Kelly v Harbour Radio
[2013] NSWSC 9
•25 January 2013
Supreme Court
New South Wales
Medium Neutral Citation: Kelly v Harbour Radio Pty Ltd [2013] NSWSC 9 Hearing dates: 8 August 2012 Decision date: 25 January 2013 Before: McCallum J Decision: Plaintiff's objections to defence upheld; defendant granted leave to amend defence in accordance with these reasons
Catchwords: DEFAMATION - defences - defence of contextual truth - objections to defendant's contextual imputations Legislation Cited: Defamation Act 2005 Cases Cited: Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Hyndes v Nationwide News Pty Ltd [2011] NSWSC 633
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
Kelly v Fairfax Media Publications Pty Ltd [2012] NSWSC 690
Liu v Fairfax Publications Pty Ltd [2013] NSWSC 7
Singleton v John Fairfax & Sons Ltd (unreported) Supreme Court of NSW (20 February 1980)
Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8Category: Interlocutory applications Parties: Andrew Kelly (plaintiff)
Harbour Radio Pty Ltd (defendant)Representation: Counsel:
B McClintock SC, S Chrysanthou (plaintiff)
A Leopold SC, S Lawrence (defendant)
Solicitors:
Somerset Rickmans (plaintiff)
Baker & McKenzie (defendant)
File Number(s): 2011/280768
Judgment
HER HONOUR: These are proceedings for defamation arising out of the publication of two broadcasts on Radio 2GB. A defence was filed on 31 May 2012. The defence includes a plea of contextual truth under s 26 of the Defamation Act 2005. The plaintiff objects to the pleading of that defence and to some of the particulars supplied in support of it. This judgment determines those objections.
The argument was heard during the same defamation list as two other matters in which plaintiffs raised objections to the pleading of a contextual truth defence. The principles applicable to the determination of such objections are considered at greater length in my judgments in those matters: see Liu v Fairfax Publications Pty Ltd [2013] NSWSC 7and Tauaifaga v TCN Channel Nine Pty Ltd [2013] NSWSC 8.
In Tauaifaga at [7], I summarised a series of propositions outlined by counsel in that matter, drawn from the judgment of Nicholas J, in Ange v Fairfax Media Publications [2011] NSWSC 204, as follows:
(a) a contextual imputation must differ in substance from the plaintiff's imputations (Ange at [25]);
(b) the question is, would the ordinary reasonable reader or viewer have understood the matter complained of to convey at the same time both the plaintiff's imputations and the defendant's contextual imputation (Ange at [16]);
(a) a contextual imputation will not be permitted if it is merely an alternative formulation to the plaintiff's imputation. The requirement that the imputations differ in substance is a necessary but not sufficient requirement - there must be a difference in kind (Ange at [19]);
(b) if the defamatory sting of the contextual imputation is the same as the defamatory sting of the plaintiff's imputation, even if the contextual imputation is broader it will still be impermissible (Ange at [27]);
(c) where there is more than one imputation relied upon by the plaintiff, it is necessary to consider all of the imputations separately and in combination to determine whether a contextual imputation is carried in addition to them (Ange at [28]).
The imputations pleaded by the plaintiff as arising of the first matter complained of are:
(a) the Plaintiff accepted bribes while he was a senior state government official;
(b) the Plaintiff, a senior state government official, corruptly provided favourable treatment to the Kazal family, a powerful property family, by causing the Sydney Harbour Foreshore Authority to sign over the lease of a multi-million dollar waterfront property at 100 George Street to them after they had retained him in a secret arrangement;
(c) the Plaintiff a senior state government official corruptly provided favourable treatment to the Kazal famiy, a powerful property family, by causing the Sydney Harbour Foreshore Authority to sign over the lease of a multi-million dollar waterfront property at 100 George Street to them after he went to the Middle East with Chaif Kazal, a member of that family, on a lavish holiday that included five-star hotel accommodation and a helicopter ride over Abu Dhabi;
(d) the Plaintiff, a senior state government official, corruptly provided favourable treatment to the Kazal family, a powerful property family, by causing the Sydney Havour Foreshore Authority to sign over the leaseof a multi-million dollar waterfront property at 100 George Street in exchange for a promise of a highly paid position with a Kazal-associated company in the Middle East;
(e) the plaintiff, a senior state government official, was secretly and simultaneously an employee of members of a powerful property family which leased properties from that Authority at the same time that family took over the lease of a multi-million dollar waterfront property at 100 George Street owned by taxpayers;
(f) the plaintiff, a senior state government official, corruptly assisted the Kazal family to obtain the lease of a multi-million dollar waterfront property at 100 George Street without there being a public tender for it;
(g) the plaintiff, a senior state government official, corruptly assisted the Kazal family to obtain the benefit of millions of taxpayers' dollars fro excessive renovations to taxpayer owned property leased to them.
The defendant's first contextual imputation (paragraph 13(a)(i) of the defence) is "the plaintiff is corrupt".
It may be observed that five of the plaintiff's imputations expressly identify conduct committed "corruptly" as the sting of the imputation, whilst the other two assert conduct that may be similarly described.
Mr Leopold, who appeared for the defendant, submitted that the contextual imputation differs in substance from the plaintiff's specific imputations because it is an imputation of general character or condition and not of a particular act. For authority for that proposition, Mr Leopold relied upon the decision of Hunt J in Singleton v John Fairfax & Sons Ltd (unreported) Supreme Court of NSW (20 February 1980) where his Honour expressed the view that, in most cases, the general allegation is different in substance from the particular. As already noted, however, the requirement for difference in substance is a necessary but not sufficient quality of a contextual imputation.
The critical question is whether the contextual imputation is anything more than a broad imputation asserting the same defamatory sting as the collection of the plaintiff's imputations. A similar issue came before me in the matter of Hyndes v Nationwide News Pty Ltd [2011] NSWSC 633. In that case, the plaintiff's imputations alleged (broadly) conduct assisting illegal drug dealing. The contextual imputation sought to be relied upon by the defendant was that the plaintiff was willing to lend money to persons whom he believed to be drug dealers. I held (at [34]) that the proposed contextual imputation could not arise at the same time as and in addition to the plaintiff's imputations. I said:
I accept that, as a matter of logic, it is possible for the words to convey an act and, separately, a condition. In the present case, however, the condition in question (willingness to lend money to persons the plaintiff believed to be drug dealers) is necessarily implicit in the act identified in the plaintiff's imputations, and so is not a different meaning that arises from ... the matter complained of at the same time as those imputations.
Mr Leopold submitted that those remarks are not applicable in the present case, where the general character or condition pleaded in the contextual imputation arises from a broader reading of the matter complained of as a whole and does not depend, as in Hyndes, on a reformulation of a particular act into a general condition. However, it must be borne in mind that, where a plaintiff has pleaded multiple imputations, it is necessary to consider all of them, separately and in combination, to determine whether a contextual imputation is carried in addition to them.
I should note in that context a submission put on behalf of the defendant. The proposition that the defendant's contextual imputation must be considered against all of the plaintiff's imputations taken separately and in combination derives from the decision of Nicholas J in Ange at [28]. Mr Leopold disputed the correctness of that proposition. He noted that, in due course, the jury may not be satisfied as to all of the plaintiff's imputations. As I understood the submission, it invited the approach that a contextual imputation should be allowed to stand so long as it is capable of arising in addition to any one of the plaintiff's imputations.
Whilst there is some logic in that submission, it is appropriate for me to adopt the approach of the defamation list judge, derived from the clear wording of s 26 of the Defamation Act. That section requires the defendant to prove that the matter carried "in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations" (my emphasis).
In my view, the plaintiff's imputations do cover the field, as submitted on his behalf. Taken separately and in combination, the defamatory sting complained of by the plaintiff has necessarily implicit in it the condition of corruptness, and I do not think a discrete imputation to that effect is carried in addition to the plaintiff's imputations.
Contextual imputation 13(a)(ii) is:
The plaintiff was corrupt in his dealings with Charif Kazal.
The plaintiff submitted that the contextual imputation does not arise in addition to the plaintiff's imputations (b), (c), (d), (f) and (g) set out above. In my view, that is plainly right. Mr Leopold submitted that the contextual imputation differs in substance because it focuses particularly on dealings with Charif Kazal. He submitted further that the contextual imputation entails a different defamatory sting, but I am unable to see that that is so. In my view, any distinction between an imputation of corruptness in dealings with a particular brother and corruptly providing favourable treatment to the family as a whole is a matter of nuance of the finest filigree.
The next objection is to contextual imputation 13(a)(iv), which is:
The plaintiff had deliberately failed to disclose a conflict of interest (that the plaintiff had in dealing with matters affecting property leased by the Kazal family) and had continued to deal with matters affecting property leased by the Kazal family notwithstanding that conflict of interest.
The only objection maintained in respect of that contextual imputation was that it is incapable of arising from the matter complained of in that nowhere in the broadcast is it asserted that the plaintiff deliberately failed to disclose his connection with the Kazals.
In my view, the deliberateness is plainly capable of being conveyed by implication. The broadcast analyses a piece of investigative journalism in which Mr Kelly's alleged furtive receipt of great largesse at the hands of the Kazal family in corrupt circumstances is the centrepiece. I am not satisfied that contextual imputation 13(a)(iv) is liable to be struck out.
The next objection is to contextual imputation 13(a)(vi), which is:
The plaintiff accepted corrupt incentives from a member of the Kazal family, knowing that such incentives were being provided for the purposes of obtaining favourable treatment from the plaintiff, while at the same time he was a senior official at SHFA, which leased property to the Kazal family.
Mr McClintock submitted that the contextual imputation is incapable of arising from the matter complained of in that nowhere in the broadcast is it asserted that the plaintiff knew that incentives were being provided for the purposes of obtaining favourable treatment. I do not accept that submission. As already indicated, the tenor of the broadcast was to analyse a piece of investigative journalism, reported at length in the broadcast in compelling detail. The proposition that the plaintiff knew the incentives he received were provided for the identified purpose is an inference that may readily be drawn from the broadcast as a whole.
Separately, Mr McClintock submitted that, if the contextual imputation is capable of arising, it does not arise in addition to the plaintiff's imputations. Mr Leopold submitted that, by reason of the assertion that the plaintiff knew the incentives were being provided for the purpose identified, the contextual imputation carries a more serious sting than the plaintiff's. I do not accept that submission. In my view, knowledge of the corrupt purposes for which the incentives were being provided is an element necessarily comprehended within the defamatory sting of the plaintiff's imputations.
Contextual imputation 13(a)(vii) is:
The plaintiff had a potentially lucrative secret business arrangement with a member of the Kazal family while at the same time he was in charge of leasing at SHFA, which leased properties through the Kazal family.
The principal difficulty with the imputation is that it does not clearly identify the defamatory sting complained of. It attributes a condition to the plaintiff from which it probably flows either that he behaved corruptly, as alleged in many of the plaintiff's imputations, or that he had a secret arrangement, as alleged in imputation (e). Applying the principles I have already considered, I cannot see that, whatever the imputation means, it arises in addition to the plaintiff's imputations.
Contextual imputation 13(a)(viii) is:
The plaintiff had a potentially lucrative business arrangement with a member of the Kazal family, knowing that a purpose of such arrangement was for the Kazal family to receive favourable treatment from the plaintiff, while at the same time he was in charge of leasing at SHAFA, which leased property to the Kazal family.
As with contextual imputation 13(a)(vi), the plaintiff submitted that the imputation is incapable of arising on the basis that the broadcast does not expressly assert that the plaintiff knew the purpose of the arrangement was for the Kazal family to receive favourable treatment. For the reasons expressed in respect of the earlier imputation, I think it is capable of being conveyed. However, I am unable to discern any difference between the sting of that imputation and the plaintiff's imputations.
Contextual imputation 13(a)(ix) is:
The plaintiff so conducted himself in his relationship with the Kazal family as to warrant investigation by the Independent Commission Against Corruption.
Mr McClintock submitted that this is merely a general allegation of corruption that does not arise in addition to the plaintiff's imputations. Mr Leopold responded that it is "a familiar kind of imputation" which is regarded as being different in substance from the plaintiff's imputations, which make no reference to ICAC. In assessing that submission, it is helpful to return to the notion of practical justice (considered in my judgment in Liu) which, as it happens, derives from the judgment of Gleeson CJ in Drummoyne, the seminal discussion about imputations of corruptness (Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137; cited by Spigelman CJ in John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 at [14]).
In my view, one has only to attempt to formulate the directions to the jury as to a contextual truth defence including imputation 13(a)(ix) to appreciate the practical unfairness of permitting that contextual imputation to stand. An evaluative comparison of the sting of that imputation with the plaintiff's imputations is in my view an arid, semantic venture.
It follows that it is not necessary to determine the plaintiff's objection to particulars (L) and (M) on page 6 of the defence, since those particulars were only relied upon as particulars of truth of contextual imputation 13(a)(ix): see T22.10.
The second matter complained of
The only imputation pleaded by the plaintiff as arising from the second matter complained of is that he accepted corrupt payments to provide favours while he was working for the Sydney Harbour Foreshore Authority. The first contextual imputation objected to is contextual imputation 14(a)(i), which is that the plaintiff is corrupt. Whilst I accept the need to assess that contextual imputation in the context of the second matter complained of, the terms of which are different from the first matter complained of, I am satisfied that the contextual imputation does not arise in addition to the plaintiff's imputation, for substantially the reasons outlined above in respective of imputation 13(a)(i).
The next contextual imputation objected to is 14(a)(iii) which is:
The plaintiff accepted corrupt incentives from a person while at the same time he was an employee at SHFA.
To the extent that the contextual imputation is said to differ from the plaintiff's on the strength of a distinction between "incentives" and "payments", I rejected a similar argument in Mr Kelly's separate proceedings arising out of the newspaper articles discussed in the broadcasts in the present case: see Kelly v Fairfax Media Publications Pty Ltd [2012] NSWSC 690 at [20]. The decision in that case was concerned with the distinction between benefits and incentives whereas the issue here is the distinction between payments and incentives. Nonetheless, the essence of the sting is the same, in my view. I do not think contextual imputation 14(a)(iii) arises in addition to the plaintiff's imputations.
Contextual imputation 14(a)(iv) is:
The plaintiff accepted corrupt incentives from a person knowing that such incentives were being provided for the purposes of obtaining favourable treatment from the plaintiff, while at the same time he was an employee at SHFA.
Mr Leopold submitted that the imputation had a more serious sting by reason of the allegation of knowledge as to the purpose of the incentives. For the same reasons as expressed above in respective of contextual imputation 13(a)(vi), I do not accept that submission.
It remains to deal with the plaintiff's objection to the defendant's particulars in mitigation. In paragraphs 21 and 22 of the defence, the defendant contends that the damage if any to the plaintiff's reputation caused by the publication of the matters complained of is mitigated by findings published by ICAC in December 2011 and the fact that those findings received extensive media publicity. The plaintiff submitted that those particulars are impermissible. First, it was noted that ICAC's findings were published some 15 months after the broadcast of the matters complained of. Secondly, it was submitted that, as a matter of longstanding principle, the court does not treat the findings of non-judicial tribunals as sufficiently authoritative that they may be deemed to have an impact on a plaintiff's reputation.
Mr Leopold relied upon the decision of the Court of Appeal in Channel Seven Sydney Pty Ltd v Mahommed but that was a case concerned with judicial findings: see [2010] NSWCA 335 at [246] to [255].
Mr Leopold did not refer to any authority that extends the principles stated in Mahommed beyond the field of judicial determination. Further, in my view, there is a risk that to permit the defendant to rely upon those particulars would divert the course of the trial from the true issues: cf Mahommed at [246]. Accordingly, I am satisfied that those particulars should be struck out.
I grant leave to the defendant to amend its defence in accordance with these reasons. If requested, I will hear the defendant as to costs, failing which an order will be entered that the defendant pay the plaintiff's costs of the hearing before me and the costs thrown away by the amendment.
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Decision last updated: 29 January 2013
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