Kermode v John Fairfax Publications [2000] NSWSC 124

New South Wales Supreme Court

CITATION : Kermode v John Fairfax Publications [2000] NSWSC 124 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20110/97 HEARING DATE(S) : 3 March 2000 JUDGMENT DATE : 8 March 2000

PARTIES : Reginald Kermode (Plaintiff) John Fairfax Publications Pty Limited (Defendant) JUDGMENT OF : Studdert J

COUNSEL : B. Connell (Plaintiff) J. Sackar QC/M. Lynch (Defendant) SOLICITORS : Pigott Stinson Ratner Thom (Plaintiff) Freehill Hollingdale & Page (Defendant) Amalgamated Television Services Pty Limited v Marsen (1998) 43 NSWLR 158 Brimaud v Honeysett (McLelland J, 19 September 1988) Danieletto v Khera (unreported, McLelland CJ in Eq, 1 September 1994) CASES CITED : Re BPTC Limited (In Liq); Murphy and Allen re Kelly (unreported, Windeyer J, 16 March 1995) Wentworth v Rogers (unreported, Sperling J, 28 April 1995) Collier v Howard (unreported, McLelland CJ in Eq, 23 April 1996) Amalgamated Television Services v Marsden [1999] NSWCA 313 DECISION : Application dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Wednesday 8 March 2000 20110/97 REGINALD KERMODE v JOHN FAIRFAX PUBLICATIONS PTY LTD

JUDGMENT

1 HIS HONOUR: This is an application made by the defendant addressed to two imputations in an amended statement of claim. 2 Reginald Kermode is seeking to recover damages for defamation from John Fairfax Publications Pty Limited, and his claim allegedly arises from an article in the Sun Herald dated 18 August 1996. 3 The matter complained of contains the heading "Like a wounded bull" and under that heading there is a photograph with the caption "Hip pocket charge: Reg Kermode (inset) and taxi commuters at the Kings Cross rank". There is an inset photograph purporting to be that of the plaintiff in the top left hand corner of the photo of the taxi commuters. Beside and under the photograph I have described, the matter complained of reads: "Reginald Kermode is chairman and managing director of Taxis Combined, Sydney's biggest fleet of cabs. Kermode is also a member of the board of directors of Cabcharge Australia Pty Ltd, the country's fastest-growing cab credit card company. And the many-hatted Kermode is president of the Taxi Council of NSW, the peak body representing the taxi industry. Conveniently, the Taxi Council is located in the same building as Cabcharge Australia in Riley Street, Surry Hills. The NSW Taxi Industry Association is there too. One big happy family. Taxis Combined is the biggest shareholder in Cabcharge Australia, holding 100,000 A class shares, 123,000 B class shares, 123,000 C class shares, 123,000 D class shares, 188,000 E class shares and 188,000 F class shares. Over recent months the Taxi Council has negotiated a new deal for the NSW cab industry. From July 1, the flag fall, or hiring fee, in taxis went up $2 to $3 - a cool 50 per cent rise. And from July 14, fares rose from $1 a km to $1.07, a 7 pc increase, or almost double the inflation rate. In return for these extra charges, the Taxi Council has agreed to put drivers in uniforms, paint cabs a distinctive new colour, provide airconditioning and ensure drivers can speak English and have knowledge of the city. In his capacity as boss of Taxis Combined, Kermode has asked owners and drivers for $20 a shift from their takings to pay for the changes, and also increased radio charges by $80 a week. This provoked an owner-drivers' revolt and the radio charge was rescinded, although further meetings are still to be held. Meanwhile, Cabcharge cardholders have been told that the number of billing periods each year will go up from 12 to 13. The effect of this change is that customers now have to pay 13 service fees instead of 12. The net result is to increase customer charges by an extra $6.50 each year. With 40,000 cardholders around Australia, that puts an extra $260,000 into Cabcharge's pocket. Am I the only person feeling a little uneasy about all this?" 4 The plaintiff, in his amended statement of claim, has pleaded four imputations: "(a) That the plaintiff (i) by procuring, as President of the Taxi Council of NSW, extra taxi fare increases which exceed the cost of covering improved taxi services, and (ii) by requiring, as Chairman and Managing Director of Taxi Combined Services, additional fees from taxi owner-drivers in excess of what was necessary to cover the cost of those improved taxi services so misconducted himself that he had lost the confident [sic] of owner-drivers of Taxis Combined Services. (b) That the plaintiff (i) by procuring, as President of the Taxi Council of NSW, extra taxi fare increases which exceeded the cost of covering improved taxi services, and (ii) by requiring, as Chairman and Managing Director of Taxi Combined Services, additional fees from taxi owner-drivers in excess of what was necessary to cover the cost of those improved taxi services, and (iii) by participating, as a Director of Cabcharge Australia Pty Ltd, in the decision to change billing periods from 12 to 13 per year and so increase charges for account holders, had misused his positions in the taxi industry to orchestrate a range of fare and rate increases which overcharged the public and taxi owners and drivers. (c) That the plaintiff had sought to cause owners drivers and members of the public to be overcharged by unjustifiable increases in payments in respect of the operation and use of taxis. (d) That the plaintiff had caused Cabcharge holders to be overcharged by an unjustifiable imposition of an additional service fee each year." 5 Mr Sackar of Queen's Counsel has submitted that imputations (c) and (d) are defective in form and should be struck out for reasons which I shortly summarise: