Della Bosca v Arena [1999] NSWSC 1057

New South Wales Supreme Court CITATION : Della Bosca v Arena [1999] NSWSC 1057 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20994 of 1997 HEARING DATE(S) : 21 October 1998 JUDGMENT DATE : 27 October 1999

JOHN DELLA BOSCA (Plaintiff)

PARTIES : v

FRANCA ARENA (Defendant) JUDGMENT OF : Levine J

B McClintock S.C. (Plaintiff) COUNSEL : J Gibson (Defendant) Abbott Tout (Plaintiff) SOLICITORS : Gells Solicitors (Defendant) CATCHWORDS : Absolute privilege - statements to ALP Caucus - statements outside Parliament - adoption of speech in Parliament - tendering Hansard "as a matter of history" - application for permanent stay DECISION : See paragraph 36

DLJ: 1

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No 20994 of 1997

JUSTICE DAVID LEVINE

WEDNESDAY 27 OCTOBER 1999

JOHN DELLA BOSCA (Plaintiff)

v

FRANCA ARENA (Defendant)

JUDGMENT (Absolute privilege - statements to ALP Caucus - statements outside Parliament - adoption of speech in Parliament - tendering Hansard " as a matter of history " - application for permanent stay) 1 The Amended Statement of Claim filed on 20 March 1998 pleads that the plaintiff is the Secretary of the New South Wales Branch of the Australian Labor Party (the plaintiff is now a Member of Parliament). 2 It is further pleaded that the defendant is a Member of the Legislative Council of this State (she now no longer is). 3 Paragraph 3 pleads that on 17 September 1997 the defendant said the words set forth in Schedule A to the pleading during a session of the Legislative Council. The Schedule is presumably a reproduction of a speech recorded in Hansard. 4 By paragraph 4 of the Amended Statement of Claim the plaintiff asserts that the speech or the "substance thereof" was widely reported in newspapers and on radio and television and thus came to the "attention of readers … throughout the State of New South Wales". Particulars are then given of publications in various newspapers. 5 It is in paragraph 5 that the plaintiff pleads the first publication of which he complains alleging that on 18 September 1997 the defendant published of and concerning him the following words to a Special Meeting of the NSW Parliamentary Labor Party ("Caucus"): "I stand by the comments that I made over this matter and I believe that there has been a massive cover up to protect certain paedophiles organised through the Wood Royal Commission involving meetings with various parties". 6 Paragraph 6 pleads that the defendant in publishing the matter on 18 September 1997 to "Caucus" knew and intended that her words or their substance would be republished and that such republication was the natural and probable consequence of the original publication (to the "Caucus"). The said words were republished and the defendant, it is alleged, is liable for each such republication. Particulars are provided of three newspaper articles. This is the second (re)-publication relied upon. 7 Paragraph 7 pleads the third publication of which he complains namely, that on 13 October 1997 the defendant published of and concerning the plaintiff the words ascribed to her in the course of an interview broadcast by the ABC. The words are as follows: "Defendant: I will just say this. I will just say this. That I am preparing a statement with all supporting documents, statutory declarations, information I have received, very sensitive material to be tabled in Parliament and for all members of Parliament to see the material. Clark: Will that material support the allegations that you have made? Defendant: Well, it's exactly what I intend to do. I am prepared to back up what I said in Parliament. I have always acted with honesty and integrity in the interest of the children and with information I was given. I have checked the information. I am not a policeman or a detective. I have to the best of my knowledge checked the information and the people who have given it to me". 8 The fourth publication of which the plaintiff complains is alleged to have taken place on 10 November 1997 during an interview broadcast by the ABC in the course of the "Four Corners" program, reliance being placed upon the words attributed to the defendant. The text is as follows: "Interviewer: Bob Carr and Peter Collins were schedule (sic) to meet but the meeting was cancelled so you're clearly wrong on that score. Are you sorry that you implied that Peter Collins met with Bob Carr and had this discussion? Defendant: Now I, I, stand by the statement I made in my speech in Parliament and ah, as I said, I'll ask the community to judge me. Interviewer: But Peter Collins never did meet Bob Carr. Defendant: There is definitely a letter from the Premier inviting Peter Collins and from Peter Collins saying to the premier, yes, I'm definitely going to meet you. I mean the letters are there. I haven't invented them. I've got a copy and I will be very happy to show them to you. So what happened then? Did the heat become too great and they decided to cancel it? Interviewer: Maybe they just cancelled the meeting Franca? Haven't you, haven't you ever cancelled an appointment with um … Defendant: Yes. Interviewer: … with anyone I mean maybe that's just what happened isn't it? Defendant: Yeh well maybe, maybe. Interviewer: Franca there's not been one shred of evidence supporting your allegations in Parliament about a high level cover up of paedophiles, you've virtually lost all your credibility on that allegation haven't you? Defendant: Well I just want to ask people this question. If there was a cover up do you think the people who did it would admit to it? That's all I'm going to say". 9 The fifth publication of which Mr Della Bosca complains is alleged to have taken place (in paragraph 9) on 13 November 1997 during the course of an interview on ABC radio. The publication complained of is in the following terms: "Clark: Will you appear before the Privileges Committee and will you substantiate your allegations? Defendant: Absolutely". 10 In paragraph 10 of the Amended Statement of Claim in respect of the publications complained of the plaintiff pleads that each in its natural and ordinary meaning conveyed the following imputations defamatory of him (the causes of action): "10(a) the plaintiff had participated in a conspiracy to conceal the criminal activities of highly placed paedophiles and perverts; (b) the plaintiff had deliberately prevented people who had committed disgusting sexual crimes against children from being brought to justice; (c) the defendant's allegations that the plaintiff had participated in a cover-up of the criminal activities of paedophiles were true and based on reliable information which she had checked; (d) the plaintiff participated in the suppression of the proper investigation of the criminal activities of high profile paedophiles and the public exposure of such people; (e) the plaintiff attempted to suppress the proper investigation of the criminal activities of high profile paedophiles and the public exposure of such people." 11 (I note, though it is not critical for present purposes, that the plaintiff concedes that imputation 10(c) is amenable to re-drafting as a matter of form.) 12 Paragraph 11 of the Amended Statement of Claim is in the following terms: "To the extent that the facts stated in paragraphs 3 and 4 above did not form part of the general knowledge of the community the matters respectively complained of in paragraphs 5, 6, 7, 8 and 9 above conveyed the defamatory imputations pleaded in paragraph 10 above as true innuendoes to those persons who knew the said facts". 13 By a Notice of Motion the defendant (who has cross-claimed against John Fairfax & Sons Pty Limited, Nationwide News Pty Limited and the Australian Broadcasting Corporation) seeks the following orders: "1. Paragraphs 5 and 6 of the Amended Statement of Claim be struck out on the basis that matters published in meetings of the parliamentary caucus of the Labor Party are protected by absolute privilege. 2. The whole of these proceedings be perpetually stayed on the basis that the causes of action jointly or severally canvass Hansard. 3. Further or in the alternative the plaintiff be directed to file a Further Amended Statement of Claim pleading each publication (and the imputations and innuendos arising therefrom) separately". 14 The following observations can be made: