Waterhouse v David Syme & Co Ltd & 2 Ors [1999] NSWSC 52

New South Wales Supreme Court CITATION : Waterhouse v David Syme & Co Ltd & 2 Ors [1999] NSWSC 52 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20876 of 1997 HEARING DATE(S) : 1 May 1998 JUDGMENT DATE : 12 February 1999

ROBERT WATERHOUSE (Plaintiff)

v

DAVID SYME & CO LIMITED PARTIES : (First Defendant)

JOHN FAIRFAX PUBLICATIONS PTY LIMITED (Second Defendant)

ARTHUR HARRIS (Third Defendant) JUDGMENT OF : Levine J

COUNSEL : Mr M Rollinson (Plaintiff) Brock Partners (Plaintiff)

SOLICITORS : Minter Ellison (First Defendant)

Freehill Hollingdale & Page (Second Defendant) CATCHWORDS : Imputations; capacity and form; joinder DECISION : See paragraph 25

- 10 - DLJ : 2 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

No. 20876 of 1997

JUSTICE DAVID LEVINE

FRIDAY 12 FEBRUARY 1999

ROBERT WATERHOUSE (Plaintiff)

v

DAVID SYME & CO LTD (First Defendant)

JOHN FAIRFAX PUBLICATIONS PTY LIMITED (Second Defendant)

ARTHUR HARRIS (Third Defendant)

JUDGMENT (Imputations - capacity & form- joinder)

1 By an Amended Statement of Claim filed on 29 October 1997 the plaintiff sues the first defendant as the publisher of "The Sunday Age" in respect of an article published on 28 September 1997. It is said in paragraph 3 of the pleading that the first and third defendants published that material. 2 The matter complained of bears the headline "Dead Heat- Who Killed George Brown?" and the by-line of Andrew Rule. It is 107 paragraphs in length. 3 The plaintiff contends that that matter complained of conveys of him the following imputations: "(a) The plaintiff is a murderer. (b) The plaintiff is a torturer. (c) The plaintiff caused the murder of George Brown. (d) The plaintiff caused the torture of George Brown. (e) The plaintiff sent two men around to teach George Brown a lesson by violence". 4 The second defendant (Fairfax) is sued in respect of a publication in "The Sun-Herald" of 28 September 1997 said (in paragraph 5) to have been published by the second and third defendants or to be caused to be published. 5 The article bears the headline "George Brown's Friends Are Still Terrified Today But All Agree - He Died Because He Failed To Substitute A Horse"; it also has the by-line of Andrew Rule and can fairly be described as an abbreviated version (being 66 paragraphs) of the article published in "The Age". 6 The plaintiff contends that this matter complained of conveys the same five imputations relied upon in respect of the first publication. 7 The Particulars of Publication as far as the third defendant is concerned are: "The words attributed to the third defendant in annexure 'A' were published by him to the first defendant's journalists including Andrew Rule with the knowledge that such words would be re-published or would be likely to be re-published in the newspaper. The words attributed to the third defendant in annexure 'B' were published by him to the second defendant defendant's journalists with the knowledge that such words would be re-published or would be likely to be re-published in the newspaper". 8 It is the third defendant (Harris) who moves the Court for relief in relation to this pleading in two areas: first, the imputations both as to form and capacity and, secondly, his joinder as a defendant. 9 The first and second defendants while their legal representatives were in Court during the argument did not participate and are content to abide the outcome of Mr Harris' motions. 10 A subsidiary point taken by Mr Harris and a valid one is the form of the pleading itself in terms of the legibility of the annexures. Appended to the Amended Statement of Claim are what purports to be photocopies of the relevant articles. Both simply are illegible and despite endeavouring to read them so as the better to understand the submissions made, I was unable to do so until Mr Rollinson of counsel was good enough to provide me with transcribed versions on 26 November 1998. In the event of the plaintiff being granted leave to file any Further Amended Statement of Claim it will a requirement that the matters complained of be appended in transcript form thereto (see Stewart v Shoalhaven & Nowra News Pty Limited (Hunt J, unreported, 26 September 1980); Campbell v Regional Publishers Pty Limited (Levine J, unreported, 30 October 1998 at pp 14-15)). 11 Mr Harris provided me with a bundle of correspondence constituted by an exchange of letters between himself and the solicitors for the plaintiff raising various matters in dispute, and the exchange of the request for and supply of particulars between the solicitors for the plaintiff and the solicitors for the first and second defendants. One thing is clear, as was pointed out was by Mr Harris, that there is no coincidence in the identification of the part or parts of the matter complained of relied upon by the plaintiff vis-a-vis each defendant. In the end I do not think anything really turns on that for the purposes of the present application. It is certainly clear from a consideration of the relevant letters, and bearing in mind the different length and form of the respective articles, that essentially the same material is relied upon and particularly the parts in which words are attributed to the third defendant, Mr Harris. 12 The first point, as I understood it, made by Mr Harris is that objection is taken to the generality of imputations (a) and (b). It is argued that if the matter complained of is capable of conveying anything to the effect of such imputations, it is that the plaintiff murdered George Brown and/or the plaintiff tortured George Brown. Considering these imputations, as-it-were, in isolation, I see no point in the submission made by Mr Harris in this regard. As a matter of fact in the real world if the plaintiff murdered George Brown the plaintiff would be a murderer; if the plaintiff tortured George Brown the plaintiff would be a torturer. I shall return to these imputations in respect of another basis upon which they are attacked. 13 As to imputation (c) and (d) in each case they will be struck out. The use of the word "caused" is so imprecise to be embarrassing. 14 As to imputation (e): I see no defect in form, nor do I see any inconsistency as a matter of pleading (subject to what appears below) between what is involved in this imputation and what is involved in imputations (a) and (b). 15 It is the next submission made by Mr Harris that is determinative, in my view. The submission, shortly stated, is the submission often described as the "guilt/suspicion" submission founded in that line of authority Lewis v Daily Telegraph Limited (1964) AC 234; Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 recently the subject of discussion and analysis by Hunt CJ at CL in Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 167B (see also Levine J Rivkin v John Fairfax Publications Pty Limited(unreported, 18 September 1998). 16 What the articles make quite clear is that George Brown was tortured and murdered. The second matter complained of bears a sub-headline "Special Investigation", the first matter complained of asks the question "Who Killed George Brown?". Both articles, in my view, clearly convey the themes of investigation, suspicion, rumour, silence, fear and speculation. 