New South Wales Supreme Court CITATION : Bass v TCN Channel Nine Pty Limited [2000] NSWSC 270 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 16791/90 HEARING DATE(S) : 17 March 2000 JUDGMENT DATE : 7 April 2000 PARTIES : Robin Bass (Plaintiff) TCN Channel Nine Pty Limited (Defendant) JUDGMENT OF : Dunford J COUNSEL : T Molomby (Plaintiff) PW Gray (Defendant) SOLICITORS : Denis Solari, Son & Associates (Plaintiff) Gilbert & Tobin (Defendant) CATCHWORDS : DEFAMATION - Imputations - Capacity Morris v Newcastle Newspapers Pty Limited (1985) 1 NSWLR 260; CASES CITED : Drummoyne Municiapl Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; John Fairfax and Sons Limited v Foord (1988) 12 NSWLR 706. DECISION : See para 11. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST DUNFORD J FRIDAY, 7 APRIL 2000 16791/90 - Robin BASS v TCN Channel Nine Pty Limited JUDGMENT 1 HIS HONOUR: Following a segment broadcast in the "Sixty Minutes" program on the defendant's television channel on 1 August 1990, the plaintiff, in proceedings commenced on 5 December 1990 has sued the defendant for defamation. A transcription of the matter complained of is annexed to the Statement of Claim and includes a discussion with and concerning the plaintiff as an employer in the building industry. It cannot be said that the proceedings have proceeded at breakneck speed. 2 On 11 December 1998, Levine J ruled on the capacity of certain imputations in a Further Amended Statement of Claim to convey the imputations alleged and, in accordance with leave then given, the plaintiff on 18 December 1998 filed a Further Amended Statement of Claim, but the defendant has once again objected to the capacity of the matter complained of to bear the imputations alleged. The imputations as pleaded in the Further Amended Statement of Claim of 18 December 1998 are as follows:- (a) That the plaintiff was a cheat; (b) That the plaintiff had conducted his business so as to prevent his own employees from obtaining their just entitlements; (c) That the plaintiff had got into a dispute with the Building Workers Industrial Union because the plaintiff was dishonest; (d) The plaintiff was a person of such dishonesty that black bans in order to drive him from the building industry were justified; (e) He was unfit to work as a building contractor; (f) He deliberately failed to pay his employees moneys due to them; (g) He could not be relied on to pay his employees money due to them. 3 Imputation (a) is That the plaintiff was a cheat. It was submitted that this imputation does not arise because the word "cheat" is not used in the matter complained of, and if it is to be alleged that the plaintiff was a "cheat" because of the other matters alleged against him in the matter complained of, then the imputation is merely rhetorical in that it does not differ in substance from the other imputations and it repeats as an extravagant flourish the more precise imputations which accompany it. 4 To "cheat" means to, "deceive" or "trick": Concise Oxford Dictionary 6th ed at 169; Macquarie Dictionary (1981) at 329; and it is not alleged that the plaintiff relied on deception or trickery in allegedly failing to pay wages, but simply that he did not do so. The plaintiff's counsel relied on the reference in line 136 to his client being a "shonky operator", but "shonky" means "of dubious integrity or honesty": Macquarie Dictionary at 1591, spelt "shonkie", and the meaning of "shonky" is not identical to that of "cheat". In my view the material complained is not capable of carrying the imputation that the plaintiff was guilty of deception or trickery, and if the imputation is merely intended to allege that he failed to pay his workers the moneys they were owed, then it is a rhetorical repetition of some of the imputations which follow, and such rhetorical imputations will be struck out: Morris v Newcastle Newspapers Pty Limited (1985) 1 NSWLR 260 at 272. 5 During argument, counsel for the plaintiff sought to substitute for imputation (a) a fresh imputation "that the plaintiff was a shonky operator". This proposed amendment was objected to on the ground that the term "shonky operator" is too vague and imprecise and is likely to cause confusion at the trial. 6 It has been established in a number of cases that if a defendant uses words that are vague or imprecise he cannot complain if the plaintiff pleads an imputation in those precise words: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 referring to John Fairfax and Sons Limited v Foord (1988) 12 NSWLR 706 at 726 where it was pointed out that if the imputation as pleaded lacks clarity because the words used are ambiguous then that deficiency flows naturally from the material published. The phrase used in the material complained of at lines 136 to 137 was, "He (the plaintiff) was a shonky operator who owed workers money and he got into a dispute with the Union for that particular reason". As already noted, "shonky" is defined in the Dictionary as "of dubious integrity or honesty", and in my view, any imprecision that arises from the term "shonky operator" is due to the words actually used by the defendant. 7 Counsel for the defendant submitted that the risk of confusion would be eliminated or at least minimised by the imputation being amended to read "that the plaintiff was a shonky operator in that he failed to pay his workers money due to them", but in my opinion to say that the plaintiff was a shonky operator who failed to pay his workers is a different thing to saying that he was a shonky operator because or in that he failed to pay his workers money due to them. In the former case it is capable of conveying the suggestion that failing to pay his workers was only one of the respects in which he was a "shonky operator", whereas the latter limits the characteristic of being a shonky operator to the failure to pay his workers. They are two different concepts and the words used in the telecast would not necessarily convey to the average reasonable viewer the impression that the only respect in which the plaintiff was a "shonky operator" was that he failed to pay his employees the wages due to them, but such a viewer may have gained from the words used the impression that failing to pay his workers their due entitlements was only one of the respects in which the plaintiff was a "shonky operator". For these reasons I am satisfied the plaintiff should be allowed to plead this alternative imputation in lieu of imputation (a), without the qualification sought by the defendant. 8 Imputations (b), (f) and (g) should be taken together. They are: (b) That the plaintiff had conducted his business so as to prevent his own employees from obtaining their just entitlements; (f) He deliberately failed to pay his employees moneys due to them; (g) He could not be relied on to pay his employees moneys due to them. It was submitted for the defendant that these imputations do not differ in substance. Imputations (f) and (g) were the subject of the application to Levine J on 11 December 1998 where in the former Amended Statement of Claim they appeared as imputations (g) and (h). His Honour struck out two further imputations which were then imputations (i) and (j) for reasons that are not presently relevant, but accepted that imputation (h) was pleaded as a fall back imputation to imputation (g). It is now conceded, correctly in my view, that the matter is capable of bearing imputation (f), and like Levine J, I am satisfied that imputation (g) is a fall back imputation to imputation (f). As I see it there is a difference between deliberately failing to pay employees and not paying employees. In the latter case the failure to pay may not be deliberate but may be due to other causes such as lack of funds or bad management. 9 I am however satisfied that imputation (b) is not different in substance from imputations (f) or (g), and therefore (b) must be struck out. The only "just entitlements" that are referred to are the moneys that the employees were entitled to receive, and the only way he could deliberately fail to pay them (as alleged in imputation (f)) would be by conducting his business in such a way as to achieve that result; for this reason I am satisfied that imputation (b) does not differ in substance from imputations (f) or (g), and must be struck out. No objection is taken to imputations (c) or (d). 10 Imputation (e) is, He was unfit to work as a Building Contractor. I am satisfied this is a rhetorical imputation in that the only basis on which the matter complained of suggests that he was unfit to work as a building contractor is that he was dishonest and did not pay his employees the moneys due to them. These imputations are already covered by imputations (c) and (d) (as to being dishonest) and (f) and (g) (as to failing to pay employees money due to them). Imputation (e) is therefore a rhetorical flourish, not differing in substance from the other imputations, and in accordance with Morris v Newcastle Newspapers Pty Limited it must be struck out. 11 I therefore order that imputation (a) be struck out with leave to re-plead in the form "that the plaintiff was a shonky operator". I direct the entry of judgment for the defendant on imputations (b) and (e) and I rule the material complained of is capable of conveying imputations (c), (d), (f) and (g) in their current form. I order that within 7 days of today, the plaintiff file and serve a Further Amended Statement of Claim in accordance with this ruling. --------------------------- Last Modified: 09/25/2000 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.