New South Wales Supreme Court CITATION : David Stewart Briggs v Michael Reid & Another [2000] NSWSC 496 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20053/99 HEARING DATE(S) : 26 May 2000 JUDGMENT DATE : 6 June 2000 Plaintiff - David Stewart Briggs PARTIES : First Defendant - Michael Reed Second Defendant - The State of New South Wales JUDGMENT OF : Bell J at 1 COUNSEL : Plaintiff - Mr D. A. Caspersonn Defendants - Mr M. G. Lynch SOLICITORS : Plaintiff - R. J. O'Halloran & Co. CATCHWORDS : DEFAMATION - Imputations - Objection as to form - Capacity of matter complained of to carry imputations pleaded Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 CASES CITED : Jones v Skelton (1963) 63 SR (NSW) 644 Slatyer v Daily Telegraph Newspaper Co Limited (1908) 6 CLR 1 Farquhar v Bottom [1980] 2 NSWLR 380 Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 DECISION : (i) Imputations 4(a) and 6(a) are struck out; (ii) The plaintiff is granted leave to replead imputations 4(a) and 6(a); (iii) Imputations 4(b) and 6(b) are struck out; (iv) The plaintiff is granted leave to replead imputations 4(b) and 6(b); (v) The matter is stood over to the defamation list on 7 July 2000 for further directions; (vi) The plaintiff to pay the defendants' costs of the application as agreed or assessed IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST Tuesday 6th June 2000 20053/99 - David Stewart Briggs v Michael Reid & Anor JUDGMENT (Objections to Imputations - Statement of Claim filed 17 February 1999) 1 HER HONOUR: The plaintiff, David Stewart Briggs, brings proceedings in defamation against Michael Reid, the Director General of the New South Wales Department of Health and the State of New South Wales. The claim arises out of the publication of (i) a memorandum, dated 3 September 1997, directed to all staff of the NSW Department of Health signed by the first defendant and (ii) a media release (on NSW Department of Health letterhead) also dated 3 September 1997. A copy of the memorandum is Schedule A to the statement of claim and a copy of the media release is Schedule B. The matter complained of, in each instance, is said to convey the same three imputations defamatory of the plaintiff. These are pleaded in paragraphs 4(a) - (c) and 6(a) - (c) of the Statement of Claim. 2 Objection is taken to the first two imputations pleaded in each case. 3 Objection is taken as to the form of imputation 4(a) and 6(a): "The plaintiff as Chief Executive Officer of the New England Health Service had mismanaged the finances of the New England Health Service and had to be urgently dismissed from his job because of this conduct." 4 The defendants complain that this imputation rolls up two different imputations: (i) The plaintiff had mismanaged the finances of the New England Health Service ("the NEHS"), and (ii) The plaintiff had to be urgently dismissed from his job because he had mismanaged the finances of the NEHS. 5 It is submitted that the imputations in their current form are likely to cause embarrassment; the defendants may wish to justify one of (i) or (ii) but not the other. I was referred to the observations of Hunt J (as he then was) in Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 677B and Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148 at 156 - 157. 6 The plaintiff submits that the qualifying words "because of this conduct" make clear that there is but one imputation, namely, that the plaintiff had to be urgently dismissed from his job because of his mismanagement of the finances of the NEHS. The pleader has sought to give precision to the central concept (of financial mismanagement) by refining it to show that it was of such a serious nature as to require urgent dismissal. It is submitted that the defendants are indulging in word games and that there is only one imputation; that of financial mismanagement on a scale sufficiently serious to require urgent dismissal. 7 I consider there is merit to the defendants' complaint with respect to imputations 4(a) and 6(a). As pleaded there are two separate imputations. An imputation of financial mismanagement in relation to the NEHS is made independently of the imputation that the plaintiff had to be urgently dismissed from his job because of financial mismanagement of the NEHS. Imputations 4(a) and 6(a) will be struck out. In each case I give the plaintiff leave to re-plead. 8 Imputations 4(a) and 6(a) were also the subject of a challenge as to capacity. It was common ground that an imputation which pleaded "the plaintiff had to be urgently dismissed from his job because he had mismanaged the finances of the NEHS" would not be objectionable as to form. Given the grant of leave to re-plead I propose to deal (as I was invited to do) with the objection as to capacity of this latter imputation. 9 The defendants submit, in each case, that the matter complained of is not reasonably capable of conveying the elements either that the plaintiff (i) had to be (dismissed) or (ii) urgently dismissed. 10 I am required to determine whether it would be open to the jury to find that ordinary reasonable readers would have understood the matter complained of in each instance in the defamatory sense pleaded; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 per Hunt CJ at CL at 164. The question is whether the matter complained of is reasonably capable of conveying the imputation. In resolving this issue I must reject any strained or forced or utterly unreasonable interpretation; Jones v Skelton (1963) 63 SR 644 at 650. I bear in mind the characteristics of the ordinary reasonable reader being a person who is neither perverse, morbid, suspicious of mind nor avid for scandal and who possesses fair average intelligence; Slatyer v Daily Telegraph Newspaper Co Limited (1908) 6 CLR 1 at 7. Equally, he or she is a person who does not live in an ivory tower and can and does read between the lines in the light of his or her general knowledge and experience of worldly affairs; Farquhar v Bottom [1980] 2 NSWLR 380 at 386. 11 Schedule A, is a memorandum addressed to all staff. It commences with the observation "I wish to advise that, as of today, Mr David Briggs has been removed from his position of Chief Executive Officer of the New England Health Service". It goes on to record the author's recognition that the decision may cause some disruption within the Health Service. The author states that he will ensure the position of CEO is advertised as a priority to minimise the risk of further disruption. The announcement of the plaintiff's removal from his position and the recognition of the disruption brought about by that decision in my view is capable of conveying to the ordinary reasonable reader both that the plaintiff had to be and urgently dismissed from his job (because he had mismanaged the finances of the NEHS). 12 Schedule B is a media release which commences: "NSW Health Director General, Michael Reid, today advised that Mr David Briggs had been removed from his position as Chief Executive Officer of the New England Health Service". It goes on to recite that the removal followed a recent departmental audit review which concluded there had been inadequate and ineffective financial management. It states that the Associate Director of Financial Management "will be Acting CEO of the Health Service from today". It purports to quote the First Defendant announcing: "I have asked the Department to advertise the position of CEO as a priority". To my mind, Schedule B is capable of conveying the imputation that the plaintiff had to be urgently dismissed from his job because he had mismanaged the finances of the NEHS. 13 Objection is taken to imputation to 4(b) and 6(b). Each is in these terms: "The plaintiff as chief executive officer of the New England Health Service had engaged in improper conduct in his management of the financial affairs and accounts of the New England Health Service". 14 The defendants submit that the term "improper" is imprecise and ambiguous. It is contended that this imputation fails to make clear in what sense the word "improper" is to be understood. 15 The plaintiff responds to this criticism by reference to the observations of Gleeson CJ (as he then was) in Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135 and contends that the imputation is pleaded, in each case, with the degree of specificity which the matter allows. Both the memorandum and the media release refer to the plaintiff's removal in the context of inadequate and ineffective financial management. Otherwise each is framed in general terms. The plaintiff submits that the urgency suggested by his removal in circumstances which give rise to disruption to the NEHS (the memorandum paras 3, 4 & 5 and the media release paras 1,3 & 5) gives colour to the imputation that his management of the financial affairs and accounts of the NEHS was improper. 16 In Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155 Hunt J observed: "The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends". 17 This is not a case where a defendant has used a word or expression capable of shades of meaning and who must bear the consequences of so doing. The plaintiff contends that in each case the matter complained of conveys impropriety on his part. To my mind the terms of the imputation are capable of giving rise to confusion at trial. Improper conduct in the management of financial affairs and accounts is capable of connoting a range of wrong conduct including dishonest conduct. The plaintiff should specify the defamatory meaning for which he contends with more precision. Imputations 4(b) and 6(b) will be struck out. The plaintiff is given leave to re-plead in each case. 18 ORDERS: (i) Imputations 4(a) and 6(a) are struck out. (ii) The plaintiff is granted leave to re-plead imputations 4(a) and 6(a). (iii) Imputations 4(b) and 6(b) are struck out. (iv) The plaintiff is granted leave to re-plead imputations 4(b) and 6(b). (v) The matter is stood over to the defamation list on 7 July 2000 for further directions. (vi) The plaintiff to pay the defendants' costs of the application as agreed or assessed. Last Modified: 05/03/2001 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.