New South Wales Supreme Court CITATION : Keating v Newcastle Newspapers P/L [2000] NSWSC 726 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 20135/00 HEARING DATE(S) : 21/07/00 JUDGMENT DATE : 1 August 2000 PARTIES : Anthony Keating (Pl) Newcastle Newspapers Pty Ltd (Def) JUDGMENT OF : Kirby J COUNSEL : R K Weaver (Pl) D Caspersonn (Def) SOLICITORS : J A O'Brien & Co (Pl) Sparke Helmore (Def) CATCHWORDS : Defamation - Application by deft to "strike in" material - Newspaper editorial commenting on allegations LEGISLATION CITED : Defamation Act, 1974 - s7A Ron Hodgson (Trading) P/L v Belvedere Motors (Hurstville) P/L & Ors (1971) 1 NSWLR 472 CASES CITED : Gordon v Amalgamated Television Services P/L & Anor (1980) 2 NSWLR 410 Murphy v Nationwide News (Levine J, unreported, 1 April 1993) DECISION : Ref para 26 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION KIRBY J Tuesday 1 August 2000 20135/00 - ANTHONY KEATING v NEWCASTLE NEWSPAPERS PTY LIMITED JUDGMENT 1 HIS HONOUR: This is an application by the defendant to "strike in" certain material which accompanied the publication of the matter complained of. 2 Anthony Keating (the plaintiff) was endorsed by the ALP as its mayoral candidate at Maitland in the Local Government elections to be held on 11 September 1999. He was a school teacher from Maitland High School. The day before the election an article was published in the Newcastle Herald. It appeared on the front page, under the following headline: "Hunter mayoral candidate defends himself over Schoolgirl sex harass claims " 3 The headline was given great prominence. It occupies perhaps one third of the front page. The article which followed began with these words: "Maitland mayoral candidate Tony Keating has defended himself against NSW Opposition allegations in Parliament yesterday that identified him as a Lower Hunter teacher and mayoral candidate accused of sexually harassing female students. Opposition Upper House Liberal MP Charlie Lynn questioned the Government as to whether an official investigation was being delayed because of the local government elections. Using parliamentary privilege, Mr Lynn said the teacher still had access to female students while the parents of alleged victims had endured a delay in an investigation without proper explanation." 4 The remainder of the article was concerned with the questions asked in parliament by Mr Lynn, and the response of the Minister representing the Minister for Education in the Legislative Council. 5 There was, on one side of the article, a small box. The box contained the following: The Newcastle HERALD The candidate in ques- tion has referred to Mr Lynn's behaviour as 'grubby politics' and all fair-minded people, no matter what their political leanings, would have to agree. By not naming names, Mr Lynn seems to have hoped that the people in the particular local government area would be aware of the allegations… Editorial, Page 8 6 The editorial on page 8 was headed "Grubby politics". It was in these terms: "State Parliament is sometimes referred to as 'coward's castle' and with good reason. Politicians often use the legal protection of the parliamentary chamber to make unsubstantiated and damaging allegations about community members who have no right of reply. Upper House Liberal MP Charlie Lynn took the use of parliamentary privilege to a new low yesterday when he raised allegations that a Lower Hunter teacher and mayoral candidate had been accused of sexually harassing female students. My Lynn did not name the teacher or the local government area and provided no detail in support of his allegations. But the fact that they were raised only two days before people cast their votes in the local government elections suggests an intent to damage a candidate's chances of winning the mayoral poll. The candidate in question has referred to Mr Lynn's behaviour as 'grubby politics' and all fair-minded people, no matter what their political leanings, would have to agree. By not naming names, Mr Lynn seems to have hoped that the people in the particular local government area would be aware of the allegations and that his question would jog their memories on the eve of the poll. His broad-brush approach, however, carried the risk of damaging a lot more candidates in the Lower Hunter. Four local government areas - Newcastle, Lake Macquarie, Cessnock and Maitland - will elect their mayors by popular vote. There is a total of 29 mayoral candidates in the four areas. Most voters would be unaware of the occupations of each of the candidates in their area, so Mr Lynn's approach could cast an unwarranted shadow over more than one candidate. The allegations Mr Lynn raised are not new. They were put to this newspaper a month ago and we made inquiries about them. The inquiries revealed that the allegations were being investigated by the Education Department. We duly noted, in a brief two-paragraph report, that allegations against a Hunter teacher of sexual misconduct were