Fleming v Nationwide News Pty Limited [1999] NSWSC 1059

New South Wales Supreme Court CITATION : Fleming v Nationwide News Pty Limited [1999] NSWSC 1059 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20261 of 1999 HEARING DATE(S) : 27 August 1999 JUDGMENT DATE : 27 October 1999

CRAIG FLEMING (Plaintiff)

PARTIES : v

NATIONWIDE NEWS PTY LIMITED (Defendant) JUDGMENT OF : Levine J

M Rollinson (Plaintiff) COUNSEL : T Blackburn (Defendant) Leitch Hasson Dent (Plaintiff) SOLICITORS : Blake Dawson Waldron (Defendant) CATCHWORDS : Imputations - capacity - form DECISION : See paragraph 13

DLJ:1

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20261 of 1999

JUSTICE DAVID LEVINE

WEDNESDAY 27 OCTOBER 1999

CRAIG FLEMING (Plaintiff)

v

NATIONWIDE NEWS Pty Limited (Defendant)

JUDGMENT (Imputations - capacity - form) 1 The plaintiff sues in respect of an article published in The Daily Telegraph on 19 March 1999 (page 35). The headline and text of the publication complained of is appended hereto. 2 Extraordinarily, from so short a piece, seven imputations were pleaded originally and as arising from the natural and ordinary meaning: "(a) The plaintiff so misconducted himself he was being pursued by customs over drugs warnings. (b) The plaintiff so misconducted himself he has been warned by customs he could be charged. (c) The plaintiff so conducted himself he has been pursued by the Customs Service . (d) The plaintiff so misconducted himself that the Customs Service has alleged he breached the Public Service Code of Conduct. (e) The plaintiff so misconducted himself that he resigned his position from the senior staff of customs. (f) The plaintiff so misconducted himself that Customs Chief Executive Lionel Woodward has ordered an internal inquiry be made about him. (g) The plaintiff in breach of his duties as a customs officer exposed gaps in Australia's borders which could lead to the importation of drugs". 3 Imputation (c) was not pressed. 4 It is to be noted that the headline refers to two customs officers, that the first part of the article deals with the plaintiff and after the introduction of the second officer, Mr Bennett, there is a reference to "internal inquiries into both" and the giving of "written warnings". The balance of the article appears, on its face, to deal then with Mr Bennett only. 5 It is argued for the defendant that the imputations are bad in form, ambiguous and cannot, in any event, reasonably arise. "Misconducted" is a dangerous, weasel word rendering imputation (a), in particular, quite meaningless and has the same effect wherever it is used. "Misconducted" is an assertion of guilt but its use in the imputations "flaws" them especially (b), (d) and (f). These imputations could otherwise be characterised as suspicion imputations (that is, subject to investigation, inquiry, warning). 6 For the plaintiff, as I understand it, it is insisted that the use of "misconduct" in a general way is available because the matter complained of itself is capable, by reason of its generality (the breaches are not spelt out), of being understood by the ordinary reasonable reader as implying there is more to it all than what is in fact said. It is further submitted that the proliferation of imputations is sustainable because the words attributed to Mr Bennett could be understood by the reader to be applicable to the plaintiff. 7 This is a remarkably straightforward article, in my view. It embraces both the persons referred to not only in its headline but in the separate part of it dealing with each. What is clear is that the two persons referred to have done two things; first, they "exposed gaps in Australian borders" (as customs officials) and "claimed Sydney's Olympics would be awash with drugs". As a result of doing those things certain things have happened. Specifically, each has been warned that he could be charged. Breaches of the Public Service Code of Conduct are alleged in one case which must be that of the plaintiff as the article deals with specifically with an actual charge (disclosing "public business") laid against Mr Bennett. 8 I reject the submission that the ordinary reasonable reader would come to the view on reading both columns that there was more behind this affair notwithstanding the clear statement of what each official had done. I reject the submission that the words concluding the piece attributed to Mr Bennett would be understood as applying to the plaintiff. The last three paragraphs of the matter complained of on any reasonable reading could only be referrable to Mr Bennett. He has gone public as indicated in the article, is head of the Customs Officers Association and in the first person relates what he perceives to have happened to "him". 9 In relation to the plaintiff it is to be noted that the fourth paragraph of the article could be understood as amplifying the exposure of the gaps and the claim made by reference to Mr Fleming warning that "lax laws and border controls would see foreign athletes and coaches and their performance boosting steroids (entering) Sydney virtually unchallenged". 10 The "misconduct" has been identified. There is no need to use the word "misconduct" in any imputation. Two imputations or possibly three at most, properly drawn and carefully drawn could capture that which constitutes the plaintiff's grievance. 11 I strike out imputations (a) to (f) as being bad in form. 12 As to imputation (g), this seems to me really to capture what the plaintiff is complaining about. It identifies what he did and asserts that he is in breach (an assertion of guilt) and in my view, is arguably capable of arising. The plaintiff might wish to give consideration to pleading a "fallback" imputation of suspicion. 13 The formal orders are: