Tate v Australian Broadcasting Corporation
[2019] FCA 610
•3 May 2019
FEDERAL COURT OF AUSTRALIA
Tate v Australian Broadcasting Corporation [2019] FCA 610
File number: QUD 722 of 2017 Judge: BROMWICH J Date of judgment: 3 May 2019 Catchwords: DEFAMATION – applicant sought leave to file further amended statement of claim and to have certain particulars of truth in first respondent’s amended defence struck out – first respondent sought leave to file further amended defence and to have certain imputations in applicant’s amended statement of claim struck out – where adjudication is on the capacity of an imputation or particular of truth to be made out as a question of law, not as to whether it is made out as a question of fact – held: leave to be granted for applicant and first respondent to file amended pleadings – pleadings of applicant and first respondent not struck-out to the extent sought – one reference in the first respondent’s particulars that lacked nexus to imputation struck out Legislation: Defamation Act 2005 (NSW) s 25 Cases cited: New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports 81-502
Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473
Trkulja v Google LLC [2018] HCA 25; 356 ALR 178
Date of hearing: 13 December 2018 Date of last submissions: 1 February 2019 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 49 Counsel for the Applicant: Mr P W Gray SC with Ms G R Rubagotti Solicitor for the Applicant: Hickey Lawyers Counsel for the Respondents: Mr A T S Dawson SC with Mr T Senior Solicitor for the Respondents: Australian Broadcasting Corporation Legal Services
Table of Corrections 22 May 2019 In paragraph 34, “s 26” has been replaced with “s 25”. 22 May 2019 In paragraphs 34, 35, 36, 42 and 45, the word “contextual” has been removed. ORDERS
QUD 722 of 2017 BETWEEN: THOMAS RICHARD TATE
Applicant
AND: THE AUSTRALIAN BROADCASTING CORPORATION
First Respondent
PETER YOUNG
Second Respondent
JUDGE:
BROMWICH J
DATE OF ORDER:
3 MAY 2019
THE COURT ORDERS THAT:
1.The parties provide draft agreed or competing orders to the Chambers of Justice Bromwich within 14 days:
(a)reflecting these reasons;
(b)as to how the question of costs should be determined; and
(c)addressing the future conduct of the proceeding.
2.The proceeding be listed for a further case management hearing on a date to be fixed in consultation with the parties.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BROMWICH J:
This is an adjudication of a pleading dispute in a defamation proceeding. The pleading dispute is between the applicant, Mr Thomas Tate, and the first respondent, the Australian Broadcasting Corporation (ABC). The second respondent, Mr Peter Young, did not participate in this interlocutory dispute.
In September 2017, the ABC broadcast an edition of its current affairs programme, Four Corners, with the title “All that glitters”. It was broadcast twice more, and a copy made available for streaming on the ABC website. A transcript of most of what was broadcast was also placed on that website (ABC transcript). The three matters complained of are the broadcasts (original and repeats), the copy of the broadcast made available on the ABC website, and the ABC transcript.
The matters complained of may be generally described as a current affairs report on property development on the Gold Coast, including commentary on how development approvals may have been affected by the influence of property developers on local politicians, including by way of political donations, and the governance of the Gold Coast City Council. Mr Tate, was (and still is) the Mayor of the Council. He contends that the matters complained of contain various imputations of corruption, dishonesty and dereliction of duty, as set out in full below. On 14 December 2017, he commenced defamation proceedings in this Court, by way of an originating application and statement of claim.
“All that glitters” was played in open court, aided by the full transcript annexed to the statement of claim, as amended. I do not propose to reproduce or to summarise in any detail the matters complained of, not least because no concluded view on any factual conclusion is either necessary or appropriate at this stage. It is convenient to refer to the matters complained of, in their various forms, as the program.
The original statement of claim, and the ABC’s defence, have been through several iterations without the need for adjudication. The correspondence and submissions before the Court reveal a significant measure of compromise, adjustment and agreement between the parties. There remains for adjudication a focused but substantial dispute as to confined aspects of the final proposed version of Mr Tate’s statement of claim and the ABC’s final defence.
The form of the imputations ultimately sought to be relied upon by Mr Tate, pleaded at [10] of his proposed further amended statement of claim (FASOC), are as follows (accepting marked‑up changes, omitting particulars, and replacing “(a)” through to “(i)” with “A” to “I” for ease of reference):
AThe Applicant is a corrupt politician, who, as Mayor of the Gold Coast, supports Gold Coast construction projects undertaken by developers who have made political donations to Councillors even though the projects are not in the interests of the Gold Coast community.
BThe Applicant swindled the members of the Surfers Paradise Bowls Club out of their clubhouse and bowling greens so as to profit from a $300 million development deal.
CAs Mayor of the Gold Coast, in a blatant conflict of interest, the Applicant voted to sell off significant Council assets corruptly to obtain a financial benefit for himself.
DIn dereliction of his duties as Mayor of the Gold Coast, the Applicant voted to approve a development deal for a friend whose law firm corruptly funnelled tens of thousands of dollars from Gold Coast developers to Council candidates.
EAs Mayor of the Gold Coast, the Applicant dishonestly claimed that a public lake, which was home to dozens of species of bird and aquatic life, was toxic so he could drain it and licence it to the Gold Coast Turf Club, of which he is a member, for use as a car park.
FIn dereliction of his duties as Mayor of the Gold Coast, the Applicant favoured the interests of Chinese developers rather than the interests of the Gold Coast community by supporting a massive 3 billion dollar high rise resort and casino complex on pristine Crown land on the Gold Coast.
GThe Applicant is a thin-skinned autocrat who orchestrated the sacking of a journalist who spoke out against him.
HIn dereliction of his duties as Mayor of the Gold Coast, the Applicant deliberately keeps crucial information concerning construction projects in the Gold Coast secret from the local community in order to avoid public scrutiny.
IIn dereliction of his duties as Mayor of the Gold Coast, the Applicant is spruiking a dangerous cruise ship terminal development at the Gold Coast, whilst deliberately hiding the financial and safety risks from the community.
JAs Mayor of the Gold Coast, the Applicant rides roughshod over Council approval processes and the interests of the Gold Coast Community in order to advance his own interests.
KIn dereliction of his duties as Mayor of the Gold Coast, the Applicant favours his own interests and those of his associates over the interests of the local community.
LThe Applicant uses his position as Mayor of the Gold Coast to advance his own interests and those of his associates.
It should be noted that imputation K and L were originally in the ABC’s amended defence and have been appropriated by Mr Tate. The ABC does not object to the FASOC being filed with imputations in the above form, but does object to a further variation to imputation A sought to be relied upon by Mr Tate, discussed and adjudicated upon below. The ABC:
(1)does not take any substantial issue with publication, save as to the dates upon which they occurred and the means of viewing the episode on the ABC’s website;
(2)denies any of the imputations are conveyed;
(3)pleads in the alternative, or now seeks to plead, that if any imputations are established, defences of:
(a)justification at common law or by statute, based on substantial truth as to imputations A to F and H to J;
(b)contextual truth as to all imputations;
(c)fair comment and honest opinion as to imputations C, G and H; and
(d)qualified privilege as to the totality of the program; and
(4)pleads mitigation of damage relying upon the truth of any of the imputations, matters proved at trial and the circumstances of publication.
Further amendment of imputation A
At the interlocutory hearing, Mr Tate sought to amend imputation A so that it read as follows:
The Applicant is a corrupt politician who, as Mayor of the Gold Coast, supports Gold Coast construction projects undertaken by developers who have unlawfully influenced Council decisions by making political donations to Councillors despite his knowledge that the projects are not in the interests of the Gold Coast community.
That further amendment is opposed, as set out in supplementary submissions for the ABC dated 21 December 2018, and responded to by Mr Tate in reply submissions dated 1 February 2019, as ordered at the interlocutory hearing.
Mr Tate sources this revised imputation from the totality of the program, but especially the full transcript at lines 20 to 33 and significant portions of lines 261 to 324, in the context of lines such as 114 to 125 and 466 to 479, concerning the way in which Mr Tate is said, as Mayor, to run the Council. For the purposes of this adjudication, the focus will be on those portions, because, if the basis for the amendment sought cannot be made out by reference to them, it cannot be made out at all. It is important to note that this is an adjudication as to the capacity to support the imputation relied upon as a question of law, not any decision as to whether that imputation is made out as a question of fact.
The determination thus concerns whether the imputation is fit to proceed to a factual determination at all, not what that factual determination should ultimately be. This distinction is of fundamental importance. Even if the asserted imputation might be seen as tenuous, provided it is capable, as a matter of law, of being established to the satisfaction of an ordinary reasonable person, that is an assessment to be approached with generosity and not at the level of the final conclusion to be reached, which is a step to be left for the tribunal of fact: see generally Trkulja v Google LLC [2018] HCA 25; 356 ALR 178 at [30]-[32]. In this Court, there is even less incentive to erect pleading barriers of capacity to an imputation proceeding to trial unless clear and stark, because there will seldom, if ever, be a jury; and of course much the same reasoning applies to objections to defences. Of course, pursuit of a weak, but legally available, imputation (or defence) may later have greater costs consequences if it ultimately fails.
In summary, and for present purposes only, the program refers to allegations that Mr Tate and “his council” are approving property developments in the face of community opposition, with important information being kept from the public, and supporting projects by developers who have made political donations where there may be conflicts of interest. The program describes and provides some details of an inquiry being conducted by the Queensland Crime and Corruption Commission into whether council decisions have been unlawfully influenced by developer donations, including replaying a recording of part of Mr Tate’s evidence at that inquiry. It refers to “growing calls” for developer funding of council elections to be banned. It notes that developer donations are not illegal, but that the Commission is concerned that donations are unlawfully influencing council decisions. It reproduces evidence from a Commission hearing in which the deputy mayor, Ms Donna Gates, as the recipient of developer donations, remained at a Council meeting and voted, implicitly despite having a declared conflict of interest. Mr Tate asserts that the proposed form of imputation A is one available way of reading and understanding the program.
The ABC advances arguments as to why the program cannot, as a matter of law, be read and understood as giving rise to the proposed amended form of imputation A. The passages relied upon are sought to be contextualised to demonstrate the qualified way in which they should be read, and the absence of a proper basis for, or the textual weakness for, the conclusions that Mr Tate will seek to have the Court reach. However, those arguments go to the ultimate conclusion to be formed as to whether the imputation can be made out, rather than whether this is an available way to read the portions relied upon as a matter of law, however inferior they may ultimately be found to be to other interpretations. It is not to the point that the proposed amended form of imputation may be seen, on the ABC’s argument, to lack the nuance and qualification of the program.
I am therefore satisfied that leave should be granted to Mr Tate to file the FASOC in the further amended form set out at [6] above, as amended as to imputation A at [8] above. Correspondingly, the ABC has leave to amend its defence to meet that amended imputation. The amended imputation is sufficiently materially different so as to make any adjudication upon the prior objections Mr Tate had to the existing proposed further amended defence (PFAD) unproductive. The ABC should, if at all possible, endeavour to plead this part of its defence in a way that avoids Mr Tate’s previous objections taken, so as to reduce the need for any further adjudication, noting that its defence that the imputation does not arise will presumably be maintained. Similarly, Mr Tate should revisit his objections to ensure that they are appropriately questions for the tribunal of law, rather than the tribunal of fact. As the balance of these reasons will indicate, a parsimonious and pedantic approach to pleading in defamation is not to be encouraged, although objections requiring adjudication may sometimes be necessary if the defect is sufficiently manifest.
Mr Tate’s objection to defence pleadings of truth
Particulars of the ABC’s defences are set out in a detailed schedule, the bulk of which (51 of 55 pages, comprising 303 paragraphs) are particulars of truth. Mr Tate seeks to have certain categories of the truth particulars struck out or disallowed, depending on whether they are part of the existing amended defence, or part of the PFAD. I will use the terms “allowed” or “disallowed” to encompass the conclusion reached about both, reflecting their inclusion or exclusion from the final form of the defence permitted to be relied upon.
The general basis for Mr Tate’s objection is that the particulars are said to be either too imprecise or incapable of proving the truth of the given imputation, even taken at their highest. This is once again a capacity argument, not an argument going to what may ultimately be established. Mr Tate also opposes leave being granted to re-plead anything that is disallowed because he contends that the pleading problem identified is insurmountable.
A certain number of the objections taken at an earlier point in time have been met by way of amendments that are not objected to. The objections now pressed are more confined. The objections now relate to the defences that the ABC wishes to rely upon in relation to imputations B, D, E, H and I.
The parties did not dispute that the relevant principles concerning the particularisation of the defence of justification were accurately summarised by Wigney J in Rush v Nationwide News Pty Ltd [2018] FCA 357; 359 ALR 473 at [45]-[54]. The overarching general obligation that the ABC must meet is that the particulars it seeks to rely upon be capable, as a question of law, of proving the truth of the meaning it relies upon, and to that end be sufficiently specific and precise to enable Mr Tate to know the defence case he has to meet. Importantly, as Wigney J pointed out in relation to the Court considering denying reliance on pleaded, or proposed to be pleaded, particulars to a justification defence:
(1)at [48], there is a need for caution because of the difficulty in making factual evaluations at the low threshold of capacity at an interlocutory hearing; and
(2)at [49], particulars are no more than a summary of the asserted facts, and as such are unlikely to reflect the full effect of the evidence to be adduced to prove those facts.
The pleading of justification is as to the facts and circumstances to be relied upon, taken at their highest and in context, not the evidence by which those facts are sought to be established at trial. The degree of specificity required is fact and context specific, with defences amounting to serious allegations of wrong-doing usually requiring greater clarity to enable them to be properly understood and met. Adjudication of the sufficiency of particularisation is inherently evaluative and to that extent impressionistic, calling for a subjective judgment to be made by the Court, but with a keen eye to the question of capacity, not the ultimate factual conclusion to be reached upon receiving and considering all of the evidence.
As a preliminary matter, it was sensibly agreed between the parties that references in a number of the imputations to “corrupt” or “corruptly” was to be understood in the context of the balance of the imputation as constituting the conduct having that character, rather than any more general or abstract meaning.
Defence to imputation B
It is important first to properly understand imputation B as carefully pleaded by reference to the content of the program. It has two distinct aspects. The first is that Mr Tate swindled the members of the Surfers Paradise Bowls Club out of their clubhouse and bowling greens; and the second is that Mr Tate did this to profit from a $300 million development. The first is an imputation of improper conduct, and the second is an imputation of the improper motive for that conduct of a future huge financial gain. For the imputation to be made out, both aspects must be established at trial. If they are made out, the ABC must rely on its alternative pleaded defences, relevantly for present purposes, the justification of truth.
The ABC seeks to rely upon particulars [23]-[80] and [233] to [235A] of the schedule to prove the truth of imputation B. Mr Tate summarises most of the burden of those paragraphs in his submissions as follows, albeit that the ABC contends that the summary is incomplete and supplements it as set out further below:
(a)the Surfers Paradise Bowls Club occupied premises comprising a Clubhouse Lot and four bowling green Lots: [25];
(b)prior to October 2005, the Clubhouse Lot and the first two of the bowling green Lots were owned by the Club: [25.1];
(c)as at October 2005, the Club leased the third bowling green Lot from the Queensland State Government, and the fourth bowling green Lot from the Gold Coast City Council (as trustee for the Queensland State Government): [25.2] and [26];
(d)the Club was at all material times in financial difficulty such that it needed to sell some or all of its assets: [29] and [33];
(e)on about 26 October 2005, by the ‘Crestden Agreement’, the Club agreed to sell the Clubhouse Lot for $1.3 million to Crestden Pty Ltd, in circumstances which included ([29]-[39] and [49]):
(i) no other purchaser was then in the offing;
(ii) the applicant was not a shareholder or director of Crestden;
(iii)the grant to Crestden of an option to purchase the first two bowling green Lots if certain events were to transpire;
(iv) the transfer of the Clubhouse Lot, pursuant to the Crestden Agreement, took place on 27 March 2006;
(f)the applicant had no interest in Crestden (as either shareholder or director) until April 2006, after the Clubhouse Lot had been transferred to Crestden and some six months after the Club entered into the Crestden Agreement [50] and [51];
(g)in September 2007, owing to its continued financial difficulty, and on the advice of its auditor, and not pursuant to the Crestden Agreement, the Club sold the first and second bowling green Lots to Crestden: [57] and [58];
(h)in May 2013, nearly 6 years later, Crestden, on its own behalf and on behalf of the owners of the other relevant lots namely the Queensland State Government and the Council, submitted an application for a development called ‘Waterglow’: [71];
(i)in November 2013, during voting from which the Applicant excused himself [73], the Council imposed a condition upon the Waterglow development, namely that it would only be able to proceed if all four bowling green Lots were amalgamated into one land title [74];
(j)in April 2016, the Queensland State Government offered the third bowling green Lot for sale by public tender and it was purchased by four companies, one of which was controlled by the applicant: [75] and [76]; and
(k)as at 2016, the fourth bowling green Lot remained in Council ownership [80] (as indeed it still does).
