New South Wales Supreme Court CITATION : Thoms & Anor v John Fairfax Publications Pty Limited [1999] NSWSC 357 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20825 of 1997 HEARING DATE(S) : 9 April 1999 JUDGMENT DATE : 21 April 1999 PAUL THOMS (Plaintiff) THOMAS THOMS PTY LIMITED PARTIES : (Second Plaintiff) v JOHN FAIRFAX PUBLICATIONS PTY LIMITED (Defendant) JUDGMENT OF : Levine J J Gibson (Plaintiffs) COUNSEL : T Blackburn (Defendant) Nash O'Neill Tomko (Plaintiff) SOLICITORS : John Fairfax Publications Pty Limited (Defendant) CATCHWORDS : Identification - true innuendos - imputations - capacity - form DECISION : See paragraph 16 DLJ : 1 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20825 of 1997 JUSTICE DAVID LEVINE WEDNESDAY 21 APRIL 1999 PAUL THOMS (Plaintiff) THOMAS THOMS PTY LIMITED (Second Plaintiff) v JOHN FAIRFAX PUBLICATIONS PTY LIMITED (Defendant) JUDGMENT (Identification - true innuendos - imputations - capacity - form) 1 The plaintiffs, by a Statement of Claim filed on 5 September 1997, instituted proceedings claiming damages for defamation arising from a publication on 4 May 1997 in "The Sun Herald " newspaper. The text of the publication is set out as follows: "Being a Hero costs $150,000 [picture] WHISTLEBLOWER: Elizabeth O'Brien lobbied on lead It cost Elizabeth O'Brien more than $150,000 in lost wages when she blew the whistle on the lead industry. She forfeited four years of wages as a primary school teacher to take up a full-time campaign to raise community awareness about the dangers of lead poisoning to children's health and IQs. After buying a house in Summer Hill seven years ago, Ms O'Brien became a local hero when she discovered a lead factory across the road was poisoning children. She established a community action group, the LEAD Group, and lobbied the Government to undertake a blood test survey in the Summer Hill area around the Thomas Thoms lead foundry. The survey found half the pre-schoolers in the area were poisoned by lead. Her lobbying also played a role in reducing lead levels in petrol. Ms O'Brien features in a new book, Whistleblowers, by journalist Quentin Dempster, to be released this week. Dempster, presenter of the ABC TV's Stateline in NSW and correspondent for the 7.30 Report has profiled 10 Australians who have taken on the establishment to reveal the truth about corrupt practices and cover-ups in business, government, science and medicine. Ms O'Brien's campaign led Thomas Thoms to shift its foundry to an industrial estate in Queensland. Last year the LEAD Group became the NSW Community Lead Advisory Service, where Ms O'Brien is now employed. She said she had argued with Dempster about her description as a whistleblower. 'I thought that whistleblowers were people in danger of losing their jobs, but Quentin insisted that I was a whistleblower because I had drawn attention to the problem' she said. The book includes Bill Bolitho, of Victoria, the former Chairman of ANL who exposed its wrecking by political and bureaucratic incompetence". 2 It is contended that the publication conveys, of the first plaintiff (Paul Thoms), the following imputations: " 3(a) The first plaintiff was poisoning children. (b) The first plaintiff's management of the Thomas Thomas (sic) lead factory caused it to poison half the pre-schoolers in the Summer Hill area, causing damage to their health and IQs. (c) The first plaintiff was obliged to shift his business to an industrial estate in Queensland when his corrupt practices were revealed by a woman who blew the whistle on the lead industry at a cost to herself of $150,000.00". 3 It is further contended that the publication conveys the following imputations of the corporate plaintiff (Thomas Thoms Pty Limited), as follows: "4(a) The company was poisoning children. (b) The company's lead factory poisoned half the pre-schoolers in the Summer Hill area, causing damage to their health and IQs. (c) The company was obliged to shift its foundry to an industrial estate in Queensland when its corrupt practices were revealed by a woman who blew the whistle on the lead industry at a cost to herself of $150,000.00". 4 In a general sense objection is taken to the pleading in paragraph 1 of the Statement of Claim of immaterial averments. That paragraph is in the following terms: "The first plaintiff is the Chairman of the Second plaintiff, a corporation which has been in business at Summer Hill, Sydney in the State of New South Wales since its founding in 1881 by Thomas Thoms. At all relevant times since 1881 the business in question has been controlled and managed by the Thoms family". 5 A reading of paragraphs 2, 3 and 4 of the Statement of Claim seems to expose the truly material averment, namely, publication " of and concerning the plaintiffs" . 