Hunt v Radio 2SM Pty Ltd

[2009] NSWDC 236

CITATION:	Hunt v Radio 2SM Pty Ltd [2009] NSWDC 236
HEARING DATE(S):	10 September 2009
EX TEMPORE JUDGMENT DATE:	10 September 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Grant leave to the plaintiff to add the words “by an investigator” to imputation (d) to read “The Plaintiff so misconducted himself as general manager of the Council that he is being investigated by an investigator.” (2) Grant leave to the plaintiff to add the words “by an investigator” to imputation (h) to read “The Plaintiff is being investigated about how he funds his developments by an investigator.” (3) Grant leave to the plaintiff to amend imputation (l) to delete the balance of the imputation so it reads: “The Plaintiff is a low life.” (4) Grant leave to the plaintiff to delete the word “corrupt” from imputation (k). (5) The plaintiff withdraws imputation (m). (6) Grant leave to the plaintiff to amend imputation (o) to read “The plaintiff rides roughshod with Councillors and builds developments for his own financial gain.” (7) Plaintiff to file and serve amended statement of claim in 7 days. (8) Defendant to file and serve Defence 28 days thereafter. (9) Defendant is to pay the plaintiff’s costs. (10) Matter stood over for further directions to Friday 13 November 2009 at 9:00am.
CATCHWORDS:	TORT - defamation - defendant's application to strike out imputations - challenges to form and capacity
LEGISLATION CITED:	Defamation Act 2005 (NSW)
CASES CITED:	Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Armitage v Double Bay Newspapers Pty Ltd (Supreme Court of NSW, Hunt J, 26 September 1991, unreported) Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Griffith v John Fairfax Publications [2004] NSWCA 300 Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933 Rigby v John Fairfax Group Pty Ltd (1994) A Def R 52-005 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669
PARTIES:	Plaintiff: Robert Christopher Hunt Defendant: Radio 2SM Pty Ltd
FILE NUMBER(S):	3018 of 2009
COUNSEL:	Plaintiff: Mr C A Evatt Defendant: Mr A T S Dawson
SOLICITORS:	Plaintiff: W D Hunt & Associates Defendant: Banki Haddock Fiora

Judgment

[1] This morning I have heard argument about the form and capacity of imputations pleaded as arising from a radio broadcast and made orders as set out at the end of this judgment. As I had a number of matters in the list, and both counsel have to get away to other hearings, the parties kindly agreed that I could hand down my reasons for decision later today.

[2] The plaintiff by way of Amended Statement of Claim filed on 19 August 2009 brings proceedings for defamation under the Defamation Act 2005 (NSW) against the defendant for a radio broadcast by Radio 2SM on 30 June 2009. The plaintiff pleaded that the following imputations were conveyed by the defendant:

“(a)The Plaintiff overrides the Quirindi Councillors (paragraphs 21-24).

(b) The Plaintiff will not listen to ratepayers (34).

(c) The Plaintiff approves developments without the Councillors having a say (24-26,36).

(d) The Plaintiff so misconducted himself as general manager of the Council that he is being investigated (44, 66, 77).

(e) The Plaintiff is working hand in hand with developers (43).

(f) The Plaintiff knocked back developments on Gunnedah Road so as to facilitate the purchase of the proposed developments by another developer who was an old ex Councillor (48).

(g) The Plaintiff allowed a development to go through within a matter of a week in order to assist a developer with whom he was working hand in hand (43, 48, 54).

(h) The Plaintiff is being investigated about how he funds his developments (65-66).

(i) The Plaintiff bought a block of land and then had persons build houses on them without Council permission (54).

(j) The Plaintiff thwarts the entrepreneurial initiatives of developers with whom he is not working hand in hand (43-50).

(k) The Plaintiff has acquired wealth through the corrupt use of his power as General Manager of Quirindi Council (whole broadcast).

(l) The Plaintiff is a low life, that is to say he is one of the more seedy elements of society and a despicable person (68).

(m) The Plaintiff is corrupt (whole broadcast).

(n) The Plaintiff is dishonest (whole broadcast).

(o) The Plaintiff goes behind the Council’s back and approves and builds developments for his own financial gain (whole broadcast).

(p) The Plaintiff does not act in the best interests of the Quirindi community (whole broadcast).

(q) As General Manager the Plaintiff may not have done the best thing from a business point of view (72).

(r) The Plaintiff as General Manager had a big conflict of interest (77).

(s) The Plaintiff should be reported to the Independent Commission Against Corruption (ICAC) (77, 87).

(t) The Plaintiff’s ownership of houses as General Manager is questionable (121-124).

(u) The Plaintiff covers his tracks in his developments because he has something to hide (85, 87-90, 97).”

[3] The defendant’s application to strike out portions of the Amended Statement of Claim, and also to challenge the form and capacity of the imputations pleaded, is one commonly made in the Defamation List. Objections to the imputations were not provided until 4 September 2009. As a result of that letter, Mr Evatt advised before argument commenced that he would abandon seven of the imputations ((a), (b), (c), (i), (j), (q) and (u), and in the course of argument, when new matters were raised, he promptly agreed to amend.

[4] It used to be the case in Defamation List matters that the “media firms’ specializing in defamation law would write letters advising of objections so that amendments could be made. The solicitors for the defendants in these proceedings are not only highly regarded as one of Australia’s best “media firms” but have been well-known in the past as adopting this sensible practice. It is a practice I would like to see used more often in the Defamation List in future.

[5] The concessions Mr Evatt made in argument were:

(a) in accordance with the requirement for imputations about being investigated to nominate the investigator ( Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 671 per Hutley JA), to amend imputations (d) and (h) accordingly;

(b) in accordance with appellate decisions concerning the inadvisability of using the word “corrupt”, to withdraw “corrupt” from imputation (k) and withdraw imputation (m);

(c) to revise the wording of imputations (l) and (o); and

(d) to change the claim in paragraphs 8 and 9 from republication to publication.

The issues now before me

[6] I now turn to a consideration of the remaining imputations.

[7] The defendant submits the following remaining imputations are not defamatory: imputations (e), (f), (p) and (s).

[8] The defendant submits the following remaining imputations are not capable of arising: imputations (g), (h), (m), (p) (s) and (t) and.

[9] The defendant submits the following imputations are defective in form:

(a) Imputation (d) is defective because the phrase “so misconducted himself” is impermissible.

(b) The following imputations contain ambiguity by reason of the choice of language: imputations (j) “thwarts”, imputation (n) “dishonest” and imputation (t) “questionable”.

(c) Imputation (r) is defective in form in that the conflict of interest is not identified.

Defamatory meaning

[10] Defamatory meaning is a matter which it is appropriate for the jury to determine in relation to each of these imputations challenged. Imputations that the plaintiff “does not act in the best interests of the Quirindi community”, or “may not have done the best thing from a business point of view” in his capacity as General Manager, are matters which will fall within the province of the jury as the finders of fact.

[11] Each of the remaining imputations set out above is capable of describing an act or condition capable of satisfying the test that ordinary right-thinking members of the community would think less of a person if such conduct was imputed to him or her.

[12] Judges must be careful not to trespass into the domain of the jury in this regard. Whether or not these imputations are defamatory is a matter for members of the jury, who know so much better what community standards are.

[13] I reject the challenges to defamatory meaning raised by the defendant in relation to each of the imputations challenged.

Capacity

[14] The relevant principles are stated by Hunt CJ at CL (with whom Mason P and Handley JA agreed) in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164 – 67 as summarised and confirmed by Tobias JA (with whom Sheller JA and Young CJ in Eq agreed) in Griffith v John Fairfax Publications [2004] NSWCA 300 at [19 – 20]. These principles were, as the Court of Appeal noted in Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [13] per McColl JA, revisited by the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 by Gleeson CJ, McHugh, Gummow and Heydon JJ, a decision of considerable utility given the change in the status of imputations in New South Wales from the cause of action to a particular of the cause of action by reason of the new regime set up by the Defamation Act 2005 (NSW), the Act which governs these proceedings.

[15] The Court of Appeal in Ahmed notes (at [17]) that requests to strike out imputations should be approached with “great caution” and that if reasonable minds might possibly differ, that would be a strong, indeed perhaps insuperable, reason for not exercising the discretion to strike out.

[16] That is very much the case here. The matter complained of is a “talkback radio” style broadcasts, and the capacity of the ordinary reasonable listener for loose thinking when listening to such an evanescent medium as radio has been the subject of comment in a number of the above decisions.

[17] In each of the objections raised, Mr Dawson, counsel for the defendant, urged upon me a “careful” reading of the text of the matter complained of to look for the meaning he urges upon me. However, that is precisely what I must not do. The ordinary reasonable listener is not listening with this high degree of attention, and does not have a transcript which can be pored over.

Imputation (g)

[18] Imputation (g) arises from paragraphs 43, 48 and 54. The compere asks: “Is [the plaintiff] working hand in hand with anyone with the developments?” to which the caller replies “Yes he is and that’s the problem.” He goes on to talk about the ex-councillor at paragraph 48 and there is a further reference at paragraph 54.

[19] Mr Dawson submits that this imputation can only be arrived at by connecting these paragraphs. However, that is just what Hunt CJ at CL in Marsden (supra) at 164-7 is explaining when his Honour points out that the ordinary reasonable reader (or listener) capable of a degree of loose thinking will “join the dots” in this fashion.

[20] This imputation is capable of being conveyed and, as is the case with all the imputations discussed below, will go to the jury which the defendant in these proceedings has requisitioned.

Imputation (h)

[21] Imputation (h) clearly arises from paragraphs 65-68, which refer to the investigator looking into this conduct, and calling the plaintiff a “low life”.

[22] This imputation is capable of being conveyed.

Imputation (p)

[23] The plaintiff asserts that this imputation arises from the whole broadcast.

[24] The plaintiff is accused throughout the broadcast of a wide variety of actions which show he is not acting in the interests of ratepayers. This imputation is capable of being conveyed.

Imputation (s)

[25] The plaintiff asserts in the Amended Statement of Claim that this imputation arises from paragraphs 77 and 87.

[26] The second caller effectively says that the first caller should not bother with hiring an investigator but go to ICAC. There is sufficient material in the matter complained of for this imputation to have the capacity to be conveyed.

Imputation (t)

[27] The plaintiff asserts in the Amended Statement of Claim that this imputation arises from paragraphs 121-124.

[28] Although the real objection was to form, the defendant also challenged capacity, asserting that the matter complained of did not say in so many words that the plaintiff’s conduct was questionable. However, the point made by the callers was that if a person of lesser standing (such as, to use their example, a bikie) conducted himself in such a way, his conduct would be “questioned every day”.

[29] There is sufficient material in the matter complained of for this imputation to have the capacity to be conveyed.

Form

[30] The defendant submitted that an imputation that the plaintiff “so misconducted himself” was bad in form because the misconduct could not be identified.

[31] An imputation that a plaintiff “so conducted himself” has long been permitted (Rigby v John Fairfax Group Pty Ltd (1994) A Def R 52-005). However, Mr Dawson submitted that “so misconducted himself” was different and impermissible.

[32] In fact, in Armitage v Double Bay Newspapers Pty Ltd (Supreme Court of NSW, Hunt J, 26 September 1991, unreported) Hunt J preferred “so misconducted” to “so conducted”:

“Since that decision [ Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135], and following a very helpful observation made in it by Priestley JA (at 155), I have suggested (and have consistently upheld) an imputation along the following lines: “The plaintiff had so misconducted himself [or herself] as to warrant an investigation into that conduct by the Independent Commission Against Corruption.””

[33] In Hodge v TCN Channel Nine Pty Ltd [2006] NSWSC 933 an imputation that the plaintiff “so misconducted himself” was permitted.

[34] Mr Dawson submitted that the precise nature of the misconduct needed to be spelled out in the imputation, citing Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 per Gleeson CJ. In fact this decision supports the plaintiff’s contention that an imputation (e.g. “X is disgusting”) is permitted where the terms of the matter complained of (e.g. if the publication says “X is disgusting). This is such a case.

[35] The objections in form to imputation (d) are rejected.

[36] Mr Dawson also objected to the word “dishonest” in imputation (n). However, this is a publication of the kind which Levine J liked to call a “general smear” and one in which a general term such as “dishonest” (the meaning of which is clear from any dictionary) is not ambiguous.

[37] Similarly, in relation to imputation (r), it is not necessary to identify what the conflict of interest is. If the plaintiff is accused of conflict of interest, he is entitled to rely upon that general allegation when drafting his imputations.

Costs

[38] The defendant was unsuccessful in relation to all the matters which were argued (as opposed to the matters Mr Evatt conceded).

[39] In making an order for costs against the defendant, I am hoping to return to the days when comparatively simple complaints such as these were dealt with by solicitors’ correspondence outlining the nature of the objection.

Orders

(1) Grant leave to the plaintiff to add the words “by an investigator” to imputation (d) to read “The Plaintiff so misconducted himself as general manager of the Council that he is being investigated by an investigator.”

(2) Grant leave to the plaintiff to add the words “by an investigator” to imputation (h) to read “The Plaintiff is being investigated about how he funds his developments by an investigator.”

(3) Grant leave to the plaintiff to amend imputation (l) to delete the balance of the imputation so it reads: “The Plaintiff is a low life.”

(4) Grant leave to the plaintiff to delete the word “corrupt” from imputation (k).

(5) The plaintiff withdraws imputation (m).

(6) Grant leave to the plaintiff to amend imputation (o) to read “The plaintiff rides roughshod with Councillors and builds developments for his own financial gain.”

(7) Plaintiff to file and serve amended statement of claim in 7 days.

(8) Defendant to file and serve Defence 28 days thereafter.

(9) Defendant is to pay the plaintiff’s costs.

(10) Matter stood over for further directions to Friday 13 November 2009 at 9:00am.

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