New South Wales Supreme Court CITATION : Saint v John Fairfax Publications P/L [2002] NSWSC 312 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 21010/01 HEARING DATE(S) : 15/04/02 JUDGMENT DATE : 22 April 2002 PARTIES : Jillian Saint (Pl) John Fairfax Publications Pty Limited (Def) JUDGMENT OF : Kirby J COUNSEL : P W Gray (Pl) T Blackburn (Def) SOLICITORS : Agostini Jarrett Pty Ltd (Pl) Richard Coleman (Def) CATCHWORDS : Defamation - Imputations - Whether different in substance - Test LEGISLATION CITED : Defamation Act 1974 Marsden v Amalgamated Television Services P/L (1998) 43 NSWLR 158 CASES CITED : Singleton v John Fairfax & Sons Ltd (unreported, 20.2.80) Parker v Laws [2002] NSWSC 311 Hepburn v TCN Channel 9 P/L (1984) 1 NSWLR 386 DECISION : Ref para 15 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION defamation list KIRBY J Monday 22 April 2002 21010/01 - JILLIAN SAINT v JOHN FAIRFAX PUBLICATIONS PTY LIMITED JUDGMENT 1 KIRBY J: This is an application by John Fairfax Publications Pty Limited (the defendant) to strike out imputations in a Statement of Claim issued on behalf of Ms Jillian Saint (the plaintiff). The defendant asserts that the imputations are either incapable of arising or do not differ in substance. The Publication 2 The action arises out of the publication by the defendant in the Sun Herald of 5 August 2001 of the following newspaper article: "TAX OFFICIALS REDUCED TO TEARS By Mathew Benns Almost the entire staff of an elite Australian Tax Office department has quit or gone on stress leave in the past two years. Conditions in the International Division on the Ninth floor of Centrepoint in the Sydney CBD are so bad that an independent investigator has been appointed. Senior tax officials have been reduced to tears at their desks and claim the department is 'a very unhappy ship indeed'. The department's health and safety representative has issued three improvement notices. In the latest notice he wrote: 'Over the last two years I have been requested to assist five distraught people from the Ninth floor of Centrepoint and in particular from the International Tax Division. 'Since first contacting the Deputy Commissioner another member of the ITD staff has gone on what I believe to be four weeks' stress-related leave.' The department is run by Assistant Commissioner Jillian Saint, who took sick leave last week as independent consultant Peter Grills conducted his inquiry. Ms Saint's executive assistant is on stress leave and was joined last week by her personal assistant. One member of staff said: 'I have seen senior tax officers with years of experience, men in their 50's, weeping at their desk after being publicly humiliated.' The staff member estimated that in two years 20 staff from the department had taken stress leave, extended leave, resigned or requested transfers. Not one of the 15 staff who were in the department two years ago is there today. 'Productivity has gone through the floor because of all the upset' the officer said. 'The International Tax Division is supposed to be the pinnacle of an auditor's career. Instead people cannot wait to leave.' Community and Public Sector Union spokesman Michael Tull said a process was in place to investigate the problem. 'I don't want to say anything further that could jeopardise that process.' The revelations come after bad publicity for the ATO including three negative reports by the Australian National Audit Office. An ATO spokesman said: 'We have no comment'." 3 The Statement of Claim relies upon six imputations. In the course of argument, the plaintiff has refined the expression of each imputation. The argument proceeded upon the basis of the reformulation, which was in these terms: "(a) The Plaintiff so insensitively carried out her management role in running the International Division of the Australian Taxation Office as to cause almost the entire staff of that Division to quit or go on stress leave in the previous two years. (b) The Plaintiff so incompetently carried out her management role in running the International Division of the Australian Taxation Office as to cause almost the entire staff of that Division to quit or go on stress leave in the previous two years. (c) The Plaintiff so insensitively carried out her management role in running the International Division of the Australian Taxation Office as to reduce senior Australian Taxation Office staff to tears by publicly humiliating them. (d) The Plaintiff so incompetently carried out her management role in running the International Division of the Australian Taxation Office as to reduce senior Australian Taxation Office staff to tears at their desks. (e) The Plaintiff so insensitively carried out her management role in running the International Division of the Australian Taxation Office as to cause productivity in that Division to fall drastically in the previous two years. (f) The Plaintiff so incompetently carried out her management role in running the International Division of the Australian Taxation Office as to cause productivity in that Division to fall drastically in the previous two years." The Capacity Argument 4 The defendant's argument on the capacity issue was essentially the same in respect of each imputation. The article does not, in terms, say that the plaintiff, by her management style, caused people in the International Division of the Australian Taxation Office to go on stress leave, or quit. To reach that conclusion the ordinary reasonable reader must, according to the defendant, rely upon inference. Indeed, such a reader must impermissibly rely upon inference upon inference. The following reasoning process would be involved: · First, the reader would have to infer that someone in the department, in a position of authority, was responsible for reducing the taxation officials to tears and humiliating them, so as to cause them to go off sick or leave. · Secondly, they must further infer that that person must be Ms Saint, the Assistant Commissioner in charge of the division. 