The substance of Mr Tate’s argument is, at one level, quite simple. He focusses on the second aspect of motive in its relationship to the first aspect of conduct and asserts that:
(1)the facts pleaded make it clear that the amalgamation of the four bowling greens that was necessary for the development to proceed had not occurred, such that the prospect of profiting from such a development did not exist;
(2)rather, on the ABC’s own case, the Club apparently had no economic alternative by October 2005 but to enter into the Crestden agreement and by 25 September 2007, to sell the first and second greens on the basis of auditor advice;
(3)Mr Tate was not either a shareholder or director of Crestden until six months after the Crestden agreement had been entered into, yet on the ABC’s case, that agreement was the “fulcrum” upon which that company’s ability to acquire the additional greens depended;
(4)thus, unless Mr Tate knew what the terms and implications of the Crestden agreement were, and knew what the Club members thought was happening, the imputed swindling by him was not possible; and
(5)as a result, he does not know the case he has to meet, with the particulars sought to be relied upon being incapable of establishing the truth of imputation B, such that the truth defence for that imputation should not be allowed.
It appears to be accepted by the ABC that the development has never proceeded. However, the ABC effectively submits that this sidesteps the real issue, because:
(1)the development deal – the second motive aspect of imputation B – was necessarily prospective and the imputation pleaded must be understood in that way;
(2)that prospective development was the Waterglow Development, approved by the Council much later in November 2013;
(3)that approval was conditional upon the four greens being amalgamated; and
(4)Mr Tate and his associates had:
(a)purchased from Crestden the first green in June 2010 and the second green in March 2012;
(b)purchased the third green in April 2016; and
(c)attempted to purchase the fourth green in mid-2016.
The ABC submits that:
(1)it could not seriously be suggested that Mr Tate did not know the defence case he has to meet, with sufficient particulars of the development and the steps required to be taken in order to meet the conditions of approval and the steps he and his associates had taken in buying up the greens over time;
(2)if the real objection is to the development not having occurred or being able to occur unless and until the fourth green is obtained and the amalgamation takes place, then the imputation is not able to be conveyed and is objected to; and
(3)sufficient detail has been pleaded as to the basis for inferring Mr Tate’s knowledge going to the motive aspect of the conduct of swindling, based upon facts and circumstances pleaded to support the drawing of that inference, with particular reference to [39], [41.1], [51]–[53] and [58] of the PFAD.
The above submissions for Mr Tate were developed further orally in relation to the sufficiency of the particulars, and the asserted impossibility of them being improved upon. The weakest point for the ABC’s defence relies upon an inference as to Mr Tate’s knowledge or awareness necessary to justify the motive imputation for the alleged conduct of swindling, if that imputation is otherwise made out. The nub of Mr Tate’s objection is that the thread of inference sought to be relied upon to establish the necessary state of mind is so slender as to be non-existent. But the problem with that argument is that it suffers from the same vice as the ABC’s argument as to imputation A: it asserts that an arguably weak basis for a conclusion renders it incapable at law of existing. For the reasons that follow, Mr Tate’s objection is in truth a conclusion argument for the tribunal of fact, not a capacity argument for the tribunal of law.
The ABC pleads inferences that Mr Tate had the necessary knowledge prior to becoming a director and shareholder of Crestden in early 2006, six months after the Crestden agreement in October 2005, only weeks after the transfer of the greens, and long before later transactions in 2007, as to the wishes and understanding of the members of the Club in relation to the realities of remaining on the Club site and the purpose of that agreement. It does not appear to be in issue, or at least the subject of any current objection, that the ABC pleaded that Mr Tate was the President of the Surfers Paradise Chamber of Commerce, that Cresten was registered in early October 2005, with a long-time business partner of Mr Tate, Mr Kelvin Gersbach, as a director and shareholder, or that the development in contemplation was one that would involve the Chamber by providing it with headquarters and administration facilities.
It is an available inference for the tribunal of fact to draw that the Chamber, and also Mr Gersach, and thereby Mr Tate, knew or was aware of at least the key relevant and surrounding facts and circumstances prior to the relevant transactions taking place. To conclude otherwise is to deny the reasonable range of possibilities, and to suggest that such a transaction must have been conducted in a state of ignorance, itself a questionable inference. Whether such an inference should in fact be drawn is quite another matter; perhaps the better conclusion at trial will be that no inference either way can be drawn. But as a question of law, inferences, however slender, may differ in their strength and detail, provided the existence of at least some factual basis for each inference sought to be relied upon is present. It is again not to the point that the inference sought to be drawn may be weak and even may ultimately be found to be unsustainable. That is the task of the tribunal of fact. It is not necessary or appropriate to go further in these reasons down the path of what the foundational facts are, and what might be made of them as part of that task.
In all the circumstances, I am not satisfied that the PFAD is deficient in the manner or to the extent that Mr Tate contends in relation to the truth justification defence to imputation B. Accordingly, the PFAD must be allowed in that respect.
Defence to imputation D
This imputation again has two aspects: voting to approve a development deal for a friend; and that friend’s law firm being a corrupt conduit for money from property developers to Council candidates. Mr Tate links the two aspects by pleading the imputation in this way, no doubt because the program progresses from the first to the second, with the first aspect referring to a 2011 approval and the second aspect referring to events earlier in time that were the subject of a 2005 inquiry. The ABC seeks to rely upon particulars [141]–[155], [167]–[180], [211]–[232D], and [243]–[252] of the schedule to the PFAD to prove the truth of imputation D.
As to the first aspect, Mr Tate objects to the ABC relying upon three development deals, when the imputation refers only to one such development deal. The other two developments pleaded are not those of his solicitor friend, Mr Tony Hickey, as he was no more than an agent for the developer. The objection is to reliance upon those other two development deals.
The ABC’s response is:
(1)to focus on the phrase “approve a development deal for a friend” in the imputation, and to give it wider meaning than being Mr Hickey’s own development deal; and
(2)to seek to defend the sting of the imputation by reference to like events not referred to in the program, in the manner of the paedophile allegations in New South Wales v Deren [1999] NSWCA 22; (1999) Aust Torts Reports 81-502.
The first response depends on the imputation being able to be read in a way that does not confine it to Mr Hickey’s development via his company. The ABC submits, in substance, that an approval can be “for” Mr Hickey if it is in favour of a person that Mr Hickey was acting for as an agent, especially when that relationship meant that he had an interest in the approval being granted. The substance of the ABC’s point is that the imputation is not, for example, “to approve a friend’s development deal”. That wider meaning for the imputation is available if the content of the program is ignored. However, the problem for the ABC is that a different complexion emerges when it is not ignored. This aspect of the program appears at lines 250-251: “So the mayor stayed in the room to vote on a development application by his friend”. However infelicitous, that is the way in which “for a friend” in the imputation should be understood – that is, a reference to a development deal for Mr Hickey in the sense of being a development by Mr Hickey, via his company, not approval of a development deal for someone else that was in some way advancing an indirect interest that Mr Hickey had in the approval being granted.
Once the imputation is read in a way, with Mr Tate being bound by his arguments to that effect, so that it sensibly conforms to the program, the ABC’s second response has to survive on a narrower footing. For that footing to endure, it is a question of what is permissible to establish a defence of truth, by proving the substantial truth of the imputation as pleaded and properly understood: s 25, Defamation Act 2005 (NSW). In my view, it is too remote for truth to rely upon the approval of any development that was not one to which Mr Hickey was a party, or directly financially interested, but permissible to plead and thereby seek to rely upon a development in which he was involved himself or otherwise directly financially interested in, rather than merely an agent for someone so involved. Were that not the case, the imputation itself could not survive, because the development referred to in the program was not that of Mr Hickey as a legal entity, but of his company; yet in ordinary parlance, that is too fine a distinction to insist upon.
