New South Wales Supreme Court CITATION : Hall & Ors v Gould [2002] NSWSC 359 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20827 of 2001 HEARING DATE(S) : 19 February 2002 JUDGMENT DATE : 1 May 2002 JAMES ANTHONY HALL (First Plaintiff) DAVID ROYCE AYLIFFE (Second PLaintiff) IAN ROBERTS (Third Plaintiff) PARTIES : DARYL WILLIAMS (Fourth PLaintiff) v PHILLIP GOULD (Defendant) JUDGMENT OF : Levine J S Littlemore QC (Plaintiff) COUNSEL : T Blackburn (Defendant) Walter Madden Jenkins (Plaintiff) SOLICITORS : Thurlow Fisher (Defendant) CATCHWORDS : Imputations - form - capacity - "corrupt" LEGISLATION CITED : Defamation Act, 1974 Drummoyne Municipal Council v Australian Broadcasting corporation (1990) 21 NSWLR 135 CASES CITED : Greek Herald Pty Ltd v Nikolopoulos & Ors [2002] NSWCA 41 Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 39 Singleton v John Fairfax and Sons Ltd (unreported 20 February 1980) DECISION : See paragraph 31 DJL:1 [2002] NSWSC 359 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION defamation list JUSTICE DAVID LEVINE WEDNESDAY 1 MAY 2002 20827 OF 2001 JAMES ANTHONY HALL (First Plaintiff) DAVID ROYCE AYLIFFE (Second Plaintiff) IAN ROBERTS (Third Plaintiff) DARYL WILLIAMS (Fourth Plaintiff) v PHILLIP GOULD (Defendant) JUDGMENT (Imputations - form – capacity – "corrupt" ) 1 There are four plaintiffs Messrs Hall, Ayliffe, Roberts and Williams. Upon reading the Amended Statement of Claim however it appears to me that the first plaintiff, Mr Hall, is pleading but one cause of action namely imputation 5(d) (see below) arising from the second publication of which complaint is made. In paragraphs 2 and 4 of the Amended Statement of Claim the allegation is made that the respective publications sued upon were "of and concerning the plaintiffs". In fact Mr Hall sues only in respect of the defendant's column in "The Sun Herald". 2 The first publication of which complaint is made was a radio broadcast on 2GB on 16 August 2001. The defendant who for present purposes can be taken to be a person well known in Rugby League football was commenting upon (I use the word "comment" in the non-legal sense) the procedure, proceedings and findings of what I understand to be a panel of the New South Wales Rugby League Judiciary in relation to a player, Craig Smith. As was acknowledged by both sides in the course of submissions, Mr Gould's remarks could well be understood to be strong criticism. 3 The following imputations are pleaded with respect to this first publication: "3(a) That the second, third and fourth plaintiffs , who made up the New South Wales Rugby League Judiciary Panel, acted perversely in finding Craig Smith guilty of striking another player; (b) That the second, third and fourth plaintiffs , who made up the New South Wales Rugby League Judiciary Panel, acted corruptly when they found Craig Smith guilty of striking another player in that despite knowing that there was no proof that he acted intentionally, they accepted the mere opinion of the Judiciary Commissioner that he did act intentionally; (c) That the second, third and fourth plaintiffs , acting as that New South Wales Rugby League Judiciary Panel, act so unfairly that players cannot expect to get a fair hearing if they defend charges there". The causes of action, as I have noted are pleaded in respect only of the second, third and fourth plaintiffs. 4 The second publication of which complaint is made is an article in "The Sun Herald" of 19 August 2001 bearing the headline "Smith decision was just plain wrong". On its face the article appears to be a column written by the defendant Mr Gould. Its subject matter is the same as the 2GB broadcast. 5 In respect of this publication it is pleaded that the following imputations defamatory of the plaintiffs were carried: "5(d) That they, as Commissioner and members of the New South Wales Rugby League Judiciary , conspired together to find Craig Smith guilty of striking another player, despite knowing that the incident was accidental; (e) That the second, third and fourth plaintiffs , who made up the New South Wales Rugby League Judiciary Panel, acted disgracefully in finding Craig Smith guilty of striking another player, when they knew the incident was accidental'. 6 It is to be noted that imputation 5(d) is the only imputation formulated as embracing the first plaintiff, Mr Hall. 7 With respect to the 2GB publication the defendant objects to matters of form, and pursuant to Pt 31 r 2 there has been argued a question of law as to the capacity of the matter complained of to carry the imputations. 8 As to imputation 3(a), the defendant objects to, by way of form, is the use of the word "perversely". The defendant argues that word "perverse" is a "charged and emotive" word, which fails to specify the nature of any culpability alleged against the three plaintiffs. The adverb is necessarily used in the imputation in a "lay" sense and not as a legal term of art. What is advanced for the defendant is that in ordinary usage "perversely" can mean in a wayward or an irrational manner. However it can also mean, it is submitted, wilful and conscious wrongdoing, which is something of significantly more seriousness. If that is so, it is submitted for the defendant, in the event of the imputation being found, what would the defendant have to prove to justify it? (See Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 39 at 41). 