SUPREME COURT OF NORFOLK ISLAND Greenwich University v Australian Council for Private Education and Training [2002] NFSC 1 Cook v Administration of Norfolk Island (1992) 39 FCR 297 cited Hadzel v De Waldorf (1970) 16 FLR 174 cited Lucas v News Group Newspapers Ltd [1986] 1 WLR 147 cited Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 applied Ryan v Ross (1916) 22 CLR 1 cited Slim v Daily Telegraph Ltd [1968] 2 QB 157 cited Greenwich University v Australian Council for Private Education and Training and TIM SMITH NO. SC 3 OF 2001 CORAM: BEAUMONT CJ DATE: 12 APRIL 2002 IN THE SUPREME COURT ) SC 3 OF 2001 ) NORFOLK ISLAND ) IN THE MATTER OF: GREENWICH UNIVERSITY Plaintiff AND: AUSTRALIAN COUNCIL FOR PRIVATE EDUCATION AND TRAINING First Defendant TIM SMITH Second Defendant ORDERS CORAM: BEAUMONT CJ DATE: 12 April 2002 THE COURT ORDERS THAT: 1. Leave be granted to the plaintiff to file an amended statement of claim in terms of the Draft Amended Statement of Claim filed and served on 1 March 2002. 2. Any request by the first defendant for particulars be made within 21 days, and responded to within 14 days. 3. Costs to date reserved. Liberty to apply for costs in writing within 21 days. 4. The matter be stood over for directions on 20 June 2002 at 9.45 am. IN THE SUPREME COURT ) SC 3 OF 2001 ) NORFOLK ISLAND ) IN THE MATTER OF: GREENWICH UNIVERSITY Plaintiff AND: AUSTRALIAN COUNCIL FOR PRIVATE EDUCATION AND TRAINING First Defendant TIM SMITH Second Defendant REASONS FOR JUDGMENT BEAUMONT CJ: 12 April 2002 INTRODUCTION 1 Before the Court are two notices of motion: first, a notice of motion filed on behalf of the then first, fourth, fifth and twelfth defendants ("the Strike Out Motion") seeking to have parts of the statement of claim filed by the plaintiff on 30 March 2001 ("the Original Statement of Claim") struck out. Secondly, a notice of motion filed on behalf of the plaintiff seeking leave to amend the Original Statement of Claim ("the Plaintiff's Notice of Motion") in accordance with the draft amended statement of claim attached to the Plaintiff's Notice of Motion. Background 2 The matter has already had a complicated procedural history which should be explained. 3 A notice of motion to strike out parts of the Original Statement of Claim was filed on 27 August 2001 by the then first, fourth, fifth and twelfth defendants named in the Original Statement of Claim. Submissions in support of the Strike Out Motion were filed on 18 September 2001 by counsel for those defendants. 4 On 21 February 2002 the plaintiff filed its motion seeking leave to amend the Original Statement of Claim. A draft amended statement of claim was attached. 5 On 25 February 2002, prior to the hearing of both notices of motion on 28 February 2002, the first, fourth, fifth and twelfth defendants named in the Original Statement of Claim filed extensive submissions in support of the Strike Out Motion. 6 During the course of the argument before the Court on 28 February 2002, the plaintiff accepted that further amendments would need to be made to the draft amended statement of claim attached to the Plaintiff's Notice of Motion. In particular, it was indicated that the third to fifteenth defendants would no longer be proceeded against and notices of discontinuance were subsequently filed. As a result, the plaintiff was directed to file and serve a further draft amended statement of claim within one day. It was further directed that submissions would be filed by the first defendant and the plaintiff following the filing of the draft amended statement of claim. At the time of the hearing, the second defendant, Mr Tim Smith, had not been served. (Although the plaintiff contends that it can amend without leave, it will be convenient, for the moment, given the matter's complicated history, to describe the fresh pleading as "the Draft Amended Statement of Claim"). The Draft Amended Statement of Claim nominates as defendants only the Australian Council for Private Education and Training and Mr Smith. It pleads as follows: "[DRAFT] AMENDED STATEMENT OF CLAIM 1. The plaintiff is and was at all material times a corporation duly incorporated on Norfolk Island and established as a university pursuant to the Greenwich University Act 1998 (Norfolk Island). 2. At all material times, the first defendant was: (a) a company duly incorporated in Australia; and (b) vicariously liable for the acts of the second defendant; 3. At all material times, the second defendant was: (a) the National Executive Officer of the first defendant; and (b) acting within the scope of his authority as an employee of the first defendant. 