under investigation. That put the matter on the public record, without putting a stain on an individual's name. Mr Lynn's reference to the allegations, on the other hand, was designed to hurt. It was the dirtiest of politics because his wording carried an implication that completion of the inquiries had been delayed because the teacher in question was standing for public office. The Newcastle Herald has published the name of the man against whom the allegations have been made. We did that because it gave him a chance to defend himself and to respond to Mr Lynn's cowardly attack. Mr Lynn used parliamentary privilege to attack the candidate because he knew the man had no right of reply. His action deserves condemnation as gutter politics of the dirtiest kind." 7 The Statement of Claim issued by the plaintiff simply pleaded the article, including the headline. The words appearing in the small box on the front page, and the editorial, were not included. The imputations said to arise from the article were as follows: "(a) The Plaintiff being a school teacher was guilty of sexually harassing female students; (b) The Plaintiff so conducted himself as a school teacher as to warrant an official investigation into allegations that he sexually harassed female students; (c) The Plaintiff as a school teacher should not have been entrusted with access to female students; (d) The Plaintiff so conducted himself that he should not have been entrusted with access to female students while under investigation for sexual misconduct; (e) The Plaintiff being a school teacher was guilty of sexual misconduct with female students; (f) The Plaintiff so conducted himself as a school teacher as to warrant an official investigation into allegations of sexual misconduct with female students. (g) The Plaintiff abused his position of trust as a teacher; (h) The Plaintiff so conducted himself as to warrant an investigation into allegations that he abused his position of trust as teacher." 8 The defendant, in these circumstances, seeks to have the editorial pleaded by the plaintiff. By this means, the jury will have available, when the matter proceeds as a hearing under s7A of the Defamation Act 1974, everything published by the defendant concerning the plaintiff. 9 In what circumstances is a plaintiff obliged to incorporate material not relied upon as giving rise to the imputations? The test was stated by Else-Mitchell J in Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & Ors (1971) 1 NSWLR 472 in these terms: (at 477) "… if the alleged defamatory matter be contained within other written material, it is sufficient to set forth in the declaration the libellous passages only, provided that their meaning be clear and distinct. But, if the meaning of the passages taken singly is not clear, or if the complexion of the imputation conveyed by the libellous passages is materially altered or qualified by other passages in the written material, the plaintiff must set out all of the passages in the written material which affect the sense of the alleged defamatory matter ( Rainy v Bravo (1872) LR 4 PC 287 at pp 296-297); Tabart v Tipper (1808) 1 Camp 349 at p 353; 170 ER 981 at p 983)." 10 His Honour added: (at 477) "The passage in Gatley on Libel and Slander, 6th ed., par. 984, which calls upon the plaintiff in such a case to set out the whole of the article or letter is, in my opinion, too widely expressed, unless it is read in the sense that the whole of the article or letter in question does affect the complexion of the alleged defamatory matter." 11 Hunt J in Gordon v Amalgamated Television Services Pty Ltd & Anor (1980) 2 NSWLR 410, said this: (at 413) "Where the publication sued upon is in written form, a plaintiff is obliged to include within his pleading every passage which materially alters or qualifies the complexion of the imputation complained of: Rainy v Bravo (1872) LR 4 PC 287 at 296-297); Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 at 477, 480. The justification for that rule is the principle that the effect of the matter complained of must be taken from the whole of what has been published: Australian Newspaper Co Ltd v Bennett [1894] AC 284 at 288; Grand Theatre and Opera House (Glasgow) Ltd v G Outram & Co 1909 SC 1018(n) at 1019; Australian Consolidated Press Ltd v Bridges (High Court, 28th July 1971, unreported); Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 53 ALJR 243 at 245." 12 Although dealing with a television programme in that case, Hunt J added the following comment which is of general application: (at 415) "Principle demands, however, that if a plaintiff is entitled to set out those passages from which the imputations of which he complains are capable of being conveyed, then the defendants should similarly be entitled to have set out those additional passages which are capable of materially altering or qualifying any such imputation. It is, in my view, unnecessary for a defendant to have to show that the additional passages must change the complexion of the imputation complained of." 13 In Murphy v Nationwide News (Unreported, 1 April 1993), Levine J summarised the defendant's contention in these words: (at 3) "It is contended that the plaintiff cannot take a 'pinch' without including the whole of the words which are capable of having an impact on the reader with all the characteristics that readers are deemed to have. 14 His Honour, in that case, determined that the material was capable of affecting the impact of the article, so that the plaintiff was obliged to incorporate that material in the statement of claim. 15 Here, the defendant points to clear links between the front page and the editorial. First, they deal with the same subject, namely the allegations made against Mr Keating in parliament. Secondly, the inset box on the front page guides the reader to the editorial comment on page 8. 16 The defendant further says that the editorial comment (including the inset) is capable of materially altering or qualifying the passages in the material relied upon by the plaintiff. 17 The defendant's argument is directed principally at four of the eight imputations. Imputation (a) and imputation (e) each assert that the plaintiff was guilty of misconduct, whether sexually harassing female students (imputation (a)), or sexual misconduct (imputation (e)). Imputations (c) and (g) also presuppose misconduct on the part of Mr Keating. It is implicit in imputation (c) that, by reason of such misconduct, Mr Keating should not be trusted with female students. Imputation (g) asserts that the plaintiff had abused his position of trust as a teacher. 18 Hence, on the defendant's argument, anything which is capable of altering or qualifying the inference of guilt on the part of Mr Keating should be pleaded. The defendants point to three matters in the editorial. First, it identifies the basis of the attack in parliament. It is arguable that the editorial characterised the attack as "unsubstantiated". Certainly, it is described as being "unsupported by detail", and "broad brush". Mr Keating, it observes, "has no right of reply". 19 Secondly, the motive of those making the attack is exposed. Mr Lynn is a member of the opposing party, the Liberal Party. The attack is made in the context of an election. The timing of the attack (two days before the election), makes the purpose obvious, that is to harm the electoral chances of Mr Keating. 20 Thirdly, the newspaper purports to condemn those making the attack. Mr Lynn is described in disparaging terms, and the attack branded as "cowardly", as well as "gutter politics of the dirtiest kind". 21 The plaintiff responded to these arguments in a number of ways. First, it was submitted that the meaning of the words published, as reproduced in the statement of claim, is plain. In the words of Else-Mitchell J in Ron Hodgson (Trading) Pty Ltd (p 477), the words are "clear and distinct". There is no need to resort to other material in order to understand what is being said. 22 However, that is not the test. That is one aspect of the test. The formulation by Else-Mitchell J identifies two alternatives. The additional material should be pleaded, either when the meaning of the libellous passages is not clear and distinct, or where the complexion of the imputations conveyed by the libellous passages is materially altered or qualified by other passages in the material published. The defendant relies upon the latter alternative. 23 The second argument of the plaintiff was that I should take judicial notice of the general disinclination of readers to read newspaper editorials. It is said, perhaps not implausibly, that, in the context of a sensational headline, there is unreality in presupposing that the ordinary reasonable reader would bother to read the fine print which follows. 24 However, the law assumes the ordinary reasonable reader is a person who will read the whole of the matter complained of. He, or she, may not attach the same importance to each aspect of that material. Nonetheless, if the matter complained of includes editorial comment, then it is assumed that such comment is also read. 25 The real issue is whether the editorial comment is capable of materially altering, or qualifying, the other passages in the material published. I believe that, in respect of those imputations which impute guilt or misconduct to the plaintiff (imputations (a), (c), (e), (g)), the editorial (and inset on the front page) are capable of materially altering or qualifying the other passages published. They should therefore be included as part of the matter complained of. 26 I therefore make the following orders: 1. I uphold the defendant's application. 2. I give leave to the plaintiff to file an Amended Statement of Claim incorporating the insert box on the front page and the editorial. 3. The plaintiff should pay the defendant's costs. ********** Last Modified: 09/26/2000 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.