New South Wales Supreme Court CITATION : Whelan & Anor v John Fairfax Publications Limited & 2 Ors [2000] NSWSC 816 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20499 of 1998; 20502 of 1998; 20503 of 1998; 20556 of 1999 HEARING DATE(S) : 3 August 2000 JUDGMENT DATE : 18 August 2000 PAUL FRANCIS PATRICK WHELAN (First Plaintiff) COLLEEN WHELAN (Second Plaintiff) v PARTIES : JOHN FAIRFAX PUBLICATIONS LIMITED (First Defendant) DARREN GOODSIR (Second Defendant) HEATH GILMORE (Third Defendant) JUDGMENT OF : Levine J T Tobin Q.C. P Gray (Plaintiff) COUNSEL : S Rares S.C. A Abadee (Defendant) Jones Staff & Co (Plaintiff) SOLICITORS : Freehill Hollingdale & Page (Defendant) CATCHWORDS : Imputations - capacity - form - "corrupt" CASES CITED : Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Young & Ors v Munro & Anor (Levine J, unreported, 12 May 1995) DECISION : See paragraph 15 DLJ: 1 CAV [2000] NSWSC 816 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20499 of 1998 No. 20502 of 1998 No. 20503 of 1998 No. 20556 of 1999 JUSTICE DAVID LEVINE FRIDAY 18 AUGUST 2000 PAUL FRANCIS PATRICK WHELAN (First Plaintiff) COLLEEN WHELAN (Second Plaintiff) v John Fairfax Publications Limited (First Defendant) DARREN GOODSIR (Second Defendant) HEATH GILMORE (Third Defendant) JUDGMENT (Imputations - capacity - form - "corrupt ") 1 Each plaintiff sues in respect of a publication in "The Sun Herald" of 13 December 1998. 2 Originally pleaded was an imputation in relation to the second plaintiff namely, "the plaintiff had so conducted herself as boss of a travel agency as to afford reasonable grounds for an investigation by the Independent Commission Against Corruption concerning whether she had engaged in corrupt conduct". 3 In his judgment ([1999] NSWSC 620 of 28 June ) Dunford J held that imputation to be defective in that it failed to specify the nature of the conduct alleged (Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 140) and accordingly struck it out with leave to replead. 4 The imputation was originally repleaded to be: "6(d). The second plaintiff had so conducted herself as boss of a travel agency as to afford reasonable grounds for an investigation by the Independent Commission Against Corruption concerning whether she had engaged in corrupt conduct in relation to so called 'travel rorts'". 5 In the course of argument that form of imputation was amended to read: "6(d) The second plaintiff had so conducted herself as boss of a travel agency as to afford reasonable grounds for an investigation by the Independent Commission Against Corruption concerning whether she had engaged in corrupt conduct in relation to the use of her travel agency by parliamentarians". 6 The defendant argues with respect to this amended form of imputation that again the Drummoyne principle precludes it being found proper in form for the reasons given by Dunford J. 7 If a matter complained of does not identify the conduct and refers merely to corruption then the task of the person in drafting an appropriate imputation is made the easier. In this instance however the article, in my view, does identify conduct captured to a very great extent in the imputations pleaded in 6(a), (b) and (c). These are not imputations of suspicion but identify conduct in which implicitly it is said that the second plaintiff was guilty. 8 The matter complained of, in my view, is capable of identifying that conduct which ICAC is investigating to determine whether it was "corrupt". 9 I am of the view that the considerations applied by Dunford J are equally applicable and propose to strike out imputation 6(d) but with leave to replead yet again. 10 The first plaintiff in respect to an article published on 20 December 1998 (the second matter complained of) has pleaded an imputation (8(f)) "the first plaintiff had so conducted himself as to afford reasonable grounds for suspicion by the Independent Commission Against Corruption, that he had engaged in corrupt conduct in relation to so-called travel rorts". 11 On the assumption that the imputation sought to be prosecuted is not subject to the same amendment as that involving the second plaintiff, a point to be made is that no objection can be taken, in my view, to the adoption of the language of the matter complained of by use of the expression "travel rorts" (cf. Young & Ors v Munro & Anor (Levine J, unreported, 12 May 1995). 12 Dunford J struck out the original imputation on the same bases referred to above (see paragraph 28 of his Honour's judgment). 13 The article on which Mr Whelan sues is not as "detailed" as that upon which Mrs Whelan sued in relation to the imputation relevantly considered in her regard. It does not however have the generality which would support merely the use of the word "conduct" without further amplification (see paragraphs, for example, 63, 64, 65 and 66). 14 The plaintiff has, in any event, pleaded specific imputations namely, 8(c), 8(d) and 8(e). I find the same basis for striking out 8(f) as applied in with respect to the second plaintiff's imputation 6(d). 15 The formal orders are: 1. I strike out imputations 6(d) and 8(f) with leave to replead. 2. Leave to replead to be exercised by 1 September 2000. 3. By 4.00pm on Wednesday 11 October 2000 the parties are to have exchanged written outlines of submissions in respect of any dispute in relation to the repleading. 4. The plaintiffs are to pay the defendants' costs. 5. The matter is listed for argument in the Defamation List on Friday 13 October 2000. *********** 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.