O'Neill v Jones & Anor [1999] NSWSC 270

New South Wales Supreme Court CITATION : O'Neill v Jones & Anor [1999] NSWSC 270 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20914 of 1997 HEARING DATE(S) : 19 March 1999 JUDGMENT DATE : 1 April 1999

JOHN ANTHONY O'NEILL (Plaintiff)

v PARTIES : ALAN BEDFORD JONES (First Defendant)

RADIO 2UE SYDNEY PTY LIMITED (Second Defendant) JUDGMENT OF : Levine J

J Sackar Q.C. (Plaintiff) COUNSEL : B McClintock S.C. (Defendants) Freehill Hollingdale & Page (Plaintiff) SOLICITORS : Bush Burke & Co. (Defendants) CATCHWORDS : Imputations - capacity - form - difference in substance DECISION : See paragraph 16

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

No. 20914 of 1997

JUSTICE DAVID LEVINE

THURSDAY 1 APRIL 1999

JOHN ANTHONY O'NEILL (Plaintiff)

v

ALAN BEDFORD JONES (First Defendant)

RADIO 2UE SYDNEY PTY LIMITED (Second Defendant) JUDGMENT (Imputations - capacity - form - difference in substance) 1 The plaintiff sues the defendant in respect of two broadcasts. 2 The first publication was on 15 September 1997 and is in the following terms (as set out in Annexure A): " ALAN JONES: I'll tell you something. You think league's in trouble. On Friday night, the had the best that Sydney grade rugby could offer, with the exception of the Manly Club: the champion club Randwick against a club with a magnificent history, Gordon, and Eastwood still trying to win a Premiership, with Warringah likewise. What a line-up. How many were there? 7,000. Why? Well, why would supporters go when their best team isn't on the paddock? All because the ARU decided that they, not the players, will determine who plays grade rugby. Well, the public voted on Friday night with their feet. John O'Neill, the boss of the ARU, is a failed banker. If he keeps running Australian Rugby the way he is, then he's equally going to destroy the life-blood of the game, club football. And wherever you go, that's exactly what supporters of the game are saying. Now, the appointment of Rod McQueen as the Australian coach has given a fresh face to the game at a national level. What is now needs is a fresh face administratively. The players deserve better than the support they got on Friday night. The games deserves better than to be run by ego-trippers like John O'Neill". 3 The plaintiff pleads in paragraph 6 of the Statement of Claim (and by reason of correspondence containing amendments) the following imputations: "(a) The plaintiff is a failed banker. (b) The plaintiff is not competent to run the Australian Rugby Union. (c) As head of the ARU, the plaintiff is taking decisions, driven by his exaggerated sense of his own abilities, which are likely to destroy the game of rugby union. (d) As head of the ARU, the plaintiff is taking decision which are likely to destroy the game of rugby union in order to gratify his ego. (e) The plaintiff as head of the ARU is running so badly that he deserves to be fired". 4 The second matter complained of said to have been broadcast on 18 September 199 is in the following terms (as set out in Annexure B):: "ALAN JONES: I see that the Chief Executive of the Australian Rugby Union, John O'Neill, has actually released a press statement in the light of comments I made earlier this week about the poor attendance at the Grade Rugby Semi-Finals on Friday night. I've not met one person who disagreed with my points that we let the Grade Rugby competition deteriorate at the risk of the game, and the ARU's failure to allow players themselves to decide their availability is not the way to go. However, nor is Mr O'Neill's direction the way to go. I think in the press release he referred to me as "an ill informed commentator". With respect, Mr O'Neill, you are a failed banker with no experience of the game of rugby at the highest level, or indeed at any level. And I might say, immodestly, I did actually once coach a team or two. I think I'm closer to an understanding of what the club scene is about than Mr O'Neill would ever be. Mr O'Neill, I've also been to the club scene as well. I know you would have difficulty getting a job again as a banker but if you keep going this way you will have difficulty getting any job as an administrator". 5 Paragraph 7 of the Statement of Claim pleads the following imputations: "(a) The plaintiff is a failed banker. (b) The plaintiff has failed so badly as a banker that he would find difficulty ever getting another job as a banker. (c) The plaintiff is not competent to hold his position as Chief Executive of the Australian Rugby Union". 6 The defendant moved the Court for orders in relation to the imputations founded upon questions of capacity and form and difference in substance. I deferred ruling until I had heard the contents of exhibit A being an audio tape of the two matters complained of. Listening to that tape certainly cleared up a lot of matters. 7 It is argued in relation to imputation 6(a) that it is incapable of being defamatory. I simply disagree. The matter complained of in which the words are used and the overall tone of the broadcast which includes them, clearly answer the question of capacity. 8 As to imputation 6(b), it is argued that it is incapable of being conveyed: the whole of the broadcast and in particular, the third paragraph of annexure A is sufficient to answer the question as to the capacity of the matter to convey this imputation. Nor am I persuaded that this imputation is incapable of being defamatory. 9 Imputation 6(c) and 6(d) do cause a problem: it is argued that they do not differ in substance and that there is a want of causal connection between the description of Mr O'Neill as a person " driven by his exaggerated sense of his own abilities " or "his ego " and " decisions likely to destroy the game of rugby union ". I agree with both propositions and imputations 6(c) and (d) will be struck out. It will be a matter for the pleader but it seems to me that 6(c) goes far to capture that which is sought to be captured but rewording will overcome the " causal " connection problem. 10 It is argued that imputation 6(e) is a cri de coeur. This is perfectly understandable, in my respectful view. It is clearly insinuated by the matter complained of that Mr O'Neill deserves to be fired. 11 Accordingly, with respect to the first matter complained of imputations 6(a), (b) and (e) will go to the jury. Imputations 6(c) and (d) will be struck out with leave to replead. 12 As to the second matter complained of the same considerations apply with respect to imputation 7(a) as applied to imputation 6(a). That imputation will go to the jury. 13 As to imputation 7(b), I am persuaded that imputation (b) arises and that the additional quality of the plaintiff as a " failed banker " namely, disqualification from getting another job in that area, also is clearly available. Imputation 7(b) will go to the jury. 14 As to imputation 7(c), the plaintiff is entitled to rely upon the whole of the matter complained of: the message is quite clear particularly in the last paragraph as set out in annexure B. Imputation 7(c) will go to the jury. 15 The plaintiff by letter dated 12 November 1998 proposed amendments to its originally pleaded imputations by adding 6(c), 6(d) and 6(e). The plaintiff has failed in respect only of 6(c) and (d). The area of accommodation reached between the parties however is not such, in my view, as to preclude the plaintiff overall being entitled to his costs of this application. 16 Accordingly, the formal orders are: 1. Imputations 6(a), (b) and (e) will go to the jury. 2. Imputations 6(c) and (d) are struck out as not differing in substance and as being deficient in form, with leave to replead. 3. Imputations 7(a), (b) and (c) will go to the jury. 4. The plaintiff has leave to file an Amended Statement of Claim within 14 days. 5. The defendant is to pay the plaintiff's costs. 6. The parties have liberty to file, by consent, orders and directions for the further conduct of the matter in the Defamation List within 21 days. 7. At the expiry of 21 days, liberty to restore to the Defamation List on 3 days notice. **********