New South Wales Supreme Court CITATION : THE DEVELOPMENT AND ENVIRONMENTAL PROFESSIONALS' ASSOCIATION v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWSC 92 HEARING DATE(S) : 31 October 2003 JUDGMENT DATE : 27 February 2004 JUDGMENT OF : Levine J DECISION : 1. The second further amended statement of claim is struck out.; 2. The plaintiff is to pay the defendant's costs of the action and the defendant's application. CATCHWORDS : Trade Union - actionable defamation at suit of - no claim for actual loss - "injury to pocket" - pleading - judicial comity Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 Feo v Pioneer Concrete (Vic) Pty Ltd & Ors [1999] 3 VR 417 Kay & Anor v Chesser & Anor [1999] 3 VR 55 CASES CITED : Lewis v Daily Telegraph Ltd [1964] 1 AC 234 National Union of General and Municipal Workers v Gillian & Ors (1945) 2 All ER 593 NSW Aboriginal Land Council v Jones (1998) 43 NSWLR 300 Robertson v John Fairfax Publications Pty Ltd & The Development and Environmental Professionals' Association v John Fairfax Publications [2003] NSWSC 473 Selecta Homes v Advertiser News Weekend (2001) 79 SASR 451 THE DEVELOPMENT AND ENVIRONMENTAL PROFESSIONALS' ASSOCIATION (formerly ENVIRONMENTAL HEALTH & BUILDING SURVEYORS' ASSOCIATION) (Plaintiff) PARTIES : v JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720) (Defendant) FILE NUMBER(S) : SC 20004 OF 2003 R Weaver (Plaintiff) COUNSEL : R Lancaster (Defendant) R L Whyburn & Associates (Plaintiff) SOLICITORS : Freehills (Defendant) [2004] NSWSC 92 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST JUSTICE DAVID LEVINE FRIDAY 27 FEBRUARY 2004 20004 OF 2003 THE DEVELOPMENT AND ENVIRONMENTAL PROFESSIONALS' ASSOCIATION (formerly ENVIRONMENTAL HEALTH & BUILDING SURVEYORS' ASSOCIATION) (Plaintiff) v John Fairfax Publications Pty Ltd (ACN 003 357 720) (Defendant) JUDGMENT (Trade Union – actionable defamation at suit of – no claim for actual loss – "injury to pocket" – pleading – judicial comity) 1 By second further amended statement of claim filed on 5 September 2003 the plaintiff sues the defendant for damages for defamation. The relevant article was published in the "Sydney Morning Herald" on 11 December 2001. 2 Two imputations are pleaded as arising from the natural and ordinary meaning of the article and they are: 4(a) The Environmental Health and Building Surveyors' Association ("EHABSA") sanctioned its Secretary, Ian Robertson, giving evidence at the Administrative Decisions Tribunal which supported entrenched interests of certain male members of the Union over interests of certain female members of the Union. (b) The Environmental Health and Building Surveyors' Association ("EHABSA"), is a "boys club" that puts the interests of its male members ahead of the interests of its female members. 3 The matter complained of, the text of which is appended hereto, was dealt with in detail by Simpson J in her judgment in this action and a concurrent action against the same defendant brought by Mr Ian Robertson who was Secretary of the plaintiff: [2003] NSWSC 473, 13 June 2003. 4 The plaintiff in paragraph 1 of the second further amended statement of claim pleads that it is an organisation "which is registered pursuant to the Industrial Relations Act and is able to be sued and sue in its registered name". 5 The defendant contends that this new pleading (filed as a consequence of her Honour's ruling) does not plead or particularise facts which would, if proved, establish an actionable defamation. 6 What the plaintiff has done in paragraph 5 of the new pleading is state "By reason of the publication of the matter complained of…the plaintiff has been held up to public ridicule and contempt and has been damaged in their reputations (scil: its reputation) and has suffered and continues to suffer loss and damage". 7 The defendant submits that the plaintiff has not pleaded an actionable defamation because it does not plead or particularise facts which would establish "that the plaintiff has been injured in its pocket": see NSW Aboriginal Land Council v Jones (1998) 43 NSWLR 300 at 308B; Lewis v Daily Telegraph Ltd [1964] 1 AC 234 at 262. 8 The defendant contends that this matter was, in effect, ruled upon by her Honour Simpson J at paras [29]-[32] of her judgment. Para [32] is in the following terms: "[32] The absence of any pleading to this effect, or particularisation thereof, is not a matter which would lead me to strike out a statement of claim without giving the Association the opportunity to plead appropriately. However, having read the authorities to which I was referred, and the passages in Tobin and Sexton, I have come to the view that there is merit in the point. It will be for the Association to obtain advice as to the manner in which it should remedy the deficiency". 9 Her Honour had obviously heard extensive argument between the same parties touching upon this very issue. Her Honour had considered what was said in Lewis and NSW Aboriginal Land Council, particularly the judgment of Handley JA at 308B. 10 Her Honour also had read para [3017] of Tobin and Sexton "Australian Defamation Law and Practice" which deals generally with this subject. 11 The defendant urges upon me that by way of judicial comity I should strike out the second further amended statement of claim in the light of the failure of the plaintiff to particularise the matters to which her Honour, it is said, clearly was adverting in para [32]. 12 The plaintiff has sought to rely upon an absence of any requirement to establish "special damage" or "injury to its pocket" by reference to such authorities as: Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; Kay & Anor v Chesser & Anor [1999] 3 VR 55; Feo v Pioneer Concrete (Vic) Pty Ltd & Ors [1999] 3 VR 417 and Selecta Homes v Advertiser News Weekend (2001) 79 SASR 451. 13 I add that even in National Union of General and Municipal Workers v Gillian & Ors (1945) 2 All ER 593 Birkett J, in upholding the right of that trade union to sue, made reference to the property of the union being adversely affected by the libel (at 596D); the passage is cited in Tobin & Sexton. 14 That there should still be an issue along these lines is curious. That it may have to be resolved elsewhere is obvious. 15 I propose to follow the submissions of the defendant in comity with the decision of Simpson J, on the basis that the pleading discloses no actionable case in defamation. 16 The defendant also argued that the matter complained of was not reasonably capable of carrying imputation 4(a). The matter complained of suggests that the Secretary of EHABSA, Mr Robertson, was a witness who gave evidence to the ADT. It is argued that how he came to give evidence is not revealed and the article cannot be understood as conveying that the union "sanctioned" the giving of evidence of the kind described, by Mr Robertson. 17 For the plaintiff it is argued that, for example, the use of such terms as "the union boys' club" and "male privilege entrenched by dinosaur union attitudes" establishes that the evidence provided by the Secretary and thereby sanctioned by the Association was evidence to further those attitudes. Although it is not necessary for me to decide the question of capacity, I would indicate my view that the article is reasonably capable of carrying imputation 4(a). The contents particularly of paragraphs 1, 2, 4 and 5 with paragraph 15 and especially the opening words of paragraph 10, the last mentioned commencing "The principle appears to have eluded the Environmental Health and Building Surveyors Association of NSW (EHABSA). Ian Robertson, the secretary of the union, told the tribunal he was very concerned that any decision to award cars would jeopardise the position of those who already had use of them", leads me to this view. 18 The formal orders are: 1. The second further amended statement of claim is struck out. 2. The plaintiff is to pay the defendant's costs of the action and the defendant's application. APPENDIX A "The Sydney Morning Herald" 11 December 2001 1. Some in the union boys' club still don't get the point 2. To get a better deal at work, women still have to battle male privilege entrenched by dinosaur union attitudes, writes Leonie Lamont. 3. Money talks – and women workers deserve more proactive work by their unions to deliver it. 4. Just when it seemed that the blokes' clubs that muscled out women workers in union towns had finally had their day, along comes a new case that makes you think again. Five female librarians have taken their employer, the Wollongong City Council, to court over a system that gave male employees better access to cars – and a union has spoken out against them because it is worried that blokes will lose their vehicles. 5. We thought the union boys' club had got the message 20 years ago when married women won the right to work in Broken Hill. Previously, the shop assistants and town employees' unions – affiliated with the all-powerful Barrier Industrial Council – refused to issue union tickets to married women. Some union officials still recall frightened, desperate women begging for bar and cleaning work because their husbands had drunk the family's wages. But with no ticket, there was no work. It was no accident. Broken Hill had one of the highest rates of de facto relationships in the country. 6. We thought the blokes had got it 16 years ago when mainly migrant women workers at Port Kembla won their anti-discrimination case against BHP's Australian Iron and Steel. The women had been put on never-never-land waiting lists for full-time, better-paid production work. BHP had hidden behind a section of the Factories Act banning women from lifting weights of more than 16 kilograms – the weight of a healthy toddler. 7. Last week, the five Wollongong librarians had a victory against discrimination. The Administrative Decisions Tribunal found they had been victims of indirect sex discrimination, and awarded them $7500 each in general damages. The council had allowed a system to develop where the blokes got the lion's share of the private use of council cars – a benefit worth $5000-$8000 a year. About 75 per cent of male assistant managers got the private-use rights while only 50 per cent of women assistant managers qualified. 8. Wollongong council could have considered itself progressive. Well before pay equity guidelines were introduced into NSW in the middle of last year, it had implemented a job evaluation process with the aim of comparable pay for comparable work and responsibilities. But it knocked back the librarians' requests for cars even though their "equals" – assistant managers in the male-dominated divisions – had access. 9. The women told the tribunal how stressful it was to be in conflict with their superiors – and with male colleagues. One, Rhonda Boxall, had given her working life to the council, which she joined in 1957, and said she "felt quite humiliated by the process that we have had to go through to defend a principle". 10. The principle appears to have eluded the Environmental Health and Building Surveyors Association of NSW (EHABSA). Ian Robertson, the secretary of the union, told the tribunal he was very concerned that any decision to award cars would jeopardise the position of those who already had use of them. "This is because of the expense that would be involved, not only providing cars or the financial equivalent, but also to other groups of workers who do not currently enjoy such motor vehicle access but who would then press for them industrially," he said. 11. If this were to happen in Wollongong, he said, it would spread across the state, putting at risk "the historic conditions of private use of motor cars enjoyed by EHABSA members". 12. We will be hearing more about librarians and their woes in their predominantly female profession. The Industrial Relations Commission (IRC) last week heard final submissions about the state sector librarians' test case on pay equity. 13. The Public Service Association has sought an increase in librarians' wages, comparing their skills, responsibilities and working conditions with those of comparable but higher-paid male-dominated careers in the public service. 14. It's been 18 months since the IRC issued its guidelines that unions could apply for pay equity to be applied to their members' awards. Yet all we've had is this one case. Money talks – and women workers on the face of it deserve more proactive work by their union officials to deliver it. 15. Meanwhile, the Illawarra Mercury reported that Wollongong City Council's general manager, Rod Oxley, was "flabbergasted" by the finding that it had discriminated against the five librarians, and was considering an appeal. The blokes still don't get it. ********** Last Modified: 03/01/2004 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.