New South Wales Supreme Court CITATION : Tucker v Echo Publications P/L [2001] NSWSC 239 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20472/00 HEARING DATE(S) : 30/03/2001 JUDGMENT DATE : 5 April 2001 Ross Tucker (1st Pl) PARTIES : Harold Ross (2nd Pl) Echo Publications Pty Limited (1st Def) Fast Buck$ (aka John Anderson) (2nd Def) JUDGMENT OF : Kirby J M White (Pls) COUNSEL : B Connell (1st Def) K P Smark (2nd Def) SOLICITORS : Elliot & Sochacki (Pls) Bush Burke & Company (Defs) CATCHWORDS : DEFAMATION - Capacity of publication to give rise to imputations - Whether imputations differ in substance Bishop v Latimer (1861) 4 LT(NS) 775 CASES CITED : Singleton v John Fairfax & Sons Pty Limited (unreported, 20.2.80) Morosi v Mirror Newspapers Limited (1977) 2 NSWLC 749 DECISION : Ref para 24 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST KIRBY J Thursday 5 April 2001 20472/00 - Ross Tucker & Anor -v- Echo Publications Pty Limited ACN 004.000.239 & Anor JUDGMENT 1 HIS HONOUR: Mr Ross Tucker (the first plaintiff) and Mr Harold Ross (the second plaintiff) are directors of Comptran Pty Limited, the publishers of The Saturday Star. Mr Tucker is also an elected Councillor of the Byron Shire Council. 2 On 7 December 1999, Fast Buck$ (the second defendant) published a paid advertisement in The Byron Shire Echo, a newspaper published by the first defendant (Echo Publications Pty Limited). The advertisement was in these terms: "Advertisement 'The ethics of journalism by Fast Buck $' 1. Lets take a tiny portion of the spotlight away from those lovely chaps John Laws and Alan Jones for a moment and focus it on that august local publication the Saturday Star and its proprietors Ross Tucker and Harold Ross. 2. Readers may recall that during the last election campaign my car-sign features the revelation that Ross Tucker and Harold Ross had been ordered by the courts to compensate former employee Leanne Potts more than $7000 for under-award payment. That sign also suggested that The Star had arranged for the hearing to be in Sydney rather than on the North Coast - in order to avoid adverse publicity during the election campaign. 3. This article is not about the ethics of paying people less than the award, which is a widespread practice in the Shire - as indeed is cash-in-the-hand, working while on benefits and 'retraining' people at taxpayers' expense. That's life on the North Coast. Nor is it about The Star's extreme political bias, which we are all aware of and duly allow for - usually by throwing it out unread. 4. Rather it is about the morality of a newspaper using its power of publicity to push its own side of a private dispute and thereby intimidating the other party. 5. It is also about the methods used by the far right to achieve their objectives. 6. According to Mrs Potts her dispute with management was related to personality matters rather than performance. She describes a Ross Tucker who is domineering and belittling, who shouts and bangs the desk and says things like, 'We need less skirts around here and more pants'. She was receiving a lower wage than two other staff members whom she was training (the latters' wages were topped up by the government) and after a variety of unseemly confrontations, the crunch came when an attempt was made to put her on a commission rather than a wage. In reply to her protestations, Ross Tucker allegedly shouted, 'I don't give a f*** about you and your kids!' 7. After her acrimonious departure Mrs Potts filed suit for unfair dismissal. The Star asserts that her case was 'dismissed by the magistrate' but the documents show that in reality Mrs Potts withdrew the matter. This was because a) she didn't have money for lawyers and b) she believes small employers should be able to sack staff over personal incompatibility. Instead she decided to press for her legal wage entitlements; Tucker was not about to get away with his actions completely. 8. The Industrial Relations Court subsequently found that she had been underpaid and ordered compensation of over $7000. It appears that instead of appealing to a higher court The Star decided to stonewall. She was offered $1000 plus $20 per week for 80 weeks - if The Star lasted that long. Evidently aware of the stress that the dispute and the protracted legal action had placed on her, The Star also apparently decided that by applying a little more pressure Mrs Potts might be induced to back off and give up the fight altogether. 9. The October 30 issue (the paper closed but resurfaced as a small monthly) ran a story unambiguously making a case that the paper's closure/reduced circumstances were directly due to Mrs Potts and 'the mad industrial laws'. 10. 'As a direct consequence we decided to close down which resulted in five very faithful and excellent employees losing their jobs.' 11. This explanation is ludicrous given that everyone familiar with small business economics knew that The Star must have been losing hundreds of dollars every week for its entire existence. That it continued at all was owing to the political platform it provided for Ross Tucker; unable to compete on a level playing field in the pages of The Echo or The News he needed a controlled medium to further his mayoral ambitions. Once those were squashed in the election of September 11 the paper had nowhere to go. Why didn't they blame Tom Wilson as the cause of the paper's demise? They had to pay him $10,000 in settlement of a defamation suit over misrepresentations they made about him. 12. The Star article also strongly implied that Mrs Potts was incompetent, disloyal and slack in her performance of the job. The reference Tucker gave her before the whole thing blew up suggests otherwise: ' She is a highly competitive salesperson who dramatically increased the advertising content of our newspaper. ' Tucker has of course subsequently tried hard to get the reference back. In any case if he wants someone to work on a commission basis how could he complain about her alleged irregular hours. 13. At the time my car-sign appeared Mrs Potts was working at the Coolamon Nursing Home near Mullumbimby. Ross Tucker is a regular visitor to the premises and is apparently a friend of the management there. Not long after my car-sign appeared in town management started to give Mrs Potts awkward shifts and the staff cold-shouldered her. They soon made it impossible for her to continue working there; only two out of 25 staff remained friendly. Mrs Potts says the manageress told her, 'If we'd known you were suing Ross Tucker we would never have employed you.' 14. Because The Star refused to pay up the amount awarded by the Court Mrs Potts forced the proprietors to the Magistrate's Court to ascertain financial status and ability to pay. At that hearing Harold Ross kept repeating that Buck $ car-sign had caused the paper a lot of damage and they should not therefore have to pay. 15. This was doubly irrelevant. In the first place Mrs Potts had no input whatsoever into my sign and I didn't know her from a bar of soap at the time; my information was third-hand, though obviously reliable. Secondly if The Star believes my sign to have been damaging they should have sued me instead of bringing it up at a hearing about their finances. Evidently they'd rather hassle a defenceless woman than someone who knows the ropes. 16. To top it all off the proprietors threatened to do a further story in the November issue if she didn't compromise. At the time of writing she was contemplating a settlement offer of $4000, but was baulking at a confidentiality clause (bit late now, Ross). Once she indicated acceptance they lowered the offer to $1000 plus $250 per week! 17. My advice to Mrs Potts is to press for the full amount, to sue for defamation and to bankrupt the paper and its proprietors. They have after all made it almost impossible for her to get employment in the Shire. Although the article didn't actually name her, it can only refer to one person, and in this small Shire word spreads quickly especially as the issue had already been canvassed in The Echo. 18. Leanne Potts is hardly a greenie, yet she has been forced by the ruthless unfairness she has encountered at The Star to approach the opposite end of the political spectrum to get redress. I have told her, of course, that virtually every article The Star prints contains a similar degree of misrepresentation, ugliness and abuse of power and that none of this surprises me. Indeed, if people understood what Tucker was all about he would have no supporters at all. And how can Harold Ross be considered any better when he works so closely with him? 19. Conservatives, including some pale green ones in the hills behind Mullumbimby, usually prefer to amble along determinedly pretending everything's OK until one day reality turns and bites them personally. Then they typically rage radical with indignation for a while, usually however quickly giving up the fight - either because 'life's too short' or because silent bitterness is easier. Ross Tucker counts on it. I despair of it. Leanne Potts is to be congratulated for rare resolve in standing up to the Shire's biggest bully. 20. Incidentally Leanne confirms the allegation made by another former staffer that Ross Tucker has been in regular telephone contact with Max Eastcott since the latter's departure. Given Tucker's obvious relationship with senior staff and the fact that Ray Kent has strongly defended those same staff I hazard that Eastcott still has a significant say in the running of the Shire. I wonder if Margaret River knows he has a second job? 21. Talking of journalistic ethics, who is this character who has written rabid redneck propaganda in the Saturday Star while hiding behind the pseudonym 'Louse D'Ance'? The Star is anxious to keep his/her identity secret, but rumour has thrown up the names of two doctors from north of the Shire. Ian Kingston is not one of them." 3 The plaintiffs have pleaded a number of imputations ((a) to (m)). The defendants object to the form of certain imputations, and assert that others do not differ in substance. 4 I will deal first with the objections to form. Imputation (i) 5 Imputation (i) is in these terms: "(i) that the plaintiffs as proprietors of The Saturday Star caused to be published defamatory misrepresentations about Mr Tom Wilson such that the plaintiffs had to pay Mr Wilson $10,000 in damages;" 6 The second defendant objected to the words "in damages" (which differ from the words in the article, "in settlement"). During the course of argument, the plaintiff agreed to delete the words "in damages". The plaintiff has liberty to re-plead. The imputation, as re-pleaded, should go to the jury. Imputation (j) 7 Imputation (j) is as follows: "(j) that the first plaintiff is a domineering employer in that he abuses employees by belittling them and shouting at them using obscene language;" 8 The defendants object to the concluding words, "using obscene language". They assert that such an imputation is incapable of arising. The article (para 6) describes one instance where obscene language was said to have been used by Mr Tucker ("I don't give a f*** about you and your kids!"). One instance cannot, on the defendants' argument, give rise to a general imputation (Bishop v Latimer (1861) 4 LT(NS) 775). Referring to that case, Hunt J in Singleton v John Fairfax & Sons Pty Limited (unreported, 20 February 1980), said this: (at p6) "The heading to the defendant's report was in the terms: 'How Lawyer Bishop treats his clients'. Proof that the plaintiff had treated one client badly in one particular case was held to be an insufficient justification of the heading, which implied that he so treated his clients generally (at 775)." 9 His Honour added: (at p7) "In many cases, the allegation in the matter complained of that the plaintiff was guilty of misconduct on a particular occasion will not support an imputation alleged in general terms." 10 The plaintiffs responded by pointing to the text of the publication, para 6, and the opening words of para 7. A picture is painted of Mr Tucker. He is described as domineering and belittling. He bangs the desk. He has been involved in "unseemly confrontations", "shouting", according to the article, the obscenity attributed to him. The behaviour was said to have led to the "acrimonious departure" of Mrs Potts. The plaintiffs, in these circumstances, made the following submission: "7. An ordinary reasonable reader reading paragraph 6 could reasonably take away from it the meaning that the first plaintiff used obscene language in the course of his domineering and belittling conduct." 11 I believe imputation (j) is capable of arising. It should go to the jury. Imputation (k) 12 Imputation (k) is as follows: "(k) that the first plaintiff is an employer who discriminates against female employees;" 13 For the purposes of dealing with the defendants' argument, it is convenient to also set out imputation (l). It is as follows: "(l) that the first plaintiff as an employer has a discriminatory attitude towards female employees;" 14 No objection is taken to imputation (l). It seems to me to certainly arise. Mr Tucker, as described by the article, manifested a discriminatory attitude towards female employees. The article attributed to him the words: "We need less skirts around here and more pants." He is described as having treated Mrs Potts in a discriminatory way, allegedly shouting, "I don't give a f*** about your kids". However, is the article capable of suggesting discrimination against female employees, plural? I see nothing which suggests that the first plaintiff actually discriminated against female employees, other than Mrs Potts. I do not believe, therefore, that the imputation arises. The first plaintiff has liberty to re-plead (confining the imputation to Mrs Potts) if so advised. Imputation (m) 15 Imputation (m) is as follows: "(m) that the first plaintiff is a bully" 16 The defendants faintly argued that the imputation did not arise. However, I believe that it does clearly arise. The article (para 19) says, in terms, that "Ross Tucker (is) … the Shire's biggest bully". The comment is not confined (unlike other imputations) to the conduct or attitude of the first plaintiff towards Mrs Potts. I further believe that it is permissible, in the circumstances, to use the words of the article. The word "bully", although arguably slang, is well understood. It appears in both the Macquarie Dictionary and the Shorter Oxford Dictionary. Imputation (m) should go to the jury. Imputations said not to differ in substance. 17 The defendants submitted that imputations (a), (c), (d) and (g) did not differ in substance. They essentially were saying the same thing, and were simply examples of bullying conduct (cf imputation (m)). 18 The use of the word "improperly" in imputations (a) and (d), was debated in the course of submissions. The plaintiff had incorporated that word, narrowing its meaning by identifying the particular aspect of the conduct said to be improper. The defendants, as I understand their position, do not particularly object to the inclusion of the word "improperly". It was suggested, however, that the plaintiff should amend the imputations to put the meaning beyond doubt. The wording suggested (which the plaintiff accepted) for each imputation was as follows: "(a) that the plaintiffs, being in control of the content of The Saturday Star , improperly used their power of publication, in that they published material in order to intimidate a former employee with whom they were in dispute; … (d) that the plaintiffs, being in control of the content of The Saturday Star , acted improperly in that they threatened to publish matter derogatory of a former employee for the purpose of putting pressure on her to compromise or give up her entitlement to compensation as awarded by a court;" 19 Notwithstanding these amendments, however, the defendants assert that such imputations do not differ in substance. Each was essentially asserting that the plaintiffs had abused the power of publication to intimidate Mrs Potts. The same suggestion was also made in imputation (c), which was as follows: "(c) that the plaintiffs, being in control of the content of The Saturday Star , published false statements about a former employee for the purpose of putting pressure on her to compromise or give up her entitlement to compensation as awarded by a court;" 20 The defendants further complained that imputation (g) did not differ in substance from these imputations. Imputation (g) was in these terms: "(g) that the plaintiffs are cowards in that they deliberately chose to use their power of publication as proprietors of a newspaper to intimidate someone they perceived to be much less able than others to defend herself;" 21 The defendants suggested that bullying behaviour, intimidating Mrs Potts through the power of publication, was essentially cowardly. Any imputation pleaded must be taken to include all other imputations which do not differ in substance (Morosi v Mirror Newspapers Limited (1977) 2 NSWLC 749 at 771). 22 However, I believe the imputations do differ in substance. Imputation (a) differs from the remaining imputations. It asserts an abuse of power to resolve a dispute. Imputation (c) is concerned with the publication of false statements as a means of putting pressure on a former employee. It is a particular form of abuse. Imputation (d) is concerned with the threat of publication of derogatory matter. I assume the source of that imputation is para 16, where the plaintiff is accused of having "threatened to do a further story" on Mrs Potts unless she compromised her claim. It is reasonable to infer that the threatened story would be derogatory. Imputation (g) asserts cowardly behaviour, arising from the course of conduct of the newspaper proprietors towards Mrs Potts. 23 Each imputation should go to the jury. The plaintiff should have leave to amend imputations (a) and (d) to incorporate words which further define the sense in which "improperly" is used. 24 Orders Accordingly, I make the following orders: 1. The plaintiff has leave to amend imputations (a), (d) and (i). 2. Imputation (j) should go to the jury. 3. Imputation (k) should not go to the jury in that form. The plaintiff has liberty to re-plead. 4. Imputation (m) should go to the jury. 5. Imputations (a), (c), (d) and (g) do, in my opinion, differ in substance, and should go to the jury (as amended in the case of (a) and (d)). 6. The defendants should pay the plaintiffs' costs. ********** Last Modified: 04/05/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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