Hennessy v Lynch (No. 2)

[2006] NSWDC 49

CITATION:	Hennessy v Lynch (No. 2) [2006] NSWDC 49
HEARING DATE(S):	6 October 2006
JUDGMENT DATE:	13 October 2006
JUDGMENT OF:	Gibson DCJ
DECISION:	Imputation 9(a) struck out; all other imputations for each of the four publications are to go to the jury.
CATCHWORDS:	Defamation - imputations - pleading and procedure
LEGISLATION CITED:	Defamation Act 1974 (NSW)
CASES CITED:	Angel v H M Bushell & Co [1968] 1 QB; Borella v Penfolds Pty Limited (1992) 7 WAR 492 Cox & Lee (1869) LR 4; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR ; Farquhar v Bottom [1980] 2 NSWLR; Hepburn v TCN Channel 9 Pty Limited (1983) 2 NSWLR; John Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657; Kemsley v Foot [1952] AC 357; Kriss v John Publications Pty Limited [2006] NSWSC 758; Simosi v John Fairfax Publications Pty Limited [2004] NSWCA 176; Whittington v Gladwin 1825 5 BNC 180.
PARTIES:	Paul James Hennessy (plaintiff) John Lynch (defendant)
FILE NUMBER(S):	2288/06
COUNSEL:	J H Young (plaintiff) R Weaver (defendant)
SOLICITORS:	Shaw McDonald (plaintiff) John Lynch (defendant)

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JUDGMENT

1 The plaintiff brings proceedings for defamation arising from four publications alleged to have been made by the defendant to an employee of the plaintiff, a Mr Hasler, in the course of conversations. The first of these is dated 6 October 2000. The conversation that is alleged to have occurred took place is as follows:

“On or about 6 October 2000, the Defendant said to Hasler, “I am going to give you a hard time because you work for Hennessy.”

On the same date, the Defendant said to Hasler, “You know that Hennessy is a former bankrupt.

Hasler said to the Defendant, “I am a contractor and I work for two other companies apart from Hennessy and I am just here to do the work – his private business is none of my concern.”

2 The plaintiff pleads that this gives rise to the imputation that the plaintiff is a former bankrupt.

3 The second publication is as follows:

“On or about 14 October 2002, the Defendant telephone (sic) Hasler and said, “Syd there are more of Hennessy’s cattle in at the house and I don’t know what I will do with them – I will phone you tomorrow – I might put them back – they keep getting in through the flood gate at the creek – you know that the rail crossing is going to be closed – you will have to move your yards and that will cost Hennessy money to move them.”
Hasler replied, “As far as I know the crossing will not be closed.”
The Defendant said, “I have got it on good authority that the crossing will be closed.”
The Defendant further said, “You have no ethics working for Hennessy as you know he is a former bankrupt about ten years ago and you would work for Bin Laden.”
Hasler said, “You better watch your fucking mouth John.”
The Defendant said, “Hennessy is still bankrupt and why is it that he got cut off at Fish & Sons and couldn’t get an account with Alan Wilding – was it because he doesn’t pay his bills on time – where does he deal now?”
Hasler said, “It is none of your frigging business.”

4 The plaintiff pleads that this gives rise to the following imputations:

(a) That the Plaintiff has no ethics;
(b) That the Plaintiff is a former bankrupt;
(c) That the Plaintiff is a bankrupt;
(d) That the Plaintiff is as bad as Bin Laden;
(e) That the Plaintiff is not credit-worthy;
(f) That the Plaintiff does not pay his accounts on time;
(g) That the Plaintiff was refused further credit by Rish & Sons;
(h) That the Plaintiff was refused credit by Alan Wilding.

5 The third publication is as follows:

“On or about 18 December 2005, the Defendant telephoned Hasler and said, “Syd John Lynch here – I have had my solicitor out for lunch today and we have measured the easement where the new yards are and they are 4 foot over the easement line and they have got to be moved.”

Hasler said, “I have no intentions of moving the yards and you can get stuffed.”

The Defendant said, “You should not have sewed the Lucerne where you did on part of the easement – I am going to put a grid in the corner where I want to and not where you want to put it – I know your problem you have bankrupted three people you have worked for.”

Hasler said, “John you wouldn’t know what you are fuckin (sic) talking about.”

The Defendant said, “You are working for a former bankrupt.”

Hasler said, “It is none of your bloody business.”

The plaintiff pleads that this gives rise to the imputation that the plaintiff is a former bankrupt.

6 The fourth publication is as follows:

“On or about 27 March 2006, the Defendant telephoned Hasler and said, “Syd John here – Hennessy and you suit each other for what you both have done to other people – Hennessy being a former bankrupt and you working for the last three employers who you sent bankrupt – you must have your head in the sand if you didn’t know that Hennessy had been bankrupted 10 years ago.”
Hasler said, “You are a fucking dickhead – you don’t know what you are talking about.”
The Defendant said, “why has Hennessy been cut off at Sid Newham’s and Fish & Sons – was if (sic) for not pay accounts?”
Hasler said, “It’s none of your business.”
The Defendant said, “If I was to impound his bull I feel sure some of the cattle would end up on my block and I will impound them – if I cannot keep my bull out of your property I will sell him but only after you electrify the boundary fence or I get a court order.”
The Defendant further said, “With so many things happening around the area some night you might find all your gates open.”
Hasler said, “John I take that as a personal fucking threat.”

7 The plaintiff pleads that this publication give rise to the following imputations:

(a) That the plaintiff has harmed other people;
(b) That the Plaintiff is a former bankrupt;
(c) That the Plaintiff is not credit-worthy;
(d) That the Plaintiff did not pay his accounts at Sid Newham’s;
(e) That the Plaintiff did not pay his accounts at Fish & Sons;
(f) That the Plaintiff was refused credit by Sid Newham’s;
(g) That the Plaintiff was refused credit by Fish & Sons.

8 This is a separate trial concerning the form and capacity of the imputations and set out below. The defendant has also challenged the defamatory meaning of certain of these imputations.

Imputations 6(a), 9(b), 12(a) and 15(b) – The plaintiff is a former bankrupt

9 The gravamen of the defendant’s submissions is that given the nature of bankruptcy laws today, it is no longer defamatory to say of a person that he or she is a former bankrupt. It is submitted that a statement that a person is a former bankrupt cannot, without more specificity, be defamatory because to be a former bankrupt is not to suggest incapacity to pay or general dishonesty.

10 While it is not defamatory without more to say that someone owes money (see Gatley on Libel and Slander 10th edition paragraph 2.21) it is defamatory to say of a person that he or she is insolvent or bankrupt. No element of misconduct is required because to impute inability to pay would tend to injure a person’s credit in a financial sense, which the law protects as part of that person’s reputation: Borella v Penfolds Wines Pty Limited (1992) 7 WAR 492. It is also defamatory to impute future insolvency to a plaintiff: Whittington v Gladwin (1825) 5 B & C 180. However, the situation is less clear where the matter complained of states that a person has previously been in financial difficulties. In Cox v Lee (1869) LR 4 Ex 284 at 288 Kelly CB considered that even if it were stated that previous financial difficulties had been overcome, a plaintiff’s position in the world could still be injured by such an allegation. However, as Gatley notes (footnote 46 to paragraph 2.21), unless there is a connotation of present or future embarrassment, this finding “may only reflect Victorian social attitudes”.

11 A great deal of latitude must be allowed to the expression by the jury of contemporary community values when considering issues of defamatory meaning. In Hepburn v TCN Channel 9 Pty Limited (1983) 2 NSWLR 682 at 686 Hutley JA noted, concerning the word “abortionist”:

“The fact that some reasonable members of the public may regard the defamatory aura which surrounds any abortion as the result of prejudice does not mean that when the word is used, the publisher is not uttering it with its defamatory meaning. It may carry the defamatory meaning even to those uncommitted to the particular moral code.”

Hutley JA went on to refer to other words which may carry overtones of disapproval, such as “kept woman” and “fascist”.

12 In John Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657 at 1661-2 McHugh J pointed out that courts have always accepted that juries are more likely to find a publication defamatory than a judge. Ordinary readers of newspapers do not read articles in the way that a lawyer would (see also Somosi v John Fairfax Publications Pty Limited [2004] NSWCA 176).

13 In Kriss v John Fairfax Publications Pty Limited [2006] NSWSC 758, an imputation which included an assertion of “erstwhile” bankruptcy was pleaded. A jury found the matter complained of conveyed a defamatory imputation that the plaintiff was an “erstwhile bankrupt barrister” who was struck off for some shoddy financial advice. However, this imputation contained not only the assertion that the plaintiff was a former bankrupt but also described the reason for it, which is not the case here.

14 While I have considerable doubt about whether such an imputation may be considered to be defamatory in today’s world, I must be careful not to make too free a judicial incursion upon the jury’s function. If men of reasonable intelligence may differ as to the conclusion to be drawn, the issue of defamatory meaning must be left to the jury: Farquhar v Bottom [1980] 2 NSWLR 380 at 386 per Hunt J. Particular caution should be exercised where the matter complained of is a slander, where the context of the publication and the tone of voice may be relevant. Whether or not it is defamatory in this day and age to say of someone that they were previously bankrupt is an issue for jurors and not for a judge.

15 Accordingly, imputations 6(a), 9(b), 12(a) and 15(b) will go to the jury.

Imputations 9(g), 9(h), 15(f) and 15(g) – refusal of credit

16 Imputations relating to the refusal of credit to the plaintiff (imputations 9(g) and 9(h) and imputations 15(f) and 15(g)) were also the subject of challenge. It is submitted that these imputations lack sufficient clarity and that refusal of credit may have been for reasons unrelated to the plaintiff.

17 However, the text of each of the matters complained of in which these imputations arise make it clear that questions are being asked about the reason for the plaintiff’s credit being cut off and whether or not it was for failure to pay accounts. The context of the imputation is a matter to which regard should be had when determining the defamatory meaning. The context is that the plaintiff could have had his credit cut off because of his failure to pay accounts. Imputations need not be more precise than the matter complained of. Accordingly, imputations 9(g) and 9(h) and 15(f) and 15(g) will go to the jury.

Imputation 9(a) – That the plaintiff has no ethics

18 It is submitted that this imputation does not arise and is not capable of being defamatory.

19 It may be defamatory to say that a person is unethical. In Angel v H M Bushell & Co [1968] 1 QB Milmo J at 825-826 stated that “… ethics involve a moral standard and, in my judgment, a breach of ethics connotes at a minimum dishonourable behaviour”. However, is this imputation is capable of arising?

20 What the matter complained of is saying is that Mr Hasler is the person without ethics, in that he is prepared to work for somebody like the plaintiff, since not only is the plaintiff a former bankrupt, but if Mr Hasler would work for him, then “you would work for Bin Laden”. The accusation is that Mr Hasler lacks ethics for working for such a dreadful person, but not that the person for whom he works is unethical. The plaintiff is such an awful person that only unethical persons would work for him.

21 Accordingly, this imputation is incapable of being conveyed and is struck out.

Imputation 9(d) – That the plaintiff is as bad as Bin Laden

22 The objection to this imputation is that it lacks specificity and does not arise.

23 The matter complained of is essentially equating working for the plaintiff with working for Bin Laden. In other words, the plaintiff is comparable to Bin Laden. This is not dissimilar to the matter complained of in Kemsley v Foot [1952] AC 357, where all that was said about the plaintiff was that he was “lower than Kemsley”. (Lord Kemsley’s fame has passed into history, but at the time he was well known as the proprietor of a number of newspapers.) In Kemsley (at 357) Lord Porter held that a reasonable construction of the words “lower than Kemsley” was that “the conduct of the Kemsley press was similar to but not quite so bad as that of the press controlled by Lord Beaverbrook, i.e. it is possibly dishonest, but in any case low”. His Honour went on to note that the exact meaning was for the jury to determine.

24 That should be the case here. To compare a person to Osama Bin Laden may be capable of conveying an imputation that his or her conduct is “as bad as” Bin Laden, Mr Bin Laden’s reputation in today’s world being notoriously low. The attack on capacity therefore fails.

25 As to the objection that the imputation is defective in form, Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 sets out the requirement for specificity concerning the pleading of imputations as follows:

“It is a feature of certain forms of defamation that one can read or hear a matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or has suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says “X is disgusting”, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter”.

26 If a sign was put up saying “If you work for X you would work for Bin Laden” the degree of specificity required is no more than that the plaintiff is as bad as the person he is being compared to. No further specificity is needed and I reject the challenge to the form of the imputation.

Imputation 15(a) – The plaintiff harmed other people

27 This imputation is asserted to arise from the passage of the matter complained of which says “Hennessy and you suit each other for what you have done to other people – Hennessy being a former bankrupt and you working for the last three employers who you sent bankrupt”.

28 The imputation is a general one of causing some form of unspecified harm or loss to others, whether financial or otherwise. It is general in the extreme, and that the plaintiff cannot be forced to plead an imputation which is more specific than the matter complained of. According, this imputation suffers from no defect of form and is capable of arising.

29 Orders

1. Imputation 6(a) will go to the jury.
2. Imputation 9(a) is struck out.
3. Imputations 9(b) to 9(h) will go to the jury.
4. Imputation 12(a) will go to the jury.
5. Imputations 15(a) to (g) will go to the jury.
6. Defendant pay plaintiff’s costs of the argument on 6 October 2006.

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