New South Wales Supreme Court CITATION : Anderson & anor v Radio 2UE & anor [2001] NSWSC 647 CURRENT JURISDICTION: Common Law Defamation List FILE NUMBER(S) : SC 20348/01 HEARING DATE(S) : 13 July 2001 JUDGMENT DATE : 31 July 2001 PARTIES : Donald Keith Anderson and Daniel Enoch Price v Radio 2UE Sydney Pty Limited and Mike Carlton JUDGMENT OF : Michael Grove J at 1 COUNSEL : T. Blackburn (Plaintiffs) A. Leopold (Defendants) SOLICITORS : Gilbert & Tobin (Plaintiffs) Bush Burke & Company (Defendants) CATCHWORDS : DEFAMATION - PLEADING - IMPUTATIONS - DISCUSSION CONCERNING " ALTERNATIVES" LEGISLATION CITED : Defamation Act 1974 Farquhar v Bottom 1980 2 NSWLR @ 386 Jarratt v John Fairfax Publications Pty Ltd [2000] NSWSC 547 CASES CITED : Jones v Skelton 1963 63 SR (NSW) @ 650 Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950 Ma v John Fairfax Publications Pty Ltd unreported CA 30 July 1998 Phelps v Nationwide News Pty Limited & anor [2001] NSWSC 130 DECISION : Application to strike out imputations refused. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST MICHAEL GROVE J Tuesday 31 July 2001 20348/01 - DONALD KEITH ANDERSON & DANIEL ENOCH PRICE v RADIO 2UE SYDNEY PTY LIMITED and MIKE CARLTON JUDGMENT 1 HIS HONOUR : By Statement of Claim filed on 27 April 2001 Donald Keith Anderson and Daniel Enoch Price sued Radio 2UE Sydney Pty Limited and Mike Carlton, so described and respectively referred to as broadcaster of and an announcer on Radio Station 2UE seeking damages for defamatory matter alleged to have been published concerning the plaintiffs in a broadcast on the afternoon of 31 January 2001. This interlocutory judgment follows the trial of preliminary issues relating to the plaintiffs' pleading and for that purpose publication by the defendants is assumed. 2 The schedule attached to the Statement of Claim exhibited a transcript of the broadcast to which reference will be made. A tape recording of it was played at the hearing. 3 It is convenient to deal first with a general question of form raised by the defendants. The allegation of publication is expressed in the pleading as being "of and concerning the plaintiffs" and it was contended that this amounted to "rolling up" imputations conveyed by the publication in respect of both plaintiffs and that the imputations should be struck out and repleaded because "separate questions arise between the two plaintiffs". 4 Counsel for the plaintiffs confirmed that it was alleged that each imputation was claimed to arise in respect of each plaintiff from the matter complained of. Such is plainly asserted by the expression of the pleading. There is no requirement of pleading, nor any perceptible benefit, in twice stating the same imputations. Obviously in the circumstances at any trial of issue pursuant to s7A of the Defamation Act, the jury will be asked to answer questions separately in respect of each plaintiff but the form of pleading neither inhibits nor affects this course. Each plaintiff will necessarily need to demonstrate how the matter complained of has conveyed any claimed imputation about himself. 5 I decline to strike out the imputations and order repleading on this ground. 6 In addition to some other objections by the defendants as to form, it was argued that none of the pleaded imputations was capable of arising from the matter complained of. There were five of these and I shall refer to them in accordance with their appearance in par 5 of the Statement of Claim. Before turning to them individually I should advert to a collateral skirmish concerning the playing of the tape. Counsel for the defendants asserted that if it was to be contended that the tone in which any of the words were uttered altered their meaning in any way, specific pleading was required. I agree. However, it was open to the plaintiffs to point to the mode and manner of publication as a material fact in determining whether an imputation was capable of being conveyed and I take them into account accordingly: Farquhar v Bottom 1980 2 NSWLR @ 386 and the cases there cited. The manner of the second defendant was authoritative and combined with express suggestion that it was scandal which was being uncovered. This reference to scandal is made in the third sentence uttered and reappears in the somewhat oxymoronic "good scandal" in the penultimate sentence of the entire broadcast. 7 The first imputation pleaded is: 5(a) The plaintiff acted disgracefully by charging the NSW government exorbitant consultancy fees in return for incompetent advice. 8 In respect of each plaintiff the defendants contend that the allegation of exorbitance could not be conveyed to the ordinary reasonable listener principally because nothing was said about the charges being so high as to be beyond the bounds of propriety or custom. 9 There were express references in the broadcast to large amounts of money paid to the plaintiffs and to an entity (described as "an outfit") basically run by two men and the plaintiffs were then identified by name. The issue is whether the imputation is capable of being conveyed to the ordinary reasonable listener, that is to say whether it is derived from the ordinary and natural meaning of the words used. In this regard it has been authoritatively stated: "The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words": Jones v Skelton 1963 63 SR (NSW) @ 650. 10 Without reciting all potentially relevant parts of the transcription of the broadcast it can be noted that included was the statement that: The reason for this whopping loss ………… a firm of high priced private consultants advising the government ………… 11 There were also broadcast remarks by a member of Parliament in conversation with the second defendant including …….. the people that were paid $2,000 consultancy, plus about $8 million over two years …………. 