New South Wales District Court CITATION: Breen v Nationwide News Pty Ltd & Ors (No. 2) [2007] NSWDC 233 EX TEMPORE JUDGMENT DATE : 19 October 2007 JURISDICTION: Civil JUDGMENT OF: Gibson DCJ DECISION: (1) Grant the plaintiff leave to file and serve a further amended statement of claim; (2) The plaintiff pay the costs thrown away by reason of the amendment to the statement of claim; (3) Defendant's application under the Slip Rule in relation to order 2 of the judgment of 4 October 2007 is dismissed; (4) The defendant is to pay the plaintiff's costs of the argument today; (5) Orders as per paragraphs 2, 3 and 4 of the short minutes of order. CATCHWORDS: Tort - defamation - imputations - capacity - costs LEGISLATION CITED: Defamation Act 2005 (NSW) Uniform Civil Procedure Rules (NSW), Part 36 r 17 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 Breen v Nationwide News Pty Limited and Ors [2007] NSWDC 192 Brimaud v Honeysett Instant Print Pty Ltd (New South Wales Supreme Court, 19 September 1988, unreported) Cretazzo v Lombardi (1975) 16 SASR 1 CASES CITED: Favell v Queensland Newspapers Pty Limited (2005) 79 ALJR 1716 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Griffith v John Fairfax Publications (2004) NSWCA 300 Malcolm v Nationwide News Pty Limited [2007] NSWCA 254 Manning v Nominal Defendant [2000] NSWCA 80 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Plaintiff: Peter James Breen PARTIES: First Defendant: Nationwide News Pty Ltd Second Defendant: Janet Fife-Yeomens Third Defendant: Caroline Overington FILE NUMBER(S): 66 of 2007 COUNSEL: Plaintiff: R Potter Defendants: S Chrysanthou SOLICITORS: Plaintiff: Turner Freeman Lawyers Defendants: Blake Dawson Waldron Lawyers JUDGMENT 1. The defendant in these proceedings comes before me today with two applications. The first is to oppose an application by the plaintiff for leave to amend three of the imputations in the statement of claim and to file an amended pleading inserting the word "sexual" before imputations 4(b), 6(b) and 9(b). 2. The orders I have already made in this matter are set out in my judgment Breen v Nationwide News Pty Limited & Ors [2007] NSWDC 192. The plaintiff has already agreed that if leave is granted that the plaintiff will pay the costs thrown away by reason of the amendment. 3. The text of the matter complained of is set out in my judgment in Breen v Nationwide News Pty Limited & Ors. The passages the plaintiff relies upon are essentially the whole of the matter complained of, but in particular, the following in relation to each of publications A, B and C. Publication A: 4. The plaintiff draws my attention to the headings "MP's love for vicious killers", "Sickening bid to free rapists". The opening paragraphs refer to the plaintiff having: "penned a sickening tribute to the killers of Janine Balding in which he talks about his realisation one night in 'under the stars' that he loved two of them." 5. In particular, the matter complained of goes on to say that the plaintiff, who is described as a "controversial MP", describes the vicious killers in his new book as "having rosy cheeks", "pleasant smiles" or being "hapless", and goes on to say that the oldest of the three killers is innocent of the murder, adding: "Mr Breen calls 'blue eyed' Jamieson by his nickname Jamo. He bought him a television for his cell... "Jamieson is gazing out the high barred window behind me, his eyes reflecting blue sky" is how Mr Breen describes one gaol meeting in his bizarre paperback, researched mainly in parliamentary time... 'I love Shorty Jamieson and I'm not afraid to say so'." Publication B: 6. The portions relied on in publication B are again the headline and opening words, which include the reference to the book as being "his sick book" in which he said he "loved two of Janine Balding's killers", and goes on to say that he had been "forced to quit" the ALP after The Daily Telegraph revealed the "shocking contents" and that the Attorney General's Office had been asked to step in. Mr Potter draws to my attention to the references at line 37 and line 109 in which the publication asserts that the plaintiff "loves two of the killers of Janine Balding". Publication C: 7. The third matter complained of has Mr Breen quoted as saying he is "sorry if people find this shocking" and there is a reference to acts of cruelty by one of the killers as a child, including animal cruelty, and also a statement that the oldest of the group who has been routinely described in press reports as a "hideous creature" with "ape line features, a flat vacant face, and a strange stunted body" being only 122 centimetres tall with an IQ of 65. The imputations argument 8. Each of the three matters complained of sets out the circumstances in which the plaintiff is asserted to have declared his love for the two of the vicious killers of Janine Balding in circumstances where the plaintiff draws to my attention that not only is the plaintiff asserted to have declared his love for another man but it is more than one other man and it is in particular the two vicious killers of Janine Balding which they had been notorious throughout New South Wales, if not Australia, as one of the most dreadful rape and murder cases over the last twenty years at least. 9. Miss Chrysanthou, for the defendants, submits that "love" means sexual conduct and not perverse conduct and that what is asserted here is romantic love, not conduct that is capable of being sexually perverse. 10. Miss Chrysanthou draws to my attention the decision of the Court of Appeal in Malcolm v Nationwide News Pty Limited [2007] NSWCA 254. The circumstances of this case were that Simpson J considered that, when regard was had to the entirety of the news article, it was clear beyond what the Court of Appeal calls in its headnote "reasonable doubt" that what was being reported was a suspicion that the person depicted in the photograph was the person who committed the offence. 11. The Court of Appeal, when allowing an appeal from her Honour's decision striking out an imputation "the appellant had abducted and indecently assaulted a seven year old boy", reviewed the law relating to capacity, noting firstly the decision of the Court of Appeal in Griffith v John Fairfax Publications (2004) NSWCA 300 concerning imputations under the 1974 Act, then Favell v Queensland Newspapers Pty Limited (2005) 79 ALJR 1716 concerning the position at common law. The Court then came to a consideration of the tests in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 and in Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158. 12. The publication in Malcolm was made on 29 June 2005. The publications that are before me now are 2006 publications. Accordingly these matters fall within the ambit of the Defamation Act 2005 (NSW) which commences in relation to actions after 1 January 2006. 13. Beazley J in Malcolm considered that the test for imputations was as follows: "20. Thus in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Glass JA at 674 stated that the question whether the imputation was conveyed should go to the jury unless it was blindingly obvious that no other conclusion was reasonably open. In Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 Hunt CJ at CL (Mason P and Handley JA agreeing) stated at 164-165 that if reasonable persons may differ as to the conclusions to be drawn from the matter complained of, the issue as to whether the imputation was in fact conveyed must be left to the jury". 14. Miss Chrysanthou submits to me that this is a break with the use of the General Steel test, a case which has been referred to by Nicholas J in relation to a number of decisions his Honour has handed down on capacity. 15. Prior to the Defamation Act 2005 the General Steel test was not referred to in capacity arguments other than capacity arguments in relation to extrinsic facts, those being matters of pleading. What Miss Chrysanthou submits to me that the Court of Appeal is doing in Malcolm is drawing back from the General Steel test on the basis that it is necessary to establish that it is "reasonable". In other words, if reasonable persons may differ, in some way this imposes a higher test than the General Steel test. 16. It is my view that the District Court should in the interests of judicial comity follow the decisions of Nicholas J and the Supreme Court. Miss Chrysanthou has told me that there has been a recent case which unfortunately is not available where Nicholas J has resiled from the use of the General Steel test and has preferred to follow Malcolm v Nationwide News Pty Limited. 17. However Mr Potter tells me, and I agree, that I do not need to worry about this apparent conflict as to what the test is, because on any test there is sufficient in each of the matters complained of for him to be able to persuade me that his client should be granted leave to amend to plead these imputations. 18. When one looks at the question of what is a matter for the jury it is hard to think of a better area for jury determination than issues about whether expressing love for two convicted killers is indeed romantic love, or is a perverse sexual attraction. This is a quintessential jury question. A jury can make a decision that is based on community values and their understanding of what the ordinary reasonable reader would make of such an article. Sometimes juries have returned answers of this kind which have surprised lawyers; for example, famously in one case, the jury held that an imputation that the plaintiff, Dr Cairns, felt "a kind of love" for a Miss Morosi was not defamatory. These are matters for which we have juries. This is a quintessential jury question and in my view, whatever the test may be, the loose language of the matter complained of and the certainty that the ordinary reasonable reader would draw inferences and read between the lines mean that there is ample evidence from the text of each of the matters complained of to warrant this amendment. The costs application 19. The second application brought by the defendant is in relation to the issue of costs arising from my judgment of [2007] NSWDC 192. This application is brought under the Slip Rule (Uniform Civil Procedure Rules Part 36 r 17), on the basis that I erred in finding that the plaintiff had identified substantial flaws in the defence which necessitated re-pleading (at [68] of my judgment). 