Reynolds v Nationwide News Pty Ltd

[2012] VSC 226

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 584 of 2012
No. 607 of 2012

KERYN-LOUISE ELIZABETH REYNOLDS	Plaintiff
v
NATIONWIDE NEWS PTY LTD CHIP LE GRAND	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2012
DATE OF JUDGMENT:	1 June 2012
CASE MAY BE CITED AS:	Reynolds v Nationwide News Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 226

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PRACTICE AND PROCEDURE – Defamation – Multiple defamation proceedings – Whether publication of like matter – Defendants’ application to stay or consolidate second proceeding – Application refused – Lange qualified privilege – Pleadings – Plaintiff’s applications to strike out Lange qualified privilege defences – Applications refused – Supreme Court (General Civil Procedure) Rules 2005, rule 23.02 – Defamation Act 2005, s 23.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. P. Gilbertson	HWL Ebsworth Lawyers
For the Defendant	Mr J. P. Cashen	Kelly Hazell Quill Lawyers

HIS HONOUR:

Introduction

1. There are two proceedings in this Court issued by Keryn-Louise Elizabeth Reynolds (“the plaintiff”) against Nationwide News Pty Ltd (“the first defendant”) and Chip Le Grand (“the second defendant”).

1. In the first proceeding (numbered 584 of 2012), the plaintiff claims damages for defamation against the defendants in respect of articles published on 10 December 2011 (“the first article”) and 22 December 2011 (“the second article”).  In a subsequent proceeding (numbered 607 of 2012), the plaintiff claims damages for defamation from the defendants in respect of an article published on 12 December 2011 (“the second proceeding article”).

1. In each proceeding, the defendants have pleaded, amongst other defences, Lange[1] qualified privilege defences.  That is, in each proceeding, the defendants have pleaded in their defences that each article was a communication concerning government and political matters which affected the people of Victoria, the publication of which was reasonable in the circumstances, and therefore the publication of which was made on an occasion of qualified privilege (paragraphs 9(c) and 13(b) of the defendants’ defence in the first proceeding and paragraph 9(c) of the defendants’ defence in the second proceeding).

   [1]Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

The applications before the Court

1. Broadly speaking, there are two applications before the Court. First, the defendants seek to strike out the writ and statement of claim in the second proceeding; alternatively they seek to consolidate both proceedings. The defendants’ application is made on the grounds that the second proceeding has been brought without leave in contravention of s 23 of the Defamation Act 2005. Section 23 of the Defamation Act provides:

“If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, a person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the Court in which the further proceedings are to be brought.”

1. In the second application, the plaintiff seeks to strike out the defendants’ Lange qualified privilege defences pleaded in paragraphs 9(c) and 13(b) of the first proceeding  (584 of 2012) and paragraph 9(c) of the defendants’ defence in the second proceeding (607 of 2012).

The first article

1. The first article was published under the heading “OPI let toxic culture of bullying flourish”.  It contained the following passages:

“A toxic culture of bullying and intimidation that was allowed to flourish within Victoria’s Office of Police Integrity resulted in the resignation of two intelligence officers, the hospitalisation of two staff members for stress-related conditions and three staff being placed on antidepressant medications to cope at work.

…

…  [D]ocuments obtained by the Weekend Australian show that Keryn Reynolds, the manager appointed in January to manage the Intelligence Unit, was kept in her job until October despite her superiors being made aware of concerns that her treatment of staff was intimidating, could lead to bullying claims and was in breach of the organisation’s code of conduct.

…

Ms Reynolds left the OPI in October after two of her staff had quit and two taken indefinite stress leave.  The OPI is expected to be wound up by mid next year, when it will be replaced by the Baillieu government’s new Independent Broad based Anti-Corruption Commission.”

1. By paragraph nine of her statement of claim in the first proceeding, the plaintiff alleges that the first article meant and was understood to mean that:

“(a) throughout her time as manager of the Intelligence Unit of the OPI, the plaintiff behaved as an aggressive bully who repeatedly threatened, intimidated and abused staff;

(b) the plaintiff threatened and intimidated OPI staff to such an extent that they suffered stress-related illnesses that were so serious that they required hospitalisation and the provision of other professional medical treatment;

(c) the plaintiff was not a fit and proper person to be the manager of the Intelligence Unit of the OPI;

(d) the plaintiff threatened to sack OPI staff who did not agree with her views;

(e) the plaintiff threatened to expose and discipline any staff member who complained to her superiors about her conduct.”

1. By paragraph 9(c) of their defence in the first proceeding, the defendants plead:

“If (which is denied) the first article was defamatory of the plaintiff and bore or was understood to bear any of the meanings alleged in sub-paragraphs 9(a) to (e),

(i) the publication of the first article was a communication concerning government and political matters which affected the people of Victoria;

(ii) the conduct of the first and second defendants in publishing the first article was reasonable in the circumstances;  and

(iii) the first article was therefore published on an occasion of qualified privilege.”

1. Particulars of this qualified privilege defence are then given as follows:

“(i) The first article concerned the working environment within a Victorian statutory body established to receive complaints about police and conduct investigations into allegations of serious police misconduct and corruption.

(ii) In publishing the first article, the defendants relied on information contained within sworn statutory declarations, which they believed to be accurate.

(iii) The second defendant approached the plaintiff for comment in relation to the allegations contained in the first article and included the extent of her denials within the first and second articles.”

1. On 31 May 2012, the defendants gave notice of an intention to amend their Lange qualified privilege defences.  Specifically, so far as the first article is concerned, the defendants gave notice of an intention to amend paragraph 9(c) of the defence in the first proceeding.  The amendment does not alter the substance of the plea.  However, the amendment re-particularises the plea, giving 22 paragraphs of particulars in respect of the allegation that the publication of the first article was a communication concerning government and political matters which affected the people of Victoria.  These particulars replace the former particular numbered (i).  The former particulars numbered (ii) and (iii) are then provided solely in respect of the allegation that the conduct of the defendants in publishing the first article was reasonable in the circumstances.

The second article

1. The second article was published under the heading “Bullied OPI analyst wins compo”.  It contained the following passages:

“An Office of Police Integrity intelligence analyst who was allegedly subjected to ‘threatening, aggressive, abusive, intimidating’ behaviour by her boss has secured a workers’ compensation claim against the police watchdog.

…

The Community and Public Sector Union has written to the Victorian Workcover Authority urging it to refer bullying allegations against Keryn Reynolds, the former manager of the OPI’s Intelligence Unit, to the State’s Occupational Health and Safety Inspectorate for investigation.  Ms Reynolds disputes the allegations.  She resigned from the OPI in October and is working as a mediation consultant.

…

The analyst claims the bullying became personally directed towards her, and was more covert after she stood up to Ms Reynolds.  By July, her work was suffering to the point where she feared she may have compromised an OPI investigation.”

1. The second article makes reference to the first article, republishing within it the first article heading with the caption “How the Weekend Australian broke the story on December 10”.

1. By paragraph 13 of her statement of claim in the first proceeding, the plaintiff contends that the second article meant and was understood to mean that:

“(a) As a manager of the Intelligence Unit of the OPI, the plaintiff behaved as an aggressive bully who repeatedly threatened, intimidated and abused staff;

(b) the plaintiff threatened and intimidated OPI staff to such an extent that they suffered stress-related illnesses that were so serious that they required hospitalisation and the provision of other professional medical treatment”

1. By paragraph 13(b) of their defence in the first proceeding, the defendants plead a Lange qualified privilege defence in the same terms as they pleaded in respect of the first article.  The particulars relied upon by the defendants in respect of the Lange qualified privilege defence to the second article are the same as the particulars relied upon in respect of the first article.

1. On 31 May 2012, the defendants gave notice of an intention to amend paragraph 13(b) of their defence in the first proceeding.  The amendment sought to be made follows the same lines as that set out in paragraph 10 above.

The second proceeding article

1. The second proceeding article was published under the heading “’False claims’ against OPI staff”.  Like the second article, the second proceeding article has within it a copy of the heading of the first article (“OPI let toxic culture of bullying flourish”) with the caption “How the Weekend Australian broke the story”.

1. The second proceeding article contains the following passages:

“False claims of poor work performance were levelled against Office of Police Integrity staff who stood up to a culture of bullying in the organisation, a former manager alleges.

A sworn statement by a former senior manager at the OPI, submitted to the Victorian Workplace (sic) Authority as part of compensation claims by staff, details ‘covert’ tactics used by Keryn Reynolds, the manager of the organisation’s Intelligence Unit, against staff who questioned her.

These include recommending the sacking of a strategic intelligence analyst who had just received a glowing performance review, and changing procedures without advising all staff and then abusing those who did not follow them.

…

It was at this point that Ms Reynolds’ approach became more covert, the statement says.  In one instance, she recommended the contract of an intelligence analyst be terminated on the basis that he had provided false and misleading information – a claim at odds with the commendation he had just received from the government and the OPI Executive for his ‘excellent work’.

…

The OPI declined to comment on the workplace culture within the organisation, which is expected to be abolished and replaced in the middle of next year by the Baillieu government’s new Independent Broad-based Anti-corruption Commission.”

1. By paragraph nine of her statement of claim in the second proceeding, the plaintiff alleges that the second proceeding article meant and was understood to mean that:

“(a) the plaintiff deliberately falsified claims of poor work performance against OPI staff who complained of bullying;

(b) the plaintiff behaved in a clandestine and underhand manner against OPI staff who questioned her authority in that she recommended the sacking of a strategic intelligence analyst who had just received a glowing performance review and she changed procedures without notifying staff and then abused those who did not follow them”.

1. By paragraph 9(c) of their defence in the second proceeding, the defendants pleaded a Lange qualified privilege defence in the same terms as those defences were pleaded in the first proceeding.  This defence was supported by particulars pleaded in the same terms (but relevant to the second proceeding article) as those set out in the defence in the first proceeding.

1. Again, on 31 May 2012, the defendants gave notice of an intention to amend their Lange qualified privilege defence in paragraph 9(c) of their defence in the second proceeding.  While the amendment follows closely the proposed amendments I have already described,[2] there are some corrections that need to be made.[3]

   [2]See paragraph [10] above.

   [3]Wherever in the proposed amendment the expression “the first article” is used, it should be “the article”;  and where the expression “the first and second articles” is used, it should be “the article”.

The defendants’ application

1. I turn first to consider the defendants’ application. The application turns on whether the second proceeding article is the same as, or like, the first and second articles. Clearly, the second proceeding article is not the same as the first and second articles. The question is whether it is “like” the first and second articles in the sense that the second proceeding article is “like matter” within the meaning of s 23 of the Defamation Act, so far as the first and second articles are concerned.

1. It can be accepted that the subject matter of the first and second articles on the one hand and the second proceeding article on the other hand is, at one level, the same – being related to the activities and behaviour of the plaintiff while she was employed in the Office of Police Integrity (“the OPI”).  However, at another level, the first and second articles are different from the second proceeding article.  While the first and second articles concern allegation of threats, bullying and intimidation by the plaintiff in her position at the OPI, the second proceeding article deals with a different topic – namely covert tactics allegedly used by the plaintiff, and the making of false claims of poor work performance.