17 In Marsden his Honour said: "The publisher is not held responsible, for example, for an inference which the ordinary reasonable reader, listener or viewer draws from an inference already drawn from the matter complained of, because it is unreasonable for the publisher to be held so responsible: Lewis v Daily Telegraph Ltd (at 259-260, 274, 286); Mirror Newspapers Ltd v Harrison (at 299-300). That is an issue which has assumed some importance in this case. It is necessary to emphasise the important distinction between an implication and an inference. An implication is included in and is part of that which is expressed by the publisher. It is something which the reader (or listener or viewer) understands the publisher as having intended to say. An inference is something which the reader (or listener or viewer) adds to what is stated by the publisher; it may reasonably or even irresistibly follow from what has been expressly or impliedly said, but it is nevertheless a conclusion drawn by the reader (or listener or viewer) from what has been expressly or impliedly said by the publisher: cf Lubrano v Gollin and Co Pty Ltd (1919) 27 CLR 113 at 118; Rose v Hvric (1963) 108 CLR 353 at 358. It is the reader's (or listener's or viewer's) own conclusion. Attention to this distinction, in the context of the capacity to defame issue, seems to have been drawn for the first time in my judgment in Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 12, when I pointed out that such a distinction appeared to have been accepted by Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 279-280: see Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9 at 12. That distinction was subsequently accepted in that context by this Court in Harrison v Mirror Newspapers Ltd [1981] 1 NSWLR 620 at 627. The High Court found it unnecessary to discuss the distinction in the appeal to that court in Mirror Newspapers Ltd v Harrison (at 300), and the distinction therefore stands. An inference is drawn from an inference when the reader, listener or viewer draws an inference which is available in the matter complained of and then uses that inference as a basis (at least in part) from which a further inference is drawn. The publisher is held responsible for the first of those inferences but not for the second because — as I have already said — it is unreasonable for the publisher to be held so responsible. In Mirror Newspapers Ltd v Harrison (at 300), the High Court illustrated the process which leads to an inference upon an inference in the case where the matter complained of states that the plaintiff had been charged with an offence. The first inference available from that statement (for which the publisher is held responsible) is that the police believed the plaintiff to be guilty or had a ground for charging him. (The phrase "reasonable cause" is substituted for "ground" at page 301.) The second inference, which is based at least in part upon that first inference (and thus is not one for which the publisher is held responsible because it is unreasonable to do so), is that the plaintiff is in fact guilty of the offence charged. (The cases referred to by the High Court are Lang v Australian Consolidated Press Ltd and Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16.) That requirement of reasonableness must apply in every case. There can, however, be no unreasonableness involved in making the publisher responsible for an inference drawn by the reader (or listener or viewer) from a statement which the publisher is reasonably understood to have intended to imply in the matter complained of". 18 I agree with Mr Harris' submissions that to reach a point constituted by an allegation of guilt involves multiple inference drawing by an ordinary reasonable reader, the commencing point would be the fact that the late George Brown trained the horse Risley. From that, as I read the matter complained of and understand Mr Harris' submissions the process of inference drawing would then pass from that to the connection between the event, the odds on the race, the knowledge of the plaintiff of those matters, the fact that the plaintiff is said to have bet on the race and so on and so on. This is particularly the case in relation to the first matter complained of. The problems are aggravated by the second in which the plaintiff is not named. 19 It is argued by Mr Harris that the inference upon inference problem confronts the plaintiff in coming to an imputation of suspicion. Thus far the plaintiff has not pleaded such an imputation. That argument might well be of merit though the general theme of the matters complained of to which I have referred must be taken into account. 20 I am persuaded by Mr Harris' submissions in this regard and will hold that imputations (a), (b) and (d) will not go to the jury. 21 Finally, there is the question asked by Mr Harris: why am I a party to this action? The short answer is that the plaintiff's have alleged him to be a "publisher". There may be other answers that are irrelevant to the formal structure of this litigation. 22 No doubt those advising the plaintiff had in mind the classic statement of liability for the tort of defamation in Webb v Bloch (1928) 41 CLR 331 at 364 per Isaacs J and the considerations raised in Cook v South Australian Trotting Association (1930) SASR 166 particularly at 178 per Montague-Smith J. 23 Mr Harris argues that the words attributed to him, although relied upon by the plaintiff vis-a-vis himself as the third defendant, and are relied upon, together with other passages as giving rise to defamatory imputations, themselves are incapable of giving rise to any. 24 Given the state of the pleading as a result of the orders I am making as to the currently pleaded imputations, that proposition cannot be resolved. Indeed, subject to the nature of any amended imputations the plaintiff chooses to plead, I cannot see otherwise than that the resolution of this issue should take place at the trial. It is for the plaintiff to prove his case against the third defendant as a publisher and tortfeasor. Whether in the end the plaintiff will be able to prove his case on that component will seriously be in issue I have no doubt. At present however, I am not persuaded that there exists any basis for staying or otherwise disposing of the proceedings between the plaintiff and Mr Harris as third defendant. 25 The formal orders therefore are: 1. Imputations 4(a), (b) and (e); 6(a), (b) and (e) will not go to the jury. 2. Imputations 4(c) and (d); 6(c) and (d) are struck out. 3. The plaintiff has liberty to file a Further Amended Statement of Claim within 21 days. 4. The plaintiff is to pay any costs and expenses incurred by Mr Harris in respect of the hearing of Mr Harris' applications. 5. The first and second defendants are to pay their own costs of Mr Harris' applications. 6. At the expiry of 21 days the parties have liberty, a Further Amended Statement of Claim having been filed, to file, by consent, within 14 days thereafter, orders and directions for the further conduct of this matter. 7. At the expiry of the 14 days referred to in Order 6, liberty to restore to the Defamation List on 3 days notice.