Keating v Newcastle Newspapers Pty Limited [No 2] [2001] NSWSC 106

New South Wales Supreme Court

CITATION : Keating v Newcastle Newspapers Pty Limited [No 2] [2001] NSWSC 106 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20135/00 HEARING DATE(S) : 16/02/2001 JUDGMENT DATE : 8 March 2001

PARTIES : Anthony Keating (Pl) Newcastle Newspapers Pty Limited (Def) JUDGMENT OF : Kirby J

COUNSEL : R K Weaver (Pl) D Casperson (Def) SOLICITORS : J A O'Brien & Co (Pl) Sparke Helmore (Def) CATCHWORDS : DEFAMATION - Imputations of guilt - Objections to form Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Rigby v John Fairfax Group P/L (unreported, C of A, 1 February 1996) CASES CITED : Dunsec P/L v Nationwide News P/L [2000] NSWCA 155 Lawson v Hadley (unreported, 9 August 1999) bROGAN V bRAMMER [2000] NSWSC 613 DECISION : Ref para 38

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

KIRBY J

Thursday 8 March 2001

20135/00 - ANTHONY KEATING -v- NEWCASTLE NEWSPAPERS PTY LIMITED

JUDGMENT [No 2]

1 HIS HONOUR: On 1 August 2000 I gave judgment in respect of an application by the defendant to "strike in" certain material which accompanied the publication about which the plaintiff complains. An amended statement of claim was then filed, incorporating that material. 2 The defendants now attack the imputations relied upon by the plaintiff, claiming either that they do not arise, or that they are bad in form. 3 Anthony Keating (the plaintiff) was endorsed by the ALP as its mayoral candidate at Maitland in the Local Government elections to be held on 11 September 1999. He was a school teacher from Maitland High School. The day before the election an article was published in the Newcastle Herald. It appeared on the front page, under the following headline: "Hunter mayoral candidate defends himself over Schoolgirl sex harass claims " 4 The headline was given great prominence. It occupies perhaps one third of the front page. The article which followed began with these words: "Maitland mayoral candidate Tony Keating has defended himself against NSW Opposition allegations in Parliament yesterday that identified him as a Lower Hunter teacher and mayoral candidate accused of sexually harassing female students. Opposition Upper House Liberal MP Charlie Lynn questioned the Government as to whether an official investigation was being delayed because of the local government elections. Using parliamentary privilege, Mr Lynn said the teacher still had access to female students while the parents of alleged victims had endured a delay in an investigation without proper explanation." 5 The remainder of the article was concerned with the questions asked in parliament by Mr Lynn, and the response of the Minister representing the Minister for Education in the Legislative Council. 6 The material omitted from the original statement of claim, but incorporated into the amended document, included an editorial purporting to condemn the actions of Mr Lynn. It was headed "Grubby Politics", and was in these terms: "State Parliament is sometimes referred to as 'coward's castle' and with good reason. Politicians often use the legal protection of the parliamentary chamber to make unsubstantiated and damaging allegations about community members who have no right of reply. Upper House Liberal MP Charlie Lynn took the use of parliamentary privilege to a new low yesterday when he raised allegations that a Lower Hunter teacher and mayoral candidate had been accused of sexually harassing female students. My Lynn did not name the teacher or the local government area and provided no detail in support of his allegations. But the fact that they were raised only two days before people cast their votes in the local government elections suggests an intent to damage a candidate's chances of winning the mayoral poll. The candidate in question has referred to Mr Lynn's behaviour as 'grubby politics' and all fair-minded people, no matter what their political leanings, would have to agree. By not naming names, Mr Lynn seems to have hoped that the people in the particular local government area would be aware of the allegations and that his question would jog their memories on the eve of the poll. His broad-brush approach, however, carried the risk of damaging a lot more candidates in the Lower Hunter. Four local government areas - Newcastle, Lake Macquarie, Cessnock and Maitland - will elect their mayors by popular vote. There is a total of 29 mayoral candidates in the four areas. Most voters would be unaware of the occupations of each of the candidates in their area, so Mr Lynn's approach could cast an unwarranted shadow over more than one candidate. The allegations Mr Lynn raised are not new. They were put to this newspaper a month ago and we made inquiries about them. The inquiries revealed that the allegations were being investigated by the Education Department. We duly noted, in a brief two-paragraph report, that allegations against a Hunter teacher of sexual misconduct were under investigation. That put the matter on the public record, without putting a stain on an individual's name. Mr Lynn's reference to the allegations, on the other hand, was designed to hurt. It was the dirtiest of politics because his wording carried an implication that completion of the inquiries had been delayed because the teacher in question was standing for public office. The Newcastle Herald has published the name of the man against whom the allegations have been made. We did that because it gave him a chance to defend himself and to respond to Mr Lynn's cowardly attack. Mr Lynn used parliamentary privilege to attack the candidate because he knew the man had no right of reply. His action deserves condemnation as gutter politics of the dirtiest kind." 7 The imputations said by the plaintiff to arise from the publication are as follows: "(a) The Plaintiff being a school teacher was guilty of sexually harassing female students; (b) The Plaintiff so conducted himself as a school teacher as to warrant an official investigation into allegations that he sexually harassed female students; (c) The Plaintiff as a school teacher should not have been entrusted with access to female students; (d) The Plaintiff so conducted himself that he should not have been entrusted with access to female students while under investigation for sexual misconduct; (e) The Plaintiff being a school teacher was guilty of sexual misconduct with female students; (f) The Plaintiff so conducted himself as a school teacher as to warrant an official investigation into allegations of sexual misconduct with female students. (g) The Plaintiff abused his position of trust as a teacher; (h) The Plaintiff so conducted himself as to warrant an investigation into allegations that he abused his position of trust as teacher."