Cartwright v Davis & Anor [2000] NSWSC 1151

New South Wales Supreme Court

CITATION : Cartwright v Davis & Anor [2000] NSWSC 1151 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20500/00 HEARING DATE(S) : 6 December 2000 JUDGMENT DATE : 6 December 2000

Robert Cartwright (Plt) PARTIES : Peter Davis (1D) 2KY Broadcasters (2D) JUDGMENT OF : Levine J

COUNSEL : T D Blackburn (Plt) B A Connell (Defs) SOLICITORS : Paul A Curtis & Co (Plt) Bush Burke & Co (Defs) CATCHWORDS : Imputations - capacity - radio broadcast LEGISLATION CITED : Defamation Act 1974 CASES CITED : Amalgamated Television Services Pty Ltd v Marsden (1998) NSWLR 158 DECISION : See paras 17 and 18

DLJ:1 (Ex Tempore - Revised) [2000] NSWSC 1151

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20500/00

JUSTICE DAVID LEVINE

WEDNESDAY, 6 DECEMBER 2000

ROBERT CARTWRIGHT (Plaintiff)

v

PETER DAVIS & ANOR (Defendant)

JUDGMENT: (Imputations - capacity - radio broadcast)

1 HIS HONOUR: Pursuant to SCR Pt 31 r 2 and by consent, the Court has heard argument on the question of law as to whether the matter of which the plaintiff complains in this action is capable of carrying the three imputations pleaded in the statement of claim. 2 Mr Cartwright sues the defendants in respect of a broadcast on 2KY on 13 April this year as part of what is described as "Big Sport Breakfast" and which is said to have taken place shortly after 8 o'clock. 3 A tape of the broadcast is exhibit A and, with the consent of the parties, I have listened to it prior to hearing submissions. 4 The plaintiff contends that the published material conveys of him the following defamatory imputations: "(a) the plaintiff, while head of the Greyhound Racing Authority, was knowingly involved in illegal practices and corruption in the greyhound racing industry; (b) the plaintiff, while head of the Greyhound Racing Authority, had deliberately refrained from doing anything about illegal practices and corruption in the greyhound racing industry; (c) the plaintiff was grossly incompetent as the head of the Greyhound Racing Authority in that he failed to do anything about illegal practices and corruption in the greyhound racing industry." 5 The published material is made up of what, for present purposes, I will describe as a discussion/interview between Mr Radley of the defendant and a Mr Davis, described in the broadcast as the chief greyhound writer with the Illawarra Mercury. 6 Over a period of time of somewhere between 15 to 20 minutes, the matter was published and the subject dealt with was the ICAC inquiry into the greyhound racing industry, the fact of it, events that had thitherto occurred in that inquiry, comparisons made with the "Fine Cotton Affair" and references to it, historical material within the greyhound racing industry and Mr Davis' views, inter alia, on the number of people likely to be involved in the ICAC inquiry. 7 After the last mentioned subject matter was dealt with, Mr Radley, at line 38, in effect then purports to bring Mr Davis' contribution to an end. Thereafter, what can be heard on the tape and is which reflected in the transcript is Mr Radley deciding to ask Mr Davis a further question. 8 Whether or not Mr Davis had any belief as to whether he was still on air is irrelevant to the present considerations but he certainly was on air and the last series of questions initially concerned with the anticipated ICAC schedule concluded with the remarks from Mr Radley at line 48: "Could be like the cricket, the tip of the iceberg. DAVIS: Exactly. But matey, I do think that - I think there'll be some interesting shit happen today because Ray and Ruth King haven't given evidence yet and I believe Bob Cartwright's the bloke we should be going after. He was the boss of the GRA and did fucken nothing. RADLEY: Um, okay, it is now 24 minutes after 8." 9 As has been stated again and again, in the determination of the question of capacity, the test of reasonableness is the test to be applied, stressed by the former Chief Judge at Common Law in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. 10 It is here submitted for the defendant that applying that test to the ordinary reasonable listener who heard the programme, must bring it about that the listener was confronted with specific examples given during the programme by Mr Davis and, at the end, by no more than a statement by Mr Davis as to his belief as to what I would paraphrase as an outstanding matter. By outstanding, I mean not thitherto dealt with, namely, that it was Mr Davis' belief that Mr Cartwright should be the subject of inquiry by ICAC. If that is correct, then it is submitted the only available kind of imputation is one that hitherto has been permitted along the lines of the plaintiff having so conducted himself as to warrant investigation by ICAC, et cetera, et cetera. 11 I am in agreement with matters raised by Mr Connell as to the desirability of Pt 31 r 2 capacity applications being a useful mechanism to ensure that issues formulated in a principled way go to the jury. What I do have difficulty with, however, having heard the programme as a whole and the language and tenor of the words very firmly uttered by Mr Davis at the end, that, as a matter of principle, it could be said that an understanding by the ordinary reasonable listener in terms of any of the pleaded imputations would involve unacceptable conjecture, suspicion, speculation or inference drawing. 12 The closing words could (and this could also be a jury argument) be understood to have a special significance by reason of Mr Davis in effect being called back and then stating them. But those words, together with all of the preceding material, on a reasonable basis, can point to an understanding that Mr Cartwright did nothing because either he knew but turned a blind eye, or he knew because he was involved or, at a lesser level, he was grossly incompetent. 13 I am not persuaded, when one listens to the broadcast as a whole, that the meanings represented by the pleaded imputations are strained or forced. 14 I am persuaded, on the capacity argument, that this is a very good case where the publisher, via the words of Mr Davis, could be understood as talking about not only a lot of smoke but the fire that is giving rise to it. 15 I hold as a matter of law that the matter complained of is capable of conveying each of the imputations pleaded in paragraph 2. 16 This is pre-eminently a jury case. I direct the defendant within 14 days to file a defence limited to the joinder of issue upon those matters reserved to a jury under section 7A of the Defamation Act. I place the matter in the holding list. 17 I direct that the plaintiff, within 14 days, to lodge with the Court file in the Registry an amended form of schedule A incorporating what I understand to be the agreed handwritten corrections. 18 The defendant is to pay the plaintiff's costs. **********