Piggins v Denton

[2006] NSWSC 954

CITATION:	Piggins v Denton [2006] NSWSC 954
HEARING DATE(S):	12 September 2006
JUDGMENT DATE :	15 September 2006
JUDGMENT OF:	Simpson J
DECISION:	1. The plaintiff is to elect whether to proceed upon imputation 3.2 or imputation 3.6; 2. imputation 3.4 is struck out; 3. the plaintiff has liberty to replead.
CATCHWORDS:	defamation - oral publication - telephone conversation - form of imputations pleaded - different entities nominated - true innuendo - specificity of imputations - accusations made by defendant of plaintiff non specific - whether imputations differ in substance
CASES CITED:	Drummoyne Municipal Council v The Australian Broadcasting Corporation (1990) 21 NSWLR 135 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
PARTIES:	George Piggins - Plaintiff Andrew Denton - Defendant
FILE NUMBER(S):	SC 2006/20100
COUNSEL:	M Lynch - Plaintiff J Hmelnitsky - Defendant
SOLICITORS:	Craddock Murray & Neumann - Plaintiff TressCox Lawyers - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

SIMPSON J

Friday 15 September 2006

2006/20100 George Piggins v Andrew Denton

JUDGMENT

1 HER HONOUR: By amended statement of claim filed on 14 August 2006 the plaintiff claims damages arising out of the alleged publication of imputations which he says are defamatory of him. The defendant challenges, in a number of respects, the plaintiff’s pleadings. This is a separate trial of the issues so raised.

2 For the purposes of this determination the facts asserted by the plaintiff may, generally, be accepted as correct.

3 The publication was made on 9 November 2005, to a journalist employed by Australian Associated Press. During the course of the separate trial I was told, without dissent, that the publication was made during a telephone conversation with the journalist. (Widespread republication is pleaded in the statement of claim.) A tape recording and transcript of the conversation has been provided. I have listened to the tape recording, but it is convenient to work from the transcript, which became Exhibit B in the separate trial.

4 It extends over four and a half pages of quite small type. The interviewer participates, but the bulk of what is contained in the transcript is attributed to the defendant. The subject matter of the conversation is a proposal, which was, at the time of the conversation, somewhat notorious, to take over (on one view) or rescue (on another view) a well-known Sydney football club. I have so referred to it because the club was referred to by a number of different titles in the matter complained of, and this has given rise to one of the issues for determination.

5 The evidence does not disclose the correct formal title of the club, or indeed, how many separate legal entities exist, if there are more than one. Having said that, the club can be identified generically as the South Sydney Rugby League Club, or some entity of similar title. For the purposes of this judgment there is no magic in the label attached to the club the subject of the interview or conversation.

6 The conversation commenced with the journalist asking the following question:

“What do you make of Peter Holmes a Court’s proposal to underwrite the Leagues Club in the hope of getting the holy trinity, if you like, all together again?”

This question, and subsequent questions by the journalist prompted the defendant to give, explicitly, vigorously, and in terms that left no room to doubt, his opinion of the proposal (which was positive), and, more particularly, the historical management of the Club (which was decidedly negative). I will not extract the whole of what he said, but some parts bear reproduction. He said, inter alia :

“I don’t think most members are aware of how close South Sydney remains to financial extinction. … It has been an unsustainable economic proposition for 2 decades now. … We’ve had, you know, 30 years of failure under an old way of thinking. … That Leagues Club has had 20 or more years to prove itself financially viable and put something back into this district that it claims to be such a proud icon of and its been a complete failure, and my question is to the management of this club, you know the management of this club over all those years up to and including George Piggins right now: ‘When are you going to put up your hand and accept responsibility for this absolute failure that is the South Sydney District Rugby League Club,’ … It’s a complete failure … Now, that’s how tragic the South Sydney Leagues Club is under chairman George Piggins. … I think the absolute bottom line is that the financial management over the last 3 decades of the South Sydney Football Club and the South Sydney Leagues Club has been a disaster. The plan has been non-existent. It manifestly hasn’t worked. The club is on the brink of extinction. … I think any plan that George Piggins puts forward, on his record alone, should be rejected out of hand because he has had 30 years with his hands, or 20 years with his hands at the wheel and has driven the club into the wall. … We are talking about a club that has had 30 years of failure or sorry I should say 20 years, I’m exaggerating a bit – thinking back to when it went bankrupt in the seventies. 25 years of complete failure. …by the end there is and only ever has been one person that ever objected to South Sydney moving forward – that’s George Piggins. …there has only ever been one person out of step with everyone else and that’s George Piggins. There’s only ever been one person who apparently needs to be satisfied before Souths can move forward and that’s George Piggins. I ask a next question – is this Football Club about George Piggins or is it about the couple of million people that marched and supported it when it was thrown out of the comp? If you read the papers and read the files you would assume that South Sydney Football Club is there to somehow maintain the legend of George Piggins. Yet it’s not. I guess he’s got a patriarchal … almost a sort of status where he seems to have no official sort of duty … I think the absolute biggest obstacle between South Sydney and its viability is George Piggins. And you know, everybody seems afraid to say this because, you know, George Piggins is the hero of Souths – he has been on the field, has been off the field. But it doesn’t alter the fact that everything he’s done for the club in a management sense has been a disaster.”

7 The plaintiff pleads that this conveyed seven imputations which defamed him. He pleads them as follows:

“3.1 The plaintiff is responsible for the complete failure of the South Sydney District Rugby League Club.
3.2 The plaintiff so disastrously mismanaged the South Sydney Leagues Club as its chairman for 20 years that it is financially ruined.
3.3 The plaintiff so disastrously mismanaged the South Sydney Football Club over 20 years that it is financially ruined.
3.4 The plaintiff is the only person who has ever objected to the South Sydney Football Club moving forward.
3.5 The plaintiff has run the South Sydney Football Club as if it belongs to him although it belongs to all its supporters.
3.6 The plaintiff as chairman of the South Sydney Leagues Club has prevented it from operating successfully for 20 years.
3.7 The plaintiff has prevented the South Sydney Football Club from operating successfully for 20 years.”

8 The first thing to observe about these imputations is that they nominate a number of different entities – the South Sydney District Rugby League Club, the South Sydney Leagues Club and the South Sydney Football Club. Each is drawn directly from the words attributed to the defendant. Whether or not any such legal entity exists is not disclosed in the evidence.

9 On behalf of the defendant, nevertheless, the complaint was made that it is impossible to discern from the content of the interview whether the defendant was using the expression “Football Club” or “Leagues Club” to refer to specified legal entities and that the imputations ought not to be permitted, to the extent that they purport to identify specific legal entities. The argument was that the content of the interview in its natural and ordinary meaning is incapable of giving rise to the imputations in so far as they identify specific legal entities.

10 In oral argument it was put that the correct way for the plaintiff to plead in these circumstances is to allege true innuendo by particularising extrinsic facts and circumstances known to some recipients of the matter complained of, which would identify the legal entity to which the imputation was directed.

11 This simply cannot be right. It is not for the plaintiff to reformulate what the defendant publishes. Nor is it for the plaintiff to give a correct legal translation of references made by the defendant.

12 To require the plaintiff to reformulate his pleading so as to rely on true innuendo could be very significantly to limit the extent of publication, to those who could be shown (or inferred) to have had the requisite knowledge of the extrinsic facts.

13 It does not matter that one or more of the entities to which the defendant made reference is incorrectly titled, or is not an entity with legal status. The plaintiff is entitled to sue upon imputations conveyed by the defendant, even where (as may here be the case) he is alleged to have adversely nominated an entity which does not have a specific legal character.

14 The defendant’s contention is akin to this. Suppose a defendant wrote of the plaintiff:

“X murdered his brother.”

It is plain that that statement conveys an imputation defamatory of X. It is not less defamatory because the reality is that X never had a brother. It would not be open to the plaintiff to translate that publication by substituting some other identity for the words “his brother”. Here, the evidence (for present purposes) establishes that the defendant conveyed certain imputations about the plaintiff’s conduct in relation to certain entities named and identified by the defendant. Whether he got the names wrong or right is not material to whether or not the imputations were conveyed.

15 I will not interfere with any of the imputations on this basis.

16 I will now deal with the complaints made about each of the individual imputations.

Imputation 3.1: the plaintiff is responsible for the complete failure of the South Sydney District Rugby League Club

17 The complaint made about this imputation is as to form. The complaint targets the expression “is responsible for”, which, it is said, is insufficiently specific as to what the plaintiff is alleged to have done.

18 Whether this objection is well taken depends upon whether the matter complained of permits of further specification of the conduct attributed to the plaintiff that is said to make him responsible for the complete failure of the named club.

19 There were, in the words attributed to the defendant, many references to financial mismanagement of the club. The only “failure” specifically identified was financial failure. Counsel for the plaintiff sought to winkle out hints of failure of other kinds, and seized upon the suggestion that the club had failed to “put something back into this district that it claims to be such a proud icon of”. This, it was argued, suggested that the club’s “failure” had extended beyond economic failure and incorporated some kind of social or community failure, or failure to achieve community based objectives of a sporting club. However, that passage immediately followed yet another reference to financial unviability. It is, in my opinion, torturing the defendant’s language to suggest that, in his accusation that the club was a failure, he was referring to any failure other than to financial failure, for which he blamed the mismanagement of the plaintiff.

20 When read as a whole, the defendant’s words are clearly directed to what he calls mismanagement of the club, but invariably in a financial sense. I do not think it could realistically be concluded that the defendant was accusing the plaintiff of mismanaging the club in the sense of failing to have it meet any of its objectives concerned with community involvement.

21 One of the objections taken to the form of this imputation concerned the use of the expression “is responsible for”. The complaint is that the imputation fails to specify in what respect the plaintiff is said to bear responsibility for the failure of the club; it fails to identify any act or condition which made him so responsible.

22 This is a familiar refrain in the submissions of defendants concerning the formulation of imputations. It is frequently, as in this case, attached to a further argument about the difficulty a defendant would experience in attempting to justify the imputations. Underlying this is a notion that, in my opinion, ought to be exploded. It is that plaintiffs ought to be required to frame imputations in such a way as to facilitate the defence of the plaintiff’s claim. This is not so. While it can be accepted that litigation is not a game, it nevertheless involves tactical manoeuvring. A plaintiff’s legal advisers will draw an imputation, not so as to facilitate the defendant’s defence, but so as to make it as difficult as possible for a defendant to defend it. Of course, the plaintiff also faces a tactical decision: the more generally framed an imputation is, the more readily it will be able to be defended. Take, for example, an imputation that the plaintiff is a criminal. The publication of which complaint is made may permit of a greater specificity, conveying that the crime said to have been committed by the plaintiff is embezzlement. If the plaintiff eschews that particularity, and pleads an imputation of criminality, then he or she is exposed to potential justification of criminality, of, for example, assault or tax evasion. Both parties have tactical decisions to make. As I have suggested, a plaintiff is not obliged to formulate imputations with the defendant’s interests in mind.

23 In relation to submissions of this kind, it is also useful to recall the observations of Gleeson CJ in Drummoyne Municipal Council v The Australian Broadcasting Corporation (1990) 21 NSWLR 135. Those observations bear repeating at some length:

“The requirement that a plaintiff must ‘specify’ the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. In John Fairfax &
Sons Ltd v Foord (1988) 12 NSWLR 706, this Court approved of Hunt J's leaving to the jury an imputation that the plaintiff was a criminal associate of drug dealers. No one suggested that it was necessary to identify with particularity the crime or crimes alleged to have been committed by the
plaintiff, even though it is always theoretically possible to be more specific about an allegation that a person is a criminal.

Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter,
has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says "X is disgusting", the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.

A good example of the point just made is to be found in the decision of this Court in John Fairfax & Sons Ltd v Foord . Various imputations referring to particular kinds of corrupt conduct by a judge were held to have been proper imputations to leave to a jury. There was, however, also an imputation which simply asserted that the plaintiff was a corrupt judge. That imputation was said to have arisen from a newspaper billboard which read: ‘Govt's war on corrupt judges.’ It was held that, in those circumstances, that also was a proper imputation to leave to the jury. Clarke J A, with whom Hope J A agreed, said (at 726):

‘If the complaint is that the imputation as pleaded lacks clarity because the word 'corrupt' is ambiguous then that deficiency flows naturally from the material published. It was the defendant who used the word 'corrupt' and, provided that the respondent in an unqualified manner can satisfy the test on identification and there is no issue about that in these proceedings, then there can be no argument but that the poster is describing the respondent as a corrupt judge. I regard the appellant's submissions on this imputation as hopeless and it must, in my opinion, be submitted to the jury. I should say, in fairness to his Honour, that I do not understand him to be saying in his judgment that the defined meaning of the word 'corrupt' applies to this imputation.’
Judgments dealing with this subject frequently use synonyms for the actual word used in the Supreme Court Rules , which is ‘specify’. Those synonyms are, of course, useful, provided they are not taken to vary the meaning of the language of the rules. For example, in an unreported decision of this Court in Feros v West Sydney Radio Pty Ltd (Court of Appeal, 22 June 1982, unreported) Samuels J A, in passages that have been quoted in subsequent judgments, said that the word ‘specify’ meant ‘state categorically, explicitly or particularly the defamatory meaning’, and also said that the imputations should be ‘clear and precise’. The fact that these are all matters of degree is exemplified by what his Honour said about one of the imputations in Feros . An imputation which, after excision of some confusing matter, his Honour described (at 4) as clear was an imputation that the plaintiff conducted a certain business ‘in a disgraceful manner with an irresponsible disregard for the rights of local residents’. Plainly he regarded that (at 3) as a formulation which stated ‘categorically explicitly or particularly’ the defamatory meaning of the matter complained of and he regarded the language in the imputation as ‘clear and precise’. Equally plainly, it would have been possible to be more particular about the act or condition attributed to the plaintiff. As I have indicated, the question is ordinarily one to be resolved by considerations of practical justice in the circumstances of a particular case, rather than considerations of the possibility of linguistic refinement. I agree with the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155 where his Honour said:

‘... The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.’”

24 With those principles in mind, I return to what the defendant said of the plaintiff. He made many references to the failure of the club. Of the plaintiff himself, directly, he said:

“… my question is to the management of this club, you know the management of this club over all those years up to and including George Piggins right now: ‘When are you going to put up your hand and accept responsibility for this absolute failure that is the south Sydney District Rugby League Club’.
… Now, that’s how tragic the South Sydney Leagues Club is under chairman George Piggins …I think any plan that George Piggins puts forward, on his record alone, should be rejected out of hand because he has had 30 years with his hands, or 20 years with his hands at the wheel and has driven the club into the wall. … there is and only ever has been one person that ever objected to South Sydney moving forward – that’s George Piggins … there has only ever been one person out of step with everyone else and that’s George Piggins. There’s only ever been one person who apparently needs to be satisfied before Souths can move forward and that’s George Piggins. … But it doesn’t alter the fact that everything he’s done for the club in a management sense has been a disaster.”

25 I have searched in vain for any more specific accusation made by the defendant of the plaintiff. It is not present. How, then, can a plaintiff be expected to plead a specific form of responsibility if the publisher of the matter giving rise to the proceedings has not himself made allegations with specificity?

26 The plaintiff is, as Gleeson CJ made clear, tied to what is said or written by the publisher. Here the defendant has confined himself to making broad based general accusations of the plaintiff. The plaintiff cannot, in his imputations, read more into the matter complained of than the matter complained of permits. Should he attempt to do so, he would inevitably be met with an incapacity argument.

27 I reject the complaint about imputation 3.1 as to form.

Imputation 3.2: the plaintiff so disastrously mismanaged the South Sydney Leagues Club as its chairman for 20 years that it is financially ruined.

28 The only complaint made of imputation 3.2 was that it does not differ in substance from imputations 3.1 and 3.6. For reasons I have already given, it differs in substance from imputation 3.1 because it identifies as the subject of mismanagement a differently named entity. There is more substance to the complaint that it does not differ in substance from the imputation numbered 3.6. The plaintiff will be permitted to go to the jury on one or other of these imputations, but will have to elect.

Imputation 3.3: the plaintiff so disastrously mismanaged the South Sydney Football Club over 20 years that it is financially ruined.

29 The only complaint made of this imputation is that it does not differ in substance from imputation 3.7. There is really only one difference in substance that I can see: the element in imputation 3.3 of financial ruin. On balance, I have concluded that that is sufficient to warrant the two imputations.

Imputation 3.4: the plaintiff is the only person who has ever objected to the South Sydney Football Club moving forward.

30 Complaint was made of this imputation also that it fails to specify what the plaintiff is alleged to have done. For the reasons I have given in relation to imputation 3.1, and forbearing to repeat either my words or those of Gleeson CJ, the failure to specify precisely what the plaintiff is alleged to have done is a necessary consequence of the manner in which the defendant expressed himself. This objection fails. Objection was also taken on the basis that the imputation does no more than repeat words in the matter complained of: see Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [118] to [132]. The forceful language used in Harvey sits uneasily with some of what was said by Gleeson CJ in Drummoyne MC. In the latter case, his Honour appeared to accept that, where a defamatory publication pithily conveys its meaning, it is open to a plaintiff to adopt the defendant’s language in framing the imputations.

31 The present imputation, however, does not readily fall into that classification. The words “moving forward” are somewhat colloquial. But that is the language the defendant chose to express himself.

32 The resolution of this complaint is facilitated by reference to the next complaint, which is that the imputation is incapable of being defamatory. It was argued that:

“It is meaningless to say, without more, that a person objected to a club moving forward.”

33 I do not think, in the context of the defendant’s words, that this can be correct. But whether an imputation is capable of being defamatory depends upon the terms of the imputation itself. Absent the context, it is difficult to see that the imputation, standing alone, is capable of being defamatory. It is possible for the plaintiff to reformulate the imputation so as to capture the meaning conveyed by the defendant’s words, which, in their context, were undoubtedly capable of conveying a meaning critical of the plaintiff. I will strike out imputation 3.4. The plaintiff has liberty to replead.

Imputation 3.5: the plaintiff has run the South Sydney Football Club as if it belongs to him although it belongs to all its supporters.

34 Similar criticism were made of imputation 3.5. It was said that the imputation does little more than repeat a figure of speech used by the defendant and “roundly” fails to capture the defamatory act or condition attributed to the plaintiff. Similarly, it was argued that the imputation is not capable alone of being defamatory.

35 I reject each of these arguments. The imputation captures what was said of the plaintiff by the defendant which is, in my opinion, plainly capable of being defamatory. Imputation 3.5 will be allowed to stand.

Imputation 3.6: the plaintiff as chairman of the South Sydney Leagues Club has prevented it from operating successfully for 20 years.

36 Criticism was made of this imputation on the familiar basis of lack of specificity of what the plaintiff did to prevent the club from operating successfully for 20 years. For the reasons given in relation to imputations 3.1 and 3.4, I reject this complaint. Indeed, the submissions made on behalf of the defendant frankly acknowledged:

“However, there is no clue in the imputation or the matter complained of as to what that positive act was.” (italics added)

How, it might be asked rhetorically, can a plaintiff be expected to specify the act attributed to the plaintiff where no such act is identified by the defendant?

37 I reject this complaint.

Imputation 3.7: the plaintiff has prevented the South Sydney Leagues Club from operating successfully for 20 years.

38 I have already noted that imputation 3.7 does differ in substance from imputation 3.3. Further complaints were made about this imputation but they appear to have been based upon a misunderstanding of the manner in which it was framed. That misconception having been laid to rest, no further complaint was made.

39 The orders I make are:

1. The plaintiff is to elect whether to proceed upon imputation 3.2 or imputation 3.6;

2. imputation 3.4 is struck out;

3. the plaintiff has liberty to replead.

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