The substance of this aspect of the program, and of the first aspect of imputation D alleged to arise from it, was that Mr Tate, in dereliction of his duties as mayor, had voted to approve a development deal that was for, in the sense of by or on behalf of, Mr Hickey, or in which he had a direct interest. That is, an approval that was “for” him. The ABC is entitled to seek to prove the truth of that imputation by showing that such an imputation was substantially true, including by reference to sufficiently similar events that were not part of the program. The ABC submits that one of the other developments, referred to as the 2015 Farice application, was of that character, because a condition of that approval was to carry out works that directly enhanced the value of Mr Hickey’s development.
The other additional development sought to be relied upon by the ABC, referred to as the 2016 Farice application, lacked the necessary nexus to Mr Hickey’s interests beyond those of the developer for which he was an agent. The sting of the first aspect of the imputation is that Mr Tate was in dereliction of his duties as mayor to vote in a way that advantaged his friend, being Mr Hickey himself. That sting can be sought to be met by a defence of truth. But it is too remote to rely upon an imputation that is not pleaded, namely advantaging those who are, in effect, no more than clients of Mr Hickey. A client, or someone Mr Hickey was an agent for, is not, without more, Mr Hickey in the sense of the imputation, and therefore a vote to approve a development for such a principal is not “for” him.
The PFAD will need some adjustment to exclude the 2016 Farice application, but, subject to any other fine tuning required as a result of these reasons, is permissible and should otherwise be allowed.
Turning to the parts of the PFAD as they relate to the second aspect of imputation D (as to Mr Hickey’s law firm being a corrupt conduit for money from property developers to Council candidates), Mr Tate’s objection is that the particulars of truth fail to identify any matter by which it could be shown that Hickey’s law firm, as opposed to anyone else, had handled donations in a way that was corrupt. The gravamen of the objection is that the relevant statutory provisions regulate the conduct of candidates and political parties, so that even if candidates had received donations in circumstances that were proscribed – namely the source of the money not being disclosed – that would not sustain an allegation of corruption by the law firm. As developed in oral argument, Mr Tate submits that pleading assertions as to the two persons who gave directions to the law firm as to how the money received from developers was to be disbursed, does not go far enough to show a proscribed purpose on the part of that law firm and therefore cannot sustain a truth defence to imputations of corrupt funnelling of developer payments to Council candidates.
The substance of the ABC’s response is that they are entitled to plead and seek to prove the truth of this aspect of imputation D by way of a more holistic view of the overarching purpose of the regulation of political donations, and to show that Mr Hickey’s firm hosted a scheme which had the effect of subverting, and thereby corrupting, the legislative intent that the source of donations be disclosed. By setting up bank accounts that received money from developers, and having an arrangement by which external persons could give payee directions as to which candidates the payments were to be made to, this concealed the original source, contrary to the legislative intent. On the ABC’s argument, it was not necessary to show that the law firm, or anyone at the law firm, had in terms breached any legislative provision. It was enough that the law firm had helped to facilitate the corruption of the legislative scheme.
When the use of the word “corruptly” is understood in the context of this aspect of the pleaded imputation, Mr Tate’s argument introduces an unwarranted degree of technical specificity as to what is needed to be pleaded, and ultimately proven, to establish the truth of this aspect of the imputation. The corruption of a legislative scheme, which is what is in issue here, can, in concept, be achieved by steps that, while not themselves illegal, subvert the scheme so that its manifest objectives are defeated. The ABC are entitled to plead to that effect, and to seek to prove that this is what took place. Whether that ultimate endeavour is successful is for determination at the trial.
Defence to imputation E
The ABC seeks to rely upon particulars [93]–[138], [101]–[102], [105], [115]–[116], [119A]–[119B], [123], [127], [133]–[134], [136]–[137], [253]–[257] of the schedule to the PFAD to prove the truth of imputation E. This imputation is sought to be defended as to truth by the ABC by reference to antecedent representations by Mr Tate on radio and television broadcasts, and subsequently on social media, and pleaded in the PFAD, to the effect that he had said that water in a man-made lake was “not … up to standard”, was “quite toxic” and was “toxic water killing the wildlife”. The program did not contain those words of context or qualification, but rather set up an incompatible dichotomy between the lake being argued by Mr Tate and his supporters to be “toxic”, and the lake being in fact home to dozens of species of birds and wildlife, which were thriving. It is not disputed that the program was capable of giving rise to an imputation that Mr Tate’s argument as reported was dishonest, although that imputation is denied as in fact arising, and other points are likely to be taken about the imputation as pleaded.
The ABC seeks to prove truth by reference to the representations by Mr Tate, because, if it could be shown that he had been dishonest in that respect, the sting of the imputation might thereby be met. The ABC seeks to move from a form of words already pleaded that Mr Tate had no basis for asserting in the radio and television broadcasts and in the social media posts that “the toxic water in the Lake was killing wildlife”, to no basis for asserting that “the water in the Lake was so toxic that it was killing wildlife”, the latter being more closely reflective of what Mr Tate is alleged to have said previously.
Mr Tate faintly argued that the departure from the existing pleading constitutes the withdrawal of an admission that the water in the lake was in fact toxic. In case that point is to emerge again, I reject it as I consider that the amendment does no more than better align to the alleged representations. Mr Tate’s stronger and better point is that this proposed defence is not responsive to the imputation, which relies upon there being no reference in the program to him exaggerating the level of toxicity in the water. The imputation fastens upon, in effect, the imputation of dishonesty in suggesting that a lake supporting wildlife was “toxic” so as to permit it to be drained for his benefit as a member of the turf club. Mr Tate contends that the ABC is confined to the imputation as pleaded, and to the extent that “toxic” has any degree of nuance or ambiguity, that is the ABC’s problem born of what it chose to publish.
The ABC’s response is that the imputation sets up a substantive difference between what Mr Tate says when he refers to the water being toxic – a word that he is alleged to have used and which might be unlikely to be denied given it is apparently recorded – and what the ABC contends is the truth, namely, as stated in the program, that the wildlife was thriving and the water quality was fine. The ABC contends that it is entitled to plead and to prove what Mr Tate’s reported use of the word “toxic” was meant by him to convey, by reference to his own prior utterances, namely something that was sufficiently of that character to warrant draining the lake.
The problem with Mr Tate’s argument is that it denies to the ABC the opportunity to prove truth by way of seeking to establish the substantial truth of the imputation by reference to Mr Tate’s own prior utterances as perhaps imperfectly reported upon. This may not be an easy defence for the ABC to establish, but I do not consider that this is a door that should be shut. This aspect of the PFAD should be allowed.
Defence to imputations H and I
Mr Tate’s objection to the PFAD in respect of these imputations is different in detail, but not in concept. It is therefore convenient to deal with them together. The ABC seeks to rely upon particulars [16], [189]–[207], [268]–[279] of the schedule to the PFAD to prove the truth of imputation H and particulars [197]–[207], [280]–[286] to prove the truth of imputation I. Both imputations are to the effect that Mr Tate was hiding relevant and important information from the community in relation to certain construction projects and a cruise ship terminal development. Mr Tate’s objection to the defences that the ABC wishes to rely upon is that the information in question was redacted by the Council, not just Mr Tate, such that it could not be said that it was he who was responsible for it being withheld.
The ABC’s response is that the program does not convey that Mr Tate personally kept the information secret, and therefore the pleaded imputations cannot be read in that way. That submission must be accepted. While it is clear that the program represents Mr Tate as a driving force at the Council, key passages at lines 27-28, 493-507 and 544-547 refer to “Mayor Tom Tate and his council” keeping crucial information secret, the release of a report by the Council with sections blacked out, and it being “the most secretive council”. Once again, the issue is not what will be made of the pleading and evidence in support by the Court sitting as the tribunal of fact, but whether the ABC is entitled to endeavour to meet the imputation by the way in which the defence is sought to be pleaded. In my view, the ABC were entitled to plead the defence in this way.
Collateral objections are also made by Mr Tate as to what is said to be the mischaracterisation of a key report into the cruise ship terminal, but that is essentially a factual issue for determination at trial, not a pleading issue.
Conclusion
The parties are directed to submit draft agreed or competing orders to be made reflecting these reasons, to propose how the question of costs should be determined, and to address the future conduct of the proceeding, within 14 days.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromwich. Associate:
Dated: 3 May 2019
3
1