New South Wales Supreme Court CITATION : Bitel & Ors v Ruddock & David Syme & Co Limited [2000] NSWSC 840 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20445/99 HEARING DATE(S) : 18 February 2000 JUDGMENT DATE : 29 August 2000 PARTIES : David Lee Bitel & Ors - Plaintiff Philip Ruddock - 1st Defendant, David Syme & Co Limited - 2nd Defendant JUDGMENT OF : Simpson J at 1 Mr R A Campbell - Plaintiff COUNSEL : Mr P Taylor - 1st Defendant Ms R McColl SC with Mr S Kerr - 2nd Defendant Parish Patience - Plaintiff SOLICITORS : Australian Government Solicitor -1st Defendant Minter Ellison - 2nd Defendant CATCHWORDS : Defamation - imputations pleaded - alleged oral publication - radio broadcast - capacity of matters complained of to convey imputations about plaintiffs - where defamation is of a class, plaintiffs not individually named - imputations framed in passive voice - capacity of imputations to be conveyed by matter complained of - imputations differing in substance. McCormick v John Fairfax & Sons Limited (1989) 16 NSWLR 485 Knupffer v London Express Newspaper Limited [1944] AC 116 CASES CITED : Jackson v John Fairfax and Sons Limited [1981] 1 NSWLR 36 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 DECISION : Imputations 14.2, 14.3 and 14.4 struck out. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List SIMPSON J 29 August 2000 20445/99 David Lee BITEL & ORS v Philip RUDDOCK & DAVID SYME & CO LIMITED Judgment HER HONOUR : 1 The plaintiffs in these proceedings were at all material times the five partners of a law firm which carries on practice in Sydney under the partnership name "Parish Patience". They have jointly brought proceedings in defamation against Philip Ruddock, who, it is common ground, was at all material times the Minister for Immigration of the Commonwealth of Australia and against David Syme and Co Limited, identified in the statement of claim as the proprietor of a daily newspaper published under the title "the Age" ("the second defendant"). 2 The plaintiffs complain of individual publications by the two named defendants. The publication attributed to the first defendant, the Minister, is alleged to have been made orally, in an interview broadcast on radio by the Australian Broadcasting Corporation on 15 June 1999. The general subject matter of the interview concerned the conduct of members of the legal profession who acted for immigrants challenging decisions made by officers of the Immigration Department. This alleged publication is of no further relevance for present purposes. 3 The publication attributed to the second defendant is alleged to have been made in the edition of the Age newspaper published on the same day, 15 June 1999. It is this publication, and the plaintiff's claim in respect of it, that raises the issues for present determination. The publication purported to report comments made by the Minister on the same subject matter as mentioned above and particularly with respect to the use of class actions by certain lawyers acting on behalf of immigrants, some of whom (that is, the immigrants) are said to be in Australia temporarily and possibly unlawfully. 4 It is convenient to begin with an outline of the matter complained of, with particular reference to certain passages. The article opens with the assertion that the Law Council of Australia will investigate legal firms that are running "massive immigration class action cases". It goes on to quote the Minister, describing him as having accused some lawyers of advertising in the ethnic press to solicit clients, thereby enabling illegal immigrants who might not have a case, to stay in Australia. A direct quote in the following terms is attributed to the Minister: "I think that is a very clear abuse of process." 5 The Minister is then said to have referred "to the law society" a copy of a letter sent to clients from one firm seeking payment of $200 in addition to $200 already contributed. After a reference to "an angry response" from the Law Council of Australia, that Council's president is said to have indicated that a Council committee "would look at the allegations". 6 The ensuing paragraphs are in the following terms: "The two main legal firms involved in large scale class actions are Sydney-based firms Adrian Joel and Parish Patience. Parish Patience is running the biggest class action, involving 2954 people. But that case has been deferred pending the outcome of another case, with 704 claimants. … Mr Ruddock said that in the biggest action, the firm sought $500 from each client, giving it $1.5 million to begin the case." 7 In the statement of claim as originally filed (since amended) the plaintiffs plead that the matter complained of, in its natural and ordinary meaning, conveyed the four imputations set out below and numbered 13.1 - 13.4, or, alternatively, the four imputations numbered 14.1 - 14.4. Because of the way the matter was argued, it is convenient to refer to the imputations as originally pleaded and numbered. "13.1 The plaintiffs' professional conduct as lawyers are (sic) under investigation by the Law Council of Australia. 13.2 The plaintiffs engage in unethical conduct by advertising in the ethnic press for illegal immigrants to join class actions being run by their law firm. 13.3 The plaintiffs abuse the process of class actions by using them for the purpose of enabling illegal immigrants to delay or avoid deportation. 