Phelps v Nationwide News Pty Limited & Anor [2001] NSWSC 130

New South Wales Supreme Court

CITATION : Phelps v Nationwide News Pty Limited & Anor [2001] NSWSC 130 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20454/00 HEARING DATE(S) : 16 February 2001 JUDGMENT DATE : 9 March 2001

PARTIES : Kerryn PHELPS - Plaintiff NATIONWIDE NEWS PTY LIMITED & ANOR - Defendant JUDGMENT OF : Simpson J

COUNSEL : B R McClintock SC - Plaintiff T D Blackburn - Defendant SOLICITORS : Bush Burke & Company - Plaintiff Gallagher De Reszke - Defendant CATCHWORDS : Imputations - alternative pleadings LEGISLATION CITED : Defamation Act 1974 Burrows v Knightley (1987) 10 NSWLR 651 CASES CITED : Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950, unreported, 13 October 2000 Rakhimov v John Fairfax Publications Pty Ltd [2001] NSWSC 11, unreported, 25 January 2001 DECISION : Declined to strike out the statement of claim.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List

SIMPSON J

9 March 2001

20545/00 Kerryn PHELPS v NATIONWIDE NEWS PTY LIMITED & ANOR Judgment HER HONOUR : 1 For the purpose of this interlocutory judgment I assume the truth of the allegations made in the statement of claim. 2 The plaintiff has instituted proceedings against three defendants, arising out of the publication, on separate pages of the Weekend Australian newspaper of 2 September 2000, of material which referred to her. The point for present determination concerns the manner of pleading. 3 The matter complained of consists of two separate parts. On page 1 of the newspaper, under the headline "No Job for Phelps' Partner", the following appeared: "The President of the Australian Medical Association, Kerryn Phelps, has lost a boardroom stoush to have her partner Jackie Stricker employed by the AMA as her personal assistant on a $100,000 annual salary. The unprecedented deal was put to the organisation's six member executive in secret in mid July and would have meant Ms Stricker received a greatly inflated annual salary that included business class air travel throughout Australia. Full report - page 3." 4 The whole of this paragraph, which is sometimes referred to as a "pointer" appears as Schedule A to the statement of claim. The paragraph in fact amounts to a synopsis of a more expansive account which appears, as indicated, on page 3 of the newspaper, and directs the reader to that account. The full report, which is presented as a news item, is annexed as Schedule B to the statement of claim. It is unnecessary here to quote the whole or any part of it. It contains essentially the same assertions, in greater detail, of the conduct attributed to the plaintiff in the page 1 item. 5 The plaintiff has chosen to plead her case in two alternative ways. Firstly, she pleads the pointer on page 1 (Schedule A). From this, she alleges that five defamatory imputations are conveyed. 6 Separately, she pleads the news item which appears on page 3 (Schedule B). From this she also alleges that five defamatory imputations are conveyed. These five imputations are identical to the five which she pleads arise from Schedule A. 7 In other words, the plaintiff, initially, pleads, as separate defamations, the "pointer" and the news item, but pleads both as conveying identical imputations. 8 In the alternative, she pleads the two items as a single composite publication, and again pleads that the same five defamatory imputations are conveyed. 9 The defendants challenge the pleading in so far as the two items are relied on as separate publications, arguing that they should be read as a single publication, as in the alternative pleading. They accordingly seek to have those paragraphs in the statement of claim in which separate publications are pleaded struck out, leaving only the paragraphs in which they are pleaded as a single or composite publication. 10 The issue raises a question about the proper identification, or the boundaries, of "a publication" as distinct from separate publications. There is no rigid dividing line, no categoric test that can be applied to the determination of the boundaries. That is because the examples of publications that may be perceived either as a single entity or as multiple single entities are numerous. There will, no doubt, be many cases where reasonable minds might differ on the proper categorisation, and many where a reasonably minded person would recognise that either classification would be valid. In these cases, the plaintiff has the option as to the manner of pleading. 11 I was referred to three previous cases in which related questions have arisen. The first in time is the decision of Hunt J (as he then was) in Burrows v Knightley (1987) 10 NSWLR 651. In that case the principal subject of the defamation claim was a book. The book had been serialised in four weekly instalments in a British newspaper and in four instalments in an Australian daily newspaper. The plaintiff sued the author of the book in relation to its publication and also in relation to its serialisation in the British newspaper. In that case he relied on the four-part serialisation as a single publication. 12 In a second action, in relation to the serialisation in four successive editions of the Australian newspaper, he sued both the author of the book and the publisher of the newspaper. In this claim he pleaded his case differently. Firstly, he sued on the basis that the four-part serialisation constituted a single publication, and, additionally, he pleaded each of the second, third and fourth instalments of the serialisation as separate defamations, each with its own set of imputations. 13 The defendant in the first claim challenged the form of pleading in which the publications were treated as a composite single publication and argued that principle required each separate instalment of the serialisation to be pleaded as a separate publication. Hunt J rejected this argument. He wrote: "In my opinion, the law may be stated in this way. Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the statement of claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add 'true' innuendos where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation." (italics in original) 14 It is to be observed that Hunt J described the course adopted by the plaintiff in Burrows as "acceptable". He did not hold that it was mandatory, or that it was the only acceptable mode of pleading in the circumstances which then pertained. 15 In the second Burrows claim, the defendants also argued that the pleading in which the plaintiff relied on all four parts of the serialisation as a single defamation and additionally the three subsequent instalments amounted to an abuse of process. Hunt J also rejected that argument, holding that the plaintiff was entitled to take that course, although his Honour cautioned against doing so. 16 The next case to which I was referred was Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950, unreported, 13 October 2000, Levine J. There, on page 1 of a Saturday newspaper, a headline and news item appeared. A second article also appeared on the second page, under a different heading. 17 The plaintiff sued in respect of the second article, as single defamation. He sued as a separate defamation on the combination of the two articles and headline. The defendant argued that the pleading was an improper attempt on the part of the plaintiff to multiply the imputations to increase the award of damages and that this constituted an abuse of process. Levine J rejected the defendant's argument and allowed the pleading to stand. He held, in particular, that no undue difficulty would arise in determining the issues of fact, and that the risk of multiplication of any damages awarded was minimised because the determination of damages is now committed to a judge rather than a jury. 18 The third case was Rakhimov v John Fairfax Publications Pty Ltd [2001] NSWSC 11, unreported, 25 January 2001, Levine J. In this case the plaintiff sued in respect of three items in two editions of a newspaper. The first and second items were published on the same day, but in different sections of a multi-sectioned Saturday newspaper. The first was a news item published on page 15. The second was an extract of a book, published in "a commentary/analysis/review component" of the newspaper. The two items are appended to Levine J's judgment. 19 The third item appeared in a subsequent (eleven days later) edition of the same newspaper. It was also presented as a news item and is also appended, in full, to Levine J's judgment. 20 The defendants did not complain of the separate action brought in relation to the third matter complained of. They did, however, argue that the two items published in the same edition of the newspaper properly constituted a single publication and ought to have given rise only to a single action. They, too, hung their argument on the assertion that pleading in such a way potentially exposed them to a multiplication of any damages awarded. Levine J regarded that proposition as of little consequence, noting that general principles and statutory provisions govern the award of damages and that there was little risk of unfair duplication. He regarded the two items, one a news item and the other a book extract, as quite separate and distinct, and refused to strike out the pleadings. 21 The above review of the cases drawn to my attention illustrates the diversity of the circumstances which might give rise to considerations of whether separate but related publications should properly be regarded as one. Related publications may be distinct items contained in a single edition of, for example, a newspaper (Rakimov, Lucas); or may be contained in successive daily or weekly (or other) editions of the same publication (Burrows). No doubt many other situations will arise. One example that comes to mind is the publication of a news item illustrated by a photograph, or a cartoon. Others are episodic items, broadcast on radio or telecast, separated by advertisements or by unrelated segments. 22 Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field. 23 The defendants in the present case argued that to allow the existing pleadings to stand would be potentially to expose them to a duplication of damages, because separate (though framed in identical terms) imputations have been pleaded in relation to each separate item. They abandoned an earlier argument that the pleading as it exists would expose them, not only to a doubling, but in fact to a trebling of the damages. This was abandoned because it is clear that the pleading of the two items together as a composite is put alternatively to the pleading of two items separately, and plainly will not arise if the plaintiff succeeds on either of the separate publications. Like Levine J, I consider the argument about multiplication of damages can be put aside. Since 1995 the quantification of damages in defamation actions has been committed to the trial judge and not to a jury. Even if it were valid to suggest that a properly instructed jury might misunderstand and duplicate the damages to be awarded, it is unlikely that a judge would fall into that error. If it is open to regard the separate items as separate publications, possibly received by different recipients, then that is a matter to be taken into account, if the plaintiff is otherwise successful, in the assessment of damages. It does not affect the pleading question. 24 As I have sought to indicate, there is no easy answer to the question whether separate items should be regarded as individual or composite. Each case will have to be assessed on its own facts and circumstances. One relevant consideration, as Hunt J mentioned in Burrows, arises where the terms of one part of the publication invite the recipient also to receive the other. Thus, the serialisation of a book may be seen to invite the reader to read each instalment. This would suggest pleading a composite publication. On the other hand, where the instalments are published at weekly or longer intervals, they may more readily be seen as separate and distinct publications. 25 Another relevant consideration might be the diversity of the content of the individual items. Where the content of one is significantly different from the content of the other, quite different imputations might arise, and quite different defences might be able to be raised. In such a case one would generally expect the items to be pleaded separately. 26 I do not pretend that the above is an exhaustive analysis of the possible circumstances, or the relevant considerations. As I have earlier observed, the potential range of publications and circumstances is very wide. 27 I turn now to apply the relevant principles, as I have attempted to extract them, to the present case. 28 The material contained in Schedule A to the statement of claim was placed on the cover page of a weekend newspaper. While the newspaper itself was not formally put before me, the technique is a familiar one. The synopsis is designed to enliven the interest of and direct the reader to the more comprehensive detail contained further into the newspaper. The reference to the "full report" at page 3 is intended to guide the reader to the more expansive account. In other words, there is a clear invitation to the reader to read the expanded version. 29 It is of some significance that the imputations pleaded in respect of each item are identical. Plainly, therefore, the plaintiff does not perceive that there is any significant difference in the content of the two items. That is a realistic reading of the two items. That also means that it is unlikely that different defences will be raised. 30 All of this would suggest that the two items could properly be seen as a single publication. But that does not end the matter for present purposes. It is only if that is the only view reasonably open that it would be appropriate to interfere with the way the plaintiff has elected to fashion her case. 31 The plaintiff argued that identification of the publication is a jury question: see Defamation Act 1974, s 7A (3). I do not accept that this is so. The matters assigned to a jury for determination are whether the imputation(s) pleaded is or are conveyed, and if so, whether it is or they are defamatory. It is implicit in this that the jury will also decide any contested issue of publication; that is, whether the defendant in fact published the matter complained of. But this does not require the jury to determine the limits of "the matter complained of". Delineation of "the matter complained of" is, in the first instance, quintessentially a matter for the plaintiff. But the question whether the matter of which the plaintiff complains is reasonably capable of being pleaded as a single matter, or is such that it can only properly be pleaded as multiple publications, is a pleading question and is not, accordingly, to be determined by a jury. 32 The difficulty I now have is whether, while recognising that all the tests I have mentioned would point to the reading of the two items together, the pleading in the way selected by the plaintiff is so untenable, or so unfair, as to permit or warrant the striking out of the pleadings of the two items separately. I perceive no significant unfairness. No real difficulty can arise in the pleading of defences where the imputations pleaded are identical and the accusations contained in the items are, in substance, identical. Any questions of damages will be examined in the light of the publication or publications as a whole. 33 I have considerable sympathy with the defendants' position in this case. It seems to me that pleading as the plaintiff has is cumbersome and adds a degree of complexity to the conduct of the litigation including, particularly, the matters which a jury will be required to determine. But I have concluded that it is a course the plaintiff is entitled to take if she wishes and if she is so advised. 34 I therefore decline to strike out any part of the statement of claim.