O'Shane v John Fairfax Publications P/L

[2001] NSWSC 264

CITATION:	O'Shane v John Fairfax Publications P/L [2001] NSWSC 264
CURRENT JURISDICTION:	Common Law Division Defamation List
FILE NUMBER(S):	SC 20527/00
HEARING DATE(S):	09/04/01
JUDGMENT DATE:	12 April 2001
PARTIES :	Patricia June O'Shane (Pl) John Fairfax Publications Pty Ltd (Def)
JUDGMENT OF:	Kirby J

COUNSEL :	R Weaver (Pl) H Nicholas QC (Def)
SOLICITORS:	Aitken McLachlan & Thorpe (Pl) Freehills (Def)
CATCHWORDS:	DEFAMATION - Argument re capacity of imputations
CASES CITED:	Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
DECISION:	Ref para 27

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DEFAMATION LIST

KIRBY J

Thursday 12 April 2001

20527/00 - Patricia June O’SHANE -v- JOHN FAIRFAX PUBLICATIONS PTY LIMITED [CAN 003 357 720]

JUDGMENT

1   HIS HONOUR: The plaintiff, Ms Patricia O’Shane, is a Local Court Magistrate. On 16 December 1999, an article appeared in the Sydney Morning Herald written by Janet Albrechtsen. The article was in these terms:

“Extreme views from the bench
THE decision by the NSW Director of Public Prosecutions to overrule a recent decision by Magistrate Pat O’Shane suggest that it may be time to reflect, more generally, on some of the controversy surrounding O’Shane.
As a magistrate, O’Shane is often angry at what she perceives as injustices in our society. And when she unleashes her anger from the raised platform of the judicial bench, she ignites a highly charged debate within the legal and wider community.
Her latest decision, in which she lashed out at police culture and police harassment of youth, again raises the question of whether the justice system is best served by O’Shane’s rancorous attitudes towards certain sections of society.
Two weeks ago she dismissed charges against Michael Kanaan, who was involved in a shoot-out with police in the early hours of December 23 last year. Kanaan was charged with shooting a firearm with intent to murder. O’Shane dismissed those charges on the basis that there were discrepancies in the evidence such that a jury could not reasonably convict.
Yesterday the DPP, Nicholas Cowdery, QC, ordered that Kanaan be tried on the basis of an ex-officio indictment. The question of the defendant’s guilt or innocence will now be determined in a new trial.
Putting aside the question of the defendant’s guilt or innocence, what is so surprising about O’Shane’s decision is that she launched a vitriolic attack on what she perceived as police harassment of Kanaan and the other three men involved in the shoot-out. She angrily described the action of the police officers who gave chase to the men as they fled their cars as ‘stupid, reckless, foolhardy’.
O’Shane has been angry many times. In 1989, when she sat in the Brewarrina Local Court, she dismissed 116 charges against Aborigines in one day, many for offensive language, believing that the offensive language arrests were a habitual form of police harassment of Aborigines.
Two years later, in Lismore, she dismissed a charge against a man who called police ‘f---ing poofters’. The then Premier, Nick Greiner, was appalled at the decision and the Director of Public Prosecutions appealed. O’Shane was ordered by the Supreme court to rehear the case. She did so, finding the case proven, but once again dismissed the case, using her judicial discretion under the Crimes Act.
And few could forget the consequences of her anger when directed at the now infamous ‘Berlei bra’ billboard in 1993. In that case, she dismissed charges against four women who pleaded guilty to defacing a billboard advertising Berlei bras.
The billboard depicted a woman wearing Berlei underwear being sawn in half by a magician with the caption, ‘You’ll always feel good in a Berlei’. The four women had added the words: ‘Even if you’re mutilated.’
In a highly emotional speech to the courtroom, O’Shane found that the real perpetrators of the crime were those responsible for the advertisement. She refused to award damages or costs to the advertisers.
In an interview with Margaret Throsby for the Independent Monthly shortly after the Berlei bra decision, O’Shane commented: ‘I was very angry … acquitting the women simply wasn’t enough.’
It may not have been enough for O’Shane, but many within the legal fraternity felt she had gone too far. O’Shane is a magistrate whose decisions impact directly and on a daily basis upon individuals and society as a whole. It is not at all clear that her decisions do anything other than undermine the judicial system as a whole.
O’Shane defended herself to Throsby on the grounds that, as a magistrate, she applies a litmus test of ‘human values’ to bring about the right result. The flaws in this argument are twofold. First, she appears to see herself as the sole arbiter of ‘human values’. As any first-year law student would know, equity is as long as the Lord Chancellor’s foot.
The second problem is that some of her decisions amount to serious misapplications of her ‘human values’ test. Few would disagree with the proposition that women have the right to protect their bodies from violation. Yet it was by no means clear that the Berlei bra billboard incited violence towards women or violated women’s bodies.
Similarly, few would argue with the proposition that genuine police harassment is unacceptable. But the facts of the Kanaan case do not suggest a clear-cut case of harassment. In fact, many would suggest that the Kanaan case was precisely the sort of scenario when police have not merely the right, but the obligation, to pursue suspicious assailants absconding from them.
While O’Shane attracts some vocal supporters, their arguments are invariably disingenuous. Some years ago following the Berlei bra fracas, a prominent supporter of O’Shane admired her for having the courage of her convictions. Yet in the same breath, Professor Mark Findlay, then director of the Institute of Criminology in NSW, revealed a rich, and no doubt unintended, irony when he criticised other members of the judiciary for reflecting ‘extreme views of their own’.
This is a common failing among O’Shane and her supporters. They support the injection of convictions into the courts by activist judges provided they are in line with their own. They were the first to chastise Justice Derek Bollen who made comments in a rape in marriage case which some suggested gave the impression that he condoned ‘rougher than usual handling’ by husbands to persuade wies to have sex. He was similarly castigated for telling a jury that a wife who had killed her husband had not been ‘sufficiently battered’ to claim self-defence.
Yet O’Shane and her staunch supporters should remember that a society which accepts a Pat O’Shane should also accept a Derek Bollen.”

