Randwick Labor Club Limited and 7 Ors v Amalgamated Television Services Pty Limited

[1999] NSWSC 880

CITATION:

Randwick Labor Club Limited & 7 Ors v Amalgamated Television Services Pty Limited [1999] NSWSC 880

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20024 of 1998

HEARING DATE(S):

13 August 1999

JUDGMENT DATE:

3 September 1999

PARTIES :

RANDWICK LABOR CLUB LIMITED
ACN 000 353 417
(First Plaintiff)

KEN MURRAY
(Second Plaintiff)

KEVIN SCOTT
(Third Plaintiff)

JOHN FRANCES FORD
(Fourth Plaintiff)

LENA BRIDGE
(Fifth Plaintiff)

PETER ROBERT BELL
(Sixth Plaintiff)

JOSEPH RIORDON
(Seventh Plaintiff)

LESLIE FREDERICK BRIDGE
(Eighth Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 008 624 539
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	M Neil Q.C. R A Campbell (Plaintiffs) T Blackburn (Defendant)
SOLICITORS:	Bowen & Gerathy (Plaintiffs) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Imputations - capacity & form
DECISION:	See paragraph 41

DLJ: 2

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

No. 20024 of 1998

JUSTICE DAVID LEVINE

FRIDAY 3 SEPTEMBER 1999

RANDWICK LABOR CLUB LIMITED
ACN 000 353 417
(First Plaintiff)

KEN MURRAY
(Second Plaintiff)

KEVIN SCOTT
(Third Plaintiff)

JOHN FRANCIS FORD
(Fourth Plaintiff)

LENA BRIDGE
(Fifth Plaintiff)

PETER ROBERT BELL
(Sixth Plaintiff)

JOSEPH RIORDON
(Seventh Plaintiff)

LESLIE FREDERICK BRIDGE
(Eighth Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
ACN 008 624 539
(Defendant)

judgment (Imputation - capacity & form)

1    Pursuant to an ex tempore judgment delivered by me on 12 June 1998 the plaintiffs’ have filed an Amended Statement of Claim. 2    This pleading sets out imputations said to be carried by a publication by the defendant on 5 June 1997 in the course of its program “Sydney Nightly News”. 3    Shortly stated, it is the plaintiffs’ contention that the defendant’s application challenging the imputations is incompetent, the matters raised having been disposed of by my earlier judgment. It is desirable therefore to review the history of the arguments in relation to the pleadings to date. 4    Appended to these reasons is a transcript of the words spoken in the publication complained of. 5    In the original Statement of Claim the first plaintiff contended that the publication conveyed the following imputations:

“5(a) that the first plaintiff was a slush fund Club for the Labor Party;
(b) that the first plaintiff was a participant in an arrangement with the Labor Party for use of the Club as a slush fund whereby tainted money was donated to the Labor Party;
(c) that the first plaintiff had falsified its records and books as part of its activities as a slush fund Club for the Labor Party.
(d) that the first plaintiff had committed a large number of serious licensing offences;
(e) that the conduct of the first plaintiff was such as to warrant it being reasonably suspected of having committed a large number of serious licensing offences;

(f) that the first plaintiff had concealed its activities as a slush fund Club for the Labor Party and had been found out in respect thereof;

(g) that the first plaintiff had donated $125,000.00 of tainted money to the Labor Party”.

6    The individual plaintiffs contended that the matter complained of conveyed the following imputations:

“6(a) that each of the second, third, fourth, fifth, sixth, seventh and eighth plaintiffs was a Director of a Club which was a slush fund Club for the Labor Party;
(b) that each of the second, third, fourth, fifth, sixth, seventh and eighth plaintiffs by virtue of being a Director of the Randwick Labor Club was a participant in an arrangement with the Labor Party for use of the Club as a slush fund whereby tainted money was donated to the Labor Party;
(c) that each of the second, third, fourth, fifth, sixth, seventh and eighth plaintiffs by virtue of being a Director of the Randwick Labor Club was involving in the falsification of the records and books of the Club as part of its activities as a slush fund Club of the Labor Party;
(d) that the conduct of each of the second, third, fourth, fifth, sixth, seventh and eighth plaintiffs as a Director of the Randwick Labor Club was such as to warrant each of the second, third, fourth, fifth, sixth, seventh and eighth plaintiffs being reasonably suspected of being involved in the Club committing a large number of serious licensing offences;
(e) that each of the second, third, fourth, fifth, sixth, seventh and eighth plaintiffs as a Director of the Randwick Labor Club had concealed the activities of the Club as a slush fund Club for the Labor Party and had been found out in respect thereof;
(f) that each of the second, third, fourth, fifth, sixth, seventh and eighth plaintiffs as a Director of the Randwick Labor Club had been involved in the donation of $125,000.00 of tainted money to the Labor Party”.

7    By letter dated 1 June 1998, the defendant’s solicitors informed the plaintiffs’ solicitors that the defendant would seek the following orders:

“1. Imputation 5(b) be struck out on the ground that it does not differ in substance from imputation 5(a).
2. Imputation 5(f) be struck out on the ground that it does not differ in substance from imputation 5(a).
3. Imputation 5(g) be struck out on the ground that it does not differ in substance from imputation 5(b);
4. Paragraph 6 be struck out on the ground that it fails to plead imputations alleged to be defamatory of each plaintiff separately.
5. Imputations 6(a) and 6(b) be struck out as they are each ambiguous, vague, embarrassing and objectionable in form.
6. Imputation 6(e) be struck out on the ground that it does not differ in substance from either imputation 6(a) or imputation 6(b).
7. Imputation 6(f) be struck out on the ground that it does not differ in substance from imputation 6(b)”.

8    It will be seen that the defendant’s complaint related to imputations 5(b), 5(f) and 5(g) with respect to the first plaintiff. Its complaint related to imputation 6(a), (b), (e) and (f) concerning the other plaintiffs. 9    It can be seen from that letter that the defendant was raising no issue as to “capacity”. Written submissions were delivered by Mr Blackburn of counsel for the defendant in support of the application conformably with the complaints set out in his instructing solicitors’ letter. 10    On 12 June 1998 argument took place in relation to the objections taken by the defendant as to form and difference in substance. The ex tempore judgment delivered by me on that day brought about the following outcome. 11    Imputation 5(b) was struck out as not differing in substance from imputation 5(a). The judgment does not indicate that any leave to replead was granted. 12    Imputation 5(f) was struck out with leave to replead. 13    Imputation 6(a) was struck out with leave to replead. 14    Imputation 6(b) was struck out with leave to replead. 15    Imputation 6(e) was struck out with leave to replead. 16    Imputation 6(f) was not struck out. 17    Consequent upon my ruling as to questions of “form” the plaintiffs thereupon moved the Court under SCR Pt 31 r 2 to have determined as a matter of law whether the matter complained of was capable of conveying “certain of the imputations as remained following my earlier ruling” (that is, as to form). The judgment then proceeds to deal only with imputations 5(c) and 5(d) both of which were held to be capable of arising (p 6). 18    By the Amended Statement of Claim filed on 22 December 1998 after the delivery of the ruling on 12 June 1998, the plaintiffs plead the following imputations: 19    The first plaintiff pleads:

“5(a) the first plaintiff was a slush fund Club for the Labor Party;
(b) the first plaintiff had falsified its records and books as part of its activities as a slush fund Club for the Labor Party;
(c) the first plaintiff had committed a large number of serious licensing offences;
(d) the conduct of the first plaintiff was such as to warrant it being reasonably suspected of having committed a large number of serious licensing offences;
(e) the first plaintiff was caught out by the police as the repository of a secret slush fund of tainted money which it had accumulated for the use of the Labor Party; and
(f) the first plaintiff had donated $125,000.00 of tainted money to the Labor Party”.

20    The remaining plaintiffs plead:

“6 The matter complained of in paragraph 4 above in its natural and ordinary meaning conveyed the following imputations defamatory of each of the Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Plaintiffs:
(a) the plaintiff was a director of the first plaintiff whilst knowing it to be a slush fund Club for the Labor Party;
(b) the plaintiff by virtue of being a director of the Randwick Labor Club was involved in the falsification of the records and books of the Club as part of its activities as a slush fund Club for the Labor Party;
(c) the plaintiff’s conduct as a director of the Randwick Labor Club was such as to warrant the plaintiff being reasonably suspected of being involved in the Club committing a large number of serious licensing offences;
(d) the plaintiff as a director of the Randwick Labor Club was caught out by the police whilst trying to conceal a secret slush fund of tainted money which the Club had accumulated for the use of the Labor Party; and
(e) the plaintiff as a director of the Randwick Labor Club had been involved in the donation of $125,000.00 of tainted money to the Labor Party”