1. The principles in relation to what is “like matter” within the meaning of s 23 of the Defamation Act have been dealt with by Kaye J in Buckley v The Herald and Weekly Times & Anor (No 2),[4] by Nicholas J in Waterhouse v Age Company Limited[5] and by Simpson J in Rastogi v Nolan.[6]  As was said by Kaye J in Buckley (No 2) at paragraph [15]:

“In order that there be a relevant ‘likeness’ for the purposes of s 23, the similarities between the matter sued on in the earlier proceedings, and the matter the subject of the present proceeding, must, in a real sense, be significant and substantial. It is not sufficient that there be some similarity, or common features, between the two sets of publications … there must be a real and substantial similarity between the two sets of publications”.

[4][2008] VSC 475.

[5][2011] NSWSC 159.

[6][2010] NSWSC 735.

1. Further, as Kaye J said:[7]

“In determining whether the plaintiff has, in the present proceeding, claimed damages in relation to ‘like matter’ to that which is the subject of the earlier proceeding, it is important to bear in mind that the relevant ‘likeness’, posited by s 23, is between the articles in the two sets of proceedings, and not just between the imputations pleaded by the plaintiff in the two sets of proceedings. The imputations – or false innuendos – pleaded by the plaintiff in the two proceedings are the defamatory meanings which the plaintiff contends were borne by the publications in question. The test postulated by s 23 is not that of likeness between the sets of meanings pleaded and relied upon by the plaintiff. Rather, the relevant test is that of likeness between the articles or publications relied upon by the plaintiff in the two proceedings. Obviously, the imputations pleaded by the plaintiff in each proceeding are relevant, indicating the defamatory meanings which the plaintiff seeks to place on the two sets of publications. However, the imputations pleaded by the plaintiff, and any identity or commonality between them, cannot be determinative of the issue.”[8]

[7]Buckley v The Herald and Weekly Times & Anor (No 2) [2008] VSC 475, [13].

[8]See further, Waterhouse v Age Company Limited [2011] NSWSC 159, [48]-[50].

1. I am not satisfied that there is a real and substantial similarity between the first and second articles on the one hand and the second proceeding article on the other hand.  The second proceeding article is significantly different from the first and second articles in its allegations concerning covert tactics used by the plaintiff and the making of false claims of poor work performance. The first and second articles are, on the other hand, concerned with allegations concerning bullying, intimidation and threats by the plaintiff.  In the circumstances, the defendants’ application to strike out the writ and statement of claim in the second proceeding must fail.  Further, when one examines the Court of Appeal’s reasoning in Buckley v The Herald & Weekly Times Pty Ltd[9] and applies that reasoning to the facts in this case, there are no grounds for ordering the consolidation of the two proceedings.

   [9](2009) 24 VR 129.

1. It follows that the defendants’ application to strike out the writ and statement of claim in the second proceeding (607 of 2012) must fail, as must their alternative application to consolidate the two proceedings.

The Lange qualified privilege defences

1. I turn now to the plaintiff’s application in each proceeding seeking to strike out the defendants’ Lange qualified privilege defences. The applications are made pursuant to rule 23.02, which relevantly provides that a defence may be struck out if it does not disclose a defence; if it is scandalous, frivolous or vexatious; if it may prejudice, embarrass or delay the fair trial of the proceeding; or if it is otherwise an abuse of the process of the Court.

1. In each proceeding, it is submitted on behalf of the plaintiff that what is missing in the Lange qualified privilege defences is the relevant nexus between the discussion in the articles sued upon and the concepts of representative and responsible government.  I have considered the plaintiff’s submissions and read the authorities to which I have been referred.  Having done so, I have been unable to conclude that the Lange defences are not arguable in the circumstances of these cases. Further, each defence is properly pleaded.  That is all that needs to be said so far as the plaintiff’s applications are concerned.  The defences being arguable and properly pleaded, they should be allowed to proceed to trial.  It follows that the plaintiff’s applications to strike out the Lange qualified privilege defences must be dismissed.

Conclusion

1. The applications of the plaintiff and the defendants in each proceeding will be dismissed.  I will hear the parties on the form of order and any question of costs.