Bitel & Ors v Ruddock & Anor [2001] NSWSC 43

New South Wales Supreme Court

CITATION : Bitel & Ors v Ruddock & Anor [2001] NSWSC 43 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20445 of 1999 HEARING DATE(S) : 2 February 2001 JUDGMENT DATE : 9 February 2001

DAVID LEE BITEL LAWRENCE JOHN GRAVES MALCOLM PHILIP BERSTEN MICHAEL TERENCE JONES HARSIMRAN BHAR (Plaintiffs) PARTIES : v

PHILIP RUDDOCK (First Defendant)

DAVID SYME & CO LIMITED (Second Defendant) JUDGMENT OF : Levine J

R A Campbell (Plaintiff) COUNSEL : P T Taylor (First Defendant) Parish Patience (Plaintiffs) SOLICITORS : Australian Government Solicitor (First Defendant) CATCHWORDS : Imputations - capacity - radio broadcast - identification - particulars DECISION : See paragraph 25

DLJ: 1 [2001] NSWSC 43

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20445 of 1999

JUSTICE DAVID LEVINE

FRIDAY 9 FEBRUARY 2001

DAVID LEE BITEL

LAWRENCE JOHN GRAVES

MALCOLM PHILIP BERSTEN

MICHAEL TERENCE JONES

HARSIMRAN BHAR (Plaintiffs) v

PHILIP RUDDOCK (First Defendant)

DAVID SYME & CO LIMITED (Second Defendant)

