DEFAMATION – hearing and determination of certain issues in advance of other issues – impugned statements found to convey the imputations pleaded by the applicant and found to be defamatory – whether the impugned statements were made on an occasion of qualified privilege as a reply to attacks – whether the impugned statements were a fair report of proceedings or a fair summary of a public document pursuant to ss 28 and 29 of the Uniform Defamation Acts – whether a contextual imputation was conveyed – defence of qualified privilege upheld – fair report and fair summary defences rejected – the pleaded contextual imputation found to have been conveyed.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Gould v Jordan (No 2) [2021] FCA 1289
Case
[2021] FCA 1289
Decision Date
CaseChat Overview and Summary
In the case of Gould v Jordan (No 2), the primary issue before the court was whether certain statements made by Mr Jordan, the Commissioner of Taxation, were defamatory and, if so, whether the statements were protected by any applicable defences. Mr Gould, the plaintiff, contended that the statements were defamatory and had damaged his reputation, while Mr Jordan argued that the statements were either justified, made under qualified privilege, or were fair reports or summaries of public documents. The court was required to determine whether the impugned statements conveyed the imputations pleaded by Mr Gould, and if so, whether the defences of qualified privilege, fair report, or fair summary applied.
The court found that the impugned statements conveyed the imputations pleaded by Mr Gould, namely that he was involved in money laundering, tax fraud, and insider trading. These imputations were found to be defamatory. However, the court also found that Mr Jordan had a complete defence to the defamation claim, as the statements were made on an occasion of qualified privilege. Furthermore, the court rejected the defences of fair report and fair summary, but did find that the impugned statements conveyed a contextual imputation that Mr Gould was dishonest.
The court ordered the parties to file proposed orders to give effect to the judgment, affidavits to be relied upon on the question of costs, and outlines of submissions on the question of costs. The matter was adjourned for consideration of the orders to be made and the question of costs.
Orders
Orders of the court
1. The Respondent is to file and serve by 4 pm on 28 October 2021:
(a) his proposed orders to give effect to the Court’s judgment today;
(b) any affidavit to be relied upon on the question of costs; and
(c) an outline of submissions not exceeding 5 pages on the question of costs.
2. The Applicant is to file and serve by 4 pm on 3 November 2021 :
(a) his proposed orders to give effect to the Court’s judgment today to the extent that he proposes orders different from those proposed by the Respondent;
(b) any affidavit to be relied upon on the question of costs; and
(c) an outline of submissions not exceeding 5 pages on the question of costs.
3. The matter is adjourned to 2.15 (ACDT) on Friday, 5 November 2021 for consideration of the orders to be made and the question of costs.
4. There be liberty to the parties to apply.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The evidence which the Court received at the first stage of the trial was wholly documentary and comprised tendered documents to which the parties had agreed. Further background Mr Jordan has been the Commissioner of Taxation since 1 January 2013. It was common ground that the “Hua Wang Bank case” to which Mr Jordan had referred in the first sentence of the impugned statements was the litigation which was the subject of the judgment at first instance of Perram J in HWBB v CoT delivered on 19 December 2014, the subject of the judgment of the Full Court on appeal in Bywater Investments Ltd v Commissioner of Taxation [2015] FCAFC 176, (2015) 236 FCR 520 (Bywater Full Court), and the subject of the judgment of the High Court of Australia in Bywater Investments Ltd v Commissioner of Taxation [2016] HCA 45, (2016) 260 CLR 169 (Bywater HCA) (collectively, the HWB Litigation). At the first instance trial, Perram J found that Mr Gould was the individual who exerted ultimate control over five corporate entities, including Hua Wang Bank Berhad. The trial in the HWB Litigation commenced on 16 September 2013 and continued over 24 days until 20 November 2013 when Perram J reserved judgment. It involved challenges by five corporate entities to decisions of the Commissioner of Taxation (a predecessor of Mr Jordan) disallowing objections by the companies to taxation assessments. Perram J summarised at [1] in HWBB v CoT, the income years in dispute and the amounts of taxation in dispute: The Commissioner’s case in the HWB Litigation was that each of the companies had its place of central management and control in Australia and that they were completely controlled by Mr Gould. As Perram J noted at [3(a)], if that contention was made good, it entailed each of the companies being an Australian resident (Income Tax Assessment Act 1936 (Cth) (ITAA 1936), s 6(1) and in turn rendered each of them liable to income tax on all sources of income whether inside or outside Australia: Income Tax Assessment Act 1997 (Cth) (ITAA 1997), ss 6‑5(2), 995‑1(1). Each of the companies contended that its place of central management and control was in an overseas location (variously Apia in Samoa, London or Neuchâtel in Switzerland) because that is where their directors met or made actual decisions about the share transactions in question. The companies also contended that whether Mr Gould had been “pulling all of the strings from Sydney” was immaterial because the issue as to their place of central management and control was to be determined by reference to where their decisions, as a matter of formality, were made. The issue as to the place of management and control of the five companies was the central issue in the trial but there were other issues bearing upon the assessment of the amount of taxation which was payable, and consequential matters. Mr Gould did not give evidence in the HWB Litigation. However, Mr Peter Borgas, the sole shareholder of JA Investments Ltd, did give evidence. He claimed that he had made the management decisions for each company, other than Southgate Investment Funds Limited.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
However, I note again that this conclusion is of no moment given my finding that Mr Jordan made the impugned statements on an occasion of qualified privilege.Conclusion For the reasons given above, I consider that Mr Gould was identified as the subject of the impugned statements; that the impugned statements conveyed the imputations alleged by Mr Gould, and that those imputations were defamatory of him. I am satisfied, however, that Mr Jordan made the impugned statements on an occasion of qualified privilege and thereby has a complete defence to Mr Gould’s defamation claim. I consider further that Mr Jordan has not established the defences of fair report of proceedings or fair summary of a public document but that Mr Jordan’s impugned statements did convey, in addition to the pleaded imputations, the contextual imputation that Mr Gould is dishonest. I will hear from the parties with respect to the orders to give effect to these reasons and with respect to costs.
Ratio Decidendi
Legal Principle Established
It is nevertheless well‑established that the question of whether an imputation amounts to a general charge against the character of a plaintiff is one to be approached with care, so as to avoid unduly opening up avenues for defences of justification and contextual truth which would otherwise be barred to a defendant and thus prolong the hearing of the action: Abou‑Lokmeh at [47] (McColl JA); Cornwell at [50] (Gleeson JA). Consideration Counsel for Mr Jordan submitted that the conduct of Mr Gould alleged in the impugned statements was so serious as to convey a general charge that Mr Gould was dishonest. His submission continued: Money laundering, insider trading and tax fraud (in the sense of tax evasion) are, to the mind of the ordinary reasonable person, criminal in nature – indeed, they are offences which carry severe penalties, including imprisonment. That they all involve dishonesty, in relation to an accountant and businessman in [Mr Gould’s] position, underlines the simultaneous co‑existence of a general imputation of dishonesty. Thus, counsel contended that this was a case of multiple instances of misconduct conveying a more general imputation. Counsel for Mr Gould submitted that, of their nature, money laundering, tax evasion and insider trading involve dishonesty. He contended, accordingly, that dishonesty is part of the imputations pleaded by Mr Gould with the consequence that Mr Jordan’s pleaded contextual imputation is not carried in addition to Mr Gould’s pleaded imputations. I have kept firmly in mind the need for caution in permitting a contextual imputation of a more general kind than an applicant’s particular imputations. It can be easy for a more general imputation to be abstracted from the particular imputations pleaded by an applicant. There is a sense in which that is what Mr Jordan has done in the present case. That is especially so given the kinds of specific conduct to which he referred. As Nicholas J indicated in Ange, a process of evaluation is required, in which the pleaded contextual imputation is to be compared with an applicant’s pleaded imputation. In my view, there is a real sense in which Mr Jordan conveyed the imputation that Mr Gould is dishonest generally and not only in engaging in money laundering, tax fraud and insider trading, which are Mr Gould’s pleaded imputations. He referred to Mr Gould’s “gall” in appearing before an inquiry to criticise the ATO’s manner of handling tax disputes, with the implication that this was an indication of Mr Gould’s duplicity; he described Mr Gould as the principal of “a scheme”; he gave some indication of his activities (forming a Samoan bank and undertaking transactions to hide profits); and he conveyed to listeners the enormity of the conduct by the statement that the ATO had collected “over $350 million”, with the implication that this was not just some form of simple tax “dodge”. In addition, there is the fact that Mr Jordan referred to Mr Gould having engaged in three discrete forms of activity: money laundering, tax fraud and insider trading. To my mind, the statement that Mr Gould had been found to have engaged in each of these three forms of conduct had the effect of conveying not only that Mr Gould had done something or somethings in relation to tax affairs which were dishonest but that he is dishonest more generally.