Voelte v Australian Broadcasting Corporation (No 2)

[2015] NSWSC 577

Supreme Court

New South Wales

Medium Neutral Citation:	Voelte v Australian Broadcasting Corporation (No 2) [2015] NSWSC 577
Hearing dates:	24 April 2015
Date of orders:	24 April 2015
Decision date:	24 April 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Contextual imputations A, B and C struck out.
Catchwords:	DEFAMATION – procedure – pleadings – defences – contextual imputations – requirement of specificity – consideration of Mizikovsky v Queensland Television Ltd regarding directions to jury as to contextual truth defence
Legislation Cited:	Defamation Act 2005 (NSW), s 26
Cases Cited:	King v Fairfax Media Publications (No 2) [2014] NSWSC 1244 McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224 Mizikovsky v. Queensland Television Limited ACN 009 674 373 and Ors [2014] HCATrans 21 Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68 Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375 Rigby v John Fairfax Group Pty Ltd (Court of Appeal (NSW), 1 February 1996, unrep) Voelte v Australian Broadcasting Corporation [2015] NSWSC 210 Whelan v John Fairfax & Sons Ltd [1988] 12 NSWLR 148
Category:	Procedural and other rulings
Parties:	Don Voelte (Plaintiff) Australian Broadcasting Corporation (Defendant)
Representation:	Counsel: R Jedrzejczyk (Plaintiff) S Littlemore QC with M Polden (Defendant) Solicitors: Addison Lawyers (Plaintiff) Australian Broadcasting Corporation (Defendant)
File Number(s):	2014/340021
Publication restriction:	None

Judgment – ex tempore

1. HER HONOUR: These are proceedings for defamation arising out of the broadcast of a segment of the programme entitled "The Business" on ABC News.

2. The proceedings have previously come before the Court for argument as to the defendant's objections to the plaintiff's imputations. Those objections were determined in my judgment published 6 February 2015: Voelte v Australian Broadcasting Corporation [2015] NSWSC 210.

3. The proceedings have come back before the Court today for argument of the matters identified for the second listing hearing in the Defamation List Practice Note (SC CL 4).

4. The defendant has filed a defence which includes a defence of contextual truth under s 26 of the Defamation Act 2005 (NSW). The only matters argued today were objections to three of the four contextual imputations pleaded in para 4 of that defence.

5. In considering the objections argued, I have taken the approach stated in King v Fairfax Media Publications (No 2) [2014] NSWSC 1244, namely, that the requirement of specificity of a plaintiff's imputation applies equally to a contextual imputation.

6. The first objection is to contextual imputation A, which is:

“The plaintiff betrayed Nexus Energy shareholders in that he resigned as chairman of Nexus Energy at a time after an offer made by Seven Group of 5.3 cents per share was not revealed to them and was allowed to lapse, but accepted appointment as CEO of Seven Group, a company whose takeover move on Nexus rendered their shares valueless.”

7. The plaintiff contends, and I accept, that the temporal phrase "at a time after an offer made by Seven Group of 5.3 cents per share was not revealed to them and was allowed to lapse" does not, in terms, make any pejorative attribution to the plaintiff, but is merely a phrase which identifies the relevant period of time. I think, from the correspondence between the parties, that was common ground. On that premise, Mr Jedrzejczyk submitted that the imputation is incapable of complying with the requirement of s 26 of the Act that it be an "other" imputation arising "in addition to" the imputations complained of by the plaintiff. In particular, Mr Jedrzejczyk pointed to plaintiff's imputations (a) and (d), as follows:

“(a). The plaintiff, when chairman of Nexus Energy, deserted Nexus Energy to take up a new post with Seven Group Holdings in order to preside over a takeover by Seven Group Holdings of Nexus Energy which he knew would leave Nexus shareholders with nothing"; and

“(d). The plaintiff deliberately betrayed the interests of shareholders of Nexus Energy (of which he was chairman) to obtain a personal benefit in taking up the position of CEO of Seven Group Holdings."

8. In my view, there is force in that submission. The sting of the contextual imputation is betrayal of the shareholders by reason of the plaintiff's “switching camps”, as I think it is put in the matter complained of. In my view, the burden of that accusation is equally caught in plaintiff’s imputations (a) and (d).

9. I should pause at this point to note a matter which, as correctly submitted by Mr Polden, does not concern today's argument, but which may arise at the trial.

10. In a defamation action heard in the Supreme Court of Queensland, the Court held that, when a contextual truth defence under s 26 of the Act is left to the jury, (to paraphrase) the jury must be directed to compare the contextual imputations with all of the plaintiff's imputations, including any the jury has found to be substantially true: see Mizikovsky v Queensland Television Ltd & Ors (No 3) [2011] QSC 375 per Dalton J. Her Honour said at [39]:

In his address to the jury, counsel for the defendants said that in answering question 6 (above) they were to compare the contextual imputations with such of the plaintiff’s defamatory imputations which were not proved to be substantially true. I told the jury that this was an incorrect approach and that the question for their determination was, having regard to the substantial truth of all the contextual imputations, was there any further harm done to the plaintiff’s reputation in publishing all the plaintiff’s imputations which they found conveyed and defamatory, regardless of whether or not they found some of them were true.

11. Dalton J’s reserved reasons for that ruling were published at [39] to [43] of the judgment.

12. In a judgment I gave during the hearing of a defamation action in this Court in McMahon v John Fairfax Publications Pty Limited (No 3) [2012] NSWSC 196 at [18], I applied that decision of Dalton J in a different context, expressly endorsing her Honour's analysis of s 26. However, in a later judgment in the same proceedings, while reiterating my earlier endorsement of her Honour’s analysis, I disagreed with her Honour's conclusion on the particular issue to which I have just referred: McMahon v John Fairfax Publications Pty Limited (No 6) [2012] NSWSC 224 at [58].

13. The decision in Mizikovsky went on appeal. The Court of Appeal expressly upheld Dalton J's conclusion as to the manner in which the jury should be directed: see Mizikovsky v Queensland Television Limited & Ors [2013] QCA 68 at [11] to [19].

14. The Court did so after noting my general agreement with Dalton J’s analysis in my judgment in McMahon (No 3). However, the Court did not refer to my decision in McMahon (No 6) and it is not clear from the reported decision whether that later judgment was drawn to their Honours' attention.

15. The decision of the Court of Appeal in Mizikovsky was the subject of an application for special leave to appeal to the High Court, but that application did not raise the issue to which I have just referred (at least so far as the transcript of the argument reveals). In any event, special leave was refused: Mizikovsky v. Queensland Television Limited ACN 009 674 373 and Ors [2014] HCATrans 21.

16. The upshot is that, since there is a decision at the appellate level contrary to my determination in McMahon (No 6) on uniform national legislation, a single judge of this Court would be bound to apply the law as it was held in Mizikovsky by the Court of Appeal and not as determined by me in McMahon (No 6). That is an issue which may require some attention at the hearing of the present action.

17. I turn to the remaining objections taken by the plaintiff to the defendant's contextual imputations.

18. Each was said to be an imputation in the form approved by Hunt J in Whelan v John Fairfax & Sons Ltd [1988] 12 NSWLR 148 (at 160) and subsequently re-affirmed by the Court of Appeal in Rigby v John Fairfax Group Pty Ltd (Court of Appeal (NSW), 1 February 1996, unrep).

19. Each of those was a case concerned with the publication of circumstances in which the relevant plaintiffs had been charged by police with criminal offences. In each case, the plaintiff pleaded an imputation that he was guilty of the relevant criminal conduct and, as a fall-back imputation, an imputation that he had so conducted himself as to be suspected of such conduct, or imputations to that effect.

20. In Whelan, the imputation was in the following terms:

"The plaintiff so wrongly conducted himself that he was suspected by a police unit of dishonestly associating with organised crime figures."

21. In Rigby, imputation 4B and 4D were in the form:

4B: "That he had so conducted himself as reasonably to warrant the suspicion of police, after lengthy and detailed investigation, that he was guilty of sodomy."

4D: "That he had so conducted himself as to warrant the allegations of several school children that he had sexually assaulted them."

22. In each of those kinds of imputation, the conduct sought to be attributed to the plaintiff is clearly specified in the imputation. I do not think that can be said of the contextual imputations pleaded in the present case.

23. Contextual imputation B is:

“The plaintiff's conduct was such as to warrant complaint by Nexus shareholders to ASIC over a takeover of Nexus by Seven Group of which he was CEO under which they were to receive nothing for their shares.”

24. Contextual imputation C is:

“The plaintiff's conduct was such as to anger Nexus shareholders and cause them to take Court action to block a takeover of Nexus by Seven Group of which he was CEO, under which they were to receive nothing for their shares.”

25. Mr Littlemore of Senior Counsel, who appears with Mr Polden for the defendant, acknowledged that contextual imputation C should at least be amended so as to read "such as to warrant the anger of Nexus shareholders" in accordance with the principles considered in Whelan and Rigby.

26. Even with that amendment, however, I think each imputation fails to distill, with adequate specificity, the act, condition or conduct allegedly attributed to the plaintiff by the matter complained of. Whereas in Whelan and Rigby, that conduct was made clear in the terms of the imputation, the two contextual imputations in the present case identify a reaction to conduct, but do not specify what that conduct was. The nature of the conduct evidently referred to cannot be discerned from the reactions identified.

27. I should acknowledge that in Rigby there was also approved an imputation which, in effect, pleaded a result of the conduct in question without specifying the conduct. That imputation was:

4E: "that he had so conducted himself that the Department of School Education was required to prevent his having physical access to school children."

28. Justice Priestley held that the imputation was not capable of being carried if it included the word "required", but otherwise thought it was an imputation in permissible form if that phrase were replaced with words along the lines of "thought it prudent", or some equivalent. His Honour considered that, with such an amendment, it would be in the same category as imputations 4B and 4D set out above.

29. Again, however, I think in that imputation, the consequence, namely that an educational authority thought it prudent to prevent a person having physical access to school children, speaks for itself. The same cannot be said, in my view, of conduct such as to warrant a complaint of the kind identified in contextual imputation B, or of conduct such as to warrant anger of the kind identified in contextual imputation C.

30. In each case, there could be adverted to a broad range of conduct. Each imputation is, accordingly, in my view, impermissibly imprecise; the difficulty being a failure to specify the conduct referred to and the potential for confusion, both at the pleading stage and in the trial in that respect.

31. Accordingly, in my view, contextual imputations A, B and C must each be struck out of the defence.

32. I note that there is no objection to contextual imputation D. I further note that Mr Littlemore foreshadowed, during argument, a possible amendment to imputations B and C to accommodate the difficulty to which I have referred, although careful consideration will need to be given to the question whether, with the amendment foreshadowed, those imputations will then arise in addition to the plaintiff's imputations.

33. I should also record that, at the outset of argument today, Mr Littlemore foreshadowed the possibility of an application for security for costs in light of information recently received by the defendant about the plaintiff's circumstances. He did so in order to forefend any complaint that such an application had been delayed while the costs of the present application were incurred.

34. I order the defendant to pay the plaintiff's costs of the application determined today.

35. I order that contextual imputations A, B and C be struck out of the defence.

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Decision last updated: 18 May 2015