New South Wales Supreme Court CITATION : Maitland & Anor v John Fairfax Publications Pty Ltd [2002] NSWSC 369 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20666 of 2001 HEARING DATE(S) : 20 March 2002 JUDGMENT DATE : 3 May 2002 JOHN MAITLAND (First Plaintiff) PARTIES : CONSTRUCTION FORESTRY MINING AND ENERGY UNION (Second PLaintiff) JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant) JUDGMENT OF : Levine J R Weaver (Plaintiffs) COUNSEL : T Blackburn (Defendants) RL Whyburn and Associates (Paintiffs) SOLICITORS : Freehills (Defendant) CATCHWORDS : Imputations - form - capacity - general - specific DECISION : See paragraph 15 DJL:1 [2002] NSWSC 369 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE FRIDAY 3 MAY 2002 20666 of 2001 JOHN MAITLAND (First Plaintiff) CONSTRUCTION FORESTRY MINING AND ENERGY UNION (Second Plaintiff) v JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant) JUDGMENT (imputations - form - capacity – general-specific) 1 The plaintiffs sue in respect of the publication on 9 July 2001 in "The Sydney Morning Herald" of an article that bears the headline "Case against militants dropped after secret deal". The text of the article is appendix A to these reasons. 2 The first plaintiff who is described in the Amended Statement of Claim as the National Secretary of the second plaintiff, contends that the matter complained of contains the following imputations defamatory of him: "5(a) The First Plaintiff, as national secretary of the Construction Forestry Mining and Energy Union, sought to pervert the course of justice by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigations. (b) The First Plaintiff, as national secretary of the Construction, Forestry, Mining and Energy Union, obstructed a police investigation by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigations. (c) The First Plaintiff, as national secretary of the Construction, Forestry, Mining and Energy Union, engaged in standover tactics by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigations. (d) The first plaintiff as national secretary of the Construction, Forestry, Mining and Energy Union, condoned violent, destructive rampages at the offices of employers. (e) The first plaintiff as national secretary of the Construction, Forestry, Mining and Energy Union, condoned attempts to pervert the course of justice to achieve union ends. (f) The first plaintiff as national secretary of the Construction, Forestry, Mining and Energy Union, condoned the use of standover tactics to achieve union ends". 3 The second plaintiff, the Construction, Forestry, Mining and Energy Union (CFMEU), contends that it has been defamed by reason of the article carrying the following imputations: "6(a) The second plaintiff sought to pervert the course of justice by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co-operation with police investigations. (b) The Second Plaintiff engaged in standover tactics by threatening an employer that it would encounter difficulties with a $6 million extension if it did not withdraw its co- operation with police investigations. (c) The Second Plaintiff condoned violent, destructive rampages by union members at the offices of employers. (d) The Second Plaintiff condoned the use of standover tactics to achieve union ends". 4 The first point taken by the defendant is the failure to comply with SCR Pt 67 r 12(1)(e): the plaintiff should provide, and well before any s 7A trial, particulars of the part or parts of the matter complained of upon which they rely. 5 The difficulty the defendant points to with respect to imputation 5(a) is the use of the phrase "sought to pervert the course of justice". Whilst to "pervert the course of justice" is a phrase with which members of the legal profession are familiar, it cannot be understood as being used otherwise than in a lay or ordinary sense - but what does that mean? It is argued that it is difficult to allocate to the phrase used in a non-technical sense a fixed or precise meaning in a lay usage. Whilst I do not accept part of the oral submissions for the defendant to the effect that there is a risk that the jury might have among its members at least one "bush lawyer" and thereupon there would arise prejudice as to the determination of the natural and ordinary meaning in lay terms of an otherwise technical phrase, viewed by itself (and as against the context of the article) I find that the expression "sought to pervert the course of justice" quite elusive in any distinct sense. The further difficulty confronting the plaintiff is that it could well be (but it is a matter of speculation and thus the imputation is flawed) that this first imputation means no more than the second. 6 This imputation is one that clearly can be characterised as lacking specificity and clarity at the pleading stage. I strike out imputation 5(a) without liberty to replead. 7 As to imputation 5(b): any construction of the matter complained of that seeks to exclude the first plaintiff from involvement with doing the deal with Johnson Tiles and seeks to exclude Johnson Tiles from having anything to do with the police is quite unreasonable. Imputation 5(b) in my view succinctly captures the nub of the conduct alleged against the first plaintiff and is certainly capable of being defamatory. 8 As to imputation 5(c): this purports to ascribe to the threatening conduct a quality or a description namely the engaging in standover tactics. I do not consider the use of the phrase "engaging in standover tactics" to be rhetorical, inappropriate or unavailable. It is quintessentially a jury question and imputation 5(c) I find to be capable of being carried and capable of being defamatory. 9 As to imputation 5(d): the tenor or theme of the article could be understood to be that the violence need not be a matter of concern at all because "arrangements" could be made. I am of the view that this imputation is available from the tenor of the article as a whole and from paragraph 17 wherein the expression "had come to the aid of the AMWU by striking a deal with Johnson Tiles" is employed. 10 As to imputation 5(e) I strike it out for the same reason that I struck out imputation 5(a). 11 There is a difference of course between imputation 5(d) and 5(f): the former refers to the rampage and violence done at the offices and the latter refers to the description of the means used to obviate the consequences of such rampages. The defendant however makes a point that is valid in relation to imputations 5(d) and 5(f) and it is that the article is incident specific and it is not open to the plaintiff to plead as he has because it the article could not be understood to have general meaning (as opposed to the specific incident) which the imputation suggests. Neither imputation therefore is capable of being carried and the defendant is entitled to a verdict in relation to imputations 5(d) and 5(f). 12 The plaintiffs however have leave to amend to make the imputations "incident specific" to employ the phrase I have used above. 13 Imputation 6(a) is struck out for the reasons that imputations 5(a) and (e) were struck out. 14 I find imputations 6(c) and (d) incapable of being carried by the matter complained of as imputations in general terms by reason of the article referring to specific incidents. The defendant is entitled to a verdict on those causes of action. The plaintiff is entitled to replead in accordance with these reasons. 15 Accordingly the formal orders are: 1. Imputations 5(a) and 5(e) are struck out without liberty to replead. 2. Imputations 5(b) and (c) are capable of being carried and are capable off being defamatory. 3. Verdict is entered for the defendant in respect of imputations 5(d) and (f); the plaintiffs have leave to replead. 4. Imputation 6(a) is struck out without liberty to replead. 5. Imputation 6(e) is capable of being carried and is capable of being defamatory. 6. Verdict is entered for the defendant in respect of imputations 6(c) and (d); the plaintiffs have leave to replead. 7. The plaintiffs are to file a Further Amended Statement of Claim within 21 days of today. 8. Each party is to pay its own costs. 9. The matter is to be listed for directions in the Registrar's Defamation Directions List on 31 May 2002. APPENDIX A THE SYDNEY MORNING HERALD, Monday July 9, 2001 1. Case against militants dropped after secret deal. 2. Brad Norrington, Industrial Editor 3. Police investigating a rampage that terrified workers and caused massive damage are believed to have hit a dead end because the company involved has made a secret deal with a union not to press charges. 4. Johnson Tiles, one of two Melbourne firms attacked last month by a group of 40 unionists wearing balaclavas was warned it would be stopped from doing business unless it backed off. 5. The national head of the Construction Forestry Mining and Energy Union, Mr John Maitland, announced to a secret session of ACTU officials last Thursday that a deal had been reached with the company. 6. The deal emerged as it was revealed that the national chief of the Australian Manufacturing Workers Union (AMWU), Mr Doug Cameron, is under police protection after two men threatened to shoot him in the driveway of his Sydney home. 7. The ACTU secretary, Mr Greg Combet, was shocked to learn of the Johnson Tiles deal after having warned union officials that nothing should be done to obstruct a full police investigation. 8. On Friday police charged six people including the ultra-militant Victorian head of the AMWLI, Mr Craig Johnson over a rampage at the Skilled Engineering company last month. 9. So far no charges have been laid over a similar rampage earlier the ame day at Johnson Tiles. 10. Several company employees who were threatened and man-handled during the Johnson Tiles incident are believed to have withdrawn sworn affidavits from the Victorian Police. 11. The AMWU's Mr Cameron is under police protection after being approached by two men at 9 pm three weeks ago when he was sitting in his car. When he refused to get out of his car and drove off a large rock was hurled through the back window, grazing his arm. 12. Mr Cameron had just returned home from a union dinner held after that day's AMWU national council meeting. 13. He was due to move a resolution at the council condemning behaviour by Mr Johnson and other AMWU officials accused of involvement in the Skilled Engineering and Johnson Tiles incidents. 14. The Herald reported on Saturday that some of Australia's most senior union officials made a futile attempt last week to apply pressure on the Victorian Premier and Mr Combet to avoid charges being laid over the rampages. 15. Mr Combet became furious when the delegation wanted him to persuade the firms to back off and support Mr Johnson as "a comrade in arms". 16. He warned the delegation including Mr Dean Mighell, Mr Bill Shorten, Mr Leigh Hubbard, Mr Martin Kingham, Mr Peter Tighe and Mr Darren Nelson -there were serious legal consequences in what they were seeking. 17. When Mr Combet convened a secret ACTU session of union officials last Thursday, Mr Maitland revealed his union, the CFMEU, had come to the aid of the AMWU by striking a deal with Johnson Tiles. 18. It is understood the deal was reached after it was made clear the company would face problems completing its $6 million factory extension without CFMEU co-operation. The CFMEU could also stop deliveries of its products to building sites. 19. The Federal Government is considering a royal commission into the building industry. ********** Last Modified: 05/06/2002 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.