New South Wales Supreme Court CITATION : Fierravanti-Wells v Nationwide News Pty Ltd & Anor [2010] NSWSC 648 HEARING DATE(S) : 8 June 2010 JUDGMENT DATE : 21 June 2010 JURISDICTION : Common Law JUDGMENT OF : Simpson J (i) In respect of the first article: Imputations b, c, e, f, g, h, i and j are struck out. DECISION : (ii) In respect of the second article: Imputations a, b, c, e, h and j are struck out. (iii) I order the plaintiff to pay the defendants' costs of the proceedings. CATCHWORDS : DEFAMATION – objections to imputations – whether imputations reasonably capable of having been conveyed – form of imputations LEGISLATION CITED : Uniform Civil Procedure Rules CATEGORY : Procedural and other rulings Senator Concetta Fierravanti-Wells (Plaintiff) PARTIES : Nationwide News Pty Ltd (First Defendant) Linda Silmalis (Second Defendant) FILE NUMBER(S) : SC 2010/85259 COUNSEL : R Rasmussen (Plaintiff) D Sibtain (Defendants) SOLICITORS : N J Papallo & Co (Plaintiff) Blake Dawson (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST Simpson J 21 June 2010 2010/85259 Senator Concetta Fierravanti-Wells v Nationwide News Pty Ltd & Anor JUDGMENT 1 HER HONOUR: By amended statement of claim filed on 23 April 2010 (the original having been filed on 7 April 2010) the plaintiff, Senator Concetta Fierravanti-Wells, claims, against the defendants, damages in defamation. The proceedings arise out of articles published in two separate editions of a newspaper, the Sunday Telegraph, dated, respectively, 27 December 2009 and 10 January 2010. 2 As required by UCPR 14.30(2)(a), the plaintiff has specified the imputations she claims were conveyed by the articles; in the case of each article, she has identified 10 defamatory imputations. 3 The defendants have raised certain objections to the imputations as pleaded. The present judgment arises from a separate trial of the issues raised by the defendants' notice of objection. The first article 4 The first article was printed over two pages (the pleadings do not identify where in the newspaper the articles appeared). On the first page, in large, bold, print, is the headline. It is: " Tour de farce: Our jet set MPs 'study' abroad " 5 For the purposes of these proceedings, the headline and paragraphs (and other parts of the article) have conveniently been given numbers that did not appear in the original publication. I will adopt that numbering system. 6 The opening paragraph of this article (given the number 2) is as follows: "Zimbabwean dictator Robert Mugabe is 'forward-thinking', the Islamist paramilitary organisation Hezbollah is 'not radical' and chickens in Thailand are scrawny. These are among the startling findings of $4.9 million in taxpayer-funded political study tours." 7 The opening paragraph sets the tone for the balance of the article. In the following seven paragraphs, the article asserts that Federal Members of Parliament spent "the record sum" in just six months of "globetrotting". The subject matter is travel entitlements of members of Federal Parliament, and the manner in which those entitlements are used. It is fair to say that the article is critical of the sums of money expended, and the results obtained from that expenditure. In short, the article, in a sardonic fashion, satirises the "political study tours" referred to in the opening paragraph, and questions, in a scornful tone, the value of the travel so undertaken by Members of Parliament. Between paragraphs numbered 4 and 10 the article names three Members of Parliament (not the plaintiff) and makes reference to their travel, in two cases, to the cost of the travel, and to reports of their travel said to have been tabled in Parliament by them. The prevailing message of the article to this point is that large amounts of public money have been squandered for no useful purpose. It is hinted that the reports are of no or little value, and trivial and/or naïve. It is, perhaps, putting it too highly (but not by much) to say that these passages ridicule the Members of Parliament to whom they relate. 8 Between paragraphs numbered 22 and 33, another four Members of Parliament are named, with reference to their travel and what they subsequently claimed to have gained from it. 9 On the first page is a photograph of one of the named Members of Parliament (not the plaintiff). 10 In the paragraph numbered 13 the plaintiff is introduced. Between the paragraphs numbered 14 and 21, reference is made to travel to Italy she is said have undertaken. It is as well to set out the whole of that portion of the article: "13 Senator Concetta Fierravanti-Wells jetted to Italy for two weeks to find solutions to the Australian wool-industry crisis. 14 She said her $17,798 trip was insightful, and has filed a record 620-page report she described as her 'War And Peace on wool'. 