each member of the class.

34   Turning, then, to the final proposition, that the ordinary reasonable reader would know that a receiver or a liquidator was an individual and not a firm, I doubt that this is so.

35   The defendants asserted that we live in a sophisticated age. The ordinary reasonable listener is exposed almost daily to statements from liquidators about companies which are in difficulties. It is therefore widely known that the office of liquidator is fulfilled by an individual, rather than a partnership. The defendants drew attention to the following remarks of Higgins J in Allworth v John Fairfax Group Pty Ltd & Ors (1993) 113 FLR 254, where his Honour described the attributes of the ordinary reasonable reader in these terms: (at 257)

          “That reader, whilst not overly cynical and suspicious (see Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293) may well ‘read between the lines’ and take account of a background knowledge of affairs and events. Thus, the ordinary reasonable reader would know that professional persons do have codes of ethics constraining their conduct and might well have an understanding of those constraints or at least some of them. That person might also have an understanding of matters alluded to in the matter complained of which had been the subject of public exposure from time to time in the media. The ‘information explosion’ of recent times may well have increased the reservoir of background knowledge which the ordinary reasonable reader may be presumed to possess.”

36   That statement may be contrasted with certain statements by Hunt J in Hill, Edgar, Christie & Johnson v Taylor (unreported, 25.11.83). That case concerned an article in The Sun Herald. The article was critical of the SRA. It identified Mr Hill as the Chief Executive of that organisation. Messrs Edgar, Christie and Johnson were Members of the SRA Board. In that context Hunt J said this: (at 4)

          “A corporation such as the State Rail Authority is, of course, an abstraction in the law and it can act only by its agents. Such a concept may not be immediately apparent to the ordinary reasonable reader or viewer; to such a reader or viewer a corporation can have a personality of its own. When it is announced, for example, that the SRA has just increased rail fares or reduced train services, the picture in the reader’s mind is of some shadowy entity called the SRA, and it is against that entity that his anger - or perhaps these days his resignation - would be directed initially.”

37   His Honour continued: (at 4/5)

          “But a moment’s thought would (or, for the purposes of this separate trial, it could) bring to the reader’s mind a fact which is undoubtedly a matter of general knowledge within the community, that an entity such as the SRA is administered by a person or by a group of persons so that, when something is said or done by the SRA, it is in reality said or done by that group of persons who are responsible for its administration.”

38   Hunt J continued: (at 5)

          “As part of the general knowledge of the community, that fact is part of the natural and ordinary meaning of the matter complained of: Jones v Skelton (1963) 63 SR 644, at 650. Similarly, if allegations are made which are critical of statements made by the SRA or of actions taken by it, the ordinary reasonable reader would (or, at least, could) realise that the criticisms are in reality made of the person or persons who administer the SRA and who are responsible for those statements or actions.”

39   Here, when dealing with the capacity to defame the plaintiff, I cannot accept that the ordinary reasonable listener would have any notion as to whether liquidators or receivers were individuals or a firm of accountants, or who they were. Indeed, I rather doubt that the defendants’ counsel would be entitled to address a jury in a s7A trial stating the legal position, without first calling evidence. However, it is unnecessary for me to decide that issue. It is enough to say that, with proper particulars, I believe the material in Schedule B is capable of identifying Mr Ferrier, and of defaming him.

40   That brings me to the issue of particulars. Particulars are required by Pt67 r12(1)(d). They are important for a number of reasons. First, fairness requires that the defendants should know the case they are obliged to meet. It is no answer that disclosing the names and addresses of those to whom the material was published will reveal the identity of the plaintiff’s witnesses (Hunt J in Moore v Australian Broadcasting Commission, 5 July 1985, 1985 Aust Def Reps 40, 061, at 40,063). Secondly, the defendants require particulars in order to frame their defence. Qualified privilege will depend upon the persons to whom the material was published, and the interest they may have had in receiving such material. The recipients are also relevant to the defence under s13 of the Defamation Act (the likelihood of harm) (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192, per Hunt J). Thirdly, the extent to which the material was disseminated is relevant to damages. The defendants, by particulars, ought to be in a position to make a realistic appraisal of the potential for damages.

41   Here, in written submissions, the plaintiff responded to the defendants’ complaint, that the particulars were inadequate, in these words:

          “The Plaintiff understands the claimed radio audience was between 190,000 and 200,000 persons. Contrary to the Defendants’ assertions, it is more likely that the majority of the audience would have heard more than one of the matters complained of and would therefore have identified the Plaintiff from the First Defendant’s description of him in the first, fourth and eighth matter complained of without the requirement of any extrinsic facts.”

