Harrigan v Jones [2000] NSWSC 119

New South Wales Supreme Court

CITATION : Harrigan v Jones [2000] NSWSC 119 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20486/99 HEARING DATE(S) : 3 March 2000 JUDGMENT DATE : 8 March 2000

PARTIES : Bill Harrigan (Plaintiff) Alan Jones (Defendant) JUDGMENT OF : Studdert J

COUNSEL : C. Evatt (Plaintiff) B. Connell (Defendant) SOLICITORS : Williamsons (Plaintiff) Bush Burke & Company (Defendant) LEGISLATION CITED : Defamation Act Rules of Court CASES CITED : Singleton v John Fairfax & Sons Ltd (unreported, Hunt J, 20 February 1980) DECISION : Application dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

STUDDERT J

Wednesday 8 March 2000 20486/99 BILL HARRIGAN v ALAN JONES

JUDGMENT

1 HIS HONOUR: The plaintiff, Bill Harrigan, sues the defendant, Alan Jones, complaining that he was defamed in the course of a broadcast on radio station 2UE on 8 September 1998. The matter has been set down for hearing for 5 April next for determination of the jury issues under s 7A of the Defamation Act. The present application is made by the plaintiff to amend his statement of claim. 2 In the statement of claim first filed, the plaintiff pleaded four imputations: "(a) The plaintiff carries out his duties as a referee in a biased manner. (b) The plaintiff is unfit to be a referee. (c) The plaintiff does not carry out his duties as a referee fairly. (d) The plaintiff is dishonest as a referee." 3 On the application before me on 3 March 2000 Mr Evatt sought to amend para 2 of the statement of claim so as to rely upon the following imputations instead of those originally pleaded: "(a) The plaintiff carries out his duties as a referee in a biased manner. (d) The plaintiff is dishonest as a referee. (e) As a referee the plaintiff favours ex-Super League teams over ex-ARL teams when awarding penalties. (f) As a referee the plaintiff favours Brisbane over their opponents when awarding penalties." 4 Mr Connell, for the defendant, opposed the amendments in so far as Mr Evatt sought to add imputations (d), (e) and (f) but did not oppose the abandonment of imputations (b) and (c) as originally pleaded. The argument proceeded and was completed without it coming to my attention that Levine J had made orders when the matter came before him on 3 December last year. I shall return to what happened in the Defamation List on that date shortly. 5 The broadcast complained of contained the following utterances attributed to the defendant upon which Mr Evatt relied as supporting the imputations pleaded in the amended statement of claim (and this apparently in the context of a recorded conversation between the defendant and a Mr Whittaker, who it seems occupied an executive position on the National Rugby League): "JONES: Have you had presented to you any statistics about refereeing, because I have. And there's an agitation about that as well. I'm talking about ARL and ex-Super League and ex-ARL. And that - well, all Brisbane matches played under Bill Harrigan, penalties for Brisbane 33, penalties against 14. Penalty points scored, 108; points against 18. But when Bill Harrigan wasn't refereeing Brisbane, they only scored 72 points against the same teams, and there were 107 scored against them. Is there any kind of bias out there which is a hangover from the ARL Super League days? And what are you doing about it? ……. JONES: Well, there are 13 matches he's controlled. ……. JONES: Let me tell you, he's controlled 13 matches between ex-ARL teams and ex-Super League teams. The total penalties for the ex-Super League teams were 83. The total penalties for the ex-ARL teams, 56, a difference of 27 penalties, which is over two a match. The position in relation to Brisbane is even worse. The total penalties for Brisbane, 33 in four matches that they played under him; the total against, 14. The difference is up to five penalties a match. Those things win and lose games." 6 The argument as to the proposed imputation as to dishonesty centred on the capacity of the broadcast material to carry this imputation. Mr Evatt submitted that there was an issue to go to the jury as to this proposed imputation in that the jury would be entitled to conclude that what was being said about the plaintiff wrongly awarding penalties to teams that he favoured to help them to win matches would support the dishonesty imputation. 7 Having taken time to reflect upon the competing submissions, I do not consider that the plaintiff ought to be allowed to amend so as to rely upon imputation (d). It is precisely the same content of the broadcast upon which the plaintiff seeks to rely to support the proposed imputation of dishonesty as he relies upon to support the imputation of bias, namely the tendency or inclination to favour particular teams. Whilst that same material in the broadcast is capable of supporting an imputation of bias, it is not, in my opinion, reasonably capable of supporting a separate and discrete imputation of dishonesty which would involve a conscious and deliberate course of conduct amounting to cheating. 8 I conclude therefore that the plaintiff ought not to be allowed to rely upon the imputation identified as imputation (d) on the application before me. 9 Argument was addressed on Friday last to imputations (e) and (f) as set out in para 3 of this judgment. Although I entertained that argument, I was not, at that point, alert to the orders that had been made by Levine J on 3 December 1999. I was aware from a bundle of material placed before me on the application by Mr Connell that there had been discussion between the parties as to the form of the statement of claim and the imputations to be relied upon and that counsel was briefed in the directions list on 3 December 1999 but I was not aware that Levine J had made orders by consent. Those orders deal with the imputations (e) and (f). 10 It is appropriate that I set out something of the history of this matter as it bears upon costs and the orders that I should now make. 11 On 15 November 1999 the plaintiff's solicitors advised that imputation (c) as originally pleaded would not be pressed, but the defendant responded by letter of 30 November 1999 that application would be made to strike out imputations (b) and (d) in the original pleading. Counsel were briefed in the directions list on 3 December 1999 and what happened on that date was that counsel for the plaintiff identified those imputations upon which at that time the plaintiff wished to proceed. Those imputations he recorded and Levine J then made an order granting leave to the plaintiff to amend the statement of claim by pleading in lieu of imputations (a) to (d) (in the original statement of claim) "imputations (a), (b) and (c) set out in the manuscript note placed in the court papers and initialled by [the judge]." That manuscript note sets out the following imputations: "(a) The plaintiff carries out his duties as a referee in a biased manner. (b) As a referee the plaintiff favours ex-Super League teams over ex-ARL teams when awarding penalties. (c) As a referee the plaintiff favours Brisbane over their opponents when awarding penalties." 12 Presumably in consenting to the addition of imputations (b) and (c), counsel then appearing for the defendant perceived their addition to be consistent with the recognition of the principle that an imputation in general terms and an imputation in specific terms can commonly be pleaded without contravening Pt 67 r 11(3) of the Rules of Court: see Singleton v John Fairfax & Sons Ltd (unreported, Hunt J, 20 February 1980, in particular at pp 6-7). 13 After 3 December 1999 it would appear that those acting for the plaintiff had a change of heart and decided that the matter should be relisted "for the purpose of having the matter argued as was originally intended" (see the letter from the plaintiff's solicitors dated 10 February 2000). 14 The added imputation which the plaintiff wanted to rely upon was the imputation as to dishonesty and the application to add that imputation has not been successful. 15 Mr Connell submitted that imputations (b) and (c) the subject of Levine J's order of 3 December last do not differ in substance from imputation (a) and thus offend against Pt 67 r 11(3) of the Rules of Court. However this Court made an order by consent on 3 December 1999 in the terms to which I have adverted and I consider it would be quite inappropriate to vary those orders when the defendant consented to them at a time when the defendant was represented by counsel. 16 There ought to be filed an amended statement of claim that reflects the orders made by Levine J on 3 December 1999. I direct that the plaintiff file such a pleading by 15 March 2000. 17 The plaintiff having failed on the application to further amend the statement of claim by the addition of the imputation as to dishonesty, I order the plaintiff to pay the costs of the motion of 3 March 2000. **********