15 Senator Fierravanti-Wells told Parliament she became attached to her subjects after never having been close to a sheep before. 16 'Cuddling lambs across the countryside meant that lamb was off the Wells household's menu for a while,' she said. 17 Curiously, her report also contained a disclaimer that stated: 'No responsibility is accepted for the accuracy or completeness of any material contained in this publication.' 18 Senator Fierravanti-Wells said part of the motivation for heading to Italy was that she often asked herself why Australia produced the best wool in the world, only to sell it to Italy before buying back the clothes. 19 'I myself have been guilty of this, as I suspect have quite a number of my Senate colleagues, judging by their suits,' Senator Fierravanti-Wells said. 20 'So I decided to get the answer for myself. I admit I had only seen sheep in paddocks and never touched one in my life.' 21 The senator's trip included visits to fashion house Zegna in Milan and textile mills where she purchased several outfits." 11 On the second page, there appears a photograph which is captioned as a photograph of the plaintiff. The caption reads: "Woolly explanation: Senator Concetta Fierravanti-Wells addresses the House." 12 Beside this is what is known in the industry as "a breakout". It appears under the heading: "WIDE WORLD OF RORTS" 13 Thumbnail sketches of trips said to have been undertaken by eight Members of Parliament (including the plaintiff), together with small head and shoulders photographs of the members, appear thereunder. The first, next to a much larger photograph of the plaintiff, is as follows: "Concetta Fierravanti-Wells (Liberal) Where: Italy When: Jan 17-31 Findings: 'If things are done in the wool industry in the same way as they were before … then the only outcome is the same result as before." 14 Underneath the breakout, and at the end of the printed article, but in larger print, is, in quotation marks, a repetition of what appeared in the paragraph numbered 20: "I decided to get the answer for myself. I admit I had only seen sheep in paddocks and never touched one in my life." 15 The plaintiff claims that this article, together with the caption to the photograph and the breakout, conveyed 10 imputations defamatory of her. They are: "a: The plaintiff rorted her study tour abroad; b: The plaintiff is dishonest c: The plaintiff is a cheat d: The plaintiff's so-called study trip to Italy was a farce e: The plaintiff has ripped off taxpayers f: The plaintiff is stupid and is thereby unfit to be a senator g: The plaintiff tried to conceal the truth about her study trip to Italy by making a woolly explanation to parliament h: The plaintiff failed to provide a proper report to parliament as to the result of her study trip to Italy i: The plaintiff is a ridiculous politician who knows nothing about wool or sheep j: The plaintiff's study trip to Italy achieved no useful result." 16 The defendants take objection to each of these. In respect of nine of them, they argue that the imputation is not reasonably capable of having been conveyed; in respect of some of these nine, they also argue that the imputation is bad in form; in respect of the imputation lettered (d) they complain that it is bad in form, "in that it is ambiguous and rhetorical, and fails to encapsulate any act or condition of the plaintiff". 17 I will deal with each objection in turn. Imputation a: the plaintiff rorted her study tour abroad 18 The imputation is obviously derived from the heading of the breakout, "WIDE WORLD OF RORTS", in conjunction with the description of the plaintiff's travel. 19 The submission made on behalf of the defendants assumed that "rorted" involves some notion of dishonesty or trickery. The article, they argued, fell well short of this. 20 The Macquarie Dictionary Online defines "rort" as (so far as conceivably relevant): " Colloquial 1. an incident or series of incidents involving reprehensible or suspect behaviour, especially by officials or politicians. 5. to take wrongful advantage of; abuse: to rort the system. " 21 Neither in the paragraph concerning the plaintiff in the breakout, nor in the paragraphs numbered 13 to 22, which are the paragraphs concerned with the plaintiff and her travel, is there any suggestion of any "reprehensible or suspect behaviour". However, what was published, as a whole, is capable of suggesting that the plaintiff took wrongful advantage of, or abused, the system which provides for parliamentary "study trips". 22 It is true that the overriding message from the article as a whole, including that which refers to the plaintiff, is that all of the travel referred to was unproductive and a waste of public funds. But there is no suggestion that the plaintiff obtained anything to which she was not entitled (as distinct from anything to which the author of the article might have thought she ought not to be entitled) or that she engaged in anything underhand or otherwise questionable to obtain the funding for her travel. The attack is, throughout, on the system, which allows Members of Parliament to travel, at public expense, on what are said to be "study trips". That system is attacked by illustrations of what the various named Members of Parliament had achieved and what they had reported. 23 In paragraph 13, the purpose of the plaintiff's travel is identified as: "… to find solutions to the Australian wool-industry crisis." Her report is trivialised by the reference, for example, to "cuddling lambs". There is also reference to the plaintiff having visited fashion houses and having purchased clothing while on the trip. Nevertheless, bearing in mind the relatively undemanding test to be applied in considering the capacity of a publication to convey an imputation, and the unrigorous thinking readers are permitted, I conclude that the article is capable of conveying this imputation. Imputation b: the plaintiff is dishonest 24 It is not so in respect of imputation b. This is not capable of having been conveyed. There is, as I have explained above, no suggestion of dishonesty on the part of the plaintiff. The most that could be said is that the article suggests that she took advantage of a benefit to which she was, but the author of the article thought she ought not be, entitled. Imputation b will be struck out. Imputation c: the plaintiff is a cheat 25 There is nothing in the article to suggest that the plaintiff is a cheat. The whole tenor of the article is to show that Members of Parliament have travel entitlements of which the author disapproves. But it does not anywhere suggest that the plaintiff has obtained anything to which she was not entitled. Imputation c is not capable of having been conveyed. Imputation c will be struck out. Imputation d: the plaintiff's so-called study trip to Italy was a farce 26 It is not submitted that this imputation is incapable of having been conveyed, but rather that it is bad in form, ambiguous and rhetorical and fails to encapsulate any act or condition of the plaintiff. In supporting the latter argument, counsel for the defendants acknowledged that the imputation could be read as: "The plaintiff undertook a study trip to Italy that was a farce" and that this would cure that part of the objection, I propose so to treat this imputation. 27 I do not see anything ambiguous or rhetorical about it. I will not strike out imputation d. Imputation e: the plaintiff has ripped off taxpayers 28 This falls into the same category as imputations a, b and c. The colloquial expression "ripped off" is apt to suggest some form of dishonest exploitation. There is no suggestion that the plaintiff engaged in dishonest exploitation – merely that she took advantage of generous entitlements made available to her courtesy of the Australian taxpayer. This imputation is not capable of having been conveyed. It will be struck out. Imputation f: the plaintiff is stupid and is thereby unfit to be a senator 29 It is true that parts of the paragraphs concerned with the plaintiff treat what appear to be her own writings or utterances as frivolous, trivial or even puerile. The disclaimer, reported in paragraph 17 to have been included in her report of her travel, is an illustration of this. Similarly, without explicit accusation, the author has quoted (or purported to quote) the plaintiff in such a way as to call in question the depth of her intellect. The reference to the plaintiff "cuddling lambs" (which might be an accurate extract from the plaintiff's report to parliament) conveys a sense of, perhaps, immaturity or naivety. But that is a long distance from suggesting that the plaintiff is "stupid", and even further from suggesting that she is unfit to be a senator. The article contains no such imputation. Imputation f will be struck out. Imputation g: the plaintiff tried to conceal the truth about her study trip to Italy by making a woolly explanation to parliament 30 This imputation, apparently, is said to derive from the caption to the photograph of the plaintiff, "Woolly explanation" and from paragraph 14 in which she is said to have filed "a record 620 page report". 31 The word "woolly" attached to "explanation" could, in appropriate circumstances, be read as suggesting a less than coherent account of whatever is said to have been explained. However, in the context of this article, the use of the word "woolly" is plainly intended to be a pun. There cannot be a reader who would not understand that the use of the word "woolly", in the context of reporting on a "study tour" to find solutions to the Australian wool industry crisis, and in which much reference is made to lambs and sheep and textile mills, was intended in that way. It is not to be taken at face value as a description of the plaintiff's report. In any event, there is no suggestion that any lack of coherence was a result of an attempt to conceal the truth of her travel. 32 This imputation is not capable of having been conveyed. It will be struck out. Imputation h: the plaintiff failed to provide a proper report to parliament as to the result of her study trip to Italy 33 The high point of the argument for the plaintiff in respect of this imputation is what is contained in paragraph 17, recording the disclaimer (as to responsibility for accuracy or completeness) said to have been attached to the plaintiff's report of her travel to parliament. Earlier, in paragraph 14, reference had been made to that report, where it was described as "a record 620 page report". 34 Counsel for the defendants relied upon this latter passage as showing that the article in fact recognised the report, by its length, as being one of substance, and worthwhile. This, in my opinion, is going too far. One can not overlook the tone of the reference, particularly in the context of the article as a whole. A reader might well have drawn from the reference to the lengthy report the suggestion that its length was excessive and the report verbose. The references to the plaintiff "cuddling lambs" and touching sheep for the first time in her life do not suggest that the author of the article was treating the report as a worthwhile contribution to the resolution of the Australian wool industry crisis or anything else. 35 However, the article falls well short of suggesting that the report was not a "proper" one. At most, it could be thought that the article suggests that the length of the report was excessive. There is nothing else about the content of the report, other than the reference to the "curious" disclaimer. This imputation is not capable of having been conveyed. It will be struck out. Imputation i: the plaintiff is a ridiculous politician who knows nothing about wool or sheep 36 There is nothing in the article that suggests that the plaintiff is "ridiculous" or a "ridiculous politician". If the following clause "who knows nothing about wool or sheep" is intended to provide the explanation for her being "ridiculous", it is a non-sequitur. Knowing nothing about wool or sheep does not make a politician "ridiculous". Nor does it make any person in any other capacity (except, perhaps, a wool breeder or person engaged in the wool industry) "ridiculous". And knowing nothing about wool or sheep is not suggested, in the article, as a basis for calling the plaintiff "a ridiculous politician". There is nothing in the article that suggests she is "a ridiculous politician". 37 This imputation is not capable of having been conveyed. It will be struck out. Imputation j: the plaintiff's study trip to Italy achieved no useful result 38 On behalf of the defendants it was submitted that this imputation is not capable of having been conveyed because the article refers to a 620 page report. I have dealt with what was said about the report above. 39 It is true that the article does not suggest that the plaintiff's travel to the Italy achieved anything useful. But nor does it say that it did not. 40 It simply makes no comment on the usefulness of the plaintiff's report. Earlier in the article, at paragraph 4, the reports of some Members of Parliament were described as: "… a combination of trite observations about world affairs and policy tips …" Nothing of the kind was said about the plaintiff's report, or about her travel. 41 As I have said, there is simply nothing in the article that comments upon the usefulness of the plaintiff's travel. This imputation is not capable of having been conveyed. It will be struck out. 42 As a general observation, it may be said that the article, so far as it refers to the plaintiff, is less than flattering. Whether it is so unflattering as to be defamatory is another matter. The imputations pleaded on behalf of the plaintiff far exceed any defamatory content of the article. They have been pitched far too high. The second article 43 The second article appears under a large headline in the following terms: "Our Senator for Umbria" 44 It contains a photograph of the plaintiff. Behind her is a scene which is difficult to make out, but includes what appears to be a castle turret. The photograph appears to be a rural scene. The caption identifies the plaintiff, as being "in Umbria". 45 The relevant parts of the article are in the following terms: "2 A Federal Liberal MP has admitted staying at her Italian property in the Umbrian hills while on a taxpayer-funded study tour - but claims it saved on hotel costs. 3 Concetta Fierravanti-Wells, who jetted to Italy for two weeks, said the purpose of her $17,798 trip was to find solutions to the Australian wool industry crisis. 4 But The Sunday Telegraph has since learned Senator Fierravanti-Wells, who admitted she shopped in Milan, spent a weekend on her Umbria property during the trip. 5 The senator refused to answer questions about the trip. However, her husband, in a faxed letter, confirmed his wife had stayed on the family property. He claimed it had been to the advantage of the taxpayer. 6. 'My wife and I own a property in Umbria, Italy,' Mr Wells said. 7 'It's not a winery, nor is there any longer a vineyard as the vines have been removed. 8 'My wife stayed on the property over a weekend during a study trip, thereby saving on hotel bills. No charge has been made to the Commonwealth for this accommodation.'" 46 The remainder of the article described Umbria, and said that the plaintiff lists her former vineyard as an investment property; it then went to repeat some of the observations made about taxpayer funded travel for Members of Parliament in the previous article. 47 The imputations originally pleaded by the plaintiff are as follows: "a: The Plaintiff deceived taxpayers by pretending she went to Italy to study the wool industry when her real reason was to shop in Milan and visit her property in Umbria. b: The Plaintiff is dishonest. c: The Plaintiff is a cheat. d: The Plaintiff refused to answer The Sunday Telegraph's questions about her overseas trip to Italy because she had something hide. e: The Plaintiff's abuse of her study trip to Italy has caused the Rules relating to study tours to be reviewed and/or tightened. f: The Plaintiff spent her time in Italy shopping in Milan, posing for photographs and visiting her property in Umbria instead of looking for solutions for the Australian Wool Industry crisis. g: The Plaintiff incurred expenses for her study trip to Italy under false pretences because she did not attempt to find solutions for the Australian wool industry crisis. h: The Plaintiff is unfit to be a senator." 48 During the course of the hearing imputation h was amended, by consent, to read: "h: The Plaintiff is unfit to be a senator because she abused her study tour entitlement." 49 Objections similar to those taken in respect of the first article were taken to these imputations. I will deal with them in turn. Imputation a: the plaintiff deceived taxpayers by pretending she went to Italy to study the wool industry when her real reason was to shop in Milan and visit her property in Umbria 50 On two occasions during the article it is said that, during a two-week trip, the plaintiff had spent a weekend on the property. One of these (paragraph 4) appears to attribute that information to the plaintiff; the other (paragraph 8) directly attributes the information to the plaintiff's husband. The imputation as framed is directed to what the plaintiff told the public (taxpayers) or led them to believe, whether before or after she undertook the travel. That is, the nub of the imputation is the asserted deception of taxpayers. 51 There are two reasons why this imputation is not capable of having been conveyed. The first is that there is not the slightest suggestion that the plaintiff deceived taxpayers. In paragraph 3 it was asserted that the plaintiff said that the purpose of her trip was to find solutions to the Australian wool industry crisis. There is no suggestion that that was not true. The use of the word "but" to commence the next paragraph might have been intended to question that claim by the plaintiff but, the sentence being incomplete, it is not possible to know what was intended. The assertions that the plaintiff shopped in Milan and spent a weekend on her property are contained in a clause that is unrelated to the purpose of the travel. But there is nothing in the assertion that the plaintiff shopped in Milan and spent a weekend on her Umbria property during the trip that suggests that her identification of that purpose was deceptive, or a pretence. Nor is there anything that suggests that shopping in Milan or spending a weekend on her property during the trip were her "real reason[s]" for her travel, or were incompatible with travel for the stated reasons. Readers would be well aware that business travel frequently allows opportunities for diversions from the principal purpose of the travel. The article, far from suggesting that shopping and staying at the property were the real reasons for the trip, suggests that these were incidental to what the plaintiff did. 52 I accept that the use of the word "admitted" (on two occasions) colours the content of the paragraphs in which the word appears. It suggests something of which the plaintiff has been caught out, or which is discreditable. 53 But it does not go so far as to suggest that staying at the property, or shopping, demonstrated that the plaintiff had deceived taxpayers or engaged in a (false) pretence about the purpose of her travel. 54 This imputation is not capable of having been conveyed. It will be struck out. Imputation b: the plaintiff is dishonest 55 There is nothing in the article that suggests dishonesty on the part of the plaintiff. Rather, the use of the word "admitted" suggests honesty in what she said about her activities during the course of the travel. 56 This imputation is not capable of having been conveyed. It will be struck out. Imputation c: the plaintiff is a cheat 57 This is in the same category as imputation b. It is not capable of having been conveyed. It will be struck out. Imputation d: the plaintiff refused to answer The Sunday Telegraph's questions about her overseas trip to Italy because she had something hide 58 The complaint that is made of this imputation is that it is bad in form, ambiguous, and fails to capture a sting with any adequate precision. Rhetorically, it was asked "how might a defendant justify such an imputation?". It is not the task of a plaintiff to plead an imputation with the defendant's convenience in justifying in mind. Rather, a plaintiff might seek to plead an imputation that a defendant will find difficult to justify. 59 Here, the first part of the imputation – that the plaintiff refused to answer questions – is readily capable of being proved true (or not, as the case may be). If it is found that the balance of the imputation was conveyed, then the defendant's task will be to persuade the tribunal of fact (whether by inference or otherwise) that the reason for her refusal was that she had something to hide. That the defendant might find this difficult to do does not render the imputation bad in form. Nor is it ambiguous. Its meaning is plain. Nor is it right to say that it fails to capture a sting with any adequate precision. What it asserts is very precise. There being no complaint about the capacity of the article to convey the imputation, I decline to strike it out. Imputation e: the plaintiff's abuse of her study trip to Italy has caused the Rules relating to study tours to be reviewed and/or tightened up 60 In paragraph 15 of the article it is said that a review is underway into travel entitlements, with the rules relating to trips expected to be "tightened". 61 In the immediately preceding paragraph, the following appears: " The Sunday Telegraph revealed last month how MPs spent $4.9 million in six months travelling the globe on study tours." 62 There is nothing in the article that suggests that the review was precipitated by the plaintiff's conduct. It may be capable of suggesting that the review was underway by reason of revelations made by The Sunday Telegraph, but even this is doubtful. But if it were so, then the review would have been precipitated by general allegations about an unspecified number of Members of Parliament whose travel expenses amounted to almost $5 million over a six-month period. On no view of paragraph 15 could it be said that the review was attributable, even in part, to the plaintiff's conduct. 63 This imputation is not capable of having been conveyed. It will be struck out. Imputations f and g 64 Imputations f and g were, during the course of the hearing, abandoned. Imputation h: the plaintiff is unfit to be a senator because she abused her study tour entitlement. 65 There is nothing in the article that suggests that the plaintiff is unfit to be a senator whether by reason of abuse of study tour entitlements or otherwise. This imputation is not capable of having been conveyed. It will be struck out. Imputation i 66 Imputation i was abandoned during the course of the argument. Imputation j: the plaintiff neglects the interests of taxpayers by being more interested in visiting her property in Umbria 67 As mentioned above, on two occasions during the course of the article, it was said that, in the course of a two-week trip, the plaintiff spent a weekend at her property. Nowhere is it suggested that she neglected the interests of taxpayers in doing so. How can it be said that spending one weekend at an Italian property constitutes neglect of taxpayers' interests? Nowhere is it suggested that, on any other basis, she neglected the interests of taxpayers. 68 This imputation is not capable of having been conveyed. It will be struck out. 69 The orders I make are: (i) In respect of the first article: Imputations b, c, e, f, g, h, i and j are struck out. (ii) In respect of the second article: Imputations a, b, c, e, h and j are struck out. (iii) I order the plaintiff to pay the defendants' costs of the proceedings. ********** 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.