42   However, that submission does not address the terms of Pt67 r12(1)(d). Indeed, it repeats the argument advanced unsuccessfully by the plaintiff in Rogers v 2UE Sydney Pty Limited (unreported, Levine J, 6.11.98). That case followed the Rogers v Whitaker litigation in the High Court ((1992) 175 CLR 479). In 1996, some years after that litigation, Radio 2UE published a statement in disparaging terms about the surgery undertaken by Mrs Whitaker. The programme did not name the surgeon. The surgeon was Mr Rogers. He commenced an action for defamation. The Statement of Claim incorporated elaborate particulars of identification. The particulars, however, did not include the names and addresses of those who heard the programme, and associated what was said with Mr Rogers. Rather, the plaintiff referred to the many public references to him in the context of Mrs Whitaker. The defendant, in these circumstances, sought further particulars. Levine J said this: (at 6)

          “The basis for the claim for further particulars is that none of the material hitherto provided by the plaintiff, it is argued, points to the publication being ‘of and concerning the plaintiff’ in that none of the persons particularised as knowing the extrinsic facts has been said to have heard the publication of the matter complained of.”

43   The plaintiff asserted that identification could be inferred from the particulars provided. Levine J, in the context of that submission, made the following remarks: (at 7)

          “Although this is a ‘transient’ publication ( Amalgamated Television Services Pty Limited v Marsden (1998) 42 NSWLR 158 at 165-6) what is relied upon by Mr Martin for the plaintiff is the availability of a ‘prima facie case’ or the foundation for the drawing of an inference that someone with the knowledge of the facts particularised in the Statement of Claim would or ‘must’ have heard the broadcast of the publication sued upon; that is my view, is not open. The plaintiff having, in an extremely focussed way, particularised the matters within the knowledge of identified persons, must, in the circumstances of this case, indicate to the defendant his case on that component of the cause of action that the matter complained of conveying this particular imputation was ‘of and concerning’ him. This the plaintiff hitherto has failed to do. It is not open to the plaintiff and thus, cannot be fair to defendant, in effect to sit back and say ‘that’s the best we can do’ and whatever else there may be will be revealed at the trial or in good time beforehand.”

44   His Honour ordered the following particulars: (at 8)

          “2. The plaintiff within 28 days is to provide to the defendant particulars specifying the identity of persons who (a) had knowledge of the facts as set out in the Statement of Claim and (b) heard the publication complained of.”

45   Here, the defendants also require the plaintiff to indicate, at the time particulars are furnished, whether the persons who heard the broadcast had knowledge of some only of the extrinsic facts which are relied upon. According to the defendants, different considerations may arise where the person who heard the broadcast, for instance, simply knew that Mr Ferrier was the Senior Partner of Ferrier Hodgson, compared to cases where that person also heard one or other (or both) of the other broadcasts where Mr Ian Ferrier, or Mr Ferrier, was named.

46   I accept the defendants’ arguments in respect of the provision of particulars. Particulars complying with Pt67 r12(1)(d) should be supplied in respect of Schedule B. I further believe that such particulars should specify, in the case of each person, by reference to the paragraph numbers relied upon, whether some or all of the extrinsic facts were known to the person concerned.


      Identification: Schedule C

47   The third segment on 12 March 1997 was at 7.15 am. Again, it referred to Ferrier Hodgson. Mr Jones said this: (Schedule C)

          “46 … Westpac yesterday, after we came off air, went the disreputable route. They used their hired guns, Ferrier Hodgson, liquidators, the people who call themselves liquidators but actually they make a quid out of impoverishing business.”

48   The Further Amended Statement of Claim included the same particulars as Schedule B. The same considerations apply as set out above in relation to Schedule B. The material, in my view, is capable of identifying Mr Ferrier, and of being defamatory of him. However, particulars under Pt67 r12(1)(d) are required.


      Identification: Schedule D

49   There is no issue in respect of the identification of Mr Ferrier in Schedule D, the broadcast at 7.50 am on 12 March 1997. Mr Ian Ferrier is named. The broadcast was in these terms: (Schedule D)

          “55 …Who were the receivers? Ferrier Hodgson, the same crowd with the bloke that runs Australian Rugby, Ian Ferrier.”

      Identification: Schedule F

50   Mr Jones returned to the story the following day, 13 March 1997, at 5.39 am. He began by saying these words: (Schedule F)

          “1. ALAN JONES - ANNOUNCER:
          2. The one thing I will be having a look at today, which I think you’ll be very interested in is that this whole business of the extent to which … see, what is happening in … this is the Rundles story which I’ll be going back to but from a different angle.”

51   Mr Jones had a copy of the Deed of Arrangement for Rundles. He referred to its terms in the course of the discussion. He also said this: (Schedule F)

          “8. And it’s between Westbac (sic) … Westpac Banking Corporation and Peter Murray Walker and Rundles and Rundles Holdings and Peter David Rundle and Lindsay Bartley Rundle and David Ray Murray (ph.sp) … and it’s a Deed of Arrangement and it’s drawn up by Henry Davis York.”

52   The broadcast also included:

          “13. I spoke last to Mr Rundle late last night, but no comment from Westpac or the receivers yesterday, nothing.”

