Oueik v Foley

[2017] NSWSC 1324

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Oueik v Foley [2017] NSWSC 1324

Hearing dates:

6 October 2016

Date of orders:

03 October 2017

Decision date:

03 October 2017

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Leave for the plaintiff to file a Further Amended Statement of Claim refused;

(2) Proceedings dismissed;

(3) Plaintiff to pay the defendant’s costs of and incidental to the proceedings;

(4) Any party may seek a special or different order as to costs by application and submission of no more than five pages, attaching any relevant document not otherwise before the Court, within 14 days of the date of this judgment. Any party affected by any such application may reply by the same method within 14 days of receipt of the application.

Catchwords:

DEFAMATION – imputations pleaded – capacity to arise from limited nature of publication – conjecture as to entirety of publication – responsibility for re-publication – different context, sense and substance – dishonest or dishonourable – conduct as a candidate for office not as holder of office – imputations do not arise – damage trivial.

Legislation Cited:

Defamation Act 2005, s 33
Uniform Civil Procedure Rules 2005, r 14.28

Cases Cited:

Australian Consolidated Press v Bond (1984) 56 ACTR 14
Bond Corporation Holdings Ltd v Australian Broadcasting Corporation (unreported, Court of Appeal, matter number 40031 of 1989, 28 June 1989)
Jones v Skelton [1963] SR (NSW) 644
Sims v Wran [1984] 1 NSWLR 317
Stubbs Ltd v Russell [1913] AC 386
R v Salvo [1980] VR 401

Texts Cited:

Gatley on Libel & Slander, (12th ed, 2013, Thompson Reuters)

Category:

Principal judgment

Parties:

Ronney Oueik (Plaintiff)
Luke Aquinas Foley (Defendant)

Representation:

Counsel:
K Smark SC (Plaintiff)
M Richardson (Defendant)

  Solicitors:
Sterling Legal (Plaintiff)
Mark O’Brien Legal (Defendant)

File Number(s):

2016/120003

Judgment

1. The substantive matter sought to be pursued is a claim for damages by the plaintiff, Ronney Oueik, against the defendant, Luke Foley, arising from a statement made by the defendant that the plaintiff says is defamatory. The statement is in the following terms:

“Well, I’ve long said that Ronney Oueik represents self-interest, not community interest, certainly not the interest of the community of Auburn”. (The impugned sentence or utterance.)

2. The foregoing statement was made in a “door-stop” interview by the defendant, the Leader of the Opposition in State Parliament, to Bryan Seymour, a journalist employed by Channel Seven Pty Ltd/Seven West Media Ltd (“the Seven Network”). The only record of the interview is the impugned statement, which was published by the Seven Network as part of a longer publication and for which the plaintiff sues separately.

3. Before the Court, the issue is whether the plaintiff should have leave to file a Further Amended Statement of Claim. Two attempts at pleading a cause of action have thus far failed and the defendant opposes the grant of leave to file the Further Amended Statement of Claim (“the Pleading”).

Background facts

4. The plaintiff was a member of Auburn Council, which was suspended in early 2016. As already stated, the defendant is the Leader of the NSW Opposition and the Leader of the State Parliamentary Labor Party. In the State election in 2015, the defendant won the seat of Auburn as the ALP candidate. The plaintiff was the unsuccessful Liberal candidate. The impugned statement was made on or about 9 February 2016 and republished as part of the longer publication by the Seven Network that evening.

5. The first Statement of Claim was withdrawn on 10 June 2016, at the time the matter was first listed before the Court. Subpoenas issued to the Seven Network to seek to obtain the original video of the defendant’s interview. The second attempt at the Statement of Claim (“Amended Statement of Claim”) was served on or about 31 August 2016 and did not, in accordance with the rules, include an annexure. On 1 September 2016, objections were served dealing with that amended pleading.

6. At the hearing of the proceedings on or after 1 September 2016, at that stage still an adjourned first listing of the proceeding, the plaintiff, once more, did not press the proposed Amended Statement of Claim.

7. On 15 September 2016, the plaintiff served the Pleading to which objection is now taken.

8. Apparently, the subpoena to the Seven Network did not result in the production of the original interview with the defendant and the plaintiff sues on the impugned statement, spoken by the defendant, Mr Foley, which thereafter formed part of the longer news broadcast. As earlier stated, the plaintiff sues the Seven Network separately from these proceedings.

Background and Objection

9. The Pleading alleges that the impugned statement of the defendant is the publication that is defamatory and gives rise to two imputations, namely:

1. (Imputation 1): “The plaintiff is a dishonest person in that as a politician he sought to be elected to public office, not for the purpose of serving community interest but for the purpose of furthering his own self-interest”; and

2. (Imputation 2): “Alternatively, the plaintiff is a hypocrite in that as a politician he sought to be elected to public office, not for the purpose of serving community interest but for the purpose of furthering his own self-interest”.

10. The plaintiff alleges, in the alternative to the foregoing Imputations, the same imputations arising from the ordinary and natural meaning of the statement made, together with certain extrinsic facts known, it is said, to the journalist (a true innuendo).

11. Even though the slander said to have been contained in the impugned sentence was uttered to only one person, it was uttered in circumstances of a press interview and therefore, the plaintiff says, has the probable result that the statement would be republished in the media. As a consequence, the damages arising from the slander would be greater than the nominal damages that might otherwise arise from the utterance of the statement, assuming the statement to be defamatory, to one person only. Nevertheless, the defendant is not responsible for the greater material published by the Seven Network and for which separate proceedings have been commenced.

12. The publication by the Seven Network relates, it seems, to the allegation that the plaintiff amassed a significant property portfolio worth, it is alleged, almost $50 million, during the time the plaintiff was on Auburn Council.

13. As earlier stated, the subpoena to the Seven Network did not result in the production of the full interview of the defendant by the journalist. The material before the Court suggests that the defendant has no recollection of the contents of the total “door-stop” interview.

14. The objection raised by the defendant is that the recited statement does not, in its ordinary and natural meaning, give rise to the imputations that are pleaded. Further, the defendant submits that reliance on the extrinsic facts to which the plaintiff refers does not assist the plaintiff. The imputations alleged do not arise, even as true innuendo.

15. Further, as already stated, the defendant in these proceedings, cannot be rendered liable for the entirety of the Seven Network broadcast. The defendant can be rendered liable for that which flows from his impugned utterance. Yet, the responsibility for the republication of that statement cannot be influenced by the material otherwise published by the Seven Network. Moreover, republication is a responsibility of the original publisher only to the extent that the republication adheres to the sense and substance of the original publication: Gatley on Libel & Slander, (12th ed, 2013, Thompson Reuters) at [6.54].

16. There can be little doubt that a comment made at a press conference or to a journalist during the course of an interview would be such that what was said is likely to be reported. More accurately, a reasonable person in the position of the maker of the statement should have appreciated that there was a significant risk that what was said would be repeated in whole or in part and that would increase the damage caused by any statement.

17. A comment made at a press conference will ordinarily be one that would, “very readily”, render the defendant, being the maker of the statement, responsible for the consequences of further publication: Sims v Wran [1984] 1 NSWLR 317; Australian Consolidated Press v Bond (1984) 56 ACTR 14. An express authority to publish or request to publish would be unnecessary in such a circumstance: see Bond, supra.

18. As to the alteration of material that is said to be defamatory, Gatley, supra, at [6.54] cites the principle in the following terms:

“The question is whether the defendant authorised the substance and the sting. Hence the defendants were liable when they requested the press to publish an account of a meeting of a board of guardians and a condensed but correct account of the proceedings was published; and the mere fact that the editor of a newspaper has struck out the stronger passages or altered the article in places will not affect the liability of the sender. It would be otherwise if the alterations affected the sense of what the defendant had stated. The mere furnishing by one person of some of the materials used by another in the preparation of a libellous article does not constitute a publication of it by the former if, when printed, the article as a whole is something very different from the material so furnished by him.” (References omitted.)

19. The foregoing quotation from Gatley, while expressly referring to printed publications, applies equally to a broadcast on television, as is the circumstance before the Court in these proceedings.

20. The real difficulty in a situation such as this, where the only evidence of the defendant’s entire publication is the one sentence and there were clearly other things said, is that there exists no evidence of the statement and the context in which it was made. It cannot be known whether in the context of the circumstances in which the statement was made, there was an expectation of republication and whether the utterance was defamatory.

21. The Court can never know whether, for example, the statement by the defendant was made “off the record”. Although that is unlikely in circumstances of a press interview; it is possible. The Court would be required to determine whether there was an expectation of republication on the basis of the balance of probabilities.

22. The Court, at this preliminary stage, could not, therefore, strike out the imputation on the basis of the lack of an expectation that republication would occur. Ultimately, such an issue would be a matter for the tribunal of fact at final hearing.

23. Different considerations arise in relation to whether the statement is defamatory at all and/or gives rise to the imputations sought to be pleaded. Given that the statement must be “heard as a whole” and the meaning of it ascertained from the whole of the publication, if the Court were incapable of knowing the totality of the publication, how can it ever determine that the publication, as a whole, is defamatory? It is for the plaintiff to establish the defamation.

24. The Court, in these proceedings, does not examine the Seven Network publication, which is subject to other proceedings. It must examine the whole of the statement (including the questions asked or the information provided) by the defendant in these proceedings to the journalist.

25. The Court, including any ultimate tribunal of fact, would, in the circumstances of this controversy, be invited to conjecture as to the totality of the statement made by the defendant and whether, as a consequence of that totality, the impugned utterance is defamatory.

26. The foregoing assumes, without deciding, that the impugned utterance, of itself, is capable of being defamatory. It is that last mentioned issue that is raised as one of the objections of the defendant to the filing of the Pleading.

27. Some other objections, more appropriately in the nature of a defence, such as whether, in the absence of context, it is more probable than not that the statement by the defendant is comment, are for another day, if the defendant is unsuccessful in this motion.

Consideration of Objection

28. For the Court to refuse to allow the plaintiff to file the Pleading would require the Court to arrive at the determination that the impugned statement was not capable of the defamatory meanings ascribed to it, or, in other words, that the impugned statement or utterance is incapable of giving rise to the imputations alleged in the Pleading.

29. The authorities in this area set an extremely high bar that a defendant is required to hurdle before the defendant can be successful in seeking to have an imputation struck out or withdrawn from the jury. It is for a jury (or the ultimate tribunal of fact) to determine whether the defendant’s statement is defamatory.

30. The Court is confined to whether the impugned statement is capable of being defamatory in the manner alleged by the pleaded imputations. Thus, strained, forced or utterly unreasonable meanings will be rejected by the Court, even at an interlocutory stage, but the test is one of reasonableness and the function of the Court, at this juncture, is to determine whether it would be open to a jury to hold that the ordinary reasonable reader (listener) would understand the impugned utterance in the defamatory sense alleged by the plaintiff: Jones v Skelton [1963] SR (NSW) 644 at 650; Stubbs Ltd v Russell [1913] AC 386 at 393; Bond Corporation Holdings Ltd v Australian Broadcasting Corporation (unreported, Court of Appeal, matter number 40031 of 1989, 28 June 1989).

31. In the absence of extrinsic facts, namely, that the plaintiff sought to be elected to public office or was a former Mayor of Auburn or a candidate for election to office for a State Parliamentary seat that included the area of Auburn, the comment or statement in the impugned utterance does not give rise to imputations 1 and 2. The plaintiff relies on “context”, being extrinsic facts known to the journalist, namely, that the plaintiff was a political candidate and was the Mayor of Auburn.