12 There is ample basis for concluding that exorbitance could be conveyed to the ordinary reasonable listener. 13 The second point of the defendants focussed upon the word "disgracefully". I accept that the sense of this word must be that of shame or dishonour. It suffices to refer to the closing words of the broadcast: It is a good scandal. I'd like to know how it's come to happen and why we have these high priced consultants producing these high priced disasters. 14 Counsel for the plaintiffs rather colourfully submitted that the second defendant was accusing the plaintiffs of "having their snouts in the trough, big time". Whether that be entirely apt language or not, I would uphold the submission that on a capacity basis it is quite untenable to suggest that the matter complained of could not convey that the plaintiffs acted disgracefully. 15 The final submission in relation to this imputation was that it was not suggested in the publication that the plaintiff Price charged any fees at all. It is accurate that it is only the plaintiff Anderson who is mentioned in references to precise fee amounts but there are many references in the plural to such as "high priced consultants" in the context of the "outfit" run by the named plaintiffs. It would clearly be open to find that the plaintiff Price was also being referred to as a charger of (exorbitant) fees. 16 The second imputation pleaded was: 5(b) The plaintiff was grossly incompetent as a consultant in that, as a result of his advice to the NSW Government about the NSW power industry, NSW taxpayers lost $80 million in a 3 week period. 17 The defendants' complaint was essentially limited to the word "grossly". It was conceded that "incompetence" could be conveyed. The matter complained of is itself not bereft of adjectival expression. There is early reference to "major bungle" and later to "the $80 million blunder" which has "shocked and stunned" people. It is open to a jury to find that any incompetence alleged was of a gross rather than lesser quality. 18 The third imputation was pleaded: 5(c) The plaintiff was grossly incompetent as a consultant in that, as a result of his advice to the Queensland Government, Queensland taxpayers lost $500 million. 19 The first contention was again to challenge the use of the word "grossly". I recognize that the word is not used in the matter complained but for reasons similar to those which I have mentioned concerning the preceding imputation I consider that it is capable of being found to have been established. 20 Next it was argued that the matter complained of does not say that the plaintiffs gave advice in relation to the Queensland scheme or even that they were instrumental in relation to such advice. What was published was: What makes this remarkable, though, is that Dr Don Anderson and his associate Danny Price were involved in advising the Queensland State Government on much the same sort of business, much the same sort of schemes. Well, losses to the taxpayers there in Queensland eventually topped half a billion dollars…………. 21 A distinction was sought to be drawn between "involved in advising" and advising or being instrumental in advising. With respect, that is a distinction without a difference but even if such a distinction could be drawn, the issue is whether the imputation is capable of being conveyed and, apart from anything else, application of the approach approved in Jones v Skelton above cited would produce an affirmative answer. 22 Finally it was put in regard to this imputation that nothing, even in the passage which I have reproduced, suggested that the loss "resulted from" any advice from the plaintiffs. The capacity for such a suggestion to be conveyed is, in my opinion, plainly manifest in the sequence of references namely that the plaintiffs advised; same sort of business; same sort of schemes; eventual losses. 23 The fourth and fifth imputations were pleaded as follows: 5(d) The plaintiff exploited the fact of being appointed as consultant without any open tender by charging exorbitant consultancy fees; (e) the Plaintiff exploited the fact of his company, Frontier Economics, being appointed a consultant to the state government without any tender process by having his company charge exorbitant consultancy fees. 24 Each of these imputations asserts that the plaintiffs "exploited" certain facts. The defendants contended that that word was ambiguous in that it can bear a derogatory meaning along the lines of taking advantage of another for selfish ends (this was referred to as the "higher level") and a non derogatory meaning of taking a benefit, for example from mineral resources which one owned (the "lower level"). If the plaintiffs intended the "lower level", no submission was made. 25 What the plaintiffs are required to do is to define imputations with precision and failure to do so may lead to their being struck out pursuant to SCR Part 15 r26(1)(b): Ma v John Fairfax Publications Pty Limited CA unreported 30 July 1998. The text of the imputations made clear that the "lower level" of meaning was not asserted. An imputation is bad as pleading only if the sense in which the word is used is not made clear. 