53   Mr Jones added:

          “14. But you see, Westpac and the swindlers who call themselves liquidators are fine because, you see, Mr Rundle does actually have assets.”

54   This broadcast is therefore in a rather different position to Schedules B and C. Mr Ferrier is not named. Ferrier Hodgson is not referred to. There is a reference to Mr Walker, as a party to the Deed of Arrangement. There is a reference to the Liquidators of Rundles. In that context, the Further Amended Statement of Claim furnished the following particulars of identification:

      “Particulars of Identification
          (i) The plaintiff is and was at the time of publication the senior partner of the firm Ferrier Hodgson;
          (ii) The plaintiff was identified by the defendants in the matters complained of in paragraphs 3 and 9 above as being the ‘Ferrier’ of Ferrier Hodgson;
          (iii) Ferrier Hodgson were identified as receivers of Rundles by the defendants in the matters complained of in paragraphs 3, 5, 7 and 9 above and paragraph 13 below;
          (iv) Peter Murray Walker was the receiver of Rundles and a partner of Ferrier Hodgson and is named in the matter complained of at paragraph 8 of Schedule F.”

55   For the reasons previously identified, these particulars do not conform to Pt67 r12(1)(d). The plaintiff must furnish particulars complying with that Rule. I further believe, as indicated previously, that such particulars should specify, in the case of each person, by reference to the paragraph numbers relied upon, whether some or all of the extrinsic facts were known to that person. I believe that level of detail is required because, in the absence of such material, the defendant is confronted by what Levine J in Rogers v Radio 2UE Sydney Pty Limited (supra, p 8) described as “an incomplete case”.


      Identification: Schedule G

56   At 7.15 am on 13 March 1997, Mr Jones began another segment concerned with Rundles. He said this: (Schedule G)

          “28. … And if tomorrow, Ferrier and Hodgson, the liquidators who are merely undertakers, if they sell the outfit to foreign interests …”

57   The particulars of identification are in the same form as Schedules B and C, where Ferrier Hodgson was referred to. The same considerations apply. Particulars complying with Pt67 r12(1)(d) should be supplied, as required in respect of Schedules B and C.

      Identification: Schedule H

58   The last broadcast in the series began at 7.45 am on 13 March 1997. It was an interview between Mr Jones and Mr Rundle. Mr Ferrier was not mentioned by name, nor Ferrier Hodgson. There were, however, many references to receivers, and the actions of receivers. The particulars of identification in the Further Amended Statement of Claim were as follows:

      “ Particulars of Identification
          (i) The plaintiff is and was at the time of publication the senior partner of the firm Ferrier Hodgson;
          (ii) The plaintiff was identified by the defendants in the matters complained of in paragraphs 3 and 9 above as being the ‘Ferrier’ of Ferrier Hodgson;
          (iii) Ferrier Hodgson were identified as the receivers of Rundles by the defendants in the matter complained of in paragraphs 3, 5, 7, 9 and 13 above.”

59   The position is similar to Schedule F. The same order is appropriate. Particulars must be supplied conforming to Pt67 r12(1)(d), differentiating, in terms of knowledge, between paragraphs (i), (ii) and (iii) referred to (in the various broadcasts identified within those paragraphs).

60   Having dealt with the issue of identification, I must now turn to the issues raised by the defendants in respect of the capacity of the various segments (the material in each Schedule) to give rise to the imputations which have been pleaded. The imputations said to arise from each publication differ to some degree, depending upon the terms of that publication. I will therefore deal with each publication in turn.


      Imputations: Schedule A

61   The plaintiff, as mentioned, annexed various schedules to the Further Amended Statement of Claim, each a transcript relating to a segment in the broadcasts of Radio 2UE on 12 and 13 March 1997. However, it appears that the transcripts are, in most cases, incomplete. The plaintiff and defendants have agreed that the schedules should be amended to incorporate the full transcript in each case. The plaintiff will file a further document incorporating these amendments. I have been furnished with a copy of the complete transcript of each segment. The parties propose that, in my consideration of the arguments in respect of capacity and form, I should have regard to the complete transcript in each case.

62   Schedule A was said by the plaintiff to have given rise to four imputations ((a) to (d)). Objection is taken to each. Imputation 4(a) is as follows:

          “4(a) The plaintiff acted in a disgraceful way in that he earned his living by destroying viable businesses.”

63   The defendants objects, as a matter of form, to the word “destroying”. It is, according to the defendants, “unacceptably ambiguous”. However, I believe the meaning is plain enough. The broadcast referred to Ferrier Hodgson as Liquidators. Mr Jones added:

          “2. … Wouldn’t it be great to be a liquidator? You just walk out and pull the rug from underneath some poor bloke that’s trying to provide jobs, and when they’ve gone and shut the joint down you can sell him off for whatever you can get and keep the cream.”