2   The plaintiff began an action for defamation in which she asserts that the following imputations arose from the natural and ordinary meaning of the words used:

“4(a) The Plaintiff, as a magistrate, is biased.
(b) The Plaintiff is biased against police.
(c) The Plaintiff maintains rancorous attitudes towards certain sections of society.
(d) The Plaintiff, as a magistrate, allows her own rancorous attitudes to affect her judgement.
(e) The Plaintiff, as a magistrate, inappropriately unleashes her anger.
(f) The Plaintiff, as a magistrate, has improperly dismissed charges.
(g) The Plaintiff, as a magistrate, has inappropriately dismissed charges.
(h) The Plaintiff, as a magistrate, has acted inappropriately in refusing to award damages and costs.
(i) The Plaintiff is incompetent.
(j) The Plaintiff seeks to undermine the judicial system.
(k) The Plaintiff, as a magistrate, undermines the judicial system.
(l) The Plaintiff abuses her position as a magistrate.
(m) The Plaintiff so conducts herself as a magistrate as to be unfit for that office.
(n) The Plaintiff is as unacceptable to society as someone who condones the use of ‘rougher than usual handling’ by husbands to persuade wives to have sex.
(o) The Plaintiff, as a magistrate, so conducts herself as to be as unacceptable to society as a Judge who condones the use of ‘rougher than usual handling’ by husbands to persuade wives to have sex.”

3   The defendant (John Fairfax Publications Pty Limited) objects to the form of certain imputations, and asserts that others do not differ in substance from imputations already pleaded.

Imputation 4(a)

4   It is convenient to repeat the imputation, so that the defendant’s argument can be understood. It is as follows -

“4(a) The Plaintiff, as a magistrate, is biased.”

5   The defendant drew attention to the phrase, “as a magistrate”, which appears in this and other imputations. It asks, rhetorically, why the difference? It asserts that the article is concerned with the discharge by the plaintiff of her duties as a judicial officer. There ought, therefore, to be uniformity in the way in which the imputations are expressed.

6   The plaintiff responded by acknowledging that, broadly, the article is about the discharge by the plaintiff of the duties of her office. However, the article goes beyond that. It attributes to the plaintiff certain attitudes which she is said to bring onto the bench. Insofar as having such attitudes is uncomplimentary (such that right minded people may think the less of her because she harbours them), then it is appropriate to refer to the quality attributed to the plaintiff, rather than her office.

7   For my part, I see no difficulty in imputation (a), including the words, “as a magistrate”, although I believe it may be somewhat clearer if it were expressed in the following terms: “The Plaintiff, when acting as a magistrate, is biased.”

8   The defendant further complains that the word, “biased”, is too general, and too abstract. It lacks the specificity which the Rules require, and is therefore apt to be confusing (cf Gleeson CJ, Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135). Alternatively, when considered in the context of later imputations, it does not differ in substance from them.

9   I believe that, in the context of a judicial officer, the imputation is specific, and is not confusing. It should go to the jury. The plaintiff has leave to re-plead to substitute for the words, “as a magistrate”, the words, “when acting as a magistrate”.

Imputation 4(b)

10   Imputation 4(b) is in these terms:

“4(b) The Plaintiff is biased against police.”

11   The imputation is directed at the plaintiff’s attitude, rather than her office. The defendant does not suggest that it is incapable of arising. It says that, absent any reference to her office, as a magistrate, it is incapable of being defamatory.

12   The article is concerned with a judicial officer who has strong, indeed “extreme views” (headline), which she injects into cases that come before her (line 70). Three illustrations are provided: the prosecution against a Mr Kanaan (where her decision was reversed by the DPP), the charges brought against aborigines in Brewarrina, which she dismissed as harassment, and a case in which the police were the aggrieved party (having been called ‘f---ing poofters’) which she dismissed, to the dismay of the Premier.

13   Can it be said that bias against the police is defamatory? Many in society, no doubt, harbour misgivings about, or grievances against the police. However, I believe most would recognise that the police have an essential and difficult role. I believe that the imputation is capable of being regarded as defamatory, in that it is capable of being regarded by right thinking members of the community as disparaging or derogatory. I further believe that the imputation differs in substance from imputation 4(a). It should therefore go to the jury.

Imputation 4(c)

14   Imputation 4(c) was not pressed.

Imputation 4(d)

15   Imputation 4(d), as originally expressed, was in these terms:

“4(d) The Plaintiff, as a magistrate, allows her own rancorous attitudes to affect her judgement.”

16   According to the Concise Oxford Dictionary, “rancorous” includes the definitions, “inveterate bitterness, malignant hate, spitefulness”. In the course of argument, the plaintiff sought to refine the wording of this imputation as follows:

“The Plaintiff, when acting as a magistrate, allowed an attitude of anger and bitterness to affect her judgment.”

17   The defendant maintains that an imputation expressed in these words does not differ in substance from other imputations pleaded. However, I believe such an imputation does arise, is capable of being regarded as defamatory, and does differ in substance. The plaintiff has leave to re-plead. As re-pleaded, the imputation should go to the jury.

Imputations 4(e), (f), (g) and (h)

18   The plaintiff acknowledged the force of the defendant’s objections to these imputations. Leave was sought to refine the wording. I believe the plaintiff should have that leave.

Imputation 4(i)

19   This imputation is as follows:

“4(i) The Plaintiff is incompetent.”

20   There are three objections by the defendant. First, if the imputation arises at all, it is the notion of incompetence in the discharge of the plaintiff’s duties as a magistrate. This appears to be right. The plaintiff did not suggest otherwise. The imputation is that the plaintiff, as a magistrate, is incompetent.

21   The defendant, secondly, suggested that there are shades of meaning within the word “incompetent”, such that the plaintiff should specify the sense in which the word is used. However, in the context of a judicial officer, it seems to me the attribute is specified. I do not believe that such an imputation is liable to be confusing.

22   Thirdly, the defendant asserted that, in any event, such an imputation does not differ in substance from imputation (a). A biased magistrate is incompetent. I believe, however, that the imputation does differ in substance. It should, appropriately amended, go to the jury. The plaintiff has leave to amend.

Imputations 4(j) and (l)

23   The plaintiff did not press either imputation.

Imputation 4(m)

24   Again, the plaintiff recognised the force of the defendant’s objections to the imputations as pleaded. Liberty was sought to re-plead. I believe it is appropriate to grant leave. Imputation (m) should not go to the jury in that form.

Imputations 4(n) and (o)

25   The plaintiff acknowledged, after argument, that the imputations as pleaded could not be sustained. Various alternatives were debated, including:

“The Plaintiff, as a magistrate, exhibited extreme views which made her unfit for that office.”
or
“… which adversely affected the performance by her of that office.”

26   In the absence of a precise formulation, which can then be examined in the context of other imputations, as re-pleaded, no conclusion was reached. The plaintiff sought leave to re-plead to capture the essence of what she regards as an offensive comparison with the views of others. Liberty to re-plead is given. Imputations (n) and (o) should not go to the jury in that form.

Orders

27   I therefore make the following orders:

1. The plaintiff has leave to amend imputations 4(a), (d) and (i) which, once amended, should go to the jury.

2. Imputations 4(b) and (k) should go to the jury.

3. Imputations 4(c), (j) and (l) should not go to the jury.

4. Imputations 4(e), (f), (g) and (h) should not go to the jury in their present form. The plaintiff has liberty to re-plead.

5. Imputations 4(m), (n) and (o) should not go to the jury as pleaded. The plaintiff has liberty to re-plead.

6. Although some imputations have survived, I believe it is appropriate that the plaintiff should pay the defendant’s costs.

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Last Modified: 04/12/2001