13.4 The plaintiffs overcharged clients involved in a class action run by their law firm by charging them a total of $1.5 million. 14.1 The plaintiffs are members of a law firm the ethical conduct of which is under investigation by the Law Council of Australia. 14.2 The plaintiffs are members of a law firm which with their knowledge behaves unethically by advertising in the ethnic press for illegal immigrants to join class actions being run by the firm. 14.3 The plaintiffs assist in abuses of the process of class actions by acquiescing in the law firm of which they are partners running of class actions for the purpose of allowing illegal immigrants to delay or avoid deportation. 14.4 The plaintiffs participated in the overcharging of clients in that they acquiesced in the law firm of which they are members to charge clients involved in a class action run by the firm a total of $1.5 million." 8 The second defendant has taken a number of objections to the statement of claim. The first is a general objection, relying upon the authority of the decision of Hunt J (as he then was) in McCormick v John Fairfax & Sons Limited (1989) 16 NSWLR 485. Put shortly, the point raised by this objection is that the matter complained of is incapable of identifying the individual plaintiffs as being included in the group or class of whom the article is written, and of whom it is critical. It was pointed out that "lawyers running class actions" and "some immigration lawyers" were referred to in the article, but it was argued that this was insufficient to identify the plaintiffs or their firm as being involved in the conduct criticised. 9 Senior counsel for the second defendant placed particular reliance upon one passage of the judgment in McCormick which reads as follows: "A libel upon the whole of a class may be the subject of complaint by a member of that class who is not otherwise individually pointed to in what was published only if the matter complained of can fairly be read as defaming each member of that class …" (p487G) 10 Plainly enough, the matter complained of cannot fairly be read as attributing to all lawyers the characteristics attributed by the Minister to "some immigration lawyers", or to "lawyers running class actions". If that were all that appeared in the article to link the plaintiffs with the lawyers referred to, the point would be well taken. But that is not all. The argument overlooks a salient clause in the extract from McCormick quoted above. That is the clause "who is not otherwise individually pointed to in what was published". In what was published the firm Parish Patience (and therefore its partners) was clearly pointed to in the paragraph that identified it as one of "the two main legal firms involved in large scale class actions" in immigration litigation. That identification is capable of focusing the otherwise general criticism directed to legal practitioners (or some of them) upon the individual partners of the firms named. 11 I am therefore satisfied that the matter complained of, when read as a whole, is capable of being interpreted as referring to the individual plaintiffs. The real question, which is a jury question, will be whether any defamatory imputations were published "of and concerning the plaintiffs": Knupffer v London Express Newspaper Limited [1944] AC 116. In my opinion, because of the passage extracted, the publication is capable of being read as of and concerning the plaintiffs. I therefore reject this ground of challenge. 12 The remaining complaints concern the various imputations pleaded. Imputations 13.1, 14.1 13 Of the imputations pleaded in the alternative as 13.1 and 14.1 the argument is, firstly, simply that they fail to ascribe any act or condition to the plaintiffs, such as to convey an accusation or charge or criticism or slur. To identify such an act or condition is, according to the second defendant's argument, necessary in order to extract from the matter complained of the allegedly defamatory meaning on which the plaintiffs will go to the jury. This argument is derived from Jackson v John Fairfax and Sons Limited [1981] 1 NSWLR 36, in which it was held that identification of such an act or condition will rarely be achieved where the imputation is pleaded in the passive voice. 14 Since Jackson there has been some move away from excessive demand for precision or particularity in pleading, the emphasis moving towards a proper relationship between the words actually published by the defendant, and the imputations formulated on behalf of the plaintiff, and on the application of "practical justice": see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. Generally speaking, a plaintiff should be at liberty to formulate the imputations to go to the jury as he/she/it may be advised, subject always to the protection of the defendant from the dangers and potential unfairness presented by ambiguity or obscurity in the formulation of the imputations. 15 Inelegance of expression, as sometimes perceived in the use of the passive voice, is not of itself a reason for striking out or requiring amendment of the imputations pleaded. The questions are, generally: (i) whether, having regard to the matter complained of, an imputation as framed is capable of being conveyed; (ii) whether that imputation accurately captures any accusation or slur or sting capable of being conveyed by the matter complained of; and (iii) whether that imputation is capable of defaming the plaintiff. 16 Although I can understand the view that it would be preferable for the imputations to be directly framed in such a way as to assert some conduct, act, condition or characteristic of the plaintiffs, it is equally my view that the imputations numbered 13.1 and 14.1 clearly and accurately convey an accusation about the plaintiffs that is capable of being conveyed by the matter complained of, and is capable of defaming the plaintiffs. A common sense test is whether the defendant is able, without confusion or ambiguity, to understand what defamatory meaning the jury will be asked to attach to the publication. Here, the second defendant could be in no doubt about what it is that its publication is asserted to have conveyed. To assert of a professional person that his or her professional conduct is under investigation by a professional organisation is capable of adversely affecting the reputation of that person. To redraft the imputations to read, for example "the plaintiff so conducted himself in the conduct of his profession as to justify investigation by the Law Council of Australia" would meet the second defendant's argument, and would accord with the dictum in Jackson, but would not add one iota of clarity to the imputations. I therefore decline to strike out either of these imputations for reasons of the form in which they are pleaded. 17 A second argument about these imputations is that they are incapable of arising from that matter complained of. This argument draws on the use of the words "are under investigation" and "is under investigation" used in the imputations, contrasted with the words "will investigate…" and "would look at the allegations" in the matter complained of. Putting the argument at its highest for the second defendant, it is that the pleading of the imputation in the present tense (ie that the investigation is an established fact) in contrast to the assertion in the matter complained of in the future tense, intensifies the statement. Again, the argument focuses on some parts, but ignores other parts, of the matter complained of. For example, in the publication it is said that the Minister "has referred a complaint" to the Law Society of New South Wales; and that he had referred to the Law Society a copy of a letter sent to clients by one firm. There is also the statement attributed to the President of the Law Council to the effect that a committee of the Council "would look at the allegations". These statements being referrable to bodies that may readily be identified by recipients of the matter complained of as bodies concerned with the regulation and discipline of legal practitioners, they are capable of conveying the meaning that an investigation or investigations, at least in a preliminary way, had begun. Even if they did not there is no material difference between an assertion by the president of the professional body, or by the Minister, that an investigation will be conducted, or that the professional body would be asked to investigate, and an assertion that such an investigation had begun. The distinction sought to be drawn by reason of the tenses in which the matter complained of in the imputations are framed is an excessively fine one. I would reject this ground of complaint also. Imputations 13.1 and 14.1 will not be struck out. Imputations 13.2-13.4, 14.2-14.4 18 The first complaint in relation to these imputations is that the three imputations in each of the two groups do not differ in substance and accordingly fall foul of SCR Part 67 Rule 11(3). The argument, as applied to the imputation numbered 4 in each group, can readily be disposed of. Those imputations are directed to a specific allegation of overcharging, quite separate and distinct from what appears in the imputations numbered 2 and 3 in each group. 19 The argument that was put on behalf of the second defendant was that the imputations numbered 3 and 4 in each group relate to specific instances of unethical conduct, while that numbered 2 in each group is an assertion of unethical conduct generally, and that the third and fourth imputations are therefore restatements, or refinements, of the second, generally stated, imputation. This, it is said, involves at least an overlap between the imputations. 20 This cannot be sustained. When the imputations are properly analysed, it will be seen that each is concerned with allegedly unethical behaviour on the part of the solicitors attacked, but that each focuses upon a different aspect of behaviour said to be unethical. The unethical conduct the subject of the fourth imputation in each group is overcharging; the unethical conduct the subject of the third imputation in each group is abuse of a process for which provision is made in the procedural arrangements of the courts; and the unethical conduct the subject of the second imputation in each group may be described as the means used by the solicitors to recruit or gather clients for the actions they proposed to undertake. A general assertion of unethical behaviour would be open to the criticism of lack of particularity; a plaintiff who is said to have behaved unethically in a number of different respects is not confined to selecting one only of the respects in which that allegation is made as the foundation for an action in defamation. 21 I am satisfied that each of the imputations in each group differs in substance from the others in that group. 