20. The word "substantial" was not a word of my using, it was a word of Mr Leopold's adoption, as I note from transcript p 1 line 26 where Mr Leopold said there were "substantial changes" and that he did not seek to press the defence any longer, which of course meant that he was relying on the amended defence that was before me. Miss Chrysanthou tells me that she read [68] of my judgment as meaning that the plaintiff in the course of argument before me identified substantial flaws in the defence that was before me which necessitated re-pleading. But all I was doing was reciting matters of history which are set out more fully in my judgment at [9] where I said this: "When the matter came before me, the plaintiff provided written submissions identifying a number of errors in the pleading and particularisation of comment. Rather than answer this, the defendant sought leave to amend and provided a draft defence. Some of the proposed amendments appear to be inconsistent with the defence of contextual truth (particularly in regard to imputations 4(b), 6(b), 9(b) and 11(b)) and the document bears the signs of a hastily drafted document. I have taken this into account when formulating my orders and also in relation to costs. In addition, Mr Leopold made some concessions during the argument which necessitated my ordering the transcript to ensure I had recorded them correctly." 21. The defendant complains, with some justification, that they were successful to a large degree, Miss Chrysanthou in fact submitted they were entirely successful in their application before me to oppose the plaintiff's application to strike out the defence of comment. 22. However, in exercising my discretion as to costs, I heard submissions from the parties and I made an order which took into account the history of the matter rather than separating out the acknowledgment and concessions by the defendant that they would pay the costs thrown away, and I also took into account the lateness with which the amended pleading had been filed and the fact that there were some unspecified number of matters still requiring correction. Miss Chrysanthou says that the amended defence was filed on the date by which submissions are due and that is correct. However, essentially what she objects to is that I took a global approach to costs rather than an issue by issue approach to costs and that is not a matter which, in my view, could fall within the slip rule because it requires the exercise of a discretion. It is not a subject matter about which no real difference of opinion can exist. Essentially what I am being asked to do is to revisit my earlier costs order. 23. Miss Chrysanthou initially sought an order for costs in her clients' favour. It was drawn to her attention by Mr Potter that when costs were argued before me Mr Leopold did not ask for costs; he asked for no order as to costs or costs in the cause. Thus Miss Chrysanthou was asking for more costs than her learned leader, as he now is, had sought. She has since resiled from this position and now asks me to make the order that Mr Leopold sought. It seems to me that this is effectively asking me to re-exercise my discretion as to costs in circumstances where there is no new material before me, apart from one minor exception to which I will shortly refer. 24. In Manning v Nominal Defendant [2000] NSWCA 80 and a number of other decisions which follow on from Brimaud v Honeysett Instant Print Pty Ltd (New South Wales Supreme Court, 19 September 1988, unreported), the courts have warned against the re-hearing of interlocutory applications on issues such as costs. Miss Chrysanthou did draw to my attention that the amendments that had to be made as a result of the typographical errors to which Mr Leopold referred at p 35 in fact were only two in number and I must say, if Mr Leopold had told me that when I was making my costs order, that might have given me occasion to consider such a request. But, in circumstances where nobody told me how many typographical errors there were, where the document was rather hastily prepared, where there was some crossing out going on when the matter was before me and that I was a bit unsure about the nature of the concession that Mr Leopold eventually formally made in court and had to take out the transcript, I took the view that the costs thrown away by reason of the amendment and the costs of the hearing were so inextricably tied up that the best step was to regard them as being indivisible. To unscramble the omelette and say that some costs went under one heading and other costs under another, in my view, would not be warranted in an application of an interlocutory nature in relation to the amending of a defence. 25. My discretion as to costs is unfettered: Cretazzo v Lombardi (1975) 16 SASR 1. I note in this decision the learned judges of the Full Court of the Supreme Court of South Australia warned against the parcelling out of costs under individual headings and considered the desirability of making global orders as to costs. 26. Accordingly I reject the submission that I have in some way fallen into an error requiring correction under the Slip Rule. I decline to exercise my discretion to revisit the costs order. But, in the event that I have erred, I have set out the matters which, if I were to revisit the costs order, should make it clear that I would make the same order again. 27. The orders that I will make in these proceedings are as follows: (1) Grant the plaintiff leave to file and serve a further amended statement of claim. (2) The plaintiff pay the costs thrown away by reason of the amendment to the statement of claim. (3) Defendant's application under the Slip Rule in relation to order 2 of the judgment of 4 October 2007 is dismissed. (4) The defendant is to pay the plaintiff's costs of the argument today. (5) Orders as per paragraphs 2, 3 and 4 of the short minutes of order. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.