Nolan v Herald & Weekly Times Pty Ltd
[2006] VSC 337
•6 March 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 9708 of 2005
| JOHN NOLAN | Plaintiff |
| v | |
| HERALD & WEEKLY TIMES PTY LTD AND ANOTHER | Defendants |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 and 6 MARCH 2006 | |
DATE OF JUDGMENT: | 6 MARCH 2006 | |
CASE MAY BE CITED AS: | Nolan v Herald & Weekly Times | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 337 | |
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Tort – Defamation – Plaintiff's pleaded imputation incapable of arising – Strike out – Principles – Irrelevant particulars of aggravated/exemplary damages – Struck out.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B.R. McClintock SC with Mr L. Maher | Wisewoulds |
| For the Defendants | Ms G.L. Schoff | Corrs Chambers Westgarth |
HIS HONOUR:
John Joseph Nolan is a Detective Inspector in the Victoria Police Force seconded to the Office of Police Integrity. He sues the Herald and Weekly Times Limited in respect of an article published in the Herald-Sun on 23 November 2005. The article seems primarily to concern a raid effected by officers of the Office of Police Integrity on a house in Wonthaggi described as being the home of a serving police officer's mother.
Mr Nolan says the article is defamatory of him because, although it doesn't identify him by name, it is defamatory of police officers seconded from the Victoria Police to the OPI of whom he is one of only two. A proposed amendment to his case discussed during the hearing of this application suggested that as well as being one of only two such officers, he was also the only one engaged as an investigator at the OPI, although his title is "Manager - Prevention and Quality Assurance".
The lynch pin of Mr Nolan's case has to be a quotation in the article attributed to Senior Sergeant Paul Mullet, the secretary of the Police Association, to the effect that members of the association seconded to the OPI have made various "revelations" to the association concerning certain activities of that office. Without that passage it would be difficult to construct a case for the plaintiff.
In support of his case Mr Nolan pleads a number of imputations said to arise from the publication of which he complains. They fall in to two distinct groups.
The first group of imputations are that he wrongfully disclosed information from the Office of Police Integrity to the Police Association. They are (or will be) in paragraphs 6(a), (b), (f) and (g). The second group of imputations are that he was involved in the raid on the Wonthaggi house and that that was in some way discreditable. They are in paragraphs 6(c), (d) and (e).
The defendant has applied to strike out all of the plaintiff's pleaded imputations as being incapable of arising from the article complained of. It submits that, as a matter of law the article sued upon in its ordinary and natural meaning is incapable of conveying the meanings attributed to it by the plaintiff.
The test to be applied by this court at this stage of the proceeding is to whether imputations should be allowed to go forward is well known. See for example Jones v Skelton[1] and Lewis v Daily Telegraph[2]. It must also be remembered that the threshold to be achieved by the plaintiff in getting his imputations to the tribunal of fact is not a particularly onerous one. Conversely, for a defendant to be successful on a strike out application it must satisfy the Court that no tribunal of fact could properly find that the imputations arose from the publication complained of.
[1][1963] SR (NSW) 644 at 650
[2][1963] QB 340 at 359
The first imputation, paragraph 6(a)
This imputation was the subject of amendment in the course of the hearing of the defendant's summons. In its amended form it now reads;
"On more than one occasion the plaintiff in his capacity as a member of the Victoria Police on secondment to OPI had disclosed to the Victoria Police Association (or a person or persons holding office in that association) information obtained by the plaintiff which is a criminal offence."
Once the imputation was re-expressed in its amended form most of the defendant's arguments in support of its being struck out fell away. In essence it says that the article means that the plaintiff disclosed information obtained from the Office of Police Integrity to the secretary of the Police Association which is a criminal offence.
Is it possible that the theoretical ordinary person, having the nature and attributes imposed upon him by the cases might derive this meaning from the article complained of? Ms Schoff, for the defendant, says that all the article says is that police officers conveyed information to an association of which they were members. She argues that there is no suggestion that any information so conveyed ought not to have been, and in any event the ordinary person would know nothing of any criminal offence connected with such activity.
The quotation from Senior Sergeant Mullet has within it the suggestion that members on secondment to the OPI have been, "telling the police association", things which lead it to call for the abolition of the office. Is it not beyond reasonable possibility that an ordinary member of the public would have at least a general idea of the function of the OPI vis-a-vis the Victoria Police, and might read Senior Sergeant Mullet's words as conveying that police officers seconded to the OPI were discussing operational matters with officers of their union. It is also distinctly possible that ordinary members of the public would believe that to do so is a criminal offence.
The OPI is known generally to be a body which investigates serious misconduct by police. Some people may well believe that for a serving member of the OPI to disclose information from that office would be a criminal offence. Of course whether the tribunal of fact will ultimately accept the imputation alleged by the plaintiff will be a matter for the trial in this proceeding. The imputation as amended may remain in the pleading.
The second imputation, paragraph 6(b)
This imputation pleads that the article complained of meant:-
"(b)in his capacity as a member of the Victoria Police on secondment to the OPI the plaintiff had repeatedly leaked to the Victorian Police Association (or a person or persons holding office in that association) information which was confidential to the OPI and which the plaintiff was duty bound not to disclose."
The defendant argues that the article including Senior Sergeant Mullet's words says nothing of confidential information being passed on by the plaintiff, nor of any "leaks", and that an ordinary person could not assign the meaning pleaded to it.
But the words attributed to Senior Sergeant Mullet speak of the plaintiff, (assuming that he is identified adequately by the article as he alleges) having told his union things as to the operation of the OPI which have led that union to seek that the OPI be disbanded.
The use of the past continuous tense in the phrase, "have been telling us", justifies the use of the word, "repeatedly", in the imputation. The words, "leaked", and, "confidential", might both be divined from the quotation because of its use of the word, "revelation", which conveys a declaration of something previously hidden - a striking disclosure. That a police officer seconded to the OPI would be in breach of his duty if he made striking disclosures to the police union of hitherto unrevealed operational activities of the OPI is certainly within the possible meanings which could be attributed to the article complained of. Paragraph 6(b) of the statement of claim will not be struck out.
Further imputation in first group
In the course of argument Mr McClintock of Senior Counsel for the plaintiff foreshadowed two further imputations which he wished to plead on the plaintiff's behalf. They would acquire the numbers 6(f) and 6(g). They are:-
"(f)the plaintiff had been disloyal to the Office of Police Integrity;
(g)the plaintiff had preferred the interests of the Victoria Police Association to his duties as an officer of the Office of Police Integrity."
In somewhat simpler form, these imputations seem merely to repeat those in 6(a) and 6(b). "Disloyalty", could, in these circumstances, equate to a breach of duty and a preference for the interests of the Police Association above those of his employer could certainly be a meaning arising from the article sued upon if it is accepted by the tribunal of fact that the plaintiff is sufficiently identified. These imputations may be included in an amended statement of claim which will be ordered.
The raid imputations: Paragraphs 6(c), (d) and (e)
These paragraphs all allege imputations said to arise from the article complained of which attribute various undesirable characteristics to the plaintiff: that he behaved with a total lack of accountability, that he engaged in discreditable conduct and that he was an untrustworthy policeman. In each instance it is said that the article conveyed these defamatory imputations because of the plaintiff being, "implicated in the disgraceful police raid in Wonthaggi."
But the only possible connection between the plaintiff and what occurred at Wonthaggi must be derived from the quote attributed to Senior Sergeant Mullet which refers to, "our members" who have been "telling us" things. Even if, as he alleges, Inspector Nolan is one of the "our members" referred to, there is nothing in the quote which connects him to the events at Wonthaggi described in the sensational report on the first page of the article, whether those events were disgraceful or not.
If anything, one could deduce from Mullet's alleged words that Nolan was not involved in the Wonthaggi matter. There is some dissonance between his being so involved and leaking other information similar to that "revealed" about the Wonthaggi raid. It tends to support he was not involved in the Wonthaggi matter. But whether this meaning could or might be read into Mullet's alleged words, the fact remains that there is nothing in the article which says either expressly or by permissible inference that Nolan was in anyway implicated in the Wonthaggi matter.
Doubtless aware of difficulties the plaintiff faced with respect to this part of his case by the pleading as it presently stands, Mr McClintock foreshadowed an amendment as to Inspector Nolan's duties with the OPI. But this amendment would not assist him. To plead that Inspector Nolan was an investigator, with the OPI, or even the only seconded policeman who was an investigator, does not put him at Wonthaggi at the relevant time. Without that link the imputations pleaded in Paragraph 6(c), (d) and (e) are not capable of arising from the article complained of and they must be struck out. The foreshadowed amendment will be disallowed.
The defendant also complained of Particulars of Extrinsic Facts supplied under Paragraph 7 of the statement of claim in respect of the pleading of a true innuendo. It is submitted that they were vague and, insofar as they used the word "status", were meaningless. In the course of argument Mr McClintock conceded much of the defendant's argument and agreed to formulate appropriate amendments and provide appropriate particulars to overcome what he recognised were legitimate criticisms. There is, accordingly, no need to consider the defendant's complaints in this regard further at this time. It will be able to raise the matter again if the plaintiff does not provide appropriate remedial material within a reasonable time.
However, the defendant will have to plead to the statement of claim without the further particulars in the meantime. The matter must progress notwithstanding the plaintiff not having provided proper Particulars of Extrinsic Facts when he ought to have. Any further inconvenience caused by the plaintiff's failing to respond in a timely way to the discussion on Friday can be remedied later by an appropriate award of costs if necessary.
Aggravated and/or Exemplary Damages
The final matter to be determined relates to the particulars of fact said to justify an award of aggravated or exemplary damages. The defendant complains of the particulars supplied in Paragraph (d), (e), (f) and (g) given under Paragraph 9 of the statement of claim.
The determination of the efficacy of these particulars as justifying aggravated and/or exemplary damages now depends, of course, upon the plaintiff's claim being confined to those imputations which relate to his having provided information to Sergeant Mullet and so was in breach of his duty and/or guilty of a criminal offence. The impugned particulars must now be examined in light of the plaintiff's claim being somewhat more exiguous than it was.
Assuming, against the defendant, that it knew that Senior Sergeant Mullet was engaged in a continuing campaign of denigration of the OPI, (which is the substance of Particulars (d), (e) and (f)) how could that fact increase the hurt suffered by the plaintiff or make any libel proved more heinous having regard to the limited scope left in the plaintiff's case?
Such a libel if proved would entitle the plaintiff to damages, but hardly aggravated or exemplary damages on the grounds suggested. The part of the article complained of which would support the plaintiff being successful in this proceeding has nothing to do with Senior Sergeant Mullet's alleged campaign of denigration of the OPI. It merely identifies the plaintiff as being the source of ammunition which he could use in that campaign. The Particulars 9(d), (e) and (f) cannot advance the plaintiff's case. They create false issues likely to lead to a widening of the scope of discovery and embarrassing a fair trial of the real issues in the case. They must be struck out.
As far as paragraph 9(g) is concerned, it appears to have nothing to do with the plaintiff's case at all. It must also be struck out. It suggests that the defendant should be liable in aggravated and/or exemplary damages to the plaintiff because it knew or suspected that Senior Sergeant Mullet was attempting to create conflict between the OPI and the Victoria Police with the effect of impeding secondment of Victorian Police officers to the OPI. It is not this Court's function to pass on the merits or otherwise of any campaign by Senior Sergeant Mullet as alleged. But even if he was or is engaged in such a campaign, the defendant knew of it and it led to a diminution in the secondment of police officers to the OPI, that would hardly sound in damages let alone increased damages against the defendant in favour of Inspector Nolan. The allegation in this particular has no relevance to the case, it must be struck out.
The orders, subject to hearing counsel, which I will make are as follows:
1.That Paragraph 6(c), (d) and (e) and the Particulars given in Paragraphs (d), (e), (f) and (g) under Paragraph 9 of the plaintiff's statement of claim be struck out;
2.That the question of further particulars of the allegations in Paragraph 7 of the plaintiff's statement of claim be stood over generally;
3.That the plaintiff file and serve an amended statement of claim incorporating such of the amendments foreshadowed during the hearing of this application as are still relevant by 10 March 2006.
4.That the defendant file and serve its defence to such amended statement of claim within 21 days of its being served on its solicitors;
5.That the plaintiff file and serve any reply within ten days of service of such defence upon his solicitors, and;
(Discussion ensued as to costs.)
Not only was the defendant substantially successful in this application, it had given the plaintiff's solicitors ample warning of the position that it took, and had sought consensual amendments to cure the problem it perceived. They had not been forthcoming and indeed the plaintiff took the position that an application to the Court would have to be proceeded with. In the circumstances the plaintiff must pay the defendant's costs of the application to strike out. The rules will take care of any consequential costs on the amendment.
The order already pronounced will have added:
6.That the plaintiff pay the defendant's costs of the application to strike out parts of his statement of claim.
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