9 For the plaintiff it was contended that in "context" the ordinary reasonable listener would understand that what had happened was no more than an unreasoning and unreasonable act by the plaintiffs, contrary to the evidence – nothing more or less than that and that would conform with the ordinary lay meaning of the word "perverse". I am of the view that the context can be referred to in order to reinforce the available lay meaning of an ordinary English word (compare the approach to whether an imputation is defamatory in Greek Herald Pty Ltd v Nikolopoulos & Ors [2002] NSWCA 41) 10 I am not persuaded that there is any defect in form. 11 As to capacity, I have no difficulty in concluding as a matter of law that the matter complained of is capable of carrying this meaning. The tenor of the broadcast, to which I have listened, (the transcript of which is appended to the Amended Statement of Claim) is such that easily lends itself to the availability of such a meaning. 12 I find imputation 3(a) proper in form, capable of being carried by the matter complained of and capable of being defamatory. 13 As to imputation 3(b), it employs that troublesome word "corruptly" and seeks to define it. The imputation, it seems to me, clearly impugns the second, third and fourth plaintiffs to a far more serious degree than the first imputation. It is argued for the defendant that the plaintiff has failed "miserably" to "follow the advice" of Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138. The definition contained within the imputation of "corruptly", the defendant argues, is uncertain and indeed ambiguous. It is said that it is not clear from the imputation as a whole whether the plaintiffs did something wilfully and culpably wrong by accepting the "mere opinion" of the Judiciary Commissioner – conduct which would answer the description of "corrupt" in what is said to be one sense in which that word is usually understood; or, whether they acted with gross incompetence or unreasonably in accepting the opinion. Again I fail to see within the terms of the imputation itself and viewed against the context of the matter complained of how there can be any doubt that what it is here contended is that the three plaintiffs did no more than accept the "mere opinion" of the Commissioner in the face of them knowing that there was no proof that the player had acted intentionally - and that this could be understood as "corrupt". I do not understand the imputation to be capable of suggesting incompetence. It asserts, in effect, that the three plaintiffs did not bring their own minds to bear on the matter but blithely accepted the mere opinion of the Commissioner knowing that there was no proof to the contrary of that opinion. 14 The matter complained of is clearly capable in my view of carrying such an imputation. 15 I find the matter complained of capable of carrying imputation 3(b), and that it is capable of being defamatory. 16 Imputation 3(c) is challenged on the basis of capacity in this sense: it is a clear example of what Hunt J referred to in Singleton v John Fairfax and Sons Ltd (unreported 20 February 1980) where his Honour held that a published matter which refers to misconduct only on one occasion is incapable of making a general charge of the same misconduct. It is apparent that imputation 3(c) is framed as a general charge. 17 Contrary to the submissions of the defendant, the closing remarks of Mr Gould in the broadcast in my view support the availability of this imputation. What Mr Gould said was this: "But it was an experience. I've never been down there before and I will probably ever go down there again. Not because I don't want to, because it just won't happen that I'll ever have to go down there again. But I've been very critical of the Judiciary over the lase 18 months and just to go down there and experience how it's run and what it's done, it's not a nice place to be and I wouldn't recommend it to any players. I'm a little bit like that old line in the song, I have made my life out of reading people's faces, knowing what the cards were by the way they held their eyes. I looked into a few eyes last night". 18 Accordingly imputation 3(c) I find capable of being carried and capable of being defamatory. 19 I turn to the second matter complained of, the article in "The Sun Herald". 20 The defendant contends that imputation 5(d) is incapable of being carried. If there is a range of meanings in respect if this publication that range is summed up and limited by, for example, the headline "Smith decision was just plain wrong". The article contains forceful expressions of opinion by the defendant (I say this without making any ruling as to the availability of the defence of "comment"). The defendant goes on to argue however that it contains "almost nothing" in the way of insinuation or inference. The argument advanced by Mr Gould, it is said, is "straightforward". 21 The article was analysed to the following effect: there is a plain assertion by Mr Gould that the decision of the Tribunal was wrong, and badly so. A statement of what must be proved in order to establish the charge of striking against Craig Smith was set out, as was the means by which such a charge could be proved. Further, the absence of the appropriate indications in the incident which occurred on the field were noted and an assertion was made that the Commissioner did not come close to proving intent by means of evidence. It is then said that the article conveys an expression of disappointment of Mr Gould in the decision of three former players, the three plaintiff members of the Judiciary, and that they should not have reached the decision that they did. 22 It is then argued that there are no sinister implications or inferences available in any of the material. Reference is however made to the last 4 paragraphs of the matter complained of: "Yet, suddenly the commissioner can find three former players to support his opinion that intent existed. That is of great concern to me. I went to the judiciary hearing on Wednesday night and I took it all in. I am a bit like that line in an old song that says, " I have made a life out of reading people's faces and knowing what the cards were by the way they held their eyes". I always had the feeling they had a full house. We didn't have enough aces". 23 The defendant argues that the ordinary reasonable reader is not of a morbid or suspicious mind and may jump to conclusions which may not always be justified as a matter of logic - that is however a different characteristic from jumping to sinister or unreasonably suspicious conclusions which, it is said, is necessarily involved in this imputation. The allegation is made of a conspiracy "despite knowing that the incident was accidental". This is said to be an extravagant meaning drawn from what is no more than a robust, perfectly straightforward critique of the plaintiffs. 24 That, to my mind, is really an argument for the jury. The last 4 paragraphs of the matter complained of can be seen to be of vital importance. Therein, in my view, could be found the source for the "conspiracy" particularly in the first paragraph extracted above. 25 I appreciate that a view could be formed that this is a "borderline" capacity question. I am of the view, however, that it should go to the jury and formally find that imputation 5(d) is capable of being carried by the matter complained of and capable of being defamatory. 26 As to imputation 5(e): it can be understood that this imputation is particularly founded in the second paragraph of the matter complained of which is as follows: " Please note at this stage that I used the word "wrong". I didn't use a word such as disgraceful, outlandish, ridiculous or unbelievable even though I have heard these terms used by many other people since the decision was handed down." 27 Of course a publisher cannot escape liability by asserting mere repetition of the words of others. Here, Mr Gould is saying that others have described the decision as "disgraceful, outlandish…" but is at pains to say that he uses the word "wrong". Again, this is a borderline case, in my view on a capacity issue by way of the overall impression gained by reading the matter complained of. The plaintiff has chosen only one of the adjectives, "disgraceful", used by other people, not disavowed but rather simply avoided by the defendant. Its use is not "rhetorical" in the imputation as framed by reference to the identification of the "act" namely finding Craig Smith guilty in the knowledge that the incident was accidental. I again, principally as a matter of impression, am not persuaded that the matter complained of is incapable of carrying this imputation. I find imputation 5(e) capable of being carried and capable of being defamatory. 28 The imputations generally are pleaded at a very high level and when that is done and it is found that they are proper in form and capable of being carried and capable of being defamatory, a plaintiff runs the usual risk of pitching his case too high. That will be a matter for the jury. 29 The final matter concerns a Particular of aggravated damages. This relates to particular (b) (ii): "(ii) The defendant's express malice in publishing the matters complained of, which malice includes his ulterior motive of seeking revenge for his unsuccessful defence of Craig Smith in the New South Wales rugby league judiciary". 30 I do not propose to resolve any issue in relation to that. Clearly the defendant should seek further and better particulars and the plaintiffs should provide them. 31 The formal orders are: 1. Imputations 3(a), (b), (c) and 5 (d) and (e) are capable of arising and capable of being defamatory. 2. Within 14 days the defendant is to file a defence to the Statement of Claim in relation to issues for determination by the jury under s7A of the Defamation Act, 1974. 3. After the expiry of 21 days the matter is to be placed on the list for call-up for hearing by jury pursuant to s7A of the Defamation Act, 1974. 4. Pursuant to Pt 31 r 2 I order the separate trial of the issues of fact joined between the plaintiffs on the Statement of Claim and the defendant on his defence by jury pursuant to s7A of the Defamation Act, 1974. 5. The defendant is to pay the plaintiff's costs. ********** 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. 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