32. Those extrinsic facts are or were published in the Seven Network publication, but are not contained in the impugned statement in these proceedings. It is said that the journalist was aware that the plaintiff was a former parliamentary candidate and Mayor and, therefore, those extrinsic facts were known to the recipient of the publication rendering the publication defamatory by virtue of a true innuendo.

33. It is necessary to look carefully at the pleaded imputations.

34. Assuming, without at this stage deciding, that the journalist’s knowledge of the political career of the plaintiff are extrinsic facts capable of giving rise to a true innuendo, as distinct from the subjective knowledge of a particular recipient of the statement, the issue is whether the statement is defamatory in the manner alleged. As earlier stated (see [10] infra), the imputations arising by true innuendo are to the same effect as the imputations that do not rely upon extrinsic facts.

35. The plaintiff alleges that it would be within the general knowledge of the community that the defendant is a politician and/or additionally Leader of the ALP in New South Wales. Further, the plaintiff submits that the ordinary reasonable listener would not have the impression that the defendant was saying something complimentary about the plaintiff. I do not understand how the latter aspect takes the matter further.

36. The Court, as presently constituted, is prepared to accept that the position of the defendant as a politician and as Leader of the ALP in NSW (or the Leader of the Opposition in State Parliament) is a notorious fact within the general knowledge of the community. However, the imputation would require the ordinary reasonable listener to form the view that the defendant was alleging that the plaintiff was “a dishonest person” because the plaintiff was a politician who sought to be elected to public office and had certain attitudes. Alternatively or additionally that for the same reason the plaintiff was a “hypocrite”.

37. Other than that which has been adduced in these proceedings as evidence or material to the effect that the plaintiff was formerly the Mayor of Auburn and a political candidate for a State Parliamentary seat, nothing has been suggested that it is either notorious or within the general knowledge of the community that the plaintiff has that history.

38. Each of the imputations require the history of the plaintiff as a person who sought election to the NSW Parliament for the seat of Auburn as a matter of “general knowledge of the community” (Paragraph [4] of the written submissions on imputations by the plaintiff) or, as candidate for the Mayor of Auburn.

39. The plaintiff submits that “what is within the general knowledge of the community”, being a question of fact, should be left to the jury. But the imputation alleged would require the general knowledge of the community to be such as to who was an unsuccessful candidate for State Parliamentary seat and the identity of previous mayors of Auburn.

40. I accept that a number of persons in the Auburn District may identify the plaintiff as the former Mayor of Auburn and, given that the proposed Further Amended Statement of Claim, alleges that the plaintiff was a “politician” seeking “to be elected to public office”, without identifying the public office or confining it to a member of the NSW Parliament (as was previously the case), I am prepared to accept that a jury would be capable of finding that a person elected Mayor of Auburn would be classified as a politician and the office as one being a public office to which one would be elected.

41. The difficulty however is greater than the acceptance of that which those particular extrinsic facts might disclose. The difficulty is the manner in which the imputation is pleaded, the kernel of which is that it alleges that the statement imputes to the defendant that he is “a dishonest person”, because he sought to be elected to public office, not for the purpose of serving community interest, but for the purpose of furthering his own self-interest. Alternatively, it imputes that the plaintiff “is a hypocrite” for the same reason.

42. At the time that the defendant uttered the impugned statement, the plaintiff had no role in representing the interests of the community generally or in Auburn. In other words, his role as a politician or as a political candidate had ceased.

43. Dealing with imputation (a) in [3] of the Pleading, the actions of the person in furthering his own self-interest and not serving community interest is probably dishonourable, but it is not dishonest in the ordinary meaning of the term:

“In its ordinary meaning the primary meaning of the word ‘dishonestly’ (despite the Latin origin of the word ‘honest’) is not, I consider, ‘dishonourably’. The latter word is, I consider, directed more to the community’s assessment of a man’s (sic) lack of or failure in respect of moral integrity or probity and in other cases to the individual’s assessment of that lack or failure. The judgement of the individual in this sense may often be astray or at variance with that of the community’s assessment of honesty and dishonesty, as is plainly exemplified by the case of R v Gilks [1972] 1 WLR 1341. The words ‘honesty’ and ‘dishonesty’ as used in ordinary parlance connote respectively compliance with or disregard of the dictates of the moral virtue of Justice which acknowledges and gives effect to the rights of others to or in respect of material things, or of the relationship of one person to another, e.g. husband and wife, parent and child, master and pupil, vendor and purchaser, employer and employee, et cetera. The terms may in certain contexts connote respect for or disregard of the moral virtue of truth. The word ‘dishonestly’ implies reference to a standard of morality underlining the law. The law sets standards of legality and illegality but cannot set and never has purported to set standards of morality. Standards of morality underlie the law; they derive not from the law but from the standard of ethics accepted by the community.” R v Salvo [1980] VR 401 at 407.

44. It cannot be suggested that acting in one’s “self-interest”, as deplorable as that may be for a person holding public office and as dishonourable as that may be for such a person, renders a person “dishonest”. That is so even if the person is purporting to be elected to an office in which the person is elected to represent and/or serve a particular community.

45. As to the alternative imputation arising from what is said to be the true innuendo, it rests upon the proposition that a person is a “hypocrite” if the person stood for public office and was not serving the community interest but his own self-interest. The difficulty with such an imputation, again assuming, without deciding, that the extrinsic facts as pleaded are generally known by the community, is that it would require a knowledge by the general community that the plaintiff, in his candidacy, eschewed or disavowed self-interest and purported to represent community interest. There is no information before the Court that would allow the Court to draw such a conclusion and it would certainly not be within the general knowledge of the community.

46. There is an even more fundamental issue associated with the imputations as sought to be pleaded in the Pleading. The plaintiff has deleted from the previously putative Amended Statement of Claim the words “a member of the NSW Parliament” as defining the public office to which the plaintiff sought to be elected. However, the imputation requires that the general public deal with the plaintiff as a candidate for office, i.e. as a person who “sought to be elected to public office”, not as the holder of a public office.

47. In other words, the two true innuendo imputations derive from the status of the plaintiff as the candidate, not as the Mayor. It is not suggested in the Pleading that the statement by the defendant gives rise to an imputation that the plaintiff acted in public office for his own self-interest and not for the purpose of serving the community interest. It gives rise only to the imputation, as pleaded, that as a candidate for office he acted in that way.

48. At the time that the statement was made by the defendant, as already stated, the plaintiff was not a candidate for public office and it cannot be assumed that the general community knowledge extended to the fact that the plaintiff was once a candidate for public office (except, perhaps, to the extent that prior to being Mayor he would have had to stand for election as Mayor).

49. Further, the statement of the defendant is a statement made in the present tense. It refers to what the plaintiff now represents; not what he represented when he held office or when he was a candidate for office.

50. As pleaded by the plaintiff in these proceedings, the plaintiff would be required to establish that the facts generally known to the community at the time that the impugned statement was uttered would establish that he was at that time a candidate for office or a person seeking to be elected to public office.

51. Of course, the Pleading alleges that the impugned statement imputes dishonesty and hypocrisy that is current and arises from the extrinsic facts of being a past candidate for office. However, as stated, the impugned statement refers to what the plaintiff currently represents, not what he represented when he was Mayor or what he represented when he was the candidate for a seat in the NSW Parliament. Moreover, the impugned statement is not alleged to say anything about what the plaintiff would have represented if he were to have gained office.

52. This impugned statement does refer to the defendant having “long said” that the plaintiff represents self-interest, but the allegation as to the representation of self-interest is a present representation, not a past or future representation. As a consequence, there can be no implication arising from the bare statement of the defendant, as it is known, that the allegation that the plaintiff represents self-interest, not community interest and not the interests of the community of Auburn, applied at a time when the candidate was seeking office or at a time when he held office.

53. In my view, the imputations, as pleaded, do not arise.

54. Further, it is in this area that the difficulty with the context of the statement and the entire publication by the defendant, Mr Foley, merge. Assume, for example, the journalist asked the defendant: “Mr Oueik says you should now be allowing more developments in Auburn” and the defendant answered in the terms recited. What would be the defamation or slander?

55. Of course the proceedings against the Seven Network are in a totally different situation. The determination of defamation in those proceedings can be based on the knowledge of the whole publication and its context.

56. I deal with certain other aspects raised by the defendant. I do not consider that the length of the statement (or lack of it) is a matter of any significance. If the statement, of itself, gave rise to defamatory imputations that were pleaded, the proceedings could continue.

57. It is clear, in the submissions of the plaintiff in these proceedings, that the plaintiff conjectures that the context in which the statement by the defendant was made was a context similar to that published by the Seven Network in its broadcast. Such an implication would be pure conjecture.

58. The defendant is not liable, as earlier stated, for the Seven Network republication, because the republication does not adhere to anything that we know of the sense and substance of the original publication by the defendant.

59. If I were not otherwise against the plaintiff as to the meaning that arises from the publications, I would certainly strike out the claim for republication, where the republication goes beyond the republication of the comment by the defendant and, given that the nature of the comment by Seven Network is in known context that defines whether it is defamatory and significantly alters its nature and substance, it would seem that the republication claim and the damages claim on the basis of republication cannot proceed as a reasonable cause of action (Uniform Civil Procedure Rules 2005, r14.28)

60. The defendant submits that the pleading should be struck out. It has not yet been filed. An Order will issue to the effect that leave to file will be refused.

61. The defendant further submits that, because the Further Amended Statement of Claim (the Pleading) is the third attempt to plead the matter appropriately, the proceeding should be dismissed summarily.

62. The defendant’s submission that there is no information from the Seven Network in answer to the subpoena served and that the plaintiff’s case cannot, in evidentiary terms, be strengthened, is accurate.

63. The defendant’s submission, in effect, was that given the lack of context of the impugned statement and its nature, together with the fact that the impugned statement forms part of separate proceedings for which the Seven Network may be liable, the allegation and cause of action is trivial. It is (by itself and without republication) submitted that the plaintiff is unlikely to have sustained any harm by the impugned statement that is not compensable by virtue of the proceedings against the Seven Network. The defendant, in these proceedings, is not liable for the republication and, therefore the cause of action is trivial: s 33 of the Defamation Act 2005.

64. In my view, in circumstances where the defendant in these proceedings is not liable for the republication that has a totally different context, sense and substance, the plaintiff was unlikely to sustain any harm from the impugned statement, of itself. In circumstances where, as here, the defendant cannot be liable for the republication, which has or may have caused the only substantial damage, the defence of triviality available under s 33 of the Defamation Act is unanswerable.

65. Moreover, given that any imputation that may have arisen from the statement by the defendant in these proceedings would arise in the proceedings against the Seven Network, each of the purposes of damages in defamation, including the vindication of the plaintiff, is satisfied by the plaintiff successfully completing those proceedings. In those circumstances, the totality of the compensation for personal distress, the hurt caused by the publication, reparation for the harm done to the plaintiff’s reputation and vindication of the plaintiff’s reputation is achieved by the successful outcome of the proceedings against the Seven Network.

66. In circumstances where, as here, any damage has been caused by the republication for which the defendant is not liable, no reasonable cause of action is disclosed, other than one that is trivial. Damage is at the heart of every tort and a necessary component of the cause of action.

67. For the foregoing reasons, the Court makes the following orders:

1. Leave for the plaintiff to file a Further Amended Statement of Claim refused;

2. Proceedings dismissed;

3. Plaintiff to pay the defendant’s costs of and incidental to the proceedings;

4. Any party may seek a special or different order as to costs by application and submission of no more than five pages, attaching any relevant document not otherwise before the Court, within 14 days of the date of this judgment. Any party affected by any such application may reply by the same method within 14 days of receipt of the application.

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Decision last updated: 03 October 2017