22 A second complaint made about these imputations is that they are framed in such a way as to contain assertions of unethical conduct, but that no such assertion of unethical conduct can be drawn from the matter complained of, ie that the matter complained of is incapable of conveying the imputations. The basis for this argument is to be found in a statement directly attributed to the Minister, and quoted above, when he is reported to have said: "I think that is a very clear abuse of process.", the emphasis being upon the opening words "I think". 23 The argument is that what the Minister said was reported as the expression of an opinion, and not as a statement of fact about the conduct of the plaintiffs. 24 Once again, in my view, that analysis is overly technical in a linguistic sense. The overall tenor of the article is to quote the Minister as attacking the ethical conduct of "some immigration lawyers" and to particularise the respects in which he is said to have asserted that those lawyers behaved unethically. It is capable of conveying the imputations that the lawyers to whom he referred did behave in a way that could be so characterised. It is to be observed that there is more detail concerning the allegedly improper conduct of solicitors such as the plaintiffs in passages other than that referred to in the defence argument, and this meaning extends beyond the reaches of that statement that is directly quoted. The sentence directly attributed to the Minister relates to his statement, indirectly quoted, that some immigration lawyers encouraged people who were in Australia temporarily and possibly unlawfully to join class actions. If any qualification is imposed by the words "I think" it is limited, at best, to that preceding statement. Moreover, there is no reason to read the words "I think" as necessarily relating only to the words "abuse of process". It is at least equally open to read those words as relating to "very clear" - that is, that the abuse of process is established and that the Minister's expressed opinion concerned the degree to which it is clear that the abuse of process has been established. To put this perhaps more clearly, the sentence might be read as meaning; "I think this abuse of process is very clear"; or as "I think this is an abuse of process and it is very clear. Since both interpretations are open it is for a jury to decide what is conveyed. This ground of challenge therefore fails. 25 Yet another complaint was raised about the imputations numbered 4 in each group. It was argued that nowhere in the matter complained of was it directly stated that the plaintiffs charged $500 to each of almost 3,000 clients and that to reach that conclusion from the matter complained of was to draw an inference upon an inference, in the manner proscribed by, for example, Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158. 26 I do not agree that this is the proper analysis. The imputation as pleaded relies upon a drawing together of a number of facts stated in the matter complained of, and drawing a deduction or conclusion or inference from those facts. The biggest class action is stated to involve almost 3,000 people; and it is also stated that in the biggest class action the firm involved sought $500 from each client. It would be open to a jury to conclude from those stated facts that the Minister was making an allegation of over charging by the lawyers involved. 27 There is a difference between drawing an inference from an inference, as referred to in Marsden, and drawing an inference from a collection of statements made in the matter complained of. In this case the inference sought to be drawn is available from the assertions clearly made in the publication. 28 This ground of challenge is therefore rejected. Imputation 14.2-14.4 29 These imputations, pleaded as alternatives to those numbered 13.2 - 13.4, have in common an attribution of knowledge, acquiescence or participation by the plaintiffs in the allegedly unethical or improper practices attributed to their firm or their partners. It was argued that this, too, involved drawing an inference from an inference. 30 I have concluded that there is substance in this criticism. 31 There is nothing in the matter complained of that clearly, or directly, states that the individual partners of the firm knew, acquiesced or participated in the conduct of the firm of which criticism was made. Actual knowledge, acquiescence or participation cannot be derived from the publication. In truth, any available conclusion that individual partners knew of or acquiesced or participated in any unethical behaviour on the part of other partners or the firm as an entity probably depends upon an understanding of the way in which law partnerships operate and the obligations and responsibilities of partners in relation to the conduct of other partners. It is not something that can be discerned in the publication complained of. It is not something that is stated or suggested indirectly, nor is it something that can legitimately be derived by inference from the matter complained of. 32 If such an imputation is to be pleaded, it will have to be pleaded as a true innuendo, by reference to extrinsic facts known to some recipients of the matter complained of concerning those matters that relate to the conduct of legal partnerships. 33 Accordingly, I strike out imputations 14.2, 14.3 and 14.4. ********** Last Modified: 09/27/2000 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.