5 In Marsden v Amalgamated Television Services Pty Limited (1998) 43 NSWLR 158, Hunt CJ at CL said this: (at 167) "An inference is drawn from an inference when the reader, listener or viewer draws an inference which is available in the matter complained of and then uses that inference as a basis (at least in part) from which a further inference is drawn. The publisher is held responsible for the first of those inferences but not for the second because - as I have already said - it is unreasonable for the publisher to be held so responsible. In Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 (at 300), the High Court illustrated the process which leads to an inference upon an inference in the case where the matter complained of states that the plaintiff had been charged with an offence. The first inference available from that statement (for which the publisher is held responsible) is that the police believed the plaintiff to be guilty or had a ground for charging him. (The phrase 'reasonable cause' is submitted for 'ground' at page 301.) The second inference, which is based at least in part upon that first inference (and thus is not one for which the publisher is held responsible because it is unreasonable to do so), is that the plaintiff is in fact guilty of the offence charged." (emphasis in original) 6 The plaintiff argued that the imputations do not depend upon inference, and certainly not upon inference drawn upon inference. Hunt CJ at CL, in the same case, made the distinction between "inference" and "implication": (at 167) "It is necessary to emphasise the important distinction between an implication and an inference. An implication is included in and is part of that which is expressed by the publisher. It is something which the reader (or listener or viewer) understands the publisher as having intended to say. An inference is something which the reader (or listener or viewer) adds to what is stated by the publisher; it may reasonably or even irresistibly follow from what has been expressly or impliedly said, but it is nevertheless a conclusion drawn by the reader (or listener or viewer) from what has been expressly or impliedly said by the publisher: cf Lubrano v Gollin and Co Pty Ltd (1919) 27 CLR 113 at 118; Rose v Hvric (1963) 108 CL 353 at 358. It is the reader's (or listener's or viewer's) own conclusion. " 7 Here, according to the plaintiff, the message is plain. It begins with a headline, "Tax Officials Reduced to Tears". Conditions are described in the elite division of the Australian Taxation Office, the International Division. Almost the entire staff has "quit or gone on stress leave in the past two years". Conditions are so bad an investigator has been appointed. It is a "very unhappy ship". Improvement notices have been issued by the Department of Health and others. Only one person is identified in the article. The commander of this unhappy ship is Assistant Commissioner Jillian Saint. The clear implication, according to the plaintiff, is that Assistant Commissioner Jillian Saint has brought about this unhappy state of affairs, or at least a jury may so regard it. 8 I am persuaded by the plaintiff's argument. I believe the publication does carry the implication suggested, or at least a jury may so regard it. If that be wrong, and Ms Saint's responsibility is a matter of inference, I believe the jury may draw that inference without any impermissible two step process. In my view the imputations in each case are capable of arising. Form of the Imputations 9 The imputations are grouped in pairs. Apart from minor textual differences between (c) and (d) (in the concluding words), the only difference between the expression in each pair is the use of the word "insensitively" in one (imputations (a), (c) and (e)) and "incompetently" in the other (imputations (b), (d) and (f)). 10 The defendant argued that, whilst there is a difference between insensitivity and incompetence, in the context of the imputations as pleaded, that difference does not give rise to a difference in substance. The allegation is not incompetence as such. It is incompetence in particular respects. They are the same matters as appear in the companion imputation of insensitivity. 11 A test to determine whether two imputations differ in substance was identified by Hunt J in Singleton v John Fairfax & Sons Ltd (unreported, 20.2.80). The question is: what would the defendant need to prove in order to justify the imputation? If the same evidence would establish the truth of both imputations, then, according to the defendant, they do not differ in substance (cf Parker v Laws [2002] NSWSC 311 at paras 7 to 13). 12 Unquestionably the test formulated by Hunt J is useful. However, it will not always be determinative. It will often by appropriate, for instance, for a plaintiff to plead different gradations of seriousness in separate imputations, so that the jury may select the way in which the matter would have been understood by the ordinary reasonable reader (Hunt J, Hepburn v TCN Channel 9 Pty Ltd (1984) 1 NSWLR 386 at 398). The same evidence may prove the truth of each imputation, and yet they may differ in substance. This, I believe, is simply a reminder that one must attend to the wording of the imputation, as well as the issues which are raised by it. 13 Here, according to the plaintiff, there are significant differences between the concepts of incompetence and insensitivity in carrying out a management role. They involve different personal characteristics. Proof of incompetence need not involve proof of insensitivity. Insensitivity may be one form of incompetence. The words are not coterminous. Moreover, the matters that would need to be proved to justify each imputation, according to the plaintiff, are not the same. Taking imputation (a) as an illustration, the defendant could not justify that imputation simply by proving that almost the entire workforce left or went on stress leave. It would have to prove that this was the consequences of incompetence on the part of Ms Saint in the performance of her management role. In the case of imputation (b) it would need to prove that the reduction in the workforce, or the stress leave, came about through insensitivity by her in the performance of her management role. Different considerations would, or may, arise. 14 I am persuaded that the imputations do differ in substance. They should go to the jury. Order 15 I therefore make the following orders: 1. The plaintiff has leave to amend the Statement of Claim to incorporate the reformulation of the imputations which has been foreshadowed. 2. The imputations (a) to (f) inclusive should go to the jury. 3. The defendant should pay the plaintiff's costs. 4. The matter will be listed in the Registrar's Defamation Directions List on Friday 3 May 2002 to determine whether it is ready for a s7A hearing. Last Modified: 04/23/2002 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.