Lawson v Hadley
[1999] NSWSC 813
•9 August 1999
CITATION: Lawson v Hadley & Anor [1999] NSWSC 813 CURRENT JURISDICTION: Common Law FILE NUMBER(S): 20063 of 1999 HEARING DATE(S): 30 July 1999 JUDGMENT DATE:
9 August 1999PARTIES :
GEOFREY FRANCIS LAWSON
(Plaintiff)v
RAY HADLEY
RADIO 2UE SYDNEY PTY LIMITED
(First Defendant)
(Second Defendant)JUDGMENT OF: Levine J
COUNSEL : G Lucarelli
K Smark
(Plaintiff)
(Defendants)SOLICITORS: Cutler Hughes & Harris
Bush Burke & Company
(Plaintiff)
(Defendants)CATCHWORDS: Imputations - capacity - form - hypocrisy DECISION: See paragraph 14
DLJ: 1
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
No. 20063 of 1999
JUSTICE DAVID LEVINE
MONDAY 9 AUGUST 1999GEOFREY FRANCIS LAWSON
(Plaintiff)v
RAY HADLEY
RADIO 2UE SYDNEY Pty Limited
(Defendant)
(Second Defendant)
JUDGMENT (Imputations - capacity - form - hypocrisy)
1 The plaintiff, Mr Geoffrey Lawson, has instituted proceedings against the defendants claiming damages for defamation arising from causes of action constituted by imputations said to be carried by a broadcast on 5 January 1999. 2 Appended to these reasons is a transcript of the words spoken by Mr Hadley in the broadcast complained of. 3 The plaintiff contends that the publication carries the following imputations:
4 The defendant contends that the matter complained of is incapable as matter of law of conveying imputations (b), (c) and (e). Accordingly, pursuant to SCR Pt 31 a preliminary trial was conducted to determine to issue. 5 At this point it is appropriate to remark that it is desirable, if not necessary, that the question of “capacity” be determined by reference to the publication sued upon in its original form. By that I mean, obviously, in the case of a radio broadcast by reference to an audio tape; a television broadcast by reference to a video tape and a written publication by reference to that publication in its original published state. The determination of such an application may be aided by a transcript in the first two cases or a typed version in the third case. The judge who determines the question of capacity should do so on the material that could become the evidence before the jury for its determination of the relevant issue of fact. 6 I deal first with imputation (e) because it easily can be disposed of. In my view, there is no need to embark upon an analysis to identify what is said by counsel for the defendant to be the proscribed “inference upon inference” process the ordinary reasonable listener would have to use to arrive at such a meaning. Upon hearing the program and with the aid of the transcript I can safely conclude that no ordinary reasonable listener could in any way understand the program to be conveying any such meaning. The reference to “medical condition” at line 82 and the clear attempt at humour in the whole of the paragraph comprising lines 80 to 86 simply does not lend itself, by itself or with any other part of the matter sued upon, as a reasonable basis for such an imputation. I do not consider there to be any need to say anything further in respect to that imputation. 7 As to imputation (c) this rests principally upon line 67 to 86. The defendant argues that the imputation has been “pitched too high”. I agree. What is clear is that the expression in lines 69-70, “I found it difficult to actually get a rap for him” can constitute a sting to the effect that nobody could say a nice thing about Mr Lawson or that he was unpopular. The wording of the imputation itself being a “so conducted himself” imputation (which in my respectful view should be eschewed) facilitates the conclusion that the ordinary reasonable listener would not understand the references to Mr Lawson in the part of the program to which I have referred as conveying a meaning in those terms. 8 As I have indicated however, there is material there that does constitute a “sting” and the plaintiff will have leave to amend to attempt to “capture” it. I hold that imputation (c) is incapable as a matter of law of being conveyed by the matter complained of. 9 Imputation (b) is the most problematical as indeed was acknowledged by Mr Smark of counsel for the defendant. There is of course a question of form. The imputation is bad in form because it does not indicate the way in which Mr Lawson is in fact a hypocrite. If the program merely used the word “hypocrite” without more then the plaintiff could safely plead it. 10 It is appropriate here to deal with what was submitted for the defendant that if an imputation as to hypocrisy is available a query could arise as to whether there would be a difference in substance from imputation (a) which is not the subject of dispute. Assuming for the moment that an imputation of hypocrisy is available I would not be inclined to strike it out by reason of it not differing in substance from imputation (a). Imputation (a) refers to non-disclosure. Hypocrisy might, as a generally understood word, connote some element of deceit but essentially it involves what in lay terms can be described as the “preaching” of one thing and the “practising” of another. 11 The Macquarie Dictionary defines hypocrisy as “the act of pretending to have a character or beliefs, principles, etc., that one does not possess”. That is of course a good dictionary definition. But as was argued for the plaintiff the ordinary reasonable listener can engage in what is described as “loose thinking” or “reading between the lines” (or its equivalent in respect to a radio broadcast), and rationally come to the view, and reasonably so, that there are qualities to the person about whom the publication is made to which that ordinary reasonable listener could fairly apply the words “hypocrite” or “hypocrisy’. After consideration I am of the view that an imputation, but one in proper form, of hypocrisy is capable of being conveyed. The essence of it is that Mr Lawson suggests that Mr Hadley spends money like the twenty eight odd thousand other people who have to spend money (being non-members) to go to the cricket ground and see what the real situation is; whereas Mr Lawson knows the real situation but not from that point of view, but from the luxury of being a member either of the media or of the Sydney Cricket Ground Trust. There is sufficient there for a properly drawn imputation to be found to be capable of being conveyed. 12 Prior to the drafting of any amendments consequent upon the leave I propose to grant, no doubt the plaintiff’s advisers should avail themselves by access to the tape provided to me which will be marked as Exhibit A and kept with the Court file (if they have not already heard it). 13 The defendant has predominantly succeeded in this application. 14 The formal orders are:
“(a) the plaintiff is deceitful because he did not disclose he was a member of the Sydney Cricket Ground Trust when defending the Sydney Cricket Ground as a venue;
(b) the plaintiff is a hypocrite ;
(c) the plaintiff so conducted himself that he was held in contempt and ridicule by his former team mates and colleagues ;
(d) the plaintiff so conducted that he was sacked as coach of the New South Wales cricket side;
(e) the plaintiff is unfit to be a member of the Sydney Cricket Ground Trust because he is psychiatrically disturbed ”.
1. The matter complained of is incapable as a matter of law of conveying imputations (c) and (e).2. The plaintiff has leave to file an Amended Statement of Claim to replead an imputation in substitution for imputation (c) and to plead an imputation in proper form as to hypocrisy in substitution for imputation (b).
3. Imputation (b) is struck out as bad in form.
4. The plaintiff is pay the defendant’s costs.
5. The plaintiff is to file any Amended Statement of Claim within 21 days of the date hereof.
6. Upon the expiry of 21 days the matter may be re-listed in the Defamation List on 7 days notice.
Appendix1. Yesterday we fielded quite a few calls from
2. disgruntled cricket fans concerning the many
3. problems attached to attending matches at the SCG.
4. The one saving grace, of course, was the high
5. standard of the cricket that we’ve seen at the SCG
6. over the first three days.
7. In brief, if you missed it, I questioned the ability of
8. the Sydney Cricket Ground to handle a capacity
9. crowd of 40,000 plus. I also questioned whether a
10. city of five million people, like Sydney, deserved a
11. cricket ground capable of holding more than 42 or
12. 43 thousand people.
13. I suggested at some time in the future the Olympic
14. Stadium may in fact be used for cricket matches.
15. That stadium will be used as both a rugby league
16. and AFL ground and the shape can be changed by
17. moving part of the seating. If it can be used for
18. AFL well it can certainly be used for cricket.
19. It opens, as I said yesterday, and I repeat today, in
20. March, just two months from now. The first
21. sporting event will be the opening of the national
22. rugby league season, first weekend in March.
23. You know it would be wonderful to think that more
24. than 28,000 paying customers could actually see a
25. test match or a one dayer in Sydney. With members
26. taken into account that’s roughly the number of
27. non-members who can actually attend a game.
28. Somewhere between 28 and 30 thousand.
29. I was advised, after I came off air yesterday, that I
30. was on the receiving end of quite a vitriolic attack
31. on ABC radio via the former cricketer, Geoffrey
32. Lawson. I don’t know Geoffrey Lawson, I’ve met
33. him but I don’t physically know him, I’ve said hello
34. to him and exchanged pleasantries but I don’t know
35. the man.
36. I was accused by Geoffrey of not getting my facts
37. right. He apparently doesn’t think there was a
38. problem at the SCG on Saturday when the house
39. full sign went up.
40. His attack was quite personal - listen to what he had
41. to say, this morning. I noticed in defending the
42. SCG as a venue he’s neglected to mention he’s
43. actually a member of the Sydney Cricket Ground
44. Trust. Surely a relevant piece of information when
45. he’s talking objectively about an issue in which he
46. has a vested interest.
47. You see, people would be fully understanding of his
48. blind loyalty if he prefaced his attack on me with
49. the qualification he was speaking not with his
50. objective ABC commentary hat on but rather his
51. subjective Trust hat around his head.
52. I stand by what I said, the SCG does struggle to
53. handle a capacity crowd. And I repeat, in a city of
54. five million it’s disgraceful that not more than
55. 28,000 non-members can actually see to get (sic) a
56. magnificent sporting event.
57. It’s also sad that when many of the members turn up
58. in such circumstances as presented themselves on
59. Saturday they can’t be comfortably catered for
60. either.
61. Now, Geoffrey Lawson suggests I should spend
62. some of my money and go to the cricket. That’s
63. strange from someone who when he’s not working
64. for the ABC would either be in the comfortable
65. media area or the air conditioned lounge set aside
66. for trustees like Mr Lawson.
67. Now, because I don’t know Geoffrey Lawson, last
68. night I sought out some of his former team mates
69. and colleagues and I found it difficult to actually get
70. a rap for him.
71. One suggested if Geoffrey won lotto he’d be dirty if
72. he had to go and pick up the money. Another
73. described Geoffrey as a finely balanced man with a
74. chip on both shoulders. And of course, in recent
75. time he’s had little to be happy about, Geoffrey
76. Lawson, he was sacked as coach of the New South
77. Wales Cricket side two years back. It appears he
78. had a communication problem with the players and
79. administrators.
80. But further research finds me feeling actually sorry
81. for Geoffrey Lawson. I’m told reliably his problems
82. relate to a medical condition dating back to his
83. teens. It seems Geoffrey, at some stage in his
84. formative years, had serious surgery. Both
85. procedures, a charisma and personality by-pass
86. were successful.
87. I’ll continue to enjoy the ABC commentary led so
88. ably by my friend and colleague Tim Lane along
89. with the likes of Jim Maxwell, Dean Jones, Peter
90. Roebuck, when Mr Charisma By-pass starts
91. broadcasting I’ll reach for the on-off switch.
92. Of course, he has the luxury of having the same type
93. of switch, I hope, on his transistor.
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