New South Wales Supreme Court CITATION : Byrnes v John Fairfax Publications P/L [2001] NSWSC 107 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20465/00 HEARING DATE(S) : 16/02/2001 JUDGMENT DATE : 8 March 2001 PARTIES : Jim Byrnes (Pl) John Fairfax Publications Pty Ltd (Def) JUDGMENT OF : Kirby J COUNSEL : C Evatt (Pl) T Blackburn (Def) SOLICITORS : Carneys (Pl) Freehills (Def) CATCHWORDS : DEFAMATION - Imputations pleaded using terms of article/slang DECISION : Ref para 20 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST KIRBY J Thursday 8 March 2001 20465/00 - JIM BYRNES -v- JOHN FAIRFAX PUBLICATIONS PTY LIMITED JUDGMENT 1 HIS HONOUR: This is an application by the defendant to strike out certain imputations included in the plaintiff's amended statement of claim. 2 The amended statement of claim identifies three publications (referred to as A, B and C). A number of imputations are said to arise from each. In fact, publications A and B appeared in the Sydney Morning Herald on 31 July 2000. In the course of argument, Mr Evatt, counsel for Mr Byrnes, acknowledged that they should be read together. The amended statement of claim will therefore require further amendment. The publication labelled C appeared on 3 August 2000. The "Jailbird" Imputation 3 Publication A was in these terms: " Satellite of Love You can call him a bankrupt, you can call him a jailbird, you can even call him the former Mr Jackie Love. But don't mention macho Big Jim Byrnes' role in the carve-up of gay and lesbian outfit the Satellite Group. An agitated former Multiplex exec trying to buy three Satellite properties has called a CBD spy to deny Big Jim's involvement in buying the Harold Park Hotel, the Bauhaus Apartments at Pyrmont and a development at Rushcutters Bay. Page 35 " 4 Publication B (on page 35) was as follows: " CBD Don't mention Jim's name Kate Askew touches on a few sore spots. You can call him a bankrupt, you can call him a jailbird, you can even call him the former Mr Jackie Love. But whatever you do, don't mention macho Big Jim Byrnes' role in the carve-up of gay and lesbian outfit the Satellite Group. An agitated Ian Widdup, the former Multiplex exec attempting to buy three Satellite properties, on Friday called a CBD spy to deny Big Jim's involvement in purchasing the Harold Park Hotel, the Bauhaus Apartments at Pyrmont and a residential development at Rushcutters Bay. According to Widdup, a search of Bridge Street Developments - the Widdup entity purchasing shares in the Satellite companies owning the developments - would not reveal any involvement by Byrnes. And if Byrnes' name were mentioned, Widdup added, he would sue John Fairfax (the owner of the Herald) under its professional indemnity insurance. After calming down, the former Multiplex man took on a more conciliatory tone, offering our spy an 'exclusive story' if we agreed not to mention Byrnes - the man who helped Alan Bond negotiate his way out of bankruptcy and who once spent several years in stir for pleading guilty to supplying heroin - in any upcoming item about Satellite. Which led to the obvious question: was Jim Byrnes involved in any way, shape or form in Widdup's purchase of shares in three companies owning Satellite Group properties? 'Jim has been a friend of mine for many years and is a consultant working for me to recover debts to those companies,' he replied. So why the secrecy? 'Jim comes with a lot of baggage,' Widdup confided. 'And if his name is mentioned, the financiers may pull the plug.' And why would that be, Ian? 'Because they are all like sheep,' replied Widdup, warming to the subject. 'If you wave a stick at them, they run a mile.' 5 The imputation pleaded, to which objection is taken, is as follows: "5(b) the Plaintiff is a jailbird that is to say he is confined to prison;" 6 However, counsel for the defendant drew attention to the different wording of the same imputation, said to arise out of publication C, namely: "7(b) the Plaintiff is in jail;" 7 Mr Evatt was content to adopt the latter formulation (para 7(b)), which is, I believe, certainly preferable. 8 Is the imputation capable of arising? The defendant objects to the use of the present tense, suggesting the plaintiff is presently in gaol. Although it is acknowledged that the article itself uses the present tense ("he is a jailbird"), in context, it means, according to the defendant, that he is a person who has spent time in gaol. The whole thrust of the article, according to the defendant, is a description of his activities on the "outside", that is after his release from gaol. The article refers to Mr Byrnes as "once (having) spent several years in jail" for supplying heroin. 9 Mr Evatt, however, contends that there is ambiguity in the language used. The article is capable of either referring to someone in gaol, or someone who has been in gaol. Where there is ambiguity, all shades of meaning are available to the jury. One can run a business as a consultant from within gaol. 10 However, I believe that the imputation that Mr Byrne is in gaol is not capable of arising from publications A and B taken together. It would involve a strained, or unreasonable, construction of the words used. 11 Turning to publication C, it was in these terms: " Not mentioning it again Big Jim Byrnes may only be a consultant to former Multiplex exec Ian Widdup's Bridge Street Developments but he's important enough to have had a business card printed. A copy is herewith appended. Widdup wasn't happy last week when the colourful Byrnes name (plus heroin charges, jail and Alan Bond) was mentioned in the same breath as his company. First off, Widdup denied to our spy that Byrnes had any involvement in the attempt to purchase three properties from that problem pink float, the Satellite Group. Then he said that if the Herald connected Bridge Street Developments and the purchase of the Satellite properties with Byrnes, he would sue Fairfax's board of directors. In the meantime, he offered us an 'exclusive story' if we didn't mention Byrnes. That was all before he confessed that Byrnes was slightly involved - he was a consultant to Bridge Street Developments, helping to recover debts owed to the Satellite companies that Widdup was trying to buy." 12 The plaintiff identified the paragraph containing the reference to gaol as giving rise to the imputation that Mr Byrnes was in prison. The defendant contends that such an interpretation is even more strained than in the case of publications A and B. Whilst I am not sure that this is so, on balance, I believe that the imputation is strained and unreasonable. The reference to gaol in publication C is vague. The thrust of the article (including the photocopy of Mr Byrnes' business card, giving a Bridge Street address), is that Mr Byrnes is a consultant of Multiplex, and a person with a "colourful" and questionable background. He is, nonetheless, someone on the outside, not in gaol. 13 Imputations 5(b) and 7(b), therefore, should not go to the jury. Imputation 5(e) 14 Imputation 5(e) is in these terms: "5(e) the Plaintiff spent several years in Stir for pleading guilty to supplying heroin;" 15 The defendant objects to the use of the word "Stir". That word, of course, appears in the article. It is convenient to reproduce, once more, the precise context: "After calming down, the former Multiplex man took on a more conciliatory tone, offering our spy an 'exclusive story' if we agreed not to mention Byrnes - the man who helped Alan Bond negotiate his way out of bankruptcy and who once spent several years in stir for pleading guilty to supplying heroin - in any upcoming item about Satellite." 16 The defendant says, first, that the requirement is that the imputation should be precise. However, the imputation pleaded uses the slang word, "stir", which is uncertain. Hunt J, in a number of cases, remarked that it was seldom satisfactory to simply reproduce the words used in the article. 17 The plaintiff responded to these arguments by pointing out that other judges differed from Hunt J. The plaintiff asks, rhetorically: How can it be said that the meaning is not conveyed when the plaintiff reproduces the words which the defendant published? 18 The word "stir" is a slang word. Most would recognise it as a reference to prison (cf Partridge Dictionary of Slang, vol 1, p833). I believe the imputation is capable of arising. I believe it is also capable of being regarded as defamatory. Imputation 5(e) should therefore go to the jury. Imputations 5(f) and 7(c) 19 The defendant took objection to the use by the plaintiff of the word "improperly" in imputations 5(f) and 7(c). In the course of argument, Mr Evatt (appearing for the plaintiff), indicated that he was prepared to substitute the word "dishonestly" in each case. The defendant said that, from its viewpoint, was acceptable. It would not contend that an imputation in that form was not capable of arising. The plaintiff, therefore, has leave to amend. Imputations 5(f) and 7(c), as amended, will go to the jury. 20 The order which is appropriate is as follows: 1. The plaintiff has leave to file a further amended statement of claim to consolidate the publications A and B, and plead the imputations arising from them. 2. The plaintiff's leave extends to amending imputations 5(f) and 7(c) by substituting the word "dishonestly" for the word "improperly" in each imputation. 3. Imputations 5(b) and 7(b) should not go to the jury. 4. Imputation 5(e) should go to the jury. 5. In the circumstances I believe the appropriate order is that each party pay his, or its, own costs. ********** Last Modified: 03/08/2001 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.