6 The first plaintiff is not named in the matter complained of insofar as there is no reference to "Paul Thoms ". The plaintiff is therefore obliged to particularise the relevant facts known to persons who read the matter complained of which would enable such persons to give evidence of publication " of and concerning " Mr Paul Thoms. The particulars of identification appended to the pleading merely repeat the contents of paragraph 1 of the Statement of Claim alleging that those matters are known to customers of " Thomas Thomas Company" (sic), the first plaintiff's relatives and friends and residents in the Summer Hill area. It is contended that the relationship between the first plaintiff and the corporation bearing " his family name " is a " notorious " fact, but not to readers of the matter complained of but readers to the book " Whistleblowers " in which it is said the first plaintiff is named and also to members of government regulatory bodies with duties to supervise emissions from the plaintiff's factory premises. 7 The point is well taken as to the insufficiency of the setting out in the Statement of Claim of particulars of relevant facts and matters in support of the allegation of publication " of and concerning " the unnamed plaintiff: that is, particulars of identification. 8 Paragraph 1 in the Statement of Claim, in my view, is technically embarrassing and is amenable to being struck out for that reason. Proper particulars of identification can, with facility, be provided in the usual form as particulars appended to the Statement of Claim in which otherwise the relevant material allegations are averred. 9 Turning to imputation 3(a), complaint is made that it is incapable of arising without being supported by particulars of identification to which I have just referred and particulars of extrinsic facts going to the history, chronology, relationship and role of the first plaintiff in connection with the business, which would permit a person knowing those facts to understand the matter complained of as conveying that meaning. 10 In any event, it is contended (assuming particulars are available both as to identification and " meaning "), the article is incapable of conveying an imputation in the form of 3(a), in any event. It is said that the words " poisoning children " are emotive: that they certainly are, but that does not preclude their being capable of being conveyed. The real point is whether the ordinary reasonable reader of this article (and the jury), would have any difficulty in understanding whether the poisoning was by negligence or deliberate. To my mind it is clear that the ordinary reasonable reader who would come to the view that the first plaintiff was " deliberately" poisoning children would not, in reality, be a " reasonable " reader. The matter complained of is capable of pointing to some aspect of the conduct of the first plaintiff (assuming identification), in relation to the conduct of the business with which he is associated and asserts the bringing about of the poisoning of children. 11 The submissions for the defendant in relation to imputation 3(a) are well founded and it will not go to the jury. 12 As to imputation 3(b) (subject to identification), it is incapable of arising, firstly (on a minor matter), in that the matter complained of refers to the area " around the Thomas Thoms lead foundry " as opposed to the "Summer Hill area ". This is so. In addition to the submissions in relation to the particularisation of identification, it is argued that there is nothing in the article which is capable of conveying of the first plaintiff anything in relation to his having managed badly or otherwise the factory and caused it to poison the pre-schoolers in the relevant area. The imputation is bad in form, in my view, in that it does not identify with precision what it was about the plaintiff's "management " that caused the lead factory to poison the children. Imputation 3(b) will be struck out. 13 As to imputation 3(c), subject to proper particularisation of identification and, in my view, the prudent particularisation of a cause of action based upon a true innuendo, an imputation in this form is clearly capable of arising. This is a very good example of the use of the word " corrupt " in the matter complained of to which the pleader can give no greater meaning than that which appears in the publication itself (see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 ) . The defendant used the word starkly and so may the plaintiff. Imputation 3(c) will go to the jury. 14 With respect to, the imputations pleaded in paragraphs 4: imputation 4(a) will not go to the jury and imputation 4(b), in my view, is incapable of arising in so stark a form and is defective in form. There must be specified, in my view, in the imputations some aspects of the companies conduct of the lead factory business that brought about the result referred to. 15 Imputation 4(c) will go to the jury. 16 Accordingly, the formal orders are: 1. Imputations 3(a) and 4(a) will not go to the jury 2. Imputation 3(b) and 4(b) will be struck out. 3. Imputations 3(c) and 4(c) will go to the jury. 4. The plaintiffs are to pay the defendant's costs. 5. The plaintiffs have leave to file an Amended Statement of Claim within 14 days. 6. Thereafter, liberty to restore to the Defamation List on 3 days notice. ********** Last Modified: 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.