Whelan v John Fairfax Publications Pty Limited

[1999] NSWSC 620

CITATION:	Whelan v John Fairfax Publications Pty Limited & Ors [1999] NSWSC 620
CURRENT JURISDICTION:	Common Law Division Defamation List
FILE NUMBER(S):	20499/98 - 20502/98; 20503/98
HEARING DATE(S):	3 May 1999
JUDGMENT DATE:	28 June 1999
PARTIES :	Paul Francis Patrick Whelan (Plaintiff) Colleen Whelan (Plaintiff) John Fairfax Publications Pty Limited (First Defendant) Darren Goodsir (Second Defendant) Heath Gilmore (Third Defendant)
JUDGMENT OF:	Dunford J

COUNSEL :	TK Tobin QC / PW Gray / A Pearman (Plaintiffs) SD Rares SC (Defendants)
SOLICITORS:	Jones Staff & Co. (Plaintiffs) Freehill Hollingdale & Page (Defendants)
CATCHWORDS:	DEFAMATION - Imputations
ACTS CITED:	Defamation Act 1974
CASES CITED:	Amalgamated Television Services Pty Limited -v- Marsden (1998) 43 NSWLR 158. Mirror Newspapers Ltd -v- Harrison (1982) 149 CLR 293. Drummoyne Municipal Council -v- Australian Broadcasting Corporation (1990) 21 NSWLR 135. Jones -v- Skelton [1964] NSWR 485 PC. Horwood -v- Statesman Publishing Co (1929) 98 LJKB 450. Isaacs -v- John Fairfax & Sons Ltd [1980] 2 NSWLR 651.
DECISION:	See paras 29-31.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
DUNFORD J
28 JUNE 1998
20499/98 - 20502/98 - Paul Francis Patrick WHELAN -v- John Fairfax Publications Pty Limited & 2 Ors
20503/98 - Colleen WHELAN -v- John Fairfax Publications Pty Limited & 2 Ors
JUDGMENT

1 HIS HONOUR: This is the trial pursuant to s 7A(1) of the Defamation Act 1974 (the Act) of the issue whether the matters complained of (which in each case forms an annexure to the Statement of Claim) are reasonably capable of carrying the imputations pleaded by the plaintiffs. The defendants concede that if the material is reasonably capable of bearing the imputations alleged (or any of them) such imputations are reasonably capable of being defamatory of the relevant plaintiff. 2    Each of the matters complained of relates in one way or another either to the Orient Hotel in The Rocks, Sydney and the alleged financial interest in that hotel of the plaintiff, Paul Frances Patrick Whelan, who is and was at all material times the Minister of Police, and who is the plaintiff in each of the proceedings except no. 20503 of 1998, in which the plaintiff is his wife; or to his relationship to a travel agency, Perfect Travel, allegedly managed and partly owned by his wife.

Nos. 20499 of 1998 and 20503 of 1998

3    The matter complained of in these proceedings appeared in the Sun-Herald of 13 December 1998 and related to allegations that members of Parliament had been lobbied to use Perfect Travel and that the Independent Commission against Corruption (ICAC) had been investigating irregularities in claims for travel allowances by members. 4    In 20499 of 1998 the imputations alleged are:

(a) The Plaintiff acted against the public interest by influencing other members of Parliament to use his wife's travel agency in breach of normal parliamentary guidelines.
(b) The Plaintiff abused his position as Minister for Police by influencing other members of Parliament to use his wife's travel agency in breach of normal parliamentary guidelines.

5    Both imputations are based on the proposition that Mr Whelan influenced other members of Parliament to use his wife's travel agency (in breach of normal parliamentary guidelines), one imputing that in doing so he acted against the public interest, the other that in doing so he abused his position as Minister for Police. The crucial issue in the present case therefore is whether the publication conveys the imputation that he influenced other members of Parliament to use his wife's travel agency (in breach of normal parliamentary guidelines). 6    The test for determining whether matter complained of is reasonably capable of conveying the imputations alleged was recently restated by Hunt CJ at CL in Amalgamated Television Services Pty Limited -v- Marsden (1998) 43 NSWLR 158 at 165 as follows (omitting references):-

"The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it. In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable, and any strained or forced or utterly unreasonable interpretation must be rejected. The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs.
The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book, and the less the degree of accuracy which would be expected by the reader. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking. There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual."

7    On behalf of the defendant it was submitted that merely to suggest that a person has been charged or is under investigation will not support an imputation of guilt, that the article expressly states that Mr Whelan is not one of the 25 members of Parliament under investigation by ICAC in relation to politicians' travel entitlements, and there is no suggestion in the article that he has done anything wrong. 8    In particular, it was submitted that the publication does not suggest that the plaintiff solicited business for the travel agency because of the reference to it resulting in gain "for a parliamentary colleague and his family", and it was submitted that this indicated that it was someone of whom the plaintiff was a parliamentary colleague that was doing the soliciting of business. But I consider that the reference to the MPs being "encouraged to favour" the agency . . . . . "resulting in private gain for a parliamentary colleague and his family" is reasonably capable of being read by the ordinary reasonable reader of fair average intelligence as meaning that a private gain resulted to a parliamentary colleague of those MPs who were encouraged to use the agency, i.e. the plaintiff and his family. That is to say, the "parliamentary colleague" referred to is capable of being understood as a colleague of the MPs using the agency rather than as a colleague of the MP(s) doing the encouraging. The ordinary reasonable reader who so read the article might then infer that the person doing the encouraging would be the person who, with his family, would be receiving the resultant benefit, that is the plaintiff. 9    Whilst it is correct that generally a report that someone has been charged with an offence is not capable of bearing an imputation that he is guilty or probably guilty: Mirror Newspapers Ltd -v- Harrison (1982) 149 CLR 293 at 301, and whilst I see no reason why a similar principle should not apply to a report that someone is being investigated by ICAC, and whilst it is expressly stated that the plaintiff is not one of the MPs under investigation, paras 6 and 7, and 36 and 37 do more than refer to an investigation, but state what ICAC has said in a report, not about the 25 MPs still being investigated, but about the travel agency, and its use by parliamentarians who had been "encouraged to favour it" in an "inappropriate arrangement". 10    These matters, together with the reference in the heading to "Whelan agency", the reporting of the call by the Leader of the Opposition for the plaintiff to stand aside as Minister, and bearing in mind that the ordinary reasonable reader of a weekend newspaper may engage in a certain amount of loose thinking, lead me to conclude that the material complained of is reasonably capable of conveying the imputations alleged in no. 20499 of 1998. 11    In the case of Mrs Whelan (no. 20503/99) the imputations alleged are as follows:

( a) The Plaintiff used her position as boss of a travel agency to secure private gain for her husband the Minister for Police in breach of normal parliamentary guidelines.
(b) The Plaintiff, as boss of a travel agency, for personal gain participated in conduct in breach of parliamentary guidelines in respect of parliamentarians' travel.
(c) The Plaintiff, as boss of a travel agency, participated in conduct contrary to the public interest in respect of parliamentarians' travel.
(d) The Plaintiff had so conducted herself as boss of a travel agency as to afford reasonable grounds for an investigation by the Independent Commission Against Corruption concerning whether she had engaged in corrupt conduct.

12    The plaintiff is clearly identified as the person running the relevant travel agency and there is reference to the dealing by MPs with the travel agency being the subject of an investigation by ICAC. Moreover, para 4 describes the agency as being "at the centre" of the inquiry. 13    It was submitted that there was nothing in the matter complained of suggesting that Mrs Whelan had done anything wrong, and in particular, no suggestion that she did any of the encouraging of members of Parliament to use the agency. This last proposition is so, but the whole tone of the article, the way it is set up, the reference to the use of the agency by politicians as "inappropriate" and "not in the public interest", although not in a strict sense saying that the plaintiff has done any specific thing that is wrong, strongly suggests that she has been knowingly involved in wrong doing in respect of the travel allowances by politicians using the agency. For these reasons I consider the matter complained of is reasonably capable of bearing imputations (a) (b) and (c). 14    As to imputation (d), the imputation is defective as it fails to specify the nature of the corrupt conduct alleged: Drummoyne Municipal Council -v- Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 140, and accordingly it must be struck out in its present form, but with leave to re-plead if desired.

No. 20500 of 1998

15    The matter complained of in these proceedings appeared in the Sun-Herald of 22 November 1998 and stated that Senior Constable Oregan was seriously injured in an affray outside the Orient Hotel on the evening of Anzac Day, i.e. 25 April 1998 and that he had previously (May 1997) testified about the hotel's excellent record in controlling disorderly conduct and often refusing service to drunken persons. It stated that the Magistrate described Senior Constable Oregan giving evidence for the defence as "very much out of the ordinary" but also noted that the charges were eventually dismissed and that the Constable's bashing took place 8 months later. Finally reference was made to the fact that police and council safety experts had identified "numerous fire safety problems" at the hotel, that a meeting had been held between City Council officers and the licensee, Mr Iverach, and his lawyers, which was extremely positive and that the hotel had agreed to rectify all identified breaches as soon as possible. 16    In this matter the imputations alleged are:

(a) The Plaintiff abused his position as Minister for Police by arranging for a senior police officer to give evidence to the Licensing Court in favour of the hotel business in which he was the major shareholder.
(b) The Plaintiff as Minister for Police was party to a cover up by police of licensing offences at a hotel in which he was the major shareholder.
(c) The Plaintiff abused his position as Minister for Police as a result of which a police officer gave misleading evidence to the Court about the conduct of his hotel business.

17    Not only is there no suggestion, either directly or otherwise, that the plaintiff was involved in causing Senior Constable Oregan to give evidence, but the fact that the Magistrate had described his giving evidence as "very much out of the ordinary" would seem to be a reference to the police giving evidence for the defence in a prosecution brought by other police. There is no suggestion that the evidence he gave was false, let alone that the plaintiff was a party to procuring or causing him to give false or misleading evidence, and the fact that the proceedings were dismissed suggests that the Magistrate accepted Constable Oregan's evidence. Of course, the fact that he was assaulted when trying to break up a brawl at the hotel some 8 months later is no basis for suggesting that he did not believe his evidence to be true at the time he gave it. Similarly the report that breaches of the fire safety regulations have been discovered and that the licensee has agreed to rectify them is incapable of suggesting any knowledge, impropriety or interference in the due processes by the plaintiff. There is simply no basis in the article for inferring any cover up by police of licensing offences, or any giving of misleading evidence by police officers, or any involvement by the plaintiff, either by using his position as Minister for Police or otherwise, in any of the events referred to. 18    It follows that the material published is incapable of bearing any of the imputations alleged, and the proceedings should be dismissed.

No. 20501 of 1998

19    The matter complained of in these proceedings appeared in the Sun-Herald a week after the article referred to in no. 20500 of 1998, namely on 29 November 1998. It was headed "Two police probes into Whelan hotel" and reported that two police internal affairs inquiries were being held into why police apparently failed to give evidence in a formal court hearing that allowed the Orient Hotel to gain a 24-hour licence, and how officers from The Rocks were able to provide evidence on behalf of the licensee against charges that he had served intoxicated persons. It goes on to state that "top officers" supported an urgent application to have the hotel's trading hours extended to enable the plaintiff's son to have a black-tie 21st birthday celebration at a time when the hotel was waiting approval to become a permanent 24-hour operation, that an official note of support was furnished by the Patrol Commander of The Rocks, and when no objections were received from the City Council, the application was approved. There followed a re-hash of what had appeared the previous week about Senior Sergeant Brazel and Senior Constable Oregan giving evidence for the defence on the charges of serving intoxicated persons, it referred to the fact that subsequently, that is after the plaintiff's son's 21st birthday party, the hotel received a 24-hour licence, but the police did not provide a submission in relation to the application, and that a recent Bureau of Crime Statistics and Research survey showed that a disproportionate number of assaults in the area emanated from a few licensed premises of which the Orient Hotel appeared to be the worst. 20    The imputations alleged are as follows:

(a) The Plaintiff abused his position as Minister for Police resulting in police giving his hotel preferential treatment in applications before the Licensing Court.
(b) The Plaintiff had behaved in such a manner as to afford reasonable grounds for an investigation by the Police Internal Affairs Branch to determine whether he had abused his position as Minister for Police resulting in police giving his hotel preferential treatment in applications before the Licensing Court.
(c) The Plaintiff as Minister for Police interfered with the course of justice so as to cause police evidence relating to an application before the Licensing Court to be suppressed.
(d) The Plaintiff had behaved in such a manner as to afford reasonable grounds for a police investigation to determine whether he had interfered with the course of justice so as to cause police evidence relating to an application before the Licensing Court to be suppressed.
(e) The Plaintiff while Minister for Police condoned violence and other unlawful activity at a hotel in which he was the major shareholder.
(f) The Plaintiff was a party to the misuse of police powers to cover up misconduct at a hotel in which he was the major shareholder.

21    Once again the plaintiff's difficulty is that there is no suggestion either that he is being investigated or that he has been in any way involved in securing preferential treatment for his hotel, that he caused evidence to be suppressed, that he condoned violence or other unlawful activity at the hotel or misused his powers as Police Minister to cover up misconduct at the hotel. Notwithstanding the reference in the heading to "Whelan hotel", it is the police who are said to be under investigation, not the plaintiff. 22    I was referred to Jones -v- Skelton [1964] NSWR 485 PC where it was pointed out that the ordinary and natural meaning of words is not limited to their literal meaning, but includes what may be implied or inferred or an indirect meaning which a reasonable reader, guided not by any special, but only by general knowledge and not fettered by any strict legal rules of construction, would draw from the words; and it was submitted that when looked at in this way the words are capable of bearing the imputations alleged. In particular it was submitted that because the "plaintiff's hotel" received the benefit of the so called "preferential treatment" and alleged suppression of police evidence, it was open to a jury to find the imputations alleged established. But nowhere, by way of inference, implication, irony or otherwise, is there any suggestion that the plaintiff has done anything directly or indirectly to bring about the events which have allegedly happened. There is no suggestion that he requested, spoke to, "leaned on" or otherwise caused the police to act as they did. The plaintiff's difficulty in framing the imputations alleged are demonstrated by their vagueness eg, in (b) and (d) it is alleged that he "behaved in such a manner" without specifying what it is claimed he said or did, that is, the manner in which he behaved is not specified; and the reason for this lack of specificity is, it seems to me, that there is nothing in the material which would justify the allegation of such imputations. 23 As to imputation (c), that the Minister caused police evidence relating to an application before the Licensing Court to be suppressed, there is no suggestion in the article that there was any relevant evidence which could be given, let alone that it was suppressed. As to imputation (d), similar considerations apply together with the fact that it was the police not the Minister that was said to be the subject of the investigation. Likewise imputations (e) and (f) bear no relationship to anything contained or suggested by the material published. The fact that violence or misconduct occurred at or outside the Orient Hotel provides no suggestion or implication that the plaintiff condoned it or did anything to cover up such misconduct. I am satisfied that in relation to these proceedings the material relied on is incapable of giving rise to any of the imputations alleged and the proceedings should be dismissed.

No. 20502 of 1998

24    These proceedings arise out of what appeared in the Sun-Herald on 20 December 1998 which reported, inter alia, that the plaintiff had conceded that his wife was part of Perfect Travel, described as "a firm involved in an ICAC travel rorts enquiry", thus changing his earlier claim that she had nothing to do with its activities. 25    The imputations alleged are:

(a) The Plaintiff had lied when he claimed that his wife had no interest in Perfect Travel.
(b) The Plaintiff had lied when he claimed that his wife derived no benefit from Perfect Travel.
(c) The Plaintiff acted against the public interest by influencing other members of Parliament to use his wife's agency in breach of normal parliamentary guidelines.
(d) The Plaintiff abused his position as Minister for Police by influencing other members of Parliament to use his wife's travel agency in breach of normal parliamentary guidelines.
(e) The Plaintiff while Minister for Police was a party to a breach of parliamentary guidelines by members of Parliament in order to obtain private gain for himself and his family.
(f) The Plaintiff has so conducted himself as to afford reasonable grounds for suspicion by the Independent Commission Against Corruption that he had engaged in corrupt conduct.

26    In my view the publication is clearly capable of carrying the imputation that the plaintiff had lied (imputations (a) and (b)). For the defendant it was submitted that the imputations lacked precision and it was not clear when it was alleged that the lie was told, whether in his original statement or in the concession; but this in my view is a matter for particulars. 27    It was also submitted that nowhere in the publication is there material to support the claim that Mrs Whelan had derived a benefit from Perfect Travel essential to prove the lie alleged in imputation (b); but it would be open to a reasonably intelligent reader to infer that from her reported shareholding, notwithstanding the claim that the firm had never declared a dividend. 28    As to imputations (c), (d) and (e) these are alleged to arise from that part of the material which contains a repetition of the material which gave rise to proceedings 20499 of 1998, and similar considerations arise, whilst imputation (f) suffers from the same defect as imputation (d) in no. 20503/1999 in that it fails to identify the nature of the corrupt conduct alleged.

Conclusions

29    I am therefore satisfied that the matters complained of are capable of giving rise to the imputations (a) and ( b) alleged in 20499 of 1998 and imputations (a) to (c) in 20503/1998, but that imputation (d) in the latter case should be struck out with leave to re-plead if desired. 30    I am further satisfied that in 20500 of 1998 and 20501 of 1998 the matters complained of are not capable of carrying any of the imputations pleaded and there should be judgment for the defendants in each case, whilst in 20502 of 1999, the matter is capable of bearing imputations (a) to (e) inclusive, but imputation (f) should be struck out with leave to re-plead if desired. 31    It follows that the only proceedings to survive are 20499, 20502 and 20503 of 1998. These proceedings all involve the travel agency and matters related thereto, 20499 and 20503 of 1998 both arise out of the same publication, the parties are husband and wife, and they employ the same solicitor, in 20502 the plaintiff is the same as in 20499, and all cases involve a number of common issues both of law and fact, including damages: see generally Horwood -v- Statesman Publishing Co (1929) 98 LJKB 450, Isaacs -v- John Fairfax & Sons Ltd [1980] 2 NSWLR 651. There is no dispute that they should be consolidated and heard together, and I shall so order.

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Last Modified: 07/01/1999