26 In respect of both these imputations the defendants reiterate the submissions concerning the appearance of the word "exorbitant" and I reject those submissions for reasons similar to those given in connection with the first imputation. The next submission posited that each of these imputations depended upon there being a causal nexus between the absence of open tender and the exploitation by charging exorbitant fees. The matter complained of includes the following: Well, these expert consultants to the state government, the private firm advising all this is an outfit known as Frontier Economics which is basically run by two men, Dr Don Anderson and a Mr Danny Price. Now Anderson himself is paid a fee, I'm told, I understand, of two thousand dollars a day or ten thousand dollars a week plus expenses, airfares and accommodation because he comes from Queensland. And on top of that, his company Frontier Economics is expected to earn around four million dollars in fees from the government this year. As I understand it, at no stage were tenders called for this consultancy, it wasn't put out to tender. They were just hired. and Were they … these people were not hired by competitive tender, or anything like that, they were just put on the pay … on the taxpayers' payroll? 27 I am satisfied that an ordinary reasonable listener would be capable of having the imputations conveyed to him or her from those utterances. 28 It was also submitted by the defendants that the fourth and fifth imputations, if allowed to stand, should only be permitted as "alternatives". I have some difficulty with this concept in this context. I expressly sought the assistance of counsel for reference to any authority in this regard. I was informed that it had become "a popular submission over the last eighteen months or so". Counsel for the plaintiffs referred to Jarratt v John Fairfax Publications Pty Limited [2000] NSWSC 547 where Simpson J said: "Accordingly, I have come to the view that, while the plaintiff would be entitled (subject to the argument concerning the capacity of the matter complained of to convey the imputations), to go to the jury on imputation 4(c), and, only against the possibility that he might fail in that more serious imputation, as an alternative to go to the jury on imputation 4(b), he should not be permitted to go to the jury on both (other than as alternatives). The plaintiff will have leave to amend the statement of claim (if he wishes) by pleading the two imputations as alternatives. Should he not wish to accept this course, he will have to elect which of the two imputations he wishes to rely upon." 29 It is not necessary for present purposes to recapitulate the detail of the publication in that case beyond some circumstances to which I will shortly turn. The question was also referred to in Phelps v Nationwide News Pty Limited & anor [2001] NSWSC 130 where, again without detailing the dispute, it was remarked: "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." 30 Counsel for the plaintiffs put a submission in these terms: "The practice of requiring imputations to be put to juries as alternatives, so that if the jury finds one, it may not find the other, is a very new practice. As far as (counsel) is aware there is no sanction for it in any judgment in the Court of Appeal." 31 Neither am I aware of any such authority but I am conscious of the need for comity among judges at first instance particularly in somewhat intensely "case managed" proceedings like those which seek damages for the tort of defamation. 32 Fundamentally, a plaintiff in New South Wales is required to sue upon an imputation and is entitled to succeed if that imputation, or one not substantially different from it, is proved. If there is no difference in substance between two imputations as pleaded, there is a duplication and it would be impermissible to allow both imputations of the same substance to go to the jury. 33 Section 9 of the Defamation Act 1974 is to be construed to recognize that each imputation gives rise to a cause of action. In Jarratt two pleaded imputations were found to allege corrupt conduct not brought to completion on the one hand and corrupt conduct brought to completion on the other. It was found that the imputations did differ in substance but, as one would wholly incorporate the other, it was concluded that the difference was one of degree and the directions above set out were accordingly given. 34 An allied consideration is the care which is needed to be taken in such circumstances to avoid duplication of damages, and I agree with opinion that the commitment of the assessment of damages to judges should engender confidence that this will be achieved: Lucas v John Fairfax Publications Pty Limited [2000] NSWSC 950; Phelps . 35 Although I acknowledge the greatest respect for the views expressed concerning "alternatives", I harbour reservation about whether a plaintiff can be inhibited by direction from suing upon imputations of substantial difference. The consequence seems indistinguishable from a summary judgment which denies a plaintiff pursuit of a cause of action which, prima facie, he or she possesses. I express that view in deference to the submissions made in this case, however, in my opinion such a direction would not in any event be now apt because not only are the imputations different in substance but neither incorporates the other. 36 This brings me to a final matter raised by the defendants in relation to imputation 5(e) contending that the phrase "by having his company charge" (exorbitant fees) was imprecise and allowed for possible meanings such as "suffering his company charging" or "permitting his company to charge". Both the Shorter Oxford English Dictionary and Macquarie Dictionary include "to allow or permit" as a meaning of to "suffer". The imputations are consistent with ordinary usage and the expression of the imputation is accordingly not imprecise. 37 I decline to strike out the imputations. ********** Last Modified: 08/01/2001 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.