64   Mr Jones then described the “state of the art factory” built by Rundles (para 4). Later he added these words:

          “8. … But, they had twelve million dollars in assets, they had a debt of under five million and Westpac placed them in receivership. Even though, as I said, the company had more than twelve million in assets, even though the company pleaded for more time to trade out. And they weren’t ordinary difficulties, you know, they’d had the earthquake, the recession, all that sort of stuff, Government policy. But you can’t beat banks and receivers.
          9. So now the receivers have moved in. Ferrier Hodgson, same crowd, same bloke … oh, hoh, wonderful pe …
          10. How can these people sleep at night? They make money out of making others broke and it’s twelve million dollars worth of assets they can move in and sell. So all of these people were given notice yesterday. Two hundred and fifty workers at Newcastle. The business is to be wound down over the next five weeks.”

65   Later Mr Jones said this:

          “16. .. Alan Bond. He was stealing things. These are honest people, and these are employing two hundred and fifty people. …”

66   The business was in operation. It employed 250 people. Ferrier Hodgson, on the instructions of Westpac, closed it down, gave the employees notice, and was about to sell its assets. It destroyed the business.

67   The defendants further object to the capacity of Schedule A to give rise to imputation 4(a). Before going to their argument, I should say that the imputation may perhaps be more simply and directly expressed in these words:

          “The plaintiff earned his living in a disgraceful way by destroying viable businesses.”

68   First, the defendants take issue with the use of the word “disgraceful”. The ordinary reasonable listener would understand that Liquidators are appointed to do a job. They do that job because it is their duty. That may be the law. I do not believe, however, that the ordinary reasonable listener can be assumed to have had that understanding (supra para 39). The words of Mr Jones are capable, in my view, of suggesting reprehensible conduct on the part of Ferrier Hodgson. I believe “disgraceful” is a word capable of being regarded as apposite.

69   Secondly, the imputation suggested, according to the defendants, that Rundles was a viable business, which was then destroyed. They argued that nothing in Schedule A supported that suggestion. However, I believe the words of Mr Jones are capable of that message. The company had a state of the art factory. It had 250 employees. It had $12 million in assets, and a debt of only $5 million. There was, therefore, a significant margin of assets over liabilities. Yet it was destroyed.

70   Thirdly, the defendants draw attention to the generalised nature of the imputation. The broadcast, on the other hand, is very specific. It dealt with Rundles. However, I believe that the passages I have set out are capable of suggesting that Mr Jones was condemning the plaintiff for the way in which he earned his living, “Wouldn’t it be great to be a Liquidator?” (para 1). “How can these people sleep at night? They make money out of making others broke …” (para 10).

71   The fourth argument was that it was Wespac who destroyed Rundles, not Ferrier Hodgson. At worst, Ferrier Hodgson acted on Westpac’s instructions. Certainly, Westpac was roundly condemned by Mr Jones. But so, arguably, was Ferrier Hodgson for performing Westpac’s dirty work, in the same way that one may condemn an executioner or a mercenary.

72   These were the main argument of the defendants. In my view, however, imputation 4(a) is capable of arising. It should go to the jury. The plaintiff has leave to amend the form of the imputation and to “strike in” the additional material in respect of Schedule A.

73   Imputation 4(b) is in these terms:

          “4(b) The plaintiff, while acting as the liquidator of Rundles, a viable business, acted contrary to the interests of Rundles for his own financial gain.”

74   The defendants raised many of the same arguments in respect of this imputation. It attacked the word “viable” as either surplusage or unsupported by the words of the broadcast. The imputation, according to the defendants, made the assumption that the Liquidator had a duty to act in the interests of Rundles, whereas the ordinary reasonable listener would understand otherwise. Indeed, because of that understanding, the imputation was not capable of being defamatory. The imputation, moreover, did not differ in substance from 4(c) (which I will deal with shortly).

75   There is substance in at least some of these complaints. First, I do not believe that the imputation differs in substance from imputation 4(c) (below). Both assert, essentially, a selfish preference on the part of the plaintiff for his own financial interests over the interests of a “viable business”. Secondly, the imputation is convoluted in its expression. Whilst I have doubted that the ordinary reasonable listener had the sophisticated appreciation of the Liquidator’s precise role, attributed to him by the defendants, such a person would not assume that the Liquidator had a duty to act in the interests of Rundles. The ordinary reasonable listener would know that a Liquidator’s function was to liquidate assets. What he or she may not know, without instruction on the law, is whether a person fulfilling that role had a discretion (to allow the company to trade out) when confronted by a debt which was overdue from a business which had a significant surplus of assets.

76   I do not believe that imputation 4(b) should go to the jury.

77   Turning to imputation 4(c), it is as follows:

          “4(c) The plaintiff, while acting as the receiver of Rundles, a viable business, acted in a callous manner by sacrificing the jobs of Rundles’ 250 employees for his own financial gain.”

78   The defendants suggested that the plaintiff’s conduct could not even arguably be described as “callous”. They had a duty to act as they did. Nor could it be said that jobs were “sacrificed”.

