Jones v John Fairfax Publications Pty Limited

[1999] NSWSC 892

CITATION:

Jones v John Fairfax Publications Pty Limited & Anor [1999] NSWSC 892

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20340 of 1999

HEARING DATE(S):

27 August 1999

JUDGMENT DATE:

3 September 1999

PARTIES :

ALAN JONES
(Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS PTY LIMITED
(First Defendant)

DAVID LESER
(Second Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	T Blackburn (Plaintiff) J Sackar Q.C. (Defendants)
SOLICITORS:	Blake Dawson Waldron (Plaintiff) Freehill Hollingdale & Page (Defendants)
CATCHWORDS:	Imputations - form - capacity - difference in substance
ACTS CITED:	Defamation Act 1974 (as amended) s 7A(3)
DECISION:	See paragraph 19

DLJ: 1

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

No. 20340 of 1999

JUSTICE DAVID LEVINE

FRIDAY 3 SEPTEMBER 1999

ALAN JONES
(Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS PTY LIMITED
(First Defendant)

DAVID LESER
(Second Defendant)

JUDGMENT (Imputations - form - capacity - difference in susbtance)

1    The plaintiff commenced proceedings on 23 July this year against the defendants in relation to a publication in The Sydney Morning Herald on 20 July. 2    The article, on pages 1 and 4, bears the headline “Nightmare on Struggle Street for Former AMP Boss”. It bears the by-line of the second defendant. 3    The first three paragraphs (including the lead-in) set the relevant theme:

“As the banks were deciding yesterday to terminate their $1.2 million deal for favourable treatment from John Laws, details emerged of another corporate deal involving Law’s radio colleague, Alan Jones. David Leser reports.
The former chief executive of the AMP turned a blind eye to a secret deal between the company and the broadcaster Alan Jones in the early 1990s in which it agreed to a $7 million debt refinancing scheme for South Sydney Leagues Club, of which Jones was then director of football.
Mr Ian Salmon believed the deal was designed to stop Jones’s damaging on-air attacks on the AMP but said he made ‘an absolute point of not knowing …because sometimes it is best if things are taken out of your hands’”.

4    From the whole of the matter complained of the plaintiff contends the ordinary reasonable reader would understand it to be carrying the following imputations in its natural and ordinary meaning:

“5(a) The plaintiff was a dishonest broadcaster in that he secretly agreed with the AMP society that he would cease to criticise the AMP Society on air in return for the AMP Society agreeing to provide a substantial benefit to the South Sydney Rugby League Club of which he was Director of Football.
(b) The plaintiff behaved unprofessionally as a broadcaster in that he secretly agreed with the AMP Society that he would cease to criticise the AMP Society on air in return for the AMP Society agreeing to provide a substantial benefit to the South Sydney Rugby League Club of which he was Director of Football”.

5    In respect of imputation (a), it is argued for the defendant that it is defective in form. It is submitted that the nature of the alleged dishonesty does not seem to be adequately explained or appropriately formulated. The explanatory words namely, “in the that he … director of football” do not seem in themselves, and without more, necessarily to encapsulate any notion of dishonesty at all. The defendants in its correspondence through its solicitors with those of the plaintiff, suggested that the imputation ought to be re-cast to make the nature of the alleged dishonesty abundantly clear. In development of this complaint Mr Sackar Q.C. for the defendant submitted that the imputation does not really explain in a way that is synonymous or an amplification of the notion of dishonesty unless, for example, it was suggested that what the plaintiff was doing was ceasing to express his honest views in favour of views which were not honestly held and that he ceased to do so by reason of the secret deal. The precise notion of dishonesty is not “distilled”, it was submitted. 6    Mr Blackburn for the plaintiff took the robust approach in submitting that the criticism made of imputation (a) “wore an air of great unreality”. As Gleeson CJ said in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137B “Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology”. The imputation it is submitted for the plaintiff does capture the sting, requires no further refinement and no issue arises as to the discernment of the meaning of it. It is fanciful to suggest that even an “obtuse” jury would have any difficulty in being able to discern that the matter complained of carries an imputation with that “sting” and substance. 7    Upon consideration I am of the view in the end that the imputation does capture the sting. The dishonesty in the plaintiff was constituted by the entering into by him of the secret agreement with the AMP founding the cessation of his criticism on air. Mr Blackburn agreed that the imputation could have been re-casted to the effect that the plaintiff was a dishonest broadcaster in that he had been relentlessly critical of the management of the AMP Society and had secretly agreed to moderate or suppress those criticisms upon the South Sydney Football Club receiving a commercial benefit from the AMP. That would mean the same thing. 8    I am of the view that the imputation is proper in form; it is inherently consistent in its structure by identifying the condition of the plaintiff as “dishonest” and the reason therefor. On any reasonable basis both components do hang together. I am also of the view that the imputation as a matter of law is also capable of being carried by the matter complained of and is capable of being defamatory. 9    Imputation (a) therefore will go to the jury. 10    As to imputation (b), this imputation suffers, it is said by the defendant, from the same defect as imputation (a) and/or is incapable of arising from the natural and ordinary meaning of the matter complained of (although it may possibly be available as a true innuendo) or does not differ in substance from imputation (a) and thus contravenes SCR Pt 67 r 11 (3). 11    With regard to form, this imputation is structurally sound in the sense that the act of the plaintiff (behaved unprofessionally) is identified and the basis therefor is set out in the imputation. 12    The real problem as to “form” is what is to be understood by the word “unprofessionally”? It is submitted for the plaintiff that the word is used in a “colloquial” sense and recourse was had to the Macquarie Thesaurus which discloses “unprofessional” as a word cognate with “unworthy” (and “irregular” and “unchristian”). The use of a thesaurus has been criticised as a mechanism for the proliferation of imputations (Grubb v Bristol United Press (1963) 1 QB 309 at 329 per Holroyd Pearce LJ). The use of a thesaurus to identify how a word would be understood in a colloquial sense is equally discouraged not for the least reason that it points to the very flaw identified by the defendant and discouraged by the Court of Appeal (Singleton & Anor v Ffrench & Ors (1986) 5 NSWLR 425) namely, the exposure of uncertainty as to what the word means. I do not consider that any comfort is available to the plaintiff from what I held in Trevethan v Bhagat (unreported, 27 February 1996) in relation to the expression “blatant breach of trust” when determining the availability of a contextual imputation. In that case I held that there is no embarrassment to the plaintiff by reason of what I considered to be the abundant clarity of what the proposed contextual imputation was stating. 13    I am not persuaded of the clarity of the meaning to be given to the word “unprofessionally” as used in this imputation. It is thus defective in form and amenable to being struck out. 14    Being of uncertain meaning the imputation presently does not lend itself to the consideration of the issue of whether it differs in substance from imputation (a). Arguably, I suppose, a person can be “unprofessional” (in some sense of that word) without being “dishonest”. But difficulty is encountered when that which identifies the quality of “unprofessional” (or some other word) is the very matter that founds the identification of the quality of “dishonesty”. 15    Further, within the context of the “colloquial” connotation to be attached to the use of the word “unprofessional” I am simply unable to come to the view that the matter complained of is capable, as a matter of law, of giving rise to such a proposition. 16 Imputation (b) will be struck out. 17 I am of the view that the plaintiff should be given an opportunity to re-plead a second imputation. This case however is of comparative simplicity. The article is short, the first imputation is clear, it is serious and is capable of being conveyed. This matter lends itself to orders and directions being given for the separate determination by the jury of the issue reserved to that tribunal by s 7A(3) of the Defamation Act 1974 (as amended). 18    The plaintiff should promptly attend to the question of re-pleading and indicate without delay to the defendants whether he proposes so to do and if he does, in what manner. If the plaintiff does propose to re-plead, the defendant will be required promptly to inform the plaintiff of any objection to the proposed new imputation so that it can be adjudged with a view to the rapid referral of the matter to the Holding List for the early determination of the threshold issue. The defendants will also be required to state their position on the issue of publication; in that regard I trust that there would be no issue at all and that the relevant admissions will be made. 19    The formal orders are:

1. Imputation (a) will go to the jury.

2. Imputation (b) is struck out with leave to replead.

3. Within 14 days the plaintiff is to inform the defendants either that he does not propose to re-plead or, if he does, the nature and form of the re-pleaded imputation.

4. Within 7 days of the plaintiff indicating an intention to re-plead as per Order 3, the defendants are to notify the nature of any objection they take to the proposed new imputation.

5. In the event of the plaintiff either not re-pleading or proposing to re-plead, within the period of 7 days referred to in Order 4, the defendants are to notify the plaintiff as to whether or not there is any issue as to publication as alleged in paragraph 4 of the Statement of Claim.

6. Each party is to pay its own costs of the application heard on 27 August 1999.

7. The matter is listed for further directions and, if necessary, argument on 8 October 1999.

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Last Modified: 09/03/1999