21    It is to be noted that there has not been appended to the Amended Statement of Claim the Schedule appended to the original pleading. In Chan v TCN Channel Nine Pty Limited (unreported, 27 November 1997 at 2) I directed that, for obvious practical purposes, the Schedule should be attached to each form of the Statement of Claim. 22    The defendant now seeks to strike out imputation 5(a) and (b) and 6(a) and (b) on the ground that they are imprecise because of the use of the terms “slush fund” and “slush fund club”. 23    The defendant did not avail itself of the occasion on 12 June 1998 when it did argue questions of form to advance this precise argument. It does seem clear from page 4 of my earlier judgment that there was some consideration of the words “slush fund” but it is not apparent that it was elevated to the level to which the defendant now seeks to raise it. 24    By reference to the Macquarie Dictionary definition of a “slush fund” it is argued that the word is imprecise. The definition is “a fund for use in campaign propaganda or the like, especially secretly or illicitly, as in bribery”. To my mind “slush fund” is quite an uncomplicated expression particularly as used in this matter complained of. 25    Imputation 5(a) is not struck out and I find it to be capable of being defamatory of the first plaintiff. 26    As to imputation 5(b) of the Amended Statement of Claim this is in substitution for 5(c) of the original Statement of Claim. It has been ruled on as capable of arising. The defendant’s only remedy is by way of an appeal. In regard to this aspect no doubt the defendant would seek to argue that the program is about “allegations” and not about “guilt”. If the matter arises for further consideration particular attention will no doubt be paid to those words attributed to Mr Adam Walters “the alleged breaches relate mainly to irregularities in record keeping and book work”. What is there alleged are “breaches”. What is stated to be the fact are the “irregularities”. In its present form there is no further order I can make in relation to imputation 5(b) in the Amended Statement of Claim. 27    As to imputation 5(c) in the Amended Statement of Claim that has been ruled upon and can be the subject of appeal only. 28    Imputation 5(d) has not been ruled upon in that form and it is clearly what is known as a “suspicion” imputation which, in my view, is clearly capable of arising, is clearly capable of being defamatory and will thus go to the jury. 29    Imputation 5(e) is new; is capable of arising and is satisfactory as to form. 30    As to 5(f) this is the equivalent of the earlier imputation 5(g) which I declined to strike out and which is not the subject of any submission and therefore will go to the jury. My finding is that it is good in form, capable of arising and capable of being defamatory. 31    I turn now to the imputations pleaded in respect of the other plaintiffs (paragraph 6) 32    Dealing first with the “slush fund” point: the imputations 6(a), (b) and (d) will not be struck out. 33    Imputation 6(b) is repleaded in substitution for the original imputations 6(a) and (c). The earlier judgment indicates no ruling on capacity in relation to any of the imputations pleaded in respect to the individual plaintiffs. Subject to a matter with which I will deal below namely, the relationship of being a “director” and “involvement”, I will observe that the consideration of “guilt” and “suspicion” arises in this regard but again subject to the reservation to which I will come, I am of the view that the reference in the program to books and records is such as to render the matter complained of capable of giving rise to an imputation of “guilt” in regard thereto but not in relation to “breaches”. This imputation does not plead breaches; it is concerned with the actual book work. 34    Imputation 6(c) does deal with breaches or the commission of a large number of serious licensing offences but on a “suspicion” basis. Without turning to the matter reserved for consideration below, I am of the view that the matter complained of is capable of giving rise to an imputation of suspicion in relation to the commission of offences. Imputation 6(c) will thus go to the jury. 35    As to imputation 6(d), the notion of being “caught out” is clearly capable of being conveyed by use of the word “raided” and the continuation of audits and other checks. The imputation however is not defective in form by the use of the expression “whilst trying to conceal a secret slush fund”. That to which each of the plaintiffs’ is otherwise directing the imputation is the plaintiff being a director and knowingly involved in the conduct of a “slush fund” of tainted money which the Club had accumulated for the use of the Labor Party. 36    Imputation 6(e), subject to the outstanding matter, is capable of arising and capable of being defamatory. 37    I now turn to the “reserved” or “outstanding” matter. It is contended by the defendant that the problems arise in the expression “involved in”. It was previously argued in relation to “participant” in the earlier imputations that that word was a “weasel” word. It is contended that the same quality attends the expression “involved in”. It is suggested that the defect can be cured to some extent by the insertion of the word “knowingly” before “involved in”. I agree that this would clarify the matter. However, I do not see any deficiency in the mere assertion of the individual plaintiff to be a director and involvement in (even without the word “knowingly” inserted) because the program in its opening word states that the club was “run” by senior Labor party figures and then proceeds to identify them by photograph and name as members of the Board. 38    As I have indicated I am of the view that the matter complained of is capable of conveying that the directors “knew” that the club was a source of tainted money for the Labor Party. I have come to that view contrary to the submission of Mr Blackburn that it would not be arrived at even making proper allowance for loose thinking on the part of the ordinary reasonable viewer but taking into account the opening line to which I have referred. 39    Accordingly I rule the status of the imputations is the Amended Statement of Claim to be as follows:

“5(a) the first plaintiff was a slush fund Club for the Labor Party;
is capable of arising and will go to the jury.


(b) the first plaintiff had falsified its records and books as part of its activities as a slush fund Club for the Labor Party;
is capable of arising and will go to the jury.


(c) the first plaintiff had committed a large number of serious licensing offences;
is capable of arising and will go to the jury.


(d) the conduct of the first plaintiff was such as to warrant it being reasonably suspected of having committed a large number of serious licensing offences;
is capable of arising and will go to the jury.


(e) the first plaintiff was caught out by the police as the repository of a secret slush fund of tainted money which it had accumulated for the use of the Labor Party; and
is capable of arising and will go to the jury.


(f) the first plaintiff had donated $125,000.00 of tainted money to the Labor Party.
is capable of arising and will go to the jury.


6(a) the plaintiff was a director of the first plaintiff whilst knowing it to be a slush fund Club for the Labor Party;
is capable of arising and will go to the jury.


(b) the plaintiff by virtue of being a director of the Randwick Labor Club was knowingly involved in the falsification of the records and books of the Club as part of its activities as a slush fund Club for the Labor Party;
is capable of arising and will go to the jury.


(c) the plaintiff’s conduct as a director of the Randwick Labor Club was such as to warrant the plaintiff being reasonably suspected of being knowingly involved in the Club committing a large number of serious licensing offences;
is capable of arising and will go to the jury.


(d) the plaintiff as a director of the Randwick Labor Club was caught out by the police whilst trying to conceal a secret slush fund of tainted money which the Club had accumulated for the use of the Labor Party; and
is capable of arising and will go to the jury.


(e) the plaintiff as a director of the Randwick Labor Club had been involved in the donation of $125,000.00 of tainted money to the Labor Party”.
is capable of arising and will go to the jury.

40    The appropriate order for costs must be that the defendant pay the plaintiffs’ costs. 41    The formal orders are:

1. Imputations 5(a) to (f) and 6(a) to (e) in the Amended Statement of Claim will go to the jury.

2. The defendant is to file a defence to the Amended Statement of Claim within 14 days.

3. The plaintiffs are to file any Reply to any such Defence within 14 days.

4. Particulars of Defence and Reply are to be requested within 7 days of service and provided within 14 days of the request.

5. Verified Lists of Documents are to be exchanged within 21 days of the supply of particulars.

6. Inspection of documents to take place within 14 days of delivery of the Verified List of Documents.

7. Interrogatories to be delivered within 14 days of inspection and answered within 21 days of delivery.

8. The defendant is to pay the plaintiffs’ costs of the proceedings on 13 August 1999.

9. The matter is listed for further directions on 19 November 1999.

10. Otherwise, liberty to restore to the Defamation List on 7 days notice after the expiry of the times fixed in Order (2) to (4) hereof.

***********



Schedule A


ANN SANDERS: A Sydney Club run by senior Labor Party figures may be charged with breaching licensing laws 13,000 times.

The astonishing figure is being investigated by detectives who raided the Randwick Labor Club.

ADAM WALTERS: (Camera shots of Club from outside)

It is not just another poker machine palace, it’s as close as it gets to the New South Wales ALP’s inner sanctum but the Labor Party’s back rooms have been gate-crashed by the police investigating more than 13,000 alleged breaches of the Liquor and Licensing Act.

(Single camera shot of photograph of all Board members)

(Close up camera shot of certain Board Members with names printed underneath)

The Club’s board reads like who’s who of Labor Party number crunchers including right wing power broker and former Upper House President, John Johnno Johnson and senior ALP strategist, Ken Murray.

RICHARD BULL: If these alleged 13,000 breaches are to be found, then these Directors are going to have to … mount a … answer to a please explain.

ADAM WALTERS: The alleged breaches relate mainly to irregularities in record keeping and book work.

Senior police have confirmed the Club continues to undergo audits and other checks by detectives from the Licensing Enforcement Agency.

(Camera shots of NSW Premier Bob Carr meeting patrons)

The Club’s patrons include Premier Bob Carr - seen here revelling in his election victory at what’s become the traditional venue for ALP celebrations.


(Camera shots of documents)

Official documents on election funding show that between November 1991 and January 1995 the Club donated $125,000.00 to the Labor Party.

RICHARD BULL: It is obviously their slush fund Club in the eastern suburbs. This is in Bob Carr’s heartland.

ADAM WALTERS: Adam Walters - Sydney Nightly News”.

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Last Modified: 09/03/1999