79   However, I believe the imputation is capable of arising. The Liquidators had clearly been retained by Westpac for a fee. They had given notice to 250 employees of Rundles. The message is that they had, without pity, executed their instructions. The imputation should go to the jury. Schedule A, it should be noted, is really dealing with the role of Ferrier Hodgson as Liquidators, not Receivers (although Receivers are mentioned in para 15). The imputation should be amended to substitute the word “liquidators” for “receivers”. Mr Jones, to some extent, used the two expressions interchangeably. However, in the context of Schedule A, I believe that “Liquidator” is the appropriate word. The plaintiff has leave to make that amendment.

80   The final imputation said to arise from Schedule A is as follows:

          “4(d) The plaintiff acted in a disgraceful way in that he earned his living by impoverishing other people.”

81   The defendants submitted that this imputation did not differ in substance from 4(a). I agree. The destruction of a viable business had a number of consequences. The business ceased to pay tax. People were put out of work. They were forced to go on welfare. They, likewise, ceased to pay tax. The money they would otherwise have spent in the community was not then spent. These were the consequences of destroying a viable business, and were discussed by Mr Jones. They were, arguably, what made Mr Ferrier’s vocation capable of being regarded as “disgraceful”. However that is the substance of what is alleged in imputation 4(a). I do not believe that imputation 4(d) should go to the jury.

      Imputations: Schedule B

82   The relevant part of Schedule B is quite short. A person, Jean, phoned the radio station and spoke to Mr Jones. The conversation included:

          “38. JONES
          39. Yes, Rundles gone now. Oh well, when you’ve got people like Ferrier Hodgson who make their living as liquidators by pulling the rugs from underneath everybody else at the behest of governments. And then of course Government … they’ve got twelve million dollars in assets Jean, don’t forget that. So they liquidate them, move them in and then Government star … Westpac starts selling off for absolutely a song, assets worth twelve million, eh?
          40. JEAN
          41. It’s criminal.
          42. JONES
          43. It is a crim … it is criminal stuff, you’re quite right Jean. Thank you for ringing. 13 13 32. It is criminal stuff that society allows people to behave like that when they’re a productive sector employing two hundred and fifty people. But I mean, Ferrier Hodgson make their money out of this … make their money out of the impoverishment of other people.”

83   The plaintiff pleaded the following imputations, said to arise from this segment.

          “6(a) The plaintiff acted in a disgraceful way in that he earned his living by destroying viable businesses;
          (b) The plaintiff, while acting as the liquidator of Rundles, a viable business, acted contrary to the interests of Rundles for his own financial gain;
          (c) The plaintiff acted in a disgraceful way in that he earned his living by impoverishing other people.”

84   On the approach taken by the plaintiff, each segment must be looked at independently. The objections by the defendants were similar to 4(a) above. However, I believe the imputation (modified in the way set out in para 62) is capable of arising.

85   In the context of Schedule A I dealt with imputations in the same words as paras 6(b) and 6(c). I rejected such imputations. For the same reasons I reject them in the context of Schedule B. They should not go to the jury.


      Imputations: Schedule C

86   Schedule C was broadcast on 12 March 1997 at 7.15 am. It included these words:

          “46. And it’s this disgrace in Newcastle, Rundles. … They have twelve million in assets. They owe less than five. Westpac yesterday, after we came off air, went the disreputable route. They used their hired guns, Ferrier Hodgson, liquidators, the people who call themselves liquidators but actually they make a quid out of impoverishing business. And the Rundles staff were sacked yesterday.”

87   The broadcast continued:

          “48. Westpac told Rundles it had to be signed immediately. Rundles wanted to seek legal advice. All they were given was a few extra hours. Yesterday the burglars moved in for Westpac, who were after less than five million.”

88   Mr Jones concluded by referring to Westpac as having “hunted yesterday with its liquidator an eighty-eight year old business and moved it into ruin.”

89   The imputations pleaded by the plaintiff in respect of this segment are as follows:

          “8(a) The plaintiff acted in a disgraceful way in that he earned his living by destroying viable businesses;
          (b) The plaintiff, while acting as the liquidator (of) Rundles, a viable business, acted contrary to the interests of Rundles for his own financial gain;
          (c) The plaintiff, while acting as the liquidator of Rundles, a viable business, acted in a callous manner by sacrificing the jobs of Rundles’ 250 employees for his own financial gain.
          (d) The plaintiff’s conduct while acting as the liquidator of Rundles was tantamount to stealing.”

90   I have dealt with the arguments in respect of paras 8(a), (b) and (c) previously. I believe imputations 8(a) (as amended) and 8(c) are capable of arising, and should go to the jury. Imputation 8(b) should not, for the reasons previously given.

91   Imputation 8(d) is new. It fastens onto the passage (para 48) where Mr Jones likens the Liquidators to “burglars” moving in for Westpac. The defendants object to the form of that imputation. The phase “tantamount to stealing” is, in their submission, vague and meaningless. What would the defendants need to prove in order to establish the substantial truth of that imputation?

92   The plaintiff, in argument, acknowledged that the phrase “tantamount to stealing” had its difficulties. Mr Jones was not suggesting that Ferrier Hodgson had literally stolen from Rundles. There was, nonetheless, a sting attaching to the word “burglar”.

93   I accept the defendants’ submission that the imputation, as framed, is unacceptably vague and ambiguous. The plaintiff has liberty to replead.


      Imputations: Schedule D

94   Schedule D contains the transcript for the last segment on 12 March 1997 at 7.50 am. It was a long segment in which Mr Jones repeated much of what had gone before. It is not necessary to set it out at length. It did, however, include the following:

          “55. .. Who were the receivers? Ferrier Hodgson, the same crowd with the bloke that runs Australian Rugby, Ian Ferrier. … “

95   The segment ended with these words:

          “58. No money. No work, just money. But no money for Rundles. Plenty of money for Ferrier Hodgson to do the dirty work.”

96   The plaintiff pleaded the following imputations:

          “10(a) The plaintiff acted in a disgraceful way in that he earned his living by destroying viable businesses;
          (b) The plaintiff, while acting as the receiver of Rundles, a viable business, acted contrary to the interests of Rundles for his own financial gain;
          (c) The plaintiff, while acting as the receiver of Rundles, a viable business, acted in a callous manner by sacrificing the jobs of Rundles’ 250 employees for his own financial gain.”

97   For the reasons previously given, imputations 10(a) (as amended) and 10(c) should go to the jury. Imputation 10(b) should not go to the jury.


      Imputations: Schedule F

98   Schedule F concerns the broadcast at 5.39 am the next day, 13 March 1997. Mr Jones began by saying that he would deal with “the Rundles story” from a different angle (para 2). He then referred to the Deed of Arrangement (para 8). From his description, it was obviously a long document (“the legal version of War and Peace”). Clause 13 obliged the Directors to warrant that they had legal advice. The document was provided to Rundles by Westpac at 7.00 pm on a Friday. Rundles sought time to obtain legal advice. In this context Mr Jones said this:

          “11. .. No, they didn’t give it to them.
          12. Then they didn’t actually speak to them, these heroes at Westpac. Mr Joss and his crowd, didn’t speak to them, just walked in. Neither the receivers nor Westpac spo … Tuesday morning walked in. Yesterday, no comment.”

99   Mr Jones sought a comment from Westpac and the receivers. However, neither made a comment. Mr Jones continued:

          “13. .. Two hundred and seventy people on the scrap heap. Two hundred and seventy people in unemployment. The unemployment benefits that they will receive if they all went into unemployment - paid for by you, paid for you by you - the unemployment benefits, plus the revenue foregone in tax that they now pay would pay the Rundles debt a million times over.
          14. But you see, Westpac and the swindlers who call themselves liquidators are fine because, you see, Mr Rundle does actually have assets.”

100   Mr Jones then referred to the surplus of assets over liabilities. He added:

          “14. .. I mean, seriously, it’s the most discredited and disreputable performance you could ever contemplate.”

101   Later in the segment Mr Jones said this:

          “ 16BE JONES: And how much, perhaps Ms Hewitt can actually tell the media when she next has her little media conference, how much the liquidators are being paid.”

102   The plaintiff relied upon the following imputations, said to arise out of this segment:

          “12(a) The plaintiff acted in a disgraceful way in that he earned his living by destroying viable businesses;
          (b) The plaintiff, while acting as the receiver of Rundles, a viable business, acted contrary to the interests of Rundles for his own financial gain;
          (c) The plaintiff, while acting as the receiver of Rundles, a viable business, acted in a callous manner by sacrificing the jobs of Rundles’ 270 employees for his own financial gain;
          (d) The plaintiff’s conduct while acting as the liquidator of Rundles was tantamount to stealing.
          (e) The plaintiff was a swindler.”

103   For the reasons previously provided, imputations 12(a) (as amended) and 12(c) should go to the jury. Imputation 12(b) should not go to the jury. Imputation 12(d) was not pressed. It should not go to the jury.

104   Imputation 12(e) was a new formulation. The defendants objected. First, the defendants asserted that it would have been apparent to the ordinary reasonable listener that Mr Jones had become very angry about the 270 “battlers” from Newcastle who had lost their jobs, and the old family company which had been brought to an end. His reference to Ferrier Hodgson as “swindlers” was in the nature of vulgar abuse. It was not defamatory.

105   Secondly, if there was an imputation arising out of Mr Jones’ use of the words “swindlers”, the adoption of that word in imputation 12(e) did not capture the meaning conveyed. Mr Jones was not accusing Ferrier Hodgson of literally swindling anybody. He was not imputing cheating, fraud or deceit.

106   Thirdly, the word “swindler”, in any event, is ambiguous. It can mean, according to the Macquarie Dictionary, to obtain by fraud, or deceit, or by unscrupulous artifice, or to cheat someone.

107   I accept that the imputation, as framed, is not capable of arising. I also accept, as a matter of form, that the word “swindler” is ambiguous. It does not capture the quality which Mr Jones, arguably, attributed to Ferrier Hodgson when he used this term. The plaintiff has liberty to replead.


      Imputations: Schedule G

108   Schedule G is the segment which began at 7.15 am on 13 March 1997. It is quite long, directed mainly at Westpac. Westpac is criticised for not giving Rundles time to obtain advice on the Deed of Arrangement (para 19), and “shoving” 250 “battlers in Newcastle onto the streets” (para 22). Mr Jones also dealt with foreign ownership of Australian assets, the manipulation of our interest rates “to clean out more Rundles” (para 24). Mr Jones added “the swindle in other words is going to get worse” (para 24). The theme was that companies like Rundles were obliged to pay more tax because “foreigners” pleased themselves about how much tax they paid (para 27).

109   Against that background, Mr Jones said this:

          “27... Put simply, Rundles are not the first to go under and they won’t be the last.
          28. Bob Joss and outfits like Westpac don’t want them on their books, because they never missed a payment. Rundles have made all their payments, but you see, they can’t get money anywhere else, small business. And when they make a profit, they’re taxed to the eyeballs. And if tomorrow, Ferrier and Hodgson, the liquidators who are merely undertakers, if they sell the outfit to foreign interests, then they can go on making the suits and coats to their hearts’ content, send the profits overseas and pay no tax.
          29. A government then lets Westpac get away with Tuesday’s larceny and it’s the same government that sucks up to foreign capital. And it is larceny. The word means theft. Westpac have now got twelve million dollars of assets on their hands for a debt of only four million.”

110   The discussion continued with a person invited to comment on the tax paid by foreign companies. In the course of that interview, the following exchange occurred:

          “ 73. JONES:
          74. So this is economic warfare, in a sense, on a grand scale. We’ve been swindled by our own people.
          75. CUMMING:
          76. Well, this is the greatest swindle in the world that we’ve modestly said, called it the Great Australian Swindle, just to put a handle on it, really.”

111   The plaintiff asserted that the publication of this material gave rise to the following imputations:

          “14(a) The plaintiff acted in a disgraceful way in that he earned his living by destroying viable businesses;
          (b) The plaintiff, while acting as the liquidator of Rundles, a viable business, acted contrary to the interests of Rundles for his own financial gain;
          (c) The plaintiff, while acting as the liquidator of Rundles, a viable business, acted in a callous manner by sacrificing the jobs of Rundles’ 250 employees for his own financial gain;
          (d) The plaintiff’s conduct while acting as the liquidator of Rundles was tantamount to stealing;
          (e) The plaintiff was a swindler.”

112   The defendants put the same objections to various phrases in similar imputations dealt with previously. They added, however, that the content of this segment, so far as it concerned Ferrier Hodgson, provided further reasons to doubt that the material was capable of giving rise to the imputations pleaded. The superstructure (even were it present in earlier segments) was simply not there. There was, for instance, nothing to suggest that Rundles was a viable company. The reference to “the Great Australian Swindle” did not relate to Ferrier Hodgson. The reference to “larceny” in para 29 was a reference to Westpac, not to Ferrier Hodgson.

113   There is force in each of these submissions. I believe that the material is capable of suggesting that Rundles was viable. The segment refers to Rundles as never having missed a payment. It refers to the surplus of assets over liabilities. I accept that the reference to “larceny” is a reference to Westpac. I also accept that the reference to “the Great Australian Swindle” is not a reference to Ferrier Hodgson. I believe that there is enough (barely) to suggest that the imputations in 14(a) (as amended) and 14(c) are capable of arising. They should go to the jury. I reject imputation 14(b) for the reasons previously given. Imputation 14(d) does not arise. It is not, in my view, capable of arising, and therefore no question arises of repleading. Imputation 14(e) was not pressed.


      Imputations: Schedule H

114   The final segment was at 7.45 am on 13 March 1997. It was also a long segment. Mr Jones interviewed Mr Peter Rundle, a Director of Rundles. There was discussion of Rundles’ viability. Mr Rundle asserted that the company had never missed a payment to Westpac (para 121). Mr Jones recounted that a caller had said that Rundles always paid their bills on time (para 125). The company had offered $1.5 million in reduction of its debt to Westpac (para 162). It had enough orders to keep in business (para 206).

115   There were also references to the fees paid to Receivers. The interview included:

          “173. JONES:
          174. So the receivers are ripping money out of the company?
          175. RUNDLE:
          176. You ask the rec … let the receivers tell you.”

116   Later in the interview, the following exchange occurred:

          “217. JONES:
          218. And ever since then, ever since the receivers have been appointed, they have been receiving from out of the business very significant payments?
          219. RUNDLE:
          220. In my opinion, yes.”

117   The banks were said not to be at risk of losing their money (para 222). Mr Jones added: “Just sell you up” (para 222). There are references to what would happen to the employees. They will go “onto unemployment. It’ll cost the taxpayer.” Mr Rundle added:

          “228. … All we cared about was keeping the business going, keeping the employees going and keeping our customers satisfied. That’s what we’ve tried to do.”

118   The interview ended with Mr Jones saying these words:

          “234. Okay. Peter Rundle. If that’s not just one of the great swindles, is it not? And Bob Joss still hasn’t got the guts to come into the public place and explain why his bank has behaved as they have behaved. They might also tell us what they’ll par .. . the receiver is taking out of the business to satisfy this blind pursuit of rather innocent people who are being just cast onto the street.”

119   The plaintiff relied upon the following imputations:

          “16(a) The plaintiff acted in a disgraceful way in that he earned his living by destroying viable businesses;
          (b) The plaintiff, while acting as the receiver of Rundles, a viable business, acted contrary to the interests of Rundles for his own financial gain;
          (c) The plaintiff, while acting as the receiver of Rundles, a viable business, acted in a callous manner by sacrificing the jobs of Rundles’ employees for his own financial gain;
          (d) The plaintiff was a swindler;
          (e) The plaintiff acted in a disgraceful way in that he earned his living by impoverishing other people”

120   The arguments are now familiar. For the reasons previously given, I believe imputations 16(a) (as amended) and 16(c) are capable of arising. Imputations 16(b) and 16(e) should not go to the jury. Imputation 16(d) should not go to the jury in that form. Should the plaintiff be given liberty to replead? The defendants argued that there was nothing to connect the plaintiff with the “swindle”. I believe, however, that there is material which is capable of suggesting that the plaintiff was party to the “swindle”. The plaintiff therefore has liberty to replead.


      Order

121   Upon the basis of these reasons, I make the following orders:


      1. The plaintiff has liberty to “strike in” the additional material in respect of each of the segments where the transcript is incomplete.

      2. The Further Amended Statement of Claim should be amended to omit references to tone in paras 4, 6, 8, 10, 12, 14 and 16.

      3. The plaintiff should, within 28 days, provide the defendants with particulars in respect of Schedules B, C, F, G and H in accordance with Pt67 r12(1)(d), namely, the identity of persons who (a) had knowledge of the facts set out in the Particulars of Identification, and (b) heard the publication complained of, indicating, where more than one segment was heard, which segments were heard.

      4. In respect to Schedule A:
      The plaintiff has leave to amend imputation 4(a) and, as amended, that imputation should go to the jury. Imputations 4(b) and (d) should not go to the jury. Imputation 4(c) should go to the jury with the word “receiver” replaced by “liquidator”.

      5. In respect to Schedule B:
      The plaintiff has leave to amend imputation 6(a) and, as amended, that imputation should go to the jury. Imputations 6(b) and 6(c) should not go to the jury.

      6. In respect to Schedule C:
      The plaintiff has leave to amend imputation 8(a) and, as amended, that imputation should go to the jury. Imputation 8(b) should not go to the jury. Imputation 8(c) should go to the jury. The plaintiff has leave to replead imputation 8(d).

      7. In respect to Schedule D:
      The plaintiff has leave to amend imputation 10(a) and, as amended, that imputation should go to the jury. Imputation 10(b) should not go to the jury. Imputation 10(c) should go to the jury.

      8. In respect to Schedule F:
      The plaintiff has leave to amend imputation 12(a) and, as amended, that imputation should go to the jury. Imputations 12(b) and 12(d) should not go to the jury. Imputation 12(c) should go to the jury. The plaintiff has leave to replead imputation 12(e).

      9. In respect to Schedule G:
      The plaintiff has leave to amend imputation 14(a) and, as amended, that imputation should go to the jury. Imputations 14(b), 14(d) and 14(e) should not go to the jury. Imputation 14(c) should go to the jury.

      10. In respect to Schedule H:
      The plaintiff has leave to amend imputation 16(a) and, as amended, that imputation should go to the jury. Imputations 16(b) and 16(e) should not go to the jury. Imputation 16(c) should go to the jury. The plaintiff has leave to replead imputation 16(d).

      11. Balancing wins and losses, I believe the defendants have succeeded on many of their contentions. A number of imputations, nonetheless, survived. I believe the appropriate order is that the defendants should have 60% of their costs.
      **********
Last Modified: 09/13/2001
Most Recent Citation
Cases Citing This Decision

1

Ferrier v Jones & Anor [2003] NSWSC 39
Cases Cited

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Statutory Material Cited

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Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202
Stuart Rendell v Federal Capital Press of Australia Pty Ltd [2003] ACTSC 100
Rogers v Nationwide News Pty Ltd [2003] HCA 52