JUDGMENT (Imputations - capacity - radio broadcast - identification - particulars) 1 By a Statement of Claim filed on 6 October 1999 the plaintiffs initiated proceedings for damages for defamation against the defendants. The publication of the first defendant relied upon is that constituted by a broadcast over Radio Station 2BL in Sydney on 15 June 1999. 2 The publication in respect of which the second defendant (David Syme) is sued is an article in "The Age" on 15 June 1999. With respect to this latter publication an "imputations" argument, amongst other things, was heard by Simpson J on 18 February 2000. On that occasion the moving party was the second defendant (David Syme) though I note from the record sheet of her Honour's judgment ([2000] NSWSC 840, 29 August 2000) the first defendant was represented by counsel who appeared before me. 3 On 29 February 2000 (that is nine days after the matter was argued before Simpson J) the plaintiffs filed an Amended Statement of Claim. The agreed text of the broadcast is appended hereto and marked "A": the text of The Age article is appended hereto and marked "B". 4 I am concerned only with the case the plaintiffs seeks to make against the first defendant in relation to the radio broadcast. 5 The plaintiffs allege that that matter complained of carries, in its natural and ordinary meaning, the following imputations: "5(a) The plaintiffs are greedy and avaricious lawyers in that they accept dishonourable legal work in order to get at the considerable financial rewards to be expected from it; (b) The plaintiffs lack integrity in that they advertise in the ethnic press for work which a reputable lawyer would not do. (c) the plaintiffs breach the lawyers' code of ethics by arranging class actions to enable unlawful people to stay and work in Australia contrary to the spirit of the law of Australia. (d) The plaintiffs are seeking to undermine the laws of Australia by putting in place and exploiting loopholes. (e) The plaintiffs are grossly overcharging their clients in that they are seeking through their law firm to extract the excessive sum of $1.5 million from the 3,000 clients in a single class action. (f) The plaintiffs knowingly seek to abuse the legal process of class actions to enable unlawful people to stay in Australia". 6 Alternatively, the plaintiffs say that the same matter, in its natural and ordinary meaning, carries the following imputations: "6(a) The plaintiffs are greedy and avaricious lawyers in that they knowingly acquiesce in the law firm of which they are partners undertaking dishonourable legal work in order that they may share in the considerable financial rewards to be expected from it. (b) The plaintiffs lack integrity in that they knowingly acquiesce in the law firm or which they are partners advertising in the ethnic press for work which a reputable la firm would not do. (c) The plaintiffs acquiesce in the law firm of which they are partners breaching the lawyers' code in that to their knowledge their firm arranges class actions to enable unlawful person to stay and work in Australia contrary to the spirit of the laws of Australia. (d) The plaintiffs acquiesce in the law form of which they are partners seeking to undermine the laws of Australia by putting in place and exploiting loopholes. (e) The plaintiffs acquiesce in the law firm of which they are partners grossly overcharging their clients in that they were aware that it extracted the excessive sum of $1.5 million from clients in a single class action. (f) The plaintiffs are party to the abuse of the legal process of class actions in that they are aware that this abuse is being practiced by the law firm of which they are partners" 7 The first defendant has argued that there is really no difference in substance between the two publications (leaving aside that in "The Age" the plaintiffs' firm is named and the difference in the "medium" of publication). I agree with that view and add that I have listened to a sound tape of the broadcast in question (Exhibit A). What I would describe as the "theme" of each publication is really substantially the same. 8 The alternative imputations pleaded in paragraph 6 in respect of the first publication are the subject of attack by the defendant. It was argued that the reasoning applied by Simpson J in paragraphs 29 to 32 of her judgment of 29 August is applicable here. Her Honour was dealing with, in respect of The Age publication, the following imputations pleaded in regard to it: "14.2 The plaintiffs are members of a law firm the ethical conduct of which is under investigation by the Law Council of Australia. 14.3 The plaintiffs assist in abuses of the process of class actions by acquiescing in the law firm of which they are partners running of class actions for the purpose of allowing illegal immigrants to delay or avoid deportation. 14.4 The plaintiffs participated in the overcharging of clients in that they acquiesced in the law firm of which they are members to charge clients involved in a class action run by the firm a total of $1.5 million" 9 With respect to the concept of knowledge, acquiescence and participation, what her Honour said was as follows: "There is nothing in the matter complained of that clearly, or directly, states that the individual partners of the firm knew, acquiesced or participated in the conduct of the firm of which criticism was made. Actual knowledge, acquiescence or participation cannot be derived from the publication. In truth, any available conclusion that individual partners knew of or acquiesced or participated in any unethical behaviour on the part of other partners or the firm as an entity probably depends upon an understanding of the way in which law partnerships operate and the obligations and responsibilities of partners in relation to the conduct of other partners. It is not something that can be discerned in the publication complained of. It is not something that is stated or suggested indirectly, nor is it something that can legitimately be derived by inference from the matter complained of". 10 I respectfully agree with these observations: they are applicable to the imputations pleaded in paragraph 6 of the Amended Statement of Claim vis-a-vis the radio broadcast and I hold each to be incapable, as a matter of law, of being conveyed in the natural and ordinary meaning of the matter complained of. There will thus be a verdict for the defendant in relation paragraphs 6(a) to 6(f) of the Further Amended Statement of Claim. I will grant leave to the plaintiffs to re-plead. The pleaded causes of action are not available as arising from the natural and ordinary meaning of the matter complained of. The plaintiffs thus has leave to plead fresh causes of action by way of true innuendos and properly particularised. 11 The first defendant objects to each of the imputations pleaded in paragraph 5 of the Amended Statement of Claim. 12 With respect to 5(a) it is contended that there is no material in the broadcast which makes any suggestion of "dishonourable legal work". That I understand is the only objection taken to imputation 5(a). No objection was taken to the use in the imputation of the words "they accept" nor to "greedy and avaricious". The latter, of course, could be understood as a phrase arising from the expression "money hungry lawyers," an expression that the listener could understand Mr Ruddock as not adopting. 