New South Wales Supreme Court CITATION : Moroney v Nationwide News Pty Limited [2001] NSWSC 1139 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20179 of 2001 HEARING DATE(S) : 29 November 2001 JUDGMENT DATE : 14 December 2001 KENNETH EDWARD MORONEY (Plaintiff) PARTIES : v NATIONWIDE NEWS PTY LIMITED (Defendant) JUDGMENT OF : Levine J T K Tobin Q.C. (Plaintiff) COUNSEL : T Blackburn (Defendant) Verekers (Plaintiff) SOLICITORS : Blake Dawson Waldron (Defendant) CATCHWORDS : Imputations - capacity - identification - particulars Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 CASES CITED : McCormick v John Fairfax & Sons Pty Limited (1989) 16 NSWLR 485 Moroney v John Fairfax Publications Pty Ltd [2001] NSWSC 1138 DECISION : See paragraph 16 DLJ: 1 [2001] NSWSC 1139 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE 14 December 2001 20179 of 2001 KENNETH EDWARD MORONEY (Plaintiff) v NATIONWIDE NEWS PTY LIMITED (D efendant) JUDGMENT (Imputations – capacity – identification – particulars) 1 The first matter complained of in respect of which the plaintiff sues is an article in the edition of "The Australian" newspaper of 21 October 2000. The article bears the headline "Police drunken bullies: reformer", is by Martin Chulov and the text is Appendix A to these reasons. 2 The article also is accompanied by a cartoon (not here reproduced). The cartoon is of two police officers consulting some papers and has the caption "IS IT GOOD OR BAD THAT THE NSW POLICE KNOW ALL ABOUT CORRUPTION?" 3 The plaintiff is not named in the matter complained of and the plaintiff has appended to the Statement of Claim the following Particulars of Identification: "At the date of publication: (a) the Commissioner's Executive Team consisted of six members: three being the Commissioner and the two Deputy Commissioners (including the Plaintiff) and three civilian members; (b) the two positions of deputy Commissioner in the NSW Police Service were filled by the Plaintiff and Deputy Commissioner Jeff Jarratt". 4 The sufficiency of these particulars has been dealt with by me in my judgment in Moroney v John Fairfax Publications Pty Ltd [2001] NSWSC 1138 which was argued on the same day as this matter. 5 The plaintiff contends that the first matter complained of carries the following imputations defamatory of him: "4(a) that the plaintiff misused his position as a senior officer of the NSW Police Service to oppose reform of the NSW Police Service; (b) that the plaintiff corruptly opposed reform of the NSW Police Service; (c) the plaintiff as a Deputy Commissioner of the NSW Police Service engaged in drunken, threatening, bullying conduct towards other members of the NSW Police Service". 6 The second matter complained of is an article published in "The Australian" newspaper of 24 October, the text of which is Appendix B hereto. The plaintiff is named in this publication. He contends that it carries the following defamatory imputations: " 7(a) that the plaintiff misused his position as a Deputy Commissioner of the NSW Police Service to obstruct reform of the NSW Police Service; (b) that the plaintiff, by initiating unfounded investigations to intimidate reformers in the NSW Police Service, misused his position as Deputy Commissioner of Police Service (sic)". First Matter Complained Of 7 It is the submission for the defendant that the proper application of what is described as the rule in McCormick v John Fairfax & Sons Pty Limited (1989) 16 NSWLR 485 at 491 brings it about that as a matter of capacity this article cannot be understood as identifying one member of a small group or class as responsible for the conduct alleged. There is nothing in the article which points to any particular member of the group or class. This is a situation distinguishable from that which applied in Moroney v John Fairfax Publications Pty Ltd where there is express reference to the Commissioner's Executive Team and the article was found to be capable of allocating to all members of that team the conduct alleged. 8 The statement in line 13 of Appendix A is non-specific as to anything capable of identifying either all or any one of whatever is to be understood by "hand picked members of the Commissioner's team". 9 Accordingly, I hold the first matter complained of to be incapable of carrying imputations 4(a), (b) and (c). 10 As to imputation 4(b) it was argued that the pleader fell into the "trap' identified in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138F. I do not have to decide this point however I would be disposed to forming what I understand still to be an available view that where, as here, in the cartoon, the word "corruption" is used without embellishment, it is appropriate to plead "corruptly" without penalty (see Drummoyne at 137-8). Second Matter Complained Of 11 The defendant argues that imputation (b) is incapable of arising. It is submitted that there is no suggestion in that matter that anybody has initiated any investigation to intimidate reformers. With that submission I agree. 12 The headline speaks of "Anti-reform police to face inquiry"; the article goes on to speak about officers to Deputy Commissioner level "hunting in packs". The reformers faced "obstructive and intimidating tactics", were being warned off, and were being told "you will be targeted, you will be investigated". Those components of the matter complained of are capable of giving rise to what the plaintiff seeks leave to do namely, to plead a further imputation using the word "threatening" rather than "initiating". 13 Thus, I hold that the second matter complained of is incapable of carrying the imputation 7(b). 14 I will grant leave to the plaintiff to file an Amended Statement of Claim in respect of the second matter complained of only and to plead the proposed imputation employing the word "threatening". 15 The defendant has succeeded totally with respect to the first article and should have its costs in relation thereto. 16 Accordingly, the formal orders are: 1. Imputations 4(a), (b) and (c) are incapable of being carried. 2. I enter a verdict for the defendant in respect of imputations 4(a), (b) and (c). 3. Imputation 7(b) is incapable of being carried. 4. I enter a verdict for the defendant in respect of imputation 7(b). 5. Plaintiff has leave to file within 21 days of today, an Amended Statement of Claim with respect to the second matter complained of only 6. The plaintiff is to pay the defendant's costs in respect of the first matter complained of; otherwise, each party is to pay his and its own costs. Appendix A 1 Police drunken bullies: reformer 2 Martin Chulov 3 The NSW Police Service was rocked yesterday by allegations that stirred ghosts of its infamous 4 past, with a reformer, appointed to overhaul the force's culture describing some senior officers as 5 drunks, bullies and incompetents. The claims are the most serious the service has faced since the 6 1996 police royal commission which led to a much-lauded cultural change and an overhaul of 7 managers from inspectors through to commissioner level. 8 A team of consultants hired by Commissioner Peter Ryan appointed in 1996 to restructure the 9 service yesterday passed on a dossier of complaints to the police integrity commission. 10 Reform consultant James Ritchie made a series of allegations against senior police in the respected 11 crime agencies unit and internal affairs, which, in turn is investigating the members of the reform 12 team for alleged rorts. Mr Ritchie said three years of reform efforts had revealed a world of "total 13 incompetents, of drunken, threatening, bullying, hand-picked members of the Commissioner's 14 team … of constant last-minute scrambling to make the commissioner look good". 15 "Senior executives of the police service are not committed," he said. 16 Mr Ritchie alleged he and the leader of the Crime Management Support Unit, Detective 17 Superintendent Ken Seddon, had been "stitched up" by two Internal Affairs inquiries launched into 18 their use of travel entitlements. He said that the allegations could be disproved if investigators 19 made calls to the commissioner's office. 20 Mr Ryan yesterday asked the police integrity commission, set up after the royal commission 21 exposes (sic), to expedite an inquiry into claims about the service's senior officers. Both Mr Ryan 22 and Police Minister Paul Whelan refused to comment further. 23 Opposition police spokesman Andrew Tink called for any inquiry to be conducted by the officers 24 from outside the state . "Make no mistake, this is a watershed day in policing in this state," he said. 25 "The allegations, in essence, suggest there is something of a civil war developing within the NSW 26 Police Service over reform". 27 Mr Ritchie described allegations made against Mr Seddon and himself as a witch hunt for which 28 both men had been preparing. 29 'They have been undermining us constantly for the past three years," he said. 30 "Internal affairs using malicious and unfounded investigations into individuals as a means of 31 maintaining the old control and punishment mechanisms in order to derail and delay genuine 32 reform". 33 Internal affairs chief Mal Brammer and the commander of crime agencies, Clive Small, declined to 34 comment. Appendix B 1 Anti-reform police to face inquiry 2 Barclay Crawford Martin Chulov 3 A Police Integrity Commission inquiry into claims that officers up to deputy commissioner level 4 were "hunting in packs" was announced last night. 5 Police commissioner Peter Ryan said he supported the investigation but otherwise remained silent 6 on public revelations of turmoil rocking the service at its senior levels. 7 Reform consultant James Ritchie was brought in by Mr Ryan to oversee behavioural changes 8 deemed necessary in the wake of the Wood royal commission, which uncovered widespread 9 corruption. Mr Ritchie claimed yesterday that dedicated reformists had come up against a wall of 10 obstructive and intimidating tactics. 11 "They are warning reformers off. They are saying, "if you are a reformer in this organisation you 12 will be targeted, you will be investigated" Mr Ritchie said. 13 He said a network of anti-reform police, including some of the most senior officers in the service, 14 had told fellow commanders not to cooperate with the reform group. 15 Mr Ritchie would not name any officers and deputy commissioners Jeff Jarrett (sic) and Ken 16 Maroney (sic) refused to comment on his allegations. 17 Mr Ritchie, who sought the PIC inquiry, said: "If they don't do anything about it, I will go even 18 further and release more documents and more names," 19 In a memo to senior police, obtained yesterday by The Australian, assistant commissioner and 20 Crime Agencies head Clive Small said officers would fight Mr Ritchie's allegations. 21 "I roundly condemn the allegations that have been made and regard them as a patchwork of 22 exaggeration, gross distortion, misrepresentation of fact and in some cases outright lies," Mr Small 23 said. 24 He added that the PIC investigation would provide an opportunity to "confront these accusers". 25 Mr Ritchie yesterday released documents that he said supported his allegations. They included 26 internal memos between police officers. 27 One described a directive not to invite Mr Ritchie to a seminar. Another sought to "play down" the 28 effectiveness of behavioural change in policing. ********** Last Modified: 12/17/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.