4. On or about 18 December 2000, the first and second defendants wrote and published of and concerning the plaintiff the defamatory words set out in Schedule A to this Amended Statement of Claim ('the first matter complained of'). Particulars of publication (a) The first matter complained of comprised an electronic mail message dated 18 December 2000 addressed and delivered to the second defendant, David Pask, Renai McWhinnie and all ACPET members, being various educational and training organizations which are affiliated with and described as members of the first defendant. (b) Further particulars will be supplied following discovery and interrogatories. 5. On or about 20 December 2000, the second defendant, in an interview with Dorothy Illing, a journalist for The Australian newspaper, said and published of and concerning the plaintiff the defamatory words set out in bold type in Schedule B to this Amended Statement of Claim ('the second matter complained of'). 6. The second defendant knew that it was the ordinary and natural consequence of publishing the second matter complained of that the defamatory words, or their gist, would be republished in The Australian newspaper, and the words were so republished. 7. Further, the second defendant intended that the defamatory words in the second matter complained of, or their gist, would be republished in The Australian newspaper and authorised their repetition, and the words were so republished. Particulars of publication and re‑publication (a) The second matter complained of comprised an interview between the second defendant and Dorothy Illing, a journalist for The Australian newspaper. (b) On 20 December 2000, the second matter complained of was published by News Ltd in The Australian newspaper and distributed to readers of The Australian newspaper in all of the states and territories of Australia. (c) Further particulars will be supplied following discovery and interrogatories. 8. The first matter complained of in its natural and ordinary meaning conveyed the following imputations, each of which was defamatory of the plaintiff: (a) Although holding itself out as a university, the plaintiff cannot properly be so described. (b) Formal affiliation with the plaintiff by private providers of education and training would diminish the quality and integrity of the courses provided by such institutions. (c) The nature and reputation of the plaintiff is such that association with it by private providers of education and training would be sufficient to diminish the reputation of such institutions. (d) The reputation of the private education industry would be damaged if private providers of education and training endorsed the plaintiff's study programmes. Particulars Each of the imputations pleaded in paragraph 8 arises from the whole of the first matter complained of and in particular, the following passages: (i) In respect of imputation (a), lines 6, 15, 16, 19, 20, 25, 27, 28, 39 to 41. (ii) In respect of imputations (b), (c) and (d), lines 26 to 28 and 38 to 41. 9. The second matter complained of in its natural and ordinary meaning conveyed the following imputations, each of which was defamatory of the plaintiff: (a) The plaintiff's activities are likely to damage the international reputation of Australia's private providers of education and training. (b) The nature and reputation of the plaintiff is such that association with it by private providers of education and training would be sufficient to diminish the reputation of such institutions. Particulars Each of the imputations pleaded in paragraph 9 arises from the whole of the second matter complained of and in particular, the following passages: (i) In respect of imputation (a), paragraph 16. (ii) In respect of imputation (b), paragraphs 12, 15 and 16. 10. By reason of the publication of each of the first and second matters complained of the plaintiff has been injured in its reputation and has suffered and will continue to suffer loss and damage. 11. The plaintiff claims damages, including special damages, interest and costs. Particulars of special damages By reason of the publication of the first and second matters complained of, the plaintiff has lost the benefit of contracts or arrangements entered into with educational organizations and has lost the chance of obtaining revenue through an association with members of the first defendant. The amount of these special damages is not as yet ascertained, and further particulars will be provided in du course. … Schedule 'A' From: 'Carla Rudd' <ruddc@ozemail.com.au> To: 'Tim Smith' <smithtim@ozemail.com.au>; 'David Pask' <dpask@hotkey.net.au>; 'Renai McWhinnie <rmwhinnie@ozemail.com.au> 5 Sent: Monday, 18 December 2000 16:35 PM Subject: APPROACHES BY 'GREENWICH UNIVERSITY' AFFILIATED TO: ALL ACPET MEMBERS 10 FROM: TIM SMITH, NATIONAL EXECUTIVE OFFICER DATE: 18 DECEMBER 2000 15 Members may have received approaches in recent months by an organisation called Greenwich University, based on Norfolk Island, about affiliation or academic partnerships. This organisation has been the subject of a major review by a DETYA 20 Committee established to consider the organisation's academic and financial credentials and its suitability for listing on the National Register of the AQF Advisory Board as a self accrediting Australian University. Earlier this month, the Commonwealth Minister for Education, Training 25 and Youth Affairs informed Parliament that the organisation would not be listed because the standard of it's [sic] courses, quality assurance mechanisms and academic leadership failed to meet the standards expected of Australian Universities. 30 Some time ago, Greenwich approached ACPET claiming 'five private colleges had affiliated with Greenwich' and proposing that ACPET endorse such affiliation (ACPET has no knowledge of any member having such an affiliation). The ACPET Board deferred consideration until the Commonwealth review was completed. 35 At its meeting on 8 December, the Board noted last week's announcement by the Commonwealth Government and has informed Greenwich that it considers it would be inappropriate for ACPET Members to enter any formal arrangements with Greenwich. The Board 40 considers that the integrity and quality of programs offered by private providers is of paramount importance and formal associations with Greenwich would be contrary to [this principle]. If Members are approached by Greenwich, advice to the ACPET Office 45 would be appreciated. Schedule 'B' PRESSURE FOR GREENWICH ACTION Dorothy Illing EDUCATION Minister David Kemp will come under pressure to approach the Norfolk Island Assembly about repealing its Greenwich University act. A meeting of commonwealth and state education ministers last year agreed that the commonwealth should consult with Norfolk about the act if Greenwich failed a review of its academic and financial credentials. Last week Dr Kemp revealed the review found Greenwich failed to meet the standards expected of Australian universities. The Ministerial Council on Employment, Education, Training and Youth Affairs last year agreed if that was the outcome, the commonwealth minister should take immediate steps to consult with Norfolk Island so that 'legislative recognition of Greenwich as a university is removed by repeal or appropriate amendment'. Asked this week whether Dr Kemp would pursue that course, his spokeswoman would say only that the minister had sought comment on the report of the Greenwich review from his state and territory counterparts. Labor Senator Kim Carr has signalled he will pursue the issue at the first sitting of the Senate estimates committee next year. He told the HES: '1'd like to know what action the commonwealth has taken to ensure that [the MCEETYA] resolution is fully implemented'. Senator Carr said the Government had been slow to respond to concerns about the Norfolk Island university and slow to take action to protect Australia's international reputation. 'It's not just the problem of any one individual institution. It's the consequence that the failure to act has for all students of Australian institutions.' The National Tertiary Education Union has also called on Dr Kemp to honour the MCEETYA resolution. It wants Dr Kemp to release the Greenwich report publicly. The Australian Council for Private Education and Training, meanwhile, this week advised its members that it would be inappropriate for them to have formal relations with Greenwich. Last month Greenwich approached ACPET for membership information in the course of seeking affiliation arrangements with mainland providers. In correspondence with ACPET, Greenwich dean of studies Athol Kelly claimed the university had affiliated with five private colleges ‑ an arrangement that involved about 2000 students. ACPET's national executive officer Tim Smith told the HES he would be 'highly surprised' if those five colleges were ACPET members. He said the Greenwich issue 'rang alarm bells' for ACPET because a high proportion of its member institutions were involved in international education and it was imperative to preserve Australia's reputation." The first defendant's submission 7 The first defendant filed a written outline of submissions in response to the Draft Amended Statement of Claim on 8 March 2002 in which it said: "2.2 The plaintiff has overcome a number of serious pleading deficiencies in earlier versions of the draft amended statement of claim, most notably with respect to publication, and has also very properly abandoned many aspects of the claim, such as the claims for aggravated damages and the prayer for relief seeking a written apology. Although parts of the latest draft pleading are insufficiently particularised, those matters can, for the most part, be resolved by way of a proper answer to a request for particulars. 2.3 However, the latest draft pleading is still fundamentally deficient in the pleading of imputations and for that reason should not be permitted to be filed. The importance of the imputations is heightened in this case in which the plaintiff's legal representatives have informally indicated to the first defendant's legal representatives that the plaintiff will seek to have the matter tried before a jury." 8 In relation to pars 8 and 9 of the Draft Amended Statement of Claim, counsel for the first defendant submits that the imputations pleaded are "variously incapable of arising, incapable of defaming or bad in form". 9 In relation to the imputation said to arise from the first matter complained of in par 8 of the Draft Amended Statement of Claim, the first defendant makes the following submission: " 3 Paragraph 8 ‑‑‑ imputations 3.1 The imputations pleaded in this paragraph are variously incapable of arising, incapable of defaming or bad for form. 3.2 Imputation 8(a), 'although holding itself out as a University, the plaintiff cannot properly be so described', fails to specify the act or condition alleged to have been conveyed of and concerning the plaintiff. (See Section 4 of the Appendix to this outline.) Is the imputation that the plaintiff has lied? That the plaintiff is hypocritical? That the plaintiff is not a University at all? Neither the first defendant nor the court can know. If the imputation is understood to capture all those meanings, then it is impermissibly rolled up. The imputation is also incapable of arising from the e‑mail. (See section 2 of the Appendix.) The e‑mail refers in this respect only to the content of the plaintiff's educational programs and to the standards expected of Australian universities. The e-mail does not at any point say – or even suggest – that Greenwich University is not a University. 3.3 Imputation 8(b), 'formal affiliation with the plaintiff by private providers of education and training would diminish the quality and integrity of the courses provided by such institutions', pleaded as it is in the passive voice, again fails to specify the act or condition alleged to have been conveyed of and concerning the plaintiff. This imputation states, in effect, what is supposed to be the consequence of some act or condition on the part of the plaintiff, without ever specifying what that act or condition is. What matters would the defendants have to prove in order to justify this imputation? The imputation is also bad for form in that the word 'integrity' is nonsensical or ambiguous when used of an educational 'course' in the absence of further context. Nor is the imputation capable of being conveyed by the first matter complained of. The e‑mail is directed to the plaintiff's courses, not to the courses offered by other private providers of education. Nor is the imputation capable of being regarded by an ordinary reasonable reader as defamatory of the plaintiff in this form. (See section 3 of the Appendix.) 3.4 Imputation 8(c), 'the nature and reputation of the plaintiff is such that association with it by private providers of education and training would be sufficient to diminish the reputation of such institutions', again is pleaded in the passive voice and fails to specify the act or condition alleged. What is it about the 'nature and reputation of the plaintiff' which would have that effect? How would the defendants prove this imputation to be true? The imputation is also incapable of being conveyed. The e-mail refers to 'formal arrangements' and 'formal associations' (lines 38 and 40) in the sense of formal 'affiliation' (lines 16, 31 and 32). The e-mail does not refer to mere 'association' with the plaintiff at any more general level. Nor does the e-mail refer to the effect of any such formal affiliation upon the 'reputation' of other private providers of education or training. The imputation is also incapable of being defamatory in this form. 3.5 Imputation 8(d), 'the reputation of the private education industry would be damaged if private providers of education and training endorsed the plaintiff's study programs', does not differ in substance from imputation (c). Again, the imputation simply fails to specify any act or condition with respect to the plaintiff itself. The imputation is also incapable of being conveyed. The e‑mail does not refer to the 'reputation' of the private education industry or to the 'endorsement' of the plaintiff's study programs by private providers of education. Again, the imputation cannot be defamatory in this form." 10 In relation to the imputation said to arise from the second matter complained of in par 9 of the Draft Amended Statement of Claim, the first defendant makes the following submission: "4 Paragraph 9 ‑ imputations 4.1 The imputations pleaded in this paragraph are again variously incapable of arising, incapable of defaming or bad for form. 4.2 Imputation 9(a), 'the plaintiff's activities are likely to damage the international reputation of Australia's private providers of education and training', fails to specify any act or condition – namely, what those 'activities' might be. The imputation is also incapable of being conveyed. The second matter complained of, which it must be remembered consists only of the words in bold type in Schedule B alleged to have been spoken by Mr Smith, makes no reference to the plaintiff's activities. Nor does the second matter complained of refer to 'the reputation of Australia's private providers of education and training' – the reference is only to 'Australia's reputation'. Nor can the imputation be defamatory of the plaintiff in this form. 4.3 Imputation 9(b), 'the nature and reputation of the plaintiff is such that association with it by private providers of education and training would be sufficient to diminish the reputation of such institutions', is in the same terms as imputation 8(c) and suffers from the same formal defects. There is no act or condition specified. Again, apart from the fact that the imputation is incapable of being defamatory in this form, it is also incapable of arising from the words alleged to have been spoken by Mr Smith. There is no reference in the second matter complained of either to the 'nature and reputation of the plaintiff' or to the 'reputation' of 'private providers of education and training'." 11 One other matter pressed by the first defendant at this stage in its submissions, viz., the use of the phrase "or their gist" in pars 6 and 7 of the Draft Amended Statement of Claim, is the subject of the following submission by the first defendant: "2.6 Each of these paragraphs refers to republication of the defamatory words 'or their gist'. This is not a proper pleading of republication. 2.7 The words 'or their gist' are immaterial and would be liable to be struck out of any amended statement of claim. 2.8 Although the pleading in paragraphs 6, 7, 9 and 10 is not entirely clear on this point, the first defendant assumes that the republication of the second matter complained of in The Australian pleaded in paragraphs 6 and 7 is alleged to give rises to the same imputations (being those pleaded in paragraph 9) which are pleaded with respect to the initial publication of the second matter complained of to the journalist pleaded in paragraph 5, and not to any other imputations. The first defendant further assumes that the matters pleaded in paragraph 10 are intended to include an allegation that the first and second defendants are liable for the republication of the second matter complained of pleaded in paragraphs 6 and 7. On this footing, the first defendant does not challenge the pleading of the republication case." The Plaintiff's submissions in reply 12 In answer to the first defendant's pars 2.6, 2.7 and 2.8, the plaintiff says: "Re-Publication 2.6-2.7 The defendants say that the words 'or their gist' are not a proper pleading of republication. This is not so. Annexed to these submissions is a copy of an extract from Bullen & Leake & Jacobs, Precedents of Pleadings, 14th edition, (2001) setting out a precedent (28-F9) for the pleading of re-publication, which adopts that very formulation. The formulation is apposite, given that the plaintiff was not present at the interview between the second defendant and the journalist. Obviously, the plaintiff cannot say exactly what was said by the second defendant to the journalist. The only record of what was said is the newspaper article which it is reasonable to suppose either re-publishes the exact words spoken by the second defendant to the journalist or 'the gist' of those words. 2.8 The assumptions made by the defendants are correct. We note that, on that footing, the defendants do not challenge the pleading of the republication case." 13 In response to the first defendant's submission in relation to the imputations pleaded in pars 8 and 9 of the Draft Amended Statement of Claim, the plaintiff submits that while the first defendant's submissions raise arguments which would be appropriate if this action were brought under the Defamation Act 1974 (NSW) ("the Defamation Act"), they are not appropriate in the present context. In this regard the plaintiff notes that under the Defamation Act, the imputation is the cause of action (s 9(2) and (4)) and that a body of custom and practice has emerged which specifically deals with the legislative position in New South Wales. In contrast to the position in New South Wales, there is no legislation of either the Commonwealth Parliament or the Norfolk Island Assembly which deals with the law of defamation and, accordingly, the law which is applicable is the common law. The common law of Norfolk Island is the common law of England as it existed in 1828, together with all the developments on Norfolk Island since that time: Cook v Administration of Norfolk Island (1992) 39 FCR 297 at 303 and following. At common law, contrary to the position under the Defamation Act, the cause of action in libel or slander is complete on publication (with or without special damage). The plaintiff submits that the imputation arising from the defamatory words is not the cause of action, nor is it a requisite element of it at common law. Further, a jury in considering whether a cause of action for libel or slander has been made out, is not restricted to only the imputations pleaded and alleged, but can rely upon its own interpretation of the words (i.e. words published) (Hadzel v De Waldorf (1970) 16 FLR 174 at 179 per Fox J; Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 175 per Diplock LJ; Lucas v News Group Newspapers Ltd [1986] 1 WLR 147). 14 In considering the inferences to be drawn, the ordinary reasonable juror is understood to read between the lines; to have a greater capacity than a lawyer to draw implications; to approach the task without the same degree of attention to analytical detail as a lawyer; to be affected by imprecise, ambiguous or loose words; and not to be fettered by strict rules of construction: Tobin & Sexton, Australian Defamation Law & Practice, para [3170]. 15 Whilst it is the duty of the judge to withdraw from the jury any meanings relied on by the plaintiff which are not capable of arising from the publication, the court will only reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation: Ryan v Ross (1916) 22 CLR 1 at 11. 16 Contrary to the position in New South Wales, and the practice, motions of the kind brought by the defendants are not open to be brought in the Supreme Court of Norfolk Island. Order 23 Rule 28 (of the Supreme Court Rules) is the only basis (inherent jurisdiction to one side) to order parts of a pleading to be struck out. In order for a striking out, part of a pleading must be characterized as 'unnecessary or scandalous, or having a tendency to prejudice, embarrass or delay the fair trial of an action." Conclusions on the Motion 17 As has been seen, the parties' submissions throw up two possible pleading questions (as distinct from issues arising from any request for particulars). The re-publication point 18 The first is "the gist" point. In my opinion, it was open to the plaintiff, in this context, to plead its claim of the gist of the re-publication. The current Bullen & Leake precedent (28 - F9) in the case of re-publication in a newspaper, is in similar form, materially as follows: "The First Defendant knew and intended [the] words [complained of], or their gist, should be republished in the press, and/or authorised their repetition." The imputation point 19 The applicable legal principles in this jurisdiction are settled (see, e.g. the discussion in an analogous jurisdiction in Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 at [22] – [28]). The plaintiff's submissions accord with, and are consistent with, these principles. 20 Accordingly, in my opinion, the plaintiff's submissions are sound, and should be accepted. In my view, there is nothing in this pleading which has a tendency to prejudice, embarrass the fair trial of the action, or to otherwise abuse the Court's process. 21 I will grant the plaintiff leave to file the Draft Amended Statement of Claim. It is not necessary that I consider its contention that it can now amend without leave. Particulars 22 However, the defendants are entitled to adequate particulars of the allegations pleaded. I will give directions accordingly. Costs 23 Costs will be reserved and dealt with on the papers. Orders and Directions 24 I make these orders and directions: 1. Leave granted to the plaintiff to file an amended statement of claim in terms of the Draft Amended Statement of Claim filed and served on 1 March 2002. 2. Direct that any request by the first defendant for particulars be made within 21 days, and responded to within 14 days. 3. Costs to date reserved. Liberty to apply for costs in writing within 21 days. 4. Matter stood over for directions on 20 June 2002 at 9.45 am. I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of his Honour Chief Justice Beaumont. Associate: Date: 30 April 2002 Appearing for the Plaintiff: Mr P Garling SC and Ms K Rees Appearing for the First Defendant: Mr R McHugh Date of Hearing: 28 February 2002 Date of Orders: 12 April 2002 Date Judgment delivered: 12 April 2002