Ian Cohen v Nationwide News Pty Limited - [1999] NSWSC 528

NEW SOUTH WALES SUPREME COURT

CITATION: Ian COHEN v NATIONWIDE NEWS PTY LIMITED [1999] NSWSC 528

CURRENT JURISDICTION: Common Law
Defamation List

FILE NUMBER(S): 21422 of 1996

HEARING DATE{S): 28 May 1999

JUDGMENT DATE: 02/06/1999
PARTIES:

Ian COHEN - Plaintiff
NATIONWIDE NEWS PTY LIMITED - Defendant

JUDGMENT OF: Simpson J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
C Evatt - Plaintiff
T Blackburn - Defendant

SOLICITORS:
Carters - Plaintiff
Blake Dawson Waldron - Defendant

CATCHWORDS:
Defamation - Interlocutory application to file a third further amended statement of claim granted

ACTS CITED:

DECISION:
Notice of motion is dismissed

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Defamation List

SIMPSON J

Wednesday 2 June 1999

21422/96

Ian COHEN v NATIONWIDE NEWS PTY LIMITED

Judgment

HER HONOUR :

On 19 December 1996 the plaintiff commenced proceedings against the defendant claiming damages for defamation. He claims to have been defamed on two separate occasions, in successive issues of a daily newspaper, the Daily Telegraph. It may be assumed for present purposes that the defendant is the publisher of that newspaper. The first publication of which the plaintiff complained was contained in the issue of 4 December 1996 and appears to be a standard news item headlined “Aborigines accused over parks”. It is published under the byline of a journalist described as “Political Reporter”. The second, published in the following day’s edition, appears under the heading “Piers Ackerman”, and is sub-titled “Deep greens should park elsewhere” and, so far as can be ascertained, is an opinion piece.
Each article on its face is concerned with proposed legislation of the NSW Parliament relating to management of national parks, and a conflict of views and interests between members of the environmental movement and Aboriginal groups. The plaintiff is identified in each article as a parliamentary representative of the environmental or green movement.
There have been a number of amendments to the statement of claim. Initially the plaintiff pleaded only two imputations arising from the first article, and four from the second. Each was pleaded as having arisen from the natural and ordinary meaning of the words published. On 5 December 1997 Levine J dealt with certain objections to the statement of claim as then pleaded.
The plaintiff now seeks leave to file a “Third Further Amended Statement of Claim”. He wishes to increase to five the imputations pleaded to arise from the natural and ordinary meaning of the words in the first article; to nine the imputations said to arise from the natural and ordinary meaning of the second article; and to plead each imputation as a true innuendo by reference to extrinsic facts.
The defendant objects to leave being granted to the plaintiff to file the proposed amended statement of claim. The only basis for the objection is that the imputations the plaintiff now seeks to plead would, in any event, be struck out, and that the leave sought would therefore be a futility.
It is necessary now to look more closely at the matter complained of, the imputations sought to be pleaded and the objections thereto.
The first publication
The first matter complained of begins with the assertion that:
“A rift has developed in the green movement with environmental groups claiming traditional Aboriginal owners could not be trusted with the management of national parks.”

and purports to quote “key conservation groups” as saying that Aboriginal groups were driven by the “profit motive” and would
“overdevelop the five national parks the State Government has agreed to hand over to traditional owners.”

A Mr Jeff Angel, identified as “Total Environment Centre head” is extensively quoted. The following paragraphs should be reproduced:
“Total Environment Centre head Jeff Angel said yesterday the Aboriginal people would ‘economically exploit’ the national parks by way of low scale resort development.
He said the traditional owners would allow development and logging in the pristine wilderness.
‘This is a blank cheque for them,’ he said.
‘They have no right to economically exploit national parks.’”
The first and only mention of the plaintiff appears in the last of the three columns of the item, where he is reported to be opposed to the proposed legislation and to be lobbying to have it referred to a parliamentary committee. No precise statements are attributed to him and he is not quoted.
The item concludes by attributing to an Aboriginal Land Council spokesman, Mr Wright, the assertion that
“yesterday’s statements by green groups were similar to those of controversial Federal MP Pauline Hanson”.
Mr Wright is directly quoted as saying:
“ ‘We are very disappointed and deeply regret the things that have been said - they are unjustified, unreasonable and uncalled for’ ”
Of the five imputations pleaded in the Third Further Amended Statement of Claim, no objection was taken to the first and second and, after argument, counsel for the plaintiff withdrew the third, imputation (c), so far as it was said to arise from the natural and ordinary meaning of the matter complained of, but maintained its availability as a true innuendo. I will return to this. Imputations (d) and (e) are pleaded as follows:
“(d)The plaintiff was a Parliamentary member of the Greens who made statements which were unjustified, unreasonable and uncalled for.
(e)The Plaintiff is the Parliamentary member of the Greens who criticised traditional Aboriginal owners of National Parks by stating they were driven by the profit motive and would over develop them”.
The only passages in the matter complained of which have any real link or association with the words in either of these imputations are those in the last two paragraphs, referring to statements attributed to Mr Wright. The reference there is to “yesterday’s statements by green groups”. The “statements” to which reference was made are plainly the statements attributed to Mr Angel and those attributed to “key conservation groups”. There is nothing in the matter complained of that could possibly be taken to attribute the statements described as “unjustified, unreasonable and uncalled for” directly to the plaintiff. They are statements which, it is clearly said in the matter complained of, were made by Mr Angel or by unidentified members of the environmental movement. The matter complained of is not capable of conveying imputation (d) or (e).
I should note here that, at the conclusion of the argument on this aspect, counsel for the defendant made some attempt to challenge imputation (a) which is pleaded in the following way:
“The plaintiff is a racist because he was the Parliamentary member of the Greens who made statements similar to those of Pauline Hanson”.
In his judgment of 5 December 1997 Levine J held that the matter complained of was capable of conveying the imputation that the plaintiff was a racist. The imputation has been extended to include the words that follow. They are, in effect, an explanation of how the imputation arises. There is no reason why the plaintiff should not confine the imputation in this way if so advised. It is consistent with the judgment of Levine J in which his Honour held that Ms Hanson’s notoriety is such that it was unnecessary to plead extrinsic facts in order to establish the defamatory imputation.
The attack on imputation (a) was not really pursued, and, having regard to the judgment of Levine J, I would not interfere with it.
It is necessary now to deal with the argument that imputations (c), (d) and (e), pleaded as true innuendos, are not capable of being conveyed by the matter complained of even taken together with the extrinsic facts pleaded. The extrinsic facts on which the plaintiff seeks to rely to establish the true innuendo are three in number. They are:
“(a)The plaintiff had said he supported the concept of Aboriginal land rights.
(b)The green movement supported the concept of Aboriginal land rights.
(c)The plaintiff was the Parliamentary representative of the Greens.”
Imputation (c) is:
“The Plaintiff was hypocritical because on the one hand he supported the concept of Aboriginal land rights but on the other hand he did not believe the Aboriginal people should have control or management of land in national parks of which they were the traditional owners.”
Analysis of the imputation as framed shows that it depends upon a conclusion that hypocrisy is demonstrated by a contradiction between two philosophical positions - support for Aboriginal land rights on the one hand, and non-Aboriginal control of national parks on the other. It is one thing for the charge contained in an imputation to be that a plaintiff is “hypocritical”; there is, in my view, no question that such a charge is defamatory. However, the imputation as formulated proceeds to explain how and why it is said that the matter complained of carries that imputation. It is, in fact, a statement of the reasoning process the jury would be invited to apply in order to extract the imputation that the plaintiff is a racist. It is not directly asserted in the matter complained of that the plaintiff was hypocritical; rather what is sought on his behalf is to show that, because he on the one hand was known to be a supporter of the concept of Aboriginal land rights, for him then to oppose Aboriginal management of national parks is an inconsistency amounting to hypocrisy. Essential to the line of reasoning is that supporters of Aboriginal land rights must of necessity also be supporters of Aboriginal management of national parks, or at least that to oppose the notion of Aboriginal control of national parks is inconsistent with support of Aboriginal land rights. The reasoning depends upon an absolutism in the support of Aboriginal land rights, which cannot and does not give way to any other philosophies. In this respect the reasoning is flawed. It is perfectly legitimate to be a supporter of a philosophical position but to see it as subservient to other philosophical positions. It is not necessarily hypocritical to support Aboriginal land rights, but to give that philosophy a lesser significance than protection from exploitation of national parks. This is simply a question of priorities accorded to a range of beliefs adopted by individuals. With or without the extrinsic facts pleaded in support of the imputation, it cannot arise and will not go to the jury.
Imputations (d) and (e) pleaded as true innuendos are not strengthened in any way by the extrinsic facts pleaded. The extrinsic facts do nothing to add to the suggestion that the plaintiff made the statements referred to. Accordingly they will not go to the jury either as the natural and ordinary meaning of the publication or as true innuendos.
The second publication.
As I have noted above, the item the subject of the second claim purports to be an opinion or commentary piece.
The item opens with the following paragraphs:
“No one would be surprised that there has been a split between the professionals in the environmental movement and groups of Aboriginal Australians.
The deep greens have always regarded Aboriginal people as cannon fodder in their war to lock up the resources of this country.
When it has suited the darkest greens to go along with Aborigines their relationship has been harmonious. When the Greens wish to push their agenda further, however, the Aborigines have been expendable commodities.”
The article concludes with:
“Interestingly, Upper House Green MP Ian Cohen and Independent Richard Jones, the nudists’ representative, are out there fighting Aborigines.
Both members live in national parks in buildings constructed on property held on permissive occupation leases. They were shrill in their condemnation of pastoralists who ran cattle on crown leases but have been reluctant to discuss their own arrangements.
It would be fitting if the Aboriginal management found that their occupation of national park leases was not conducive to good park management and ousted them.”
Some way into the article the author makes reference to Mr Angel, and quotes similar statements to those attributed to Mr Angel in the previous news item.
The plaintiff seeks to plead nine imputations both as being conveyed on the natural and ordinary meaning of the words published, and as true innuendos. Of these, during the course of argument, counsel abandoned imputations (d), (e) and (i). No objection was taken on behalf of the defendant to imputations (a), (b) or (c), but objection was taken to the remaining imputations. It is therefore necessary to consider imputations (f), (g) and (h). They are framed as follows:
“(f)The plaintiff so misconducted himself that he deserved to be ousted from his occupation of his national park lease.
(g)The plaintiff is the member of an environmental movement which regards the Aborigines as expendable commodities.
(h)The plaintiff is a member of an environmental group which charges that Aboriginal people cannot be trusted with the management of the national parks.”
The attack that is made on imputation (b) is that it imputes some form of misconduct to the plaintiff and that, on a proper reading of the article, no misconduct is attributed to him. I do not accept this. Although “misconduct”, perhaps in some circumstances carries connotations of more blameworthy behaviour than the behaviour by the plaintiff referred to, nevertheless there is a clear message in the last paragraph of the article, particularly by the use of the word “fitting”, that, by reason of the plaintiff’s earlier behaviour, conduct or stance, he deserved to be ousted from his national park lease. The “conduct” is the plaintiff’s opposition to the proposed legislation, together with the stance he had earlier allegedly adopted in relation to national park use. I will allow imputation (f) as pleaded.
Imputations (g) and (h) both depend upon the same form of reasoning: that is, that a member of a particular group is identified with the whole set of beliefs and ideologies of that group, and with expressions of opinion by that group.
Bearing in mind that the ordinary reader is permitted a certain amount of loose thinking, and having regard to the overall tone of the article, I have concluded that these imputations are capable of being conveyed by the natural and ordinary meaning of the words. It is a jury question whether they are in fact conveyed. I have reached this conclusion because the article opens with the somewhat florid and general attack on members of the environmental movement so far as their attitude to Aboriginal groups is concerned, and the plaintiff is, at a later point, identified as an “Upper House Green MP” who is “out there fighting the Aborigines”. I will allow the amendment to this extent.
These imputations are not in any way advanced by the three extrinsic facts upon which the plaintiff relies and will not be permitted to go to the jury in that fashion.
The plaintiff will have leave to file further an amended statement of claim in accordance with these conclusions.

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LAST UPDATED: 02/06/1999