New South Wales Supreme Court CITATION : WOODHAM v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWSC 350 HEARING DATE(S) : 17 December 2003 JUDGMENT DATE : 30 April 2004 JUDGMENT OF : Levine J DECISION : 1. The plaintiff is granted leave to file an amended statement of claim in accordance with these reasons within 14 days of today.; 2. Within 14 days of service upon the defendant's solicitors of the amended statement of claim the defendant is to file and serve a defence in relation to issues to be tried by jury pursuant to s7A of the Defamation Act 1974.; 3. Pursuant to SCR Pt 31 r 2 I order the trial by jury of the issues joined between the plaintiff and the defendant.; 4. Each party is to pay his and its own costs of the application before me in relation to the imputations.; 5. I place the matter in the list to be called up for the fixture of the s7A trial. CATCHWORDS : Imputations - capacity CASES CITED : Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 RON WOODHAM (Plaintiff) PARTIES : v JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720) (Defendant) FILE NUMBER(S) : SC 20101 OF 2003 S Wheelhouse SC (Plaintiff) COUNSEL : T Blackburn SC (Defendant) Greg Walsh & Co (Plaintiff) SOLICITORS : Freehills (Defendant) - 6 - [2004] NSWSC 350 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE FRIDAY 30 APRIL 2004 20101 OF 2003 RON WOODHAM (Plaintiff) v John Fairfax Publications Pty Ltd (ACN 003 357 720) ( Defendant) JUDGMENT (Imputations – capacity) 1 By statement of claim filed on 30 April 2003 the plaintiff instituted his action for damages for defamation against the defendant in relation to a publication in its "Good Weekend" dated 19 October 2002. 2 The article appears to be made up of four pages of text with illustrations and bears the headline "The jungle inside" underneath a boxed title of "Law and order". Above the headline appears "Politicians want more jails, the electorate calls for harsher sentences. But what are offenders being sentenced to? An investigation by Greg Bearup uncovers an increasingly violent prison system where brutalised inmates stand little chance of rehabilitation". 3 The caption to the photograph of the plaintiff reads "Crime and punishment: Commissioner for Corrective Services Ron Woodham. Critics say his hard tactics pervade the NSW jail system: "The only real difference between 19th-century prisons and today's is that the toilets flush," says one expert". 4 Even the defendant during the course of argument agreed that the matter complained of was not flattering of the plaintiff. That was at the very least a fair description of what it published. 5 Pursuant to SCR Pt 31 r 2 and by consent issues arose as to whether as a matter of law this lengthy article was capable of carrying imputations upon which the plaintiff proposed to rely. The disposition of the application was complicated by the fact that the imputations underwent a continuing process of amendment during the course of argument. The defendant had filed a notice pursuant to SCR Pt 67 r 12A founded upon the statement of claim and a subsequent notice founded upon some proposed amended imputations. The causes of action which were the subject of dispute in the end were founded to some extent upon a document in the Court papers headed "Schedule of imputations and note of argument" prepared for the plaintiff. 6 I was provided with three copies of the matter complained of. The clean copy and the original publication I will mark as MFI 1, which will remain with the court file. The plaintiff's copy, which is a photocopy with paragraph numbers, will be MFI 2 and a further photocopy handed up for the defendant will be MFI 3. 7 I propose to deal with each imputation as I understand it to be in its final form and rule accordingly. 8 Imputation (a): "That the plaintiff as Commissioner of Corrective Services, by his hardline policies and harsh tactics, instilled a brutal attitude towards inmates in his correctional officers". 9 I find that the matter complained of is capable of carrying imputation (a) and that it is capable of being defamatory. 10 Twice in the matter complained of is the word "pervade" used (see, for example, the caption to the photograph of the plaintiff) and otherwise paragraphs 3, 6, 7, 17, 18, 19, 20, 22, 23, 31 and 32 of MF1 2 together with the whole of the article are capable of giving rise to this. There is no question of inference or inference-drawing as submitted by the defendant. The concepts contained within the imputation are implicit, if not express, in the matter complained of. 11 Imputation (b): "That the plaintiff, when Commissioner of Corrective Services, because of his harsh attitudes and prison policies, was responsible for inmates in New South Wales prisons being subjected to serious criminal assaults". 12 I find that the matter complained of is capable of carrying this imputation and that it is capable of being defamatory. On a capacity basis I am of the view that there is sufficient throughout the article to sustain the notion of "responsibility" by reason of the plaintiff's occupying the position of Commissioner in relation to the matters expressly dealt with in the article. 13 Imputation (c): "That the plaintiff failed to take proper measures to safeguard inmates in New South Wales prisons from serious criminal assaults notwithstanding his knowing such assaults were prevalent". 14 In respect of this imputation I accept the submissions for the defendant. The fact that the plaintiff occupied the office that he did, on the one hand, and that there were sexual assaults happening in the prisons, on the other, those matters by themselves do not and cannot mean that the plaintiff did not take proper measures to eliminate the assaults. The article does refer to a departmental program to reduce the number of assaults. The fact that assaults were continuing still does not support the proposition that knowing that assaults were taking place the plaintiff had failed to safeguard the inmates by taking proper measures. 15 Imputation (c), if pleaded, would lead to a verdict for the defendant. However, the amended statement of claim I propose to grant leave to the plaintiff to file should not include such an imputation. 16 The next imputations arise from paragraphs 20-21. Imputation (d): "The plaintiff, as a senior prison officer, requested a witness in a Supreme Court case to lie in relation to an allegation about the police and guards drinking on an exercise conducted by the police and guards". Imputation (e): "The plaintiff had so conducted himself as to be reasonably suspected of having requested a witness to lie on his oath in a Supreme Court case in relation to an allegation about police and guards drinking on an exercise conducted by the police and guards". 17 In relation to these two imputations I am of the view that on a capacity basis each is available, each is clearly capable of being defamatory and the plaintiff will be granted leave to plead them. 18 The next imputation is imputation (f): "That the plaintiff callously prevented a forensic psychiatrist from consulting with an inmate who had been subjected to a brutal assault whilst in a New South Wales prison". 19 This relates to the matters in paragraphs 24-27 concerning Dr Lucire. 20 In relation to this imputation, it is simply incapable in my view of being carried by the matter complained of. Whilst there might be an element of callousness, Dr Lucire in fact interviewed the inmate. It is a strained, if not perverse, reading of the article to consider that it means what is encapsulated in the proposed imputation. 21 Imputation (g): "The plaintiff excluded a forensic psychiatrist from New South Wales prisons because she had made a complaint concerning the treatment of a prisoner in a New South Wales prison". 22 This I have assumed to be a final form of the second "Dr Lucire" imputation. It is clearly capable of arising and is capable of being defamatory. 23 The final imputation, imputation (h), is "The plaintiff corruptly handled prison informants". That such a meaning can arise in my view is unarguable given the content of paragraph 21 relating to the ICAC labelling the plaintiff as "corrupt over his handling of prison informants". The usual protest is made in the context of Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. Indeed counsel for the defendant referred not only, in the usual way, to what does the imputation mean but queried what that which his client published in the section to which I have referred, meant. 24 It is an example of the plaintiff being limited by the nature and content of the defamatory words in his obligation to comply with any need for specificity: see Drummoyne at 137E-F per Gleeson CJ. 25 I find the imputation is capable of being carried and capable of being defamatory. 26 In view of the extraordinarily cumbersome way the plaintiff's case ultimately was structured for the purposes of this exercise it is inappropriate in my view that notwithstanding the substantial success the plaintiff enjoyed the defendant should not have to pay the costs, the more so having twice having to prepare a rule 12A notice. 27 The formal orders are: 1. The plaintiff is granted leave to file an amended statement of claim in accordance with these reasons within 14 days of today. 2. Within 14 days of service upon the defendant's solicitors of the amended statement of claim the defendant is to file and serve a defence in relation to issues to be tried by jury pursuant to s7A of the Defamation Act 1974. 3. Pursuant to SCR Pt 31 r 2 I order the trial by jury of the issues joined between the plaintiff and the defendant. 4. Each party is to pay his and its own costs of the application before me in relation to the imputations. 5. I place the matter in the list to be called up for the fixture of the s7A trial. ********** Last Modified: 05/03/2004 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. 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