National Telecoms Group Limited v John Fairfax Publications Pty Ltd
[2003] NSWSC 316
•14 April 2003
CITATION: NATIONAL TELECOMS GROUP LIMITED v JOHN FAIRFAX PUBLICATIONS PTY LTD [2003] NSWSC 316 HEARING DATE(S): 14 April 2003 JUDGMENT DATE:
14 April 2003JUDGMENT OF: Levine J DECISION: 1 I direct the plaintiff to file any amended statement of claim within 14 days of today, and within 14 days of such pleading being filed, the defendant to file its defence in relation to s7A issues.; 2 Pursuant to SCR Pt 31 r 2, I direct that there be a trial by jury of the issues provided for by s7A of the Defamation Act, and direct that the matter be placed in the list to be called up for such trial of those issues.; 3 The defendant is to pay two-thirds of the plaintiff's costs. CATCHWORDS: Imputations - capacity - form PARTIES :
NATIONAL TELECOMS GROUP LIMITED
(ACN 094 312 704)
(Plaintiff)v
JOHN FAIRFAX PUBLICATIONS PTY LTD
(ACN 003 357 720)
(Defendant)
FILE NUMBER(S): SC 20560 OF 2002 COUNSEL: M Richardson
T Blackburn
(Plaintiff)
(Defendant)SOLICITORS: Gilbert & Tobin
Freehills
(Plaintiff)
(Defendant)
- Ex tempore - revised
[2003] NSWSC 316
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
JIUSTICE DAVID LEVINE
20560 OF 200214 APRIL 2003
NATIONAL TELECOMS GROUP LIMITED
(ACN 094 312 704)
(Plaintiff)
JOHN FAIRFAX PUBLICATIONS PTY LTDv
(ACN 003 357 720)
(Defendant)
1 The plaintiff corporation has instituted proceedings against the defendant claiming damages for defamation. The publication of which it complains is an article in “The Financial Review” of 25 November 2002, which appears to have been in two parts; an introductory part on page 2 of the newspaper, and the bulk of the article on page 10.
2 The plaintiff contends that the publication carries of it certain defamatory imputations, three of which are in dispute this morning.
3 Imputation (a), “that the Plaintiff so dishonestly conducted its business that its financiers withdrew their support” and (c), “that the Plaintiff falsified its accounts so as to make its financial position look better than it actually was” are the subject of dispute on the basis of capacity. Imputation (e), “that the Plaintiff had knowingly and systematically engaged in the course of misleading its small business customers into signing contracts with it so as to thereafter escalate those customers’ phone bills” is the subject of objection as to form. It is appropriate that the legal issue as to capacity be resolved separately pursuant to SCR Pt 31 r 2.
4 The nub of the defendant's complaint in relation to the first imputation can be encapsulated by using the not uncommon language in this area, namely that the height at which it has been pitched is so extreme, that on no reasonable basis can the matter complained of be understood as capable of carrying it. A submission similarly structured has been advanced by the defendant in relation to imputation (c).
5 In relation to imputation (a), it is argued that nothing on a fair reading of the matter complained of can be understood as characterising what the report is dealing with as to the conduct of the company as “dishonest”. Nothing elevates the characterisation of the conduct of the company, so it is submitted for the defendant, above the presentation of the picture that the company has engaged in accounting practices that are debatable, a general subject matter which a reasonable person could understand as being not an uncommon one.
6 The second basis of the attack upon imputation (a) is that the conduct of the plaintiff, either assuming it to be dishonest or assuming it to be something less, could not be understood as leading to the consequence in the second part of the imputation, namely that its financiers withdrew their support. The notion of the conduct leading to that result was described as pointing to an “extreme” reading.
7 As to imputation (c) as I have said, the height at which it has been pitched cannot be accommodated by a fair reading of the article, which it is submitted, is dealing no more than with controversial aspects of the plaintiff's accounting practices, which at lines 19 to 21 of the article are not presented as an assertion or statement of an existing fact, given the use of the phrase "they may not give a true and fair view...” (emphasis added).
8 The use of the word "falsify" in imputation (c) again elevates to an unacceptable level, it is submitted, what is nothing more than the nub of the debate said to be canvassed in the text of the report.
9 For the plaintiff, Mr Richardson has identified in relation to each of imputations (a) and (c), five components which severally and certainly collectively within the context of the whole article, are capable, he submits, of attaining the level at which the imputations are pleaded.
10 In relation to imputation (a), those five components are, in short form: the various references to “misleading” practices; the reference to what should be recognised as a liability being identified as revenue; the reference to the funding of the rebate by the inflation of equipment charges; the statement as to the accounts, in the language to which I have referred, not giving a true and fair view, and the statement relating to the plaintiff passing itself off as a supplier.
11 Similar components are relied upon to sustain imputation (c) as pleaded, including in this context, a reference to the resignation of Mr Kennett, the tenor of the whole article being, as Mr Richardson put it, retreat from all fronts and in all directions.
12 With respect to each of imputations (a) and (c), I am of the view that the substance of the complaint made by the defendant for purposes of a capacity argument has not been made out. Whilst it might be described as a “near run thing” or a “close thing”, the cumulation of the factors to which Mr Richardson has pointed is sufficient for this capacity argument to sustain both those imputations.
13 In relation to the first I would add, that any concern about withdrawing support by financiers represents an extraordinarily refined approach for the purposes of a capacity argument, given what is set out, especially from lines 61 to 73.
14 Accordingly in relation to imputations (a) and (c), I hold each to be capable of being carried by the matter complained of and capable of being defamatory.
15 The defendant’s protest about imputation (e), however, is one that I find to be meritorious. During the course of submissions I ventured to suggest that perhaps there was some infelicity in grammar, a view to which I adhere. But the second part of that imputation as framed makes to me no sense by itself, the more so as it is sought to be linked with the first part. Imputation (e) I strike out as being defective in form, with leave to the plaintiff to replead.
16 I direct the plaintiff to file any amended statement of claim within 14 days of today, and within 14 days of such pleading being filed, the defendant to file its defence in relation to s7A issues.
17 Pursuant to SCR Pt 31 r 2, I direct that there be a trial by jury of the issues provided for by s7A of the Defamation Act, and direct that the matter be placed in the list to be called up for such trial of those issues.
18 The defendant is to pay two-thirds of the plaintiff's costs.
Last Modified: 04/16/2003
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