Brogan & 2 Ors v Brammer & 4 Ors [2000] NSWSC 613

New South Wales Supreme Court

CITATION : Brogan & 2 Ors v Brammer & 4 Ors [2000] NSWSC 613 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20847 OF 1997 HEARING DATE(S) : 9 April 1999 JUDGMENT DATE : 5 July 2000

JOHN ALEXANDER BROGAN (First Plaintiff)

& 2 ORS

PARTIES : v

MALCOLM BRAMMER (First Defendant)

& 4 ORS JUDGMENT OF : Levine J

D Caspersonn (Plaintiffs) COUNSEL : M Lynch (Defendants) Glasheen & Quilty (Plaintiffs) SOLICITORS : Crown Solicitor's Office (Defendants) CATCHWORDS : Imputations - capacity - "Harrison" - form Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 CASES CITED : Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 DECISION : See paragraph 54

DLJ: 1 CAV [2000] NSWSC 613 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20847 of 1997

JUSTICE DAVID LEVINE

WEDNESDAY 5 JULY 2000

JOHN ALEXANDER BROGAN (First Plaintiff)

JOHN ROBERT PRESTON (Second Plaintiff) LEIGH NIGEL CUNNEEN (Third Plaintiff)

v

MALCOLM BRAMMER (First Defendant)

SCOTT WILLIS (Second Defendant)

THE STATE OF NEW SOUTH WALES (Third Defendant) MICHAEL RUEBEN EGAN (Fourth Defendant) PAUL FRANCIS PATRICK WHELAN (Fifth Defendant) JUDGMENT (Imputations - capacity - " Harrison " - form) 1 A rather complex Amended Statement of Claim (ASC) discloses that three plaintiffs are suing five defendants. The first defendant (D1) at the material times was an Acting Assistant Commissioner of Police; the second (D2), a Senior Constable. 2 The third defendant (D3), the State of New South Wales, it is said: "… established the Police Service of New South Wales and the Police Service of New South Wales is an Agency, Department of Service of the Crown in right of New South Wales or the Government of New South Wales and the Crown by the Minister for Police is responsible for the management, control and activities of the Police Service of New South Wales including the First and Second Defendants". 3 The fourth defendant (D4) was the State Treasurer and the fifth defendant (D5), the Minister for Police. 4 Under the heading "The Claim against the Police", paragraph 6 of ASC alleges publication by D1 and D2 of the plaintiffs, on 29 October 1996, of the matter set out in Schedule A. Schedule A, on its face, appears to be a media release of that date with the heading "Joint Operation - $6.8 million Tobacco Revenue Evasion". It is said D1 authorised its publication and D2 "issued" the media release. It is also particularised that further publication of the media release bore "words to similar effect" and occurred at a media conference "organised" by D1 and D2 on 29 October 1996 and that they (D1 and D2) "arranged" for video material to be supplied for publication. 5 It is alleged in paragraph 7 of ASC that D1 and D2 published the media release intending that eight particularised media organisations would re-publish, alternatively authorised such re-publications, alternatively, it is said, that such re-publications were the natural and probable result of the publication by D1 and D2. 6 Paragraphs 8 - 13 of ASC proceed to set out what is said to be the re-publications by the various media organisations. Those re-publications can be correlated with the Schedules to ASC as follows: 7 Schedule B - Fairfax/The Sydney Morning Herald - 29 October 1996 (paragraph 8 ASC). 8 Schedule C - News/The Daily Telegraph - 29 October 1996 (paragraph 9 ASC). 9 Schedule D - Manly Daily - 29 October 1996 (paragraph 10 ASC). 10 Schedule DA - Canterbury Bankstown Express - 5 November 1996 (paragraph 10A ASC). 11 Schedule E - ABC News - 29 October 1996 (paragraph 11 ASC). 12 Schedule F - Channel 7 - 29 October 1996 (paragraph 12 ASC). 13 Schedules FA, FB and FC - Channel 9 - 29/30 October 1996 (paragraph 12A ASC). 14 Schedule G - Channel 10 - 29 October 1996 (paragraph 13 ASC). 15 It is to be noted that it is only in Schedule D (Manly Daily), that one of the plaintiffs is named, the first plaintiff Mr Brogan. 16 On page 9 of ASC commences paragraph 14 which pleads that each of the matters reproduced in Schedules A-G carries the following imputations defamatory of the plaintiffs: "14(a) The plaintiffs had criminally defrauded the State of NSW of millions of dollars of tobacco taxes.