13 The theme of the interview (and it is to be noted that the plaintiffs are suing in respect of everything spoken in the program even though they have not sued the Australian Broadcasting Corporation - this is explicable, I suppose, in terms of providing "context"), could be understood to relate to the following: it is the intention of the law that an unlawful immigrant is entitled to prosecute to the full a legal action with respect to that person's status. Once legal proceedings are instituted, a "bridging visa" and possibly a right to work, will be allocated. The intention of that law is, in effect, abused by the class action that constitutes the institution of legal proceedings that could provide, as-it-were, in "one hit", thousands of otherwise unlawful immigrants with bridging visas. Lawyers associated with such an action could be understood as acting more in their own interests financially by reason of the sum of $1.5 million that could be received and not accounted for by them and as having failed to comply with ethical standards in pursuing an asserted interest on behalf of their clients at the expense of a more broader obligation to uphold the intention of the legislation. 14 I am persuaded overall that the tenor of the broadcast, on a reasonable appreciation, is capable of giving rise to imputation 5(a) and not to the exclusion of the notion of "dishonourable:" that could be found to be there. 15 I have no difficulty at all with imputation 5(b) for the same reason, at the least implicit is a connotation of disreputability. 16 Imputations 5(c), (d) and (f) certainly, to my mind, capture a disparaging sting in the matter complained of relating to the lawyers' conduct in prosecuting an action contrary to the "intention" of the laws of Australia. Why the word "spirit" is used in imputation 5(c) escapes me given the clear language of the matter complained of. The overall tenor of the matter complained of, in my view, is capable of giving rise to an imputation to the effect of the one pleaded. No question of true innuendo arises by reason of the express reference to the code of ethics and the statement at lines 42 and following. It is argued in relation to imputation 5(c) that there is no suggestion in the broadcast that the purpose of the class actions, as distinct from the use made of them made by some lawyers was to "enable unlawful people to stay and work in Australia". I disagree, it will be a matter for the jury. The point is taken by the defendant as to the meaning of the "spirit" of the laws of Australia: the point is taken is sufficient, in my view, to eliminate this imputation as being bad in form. 17 Imputation 5(c), will therefore be struck out with leave to re-plead. 18 As to imputation 5(d); I really do not seeing that saying much more than what should be captured in a properly drawn imputation 5(c) save for the use of the cumbersome language "are seeking to". Oddly enough the defendant objects to imputation 5(d) on the basis that "putting in place and exploiting loopholes" is not an imputation "reasonably capable of bearing a defamatory meaning". Arguably a statement of a lawyer that that lawyer is exploiting loopholes could not be defamatory though it should be, in my view, a matter for the jury. What is important in relation to 5(d) is the concept of "undermining" by the exploitation of loopholes. On consideration the imputation as framed in (d) is certainly capable of being defamatory and is a more general proposition than the particular breach of the code of ethics asserted in (c). It will go to the jury. 19 As to imputation 5(e); this is, of course, extravagantly worded. An imputation so worded could go to the jury, all things being equal, at the plaintiffs' peril. Arguably it could be said that the charging of $500 per person might not be viewed as unreasonable. As a matter of mathematics it would be the case that the firm would receive $1.5 million. The sting however clearly arises in the statement by the first defendant that there will be "no accounting and no refund" and the first defendant questions whether that would constitute an abuse of the legal system. I am of the view that the matter complained of is incapable of conveying any notion of "overcharging" by itself. The sting is that to which I have referred and the imputation which I would characterise as rhetorical will be struck out with leave to re-plead. 20 Imputation 5(f) is incapable of arising for the same reasons as applied to the imputations in paragraph 6 of the Amended Statement of Claim. The use of the phrase "knowingly seek to abuse" is, in any event, unduly complex, I would have thought. The matter complained of could be understood, in my view, as asserting that the plaintiffs' conduct constitutes an abuse. In any event there will be a verdict for the defendant in relation to imputation 5(f). 21 The final matter for complaint on the part of the defendant is the particulars of identification. It is not in this case appropriate for a separate trial under SCR Pt 31 r 2 to determine whether as a matter of law a person acquainted with the facts and who heard the relevant broadcast could understand the matter complained of to be published "of and concerning" the plaintiffs. The real complaint made here, as I understand it, is that in some way the particulars are embarrassing. I do not consider them to be embarrassing. Whether as a matter of fact the jury will find on the proper presentation of evidence on this issue the matter complained of was published of and concerning the plaintiffs is to be determined in the future. What the plaintiffs have failed to do is to particularise by reference to names and classes of names the identity of those who not only knew the relevant facts but also heard the broadcast: Rogers v 2UE Sydney Pty Limited (Levine J, unreported, 6 November 1998); see also Nikolopoulos & Ors v Greek Herald Pty Limited [2000] NSWSC 617 (Levine J 5 July 2000). 22 The amended pleadings should accommodate these matters. If the plaintiffs in particulars (a) to (e) have stated the facts which known to a listener arguably could enable that listener to understand the matter complained of to have been published of and concerning the plaintiffs, that is the indication of the plaintiffs' case. It will succeed or it will fail. 23 A matter of some concern is the fact that this application by the defendant was not heard at the same time as Simpson J heard the application by the second defendant. The first defendant was present. The imputations now objected to were in place. 24 Mr Campbell for the plaintiffs argued that irrespective of the outcome of the first defendant's application the first defendant should pay the plaintiffs costs thrown away by having to come to Court on a second occasion to argue matters that easily could have been argued before Simpson J last year. I think that is a very fair position for the plaintiffs to take. 25 Accordingly, the formal orders are: