Bennison v O'Neil [2012] NSWSC 360

Supreme Court New South Wales

Medium Neutral Citation: Bennison v O'Neil [2012] NSWSC 360 Hearing dates: 11 April 2012 Decision date: 13 April 2012 Before: McCallum J Decision: Plaintiff's imputations struck out with leave to re-plead Catchwords: DEFAMATION - strike out application - whether matter complained of capable of conveying imputations pleaded by plaintiff - local council meeting - bane and antidote Cases Cited: Bik v Mirror Newspapers Limited [1979] 2 NSWLR 569 Favell v Queensland Newspapers Pty Limited [2005] HCA 52 Gordon v Amalgamated Television Services [1980] 2 NSWLR 410 Malcolm v National Wide News Pty Limited [2007] NSWCA 254 Morosi v Broadcasting Station 2GB Pty Limited [1980] 2 NSWLR 418 (reported as an editor's note to the decision of Gordon. Category: Interlocutory applications Parties: Scott Bennison (plaintiff) Susan O'Neil (defendant) Representation: Counsel: L Brown (plaintiff) R Potter (defendant) Solicitors: Brett Saunders & Associates Pty Ltd t/as Saunders & Saunders Legal (plaintiff) DLA Piper Australia (defendant) File Number(s): 2012/51249 Publication restriction: None

Judgment 1These are proceedings for defamation arising out of statements made by the defendant at a public meeting convened by the Lane Cove Council on 6 June 2011. The proceedings were commenced by statement of claim filed on 16 February 2012. The defendant has objected to the imputations relied upon by the plaintiff. After receiving notice of those objections, the plaintiff propounded a proposed amended statement of claim. On 11 April 2012, I heard argument as to the defendant's objections by reference to the proposed amended pleading. This judgment determines those objections. 2The matter complained of is pleaded in schedule A to the proposed amended pleading, which is a transcript of the relevant parts of the meeting. In addition, the parties provided recordings of the meeting on CD's which, taken together, provided sound recording of all of the relevant parts. 3The defendant spoke at the meeting as a resident of Lane Cove Council. The topic she addressed was an organisation called "Lane Cove Alive" which, according to her remarks, is funded by Lane Cove Council. By way of context, I was informed by Mr Potter, who appeared for the defendant, that Lane Cove Alive is an incorporated association established for the purpose of revitalising Lane Cove town centre whilst maintaining "a village feel". 4The defendant stated that she supported statements made by previous speakers about "the inappropriateness of ratepayers continuing to fund this project" and "the lack of transparency" in particular programs of the organisation. Separately, she spoke about "another issue which has frequently been a cause of concern for community members and for me myself" which was the issue of alleged conflicts of interest that had arisen through the activities and structuring of the organisation. 5The defendant's remarks as to the alleged conflicts of interest opened with reference to Council's general manager. She expressed the view that there was a conflict of interest in his being a member of the board of Lane Cove Alive. 6At that point, the general manager interrupted to ask the Mayor to remind the defendant that "there is no protection against defamation in this chamber". He stated that the fact that Council placed him on the board (of Lane Cove Alive) did not create any conflict of interest with his position as general manager of the Council. There followed an unseemly exchange during which another councillor (to whom I will refer as the first councillor) interrupted the defendant several times, accusing her of slandering the general manager. 7After a time, the defendant was asked to "call it quits" when her three minutes was up. She responded by asking if she could start "from now" because she had been interrupted, whereupon she was interrupted further by three other councillors. 8As the defendant continued to speak beyond the three minutes evidently allocated to members of the public at the meeting, claiming that she hadn't had three minutes of speaking time because she had been interrupted so many times, the interruptions became more direct. The first councillor persisted in his efforts to bring the comments to a close, saying "no one wants to hear you anymore" and "boring" and "absolutely boring, you've slagged the general manager, you've slagged the general manager". An unidentified resident called out "who's that arrogant fart talking now?" to which the first councillor responded "go away madam, you are just as boring as she is". All in all, the meeting was no advertisement for the dignity of the democratic process. 9As the slanging match continued, the debate turned to the topic whether the defendant had slandered the general manager. At that point, the plaintiff spoke, saying "if slander is the issue, maybe we should get legal advice, get a copy of the tape sent to our solicitors". The Mayor responded that they (evidently the Council) would have to listen to the tape. She then asked the defendant to sum up. 10The defendant said she would summarise her other examples of the alleged conflicts of interest in a letter to the Council. She proceeded to make further remarks, again interrupted by the first councillor. 11The critical exchange, which followed that interruption, was as follows: Susan O'Neil (defendant) ...surely they would look into that. Finally I would just like to say that I was reminded of another interesting connection between our Council and Lane Cove Alive when I realised that Councillor Scott Bennison was [Beeping Timer 1:01:46.9] an auditor for Lane Cove Alive in 2007 and it was he who threatened two local community members ... Scott Bennison (plaintiff) Point of order, that's actually .... Sorry point of order Madam that's actually Susan O'Neil (defendant) Who criticised the organisation Scott Bennison (plaintiff) Point of order um Susan O'Neil (defendant) I think this organisation needs to be reviewed Scott Bennison (plaintiff) Are you going to stop her or not? Win Gaffney (Mayor) Look I said half a minute please, please um Susan O'Neil (defendant) Half a minute, half a minute Win Gaffney (Mayor) No, no not another half minute, now please, please Scott Bennison (plaintiff) No, no, no, this woman is insane, I was never the auditor of Lane Cove Alive Rod Tudge (Councillor) I beg your pardon Councillor I think you should a Scott Bennison (plaintiff) No I was nev ...no I'm not going to apologise I was never ever the auditor of Lane Cove Alive, never ever Susan O'Neil (defendant) Ok Scott Bennison (plaintiff) And I'm going to get legal advice [inaudible 1:02:15.9] sue you Susan O'Neil (defendant) Councillor Bennison sorry I have looked at a record from our files and it was mentioned Scott Bennison (plaintiff) I was never ever an auditor of Lane Cove Alive Susan O'Neil (defendant) Alright I accept that Scott Bennison (plaintiff) Well you need to retract that; you need to do more than that and Susan O'Neil (defendant) I accept that Scott Bennison (plaintiff) No I want you to retract that say those words Susan O'Neil (defendant) [Laugh] retract it I have apologised Scott Bennison (plaintiff) That's not good enough Susan O'Neil (defendant) Um I would just like to say Ann Smith (councillor) Madam Mayor Susan O'Neil (defendant) I think the organisation needs to be reviewed by Council there is no sunset clause the Board can [Beeping sound] [inaudible 1:02:38.0] continue on ad infinitum, at the moment we have Board members who voted for themselves in the last election on their second round Win Gaffney (Mayor) Miss O'Neil, - please finish now - thank you 12The defamatory imputations complained of by the plaintiff are: (a)That Councillor Scott Bennison breached his obligations as a Councillor of Lane Cove Council in that he failed to declare a conflict of interest with respect to his interest as the Auditor of Lane Cove Alive, an organisation funded by the Lane Cove Council. (aA)That Scott Bennison acted in a conflict of interest in that he was a councillor of Lane Cove Council and at the same time the Auditor of Lane Cove Alive, an organisation funded by the Lane Cove Council. (b)That Councillor Scott Bennison misused his position as a Councillor of Lane Cove Council by threatening two local community members for criticising Lane Cove Alive, an organisation of which he was the Auditor. (c)That Councillor Scott Bennison is unfit to be a Councillor in that he failed to disclose a conflict of interest and threatened two local community members. 13The defendant's objections are set out in a document dated 10 April 2012. It is convenient to deal first with the objections to imputation (a) and imputation (aA). The first objection as to imputation (a) is an objection as to form, on the basis that the imputation is vague and imprecise. In particular, the defendant asks, rhetorically, what obligations are alleged to have been breached and other matters. 14In view of the conclusion I have reached as to the second objection, it is not necessary to determine those questions. The second objection is on the basis of capacity, that is, the defendant submits that the matter complained of is incapable of conveying an imputation that the plaintiff had a conflict of interest, or that he failed to declare such a conflict of interest. The second issue arises only in respect of imputation (a). The first issue is common to both imputations, (a) and (aA). 15As to whether the plaintiff is imputed to have failed to declare a conflict of interest, I confess I had difficulty even seeing which part of the matter complained of was alleged to convey that sense. Ms Brown, who appeared for the plaintiff, argued that it arose from the opening words of the matter complained of, where the mayor called for participants to declare any conflict of interest, combined with the fact that none was declared and the fact that the critical passage of the matter complained of was alleged to impute the existence of such a conflict. 16It seems to me that the only way in which the sense that the plaintiff failed to declare any conflict of interest is imputed to him by the defendant is through a process of strained inference from those parts of the matter complained of and, in part, from logical deduction on the part of the listener based on the circumstances, rather than anything said by the defendant. For that reason alone, in my view, imputation (a) is incapable of being conveyed by the matter complained of and is liable to be struck out on that account. 17In reaching that conclusion, I have had regard to the principles applicable to such applications, to which I will return shortly. 18The second capacity objection, as I have indicated, is common to both imputations. The only basis on which it is alleged that the matter conveys an imputation as to the existence of a conflict of interest is the passage set out above deriving from the defendant's assertion that the plaintiff was the auditor of Lane Cove Alive. Mr Potter noted that the defendant did not describe that as a conflict of interest, but prefaced her statement describing that fact as merely "another interesting connection". He submitted that the matter was incapable of conveying the meaning that those words imputed a conflict of interest. I think, however, that having regard to the statements about the general manager made by the defendant preceding her remarks about the plaintiff, the ordinary reasonable listener at the meeting could have concluded that the role of the plaintiff was being described in that sense, namely, as a conflict of interest with his role as a councillor. 19More importantly, however, it is necessary to have regard to what is commonly referred to as bane and antidote within the matter complained of. In the case of each of imputations (a) and (aA), the premise on which the imputations are alleged to have been conveyed by the exchange set out above is the fact that the defendant stated that the plaintiff had been the auditor of Lane Cove Alive. Mr Potter submitted that there was so much said by way of contradiction to that single statement that the matter complained was simply incapable of conveying any defamatory sense concerning the plaintiff. 20The principles applicable to the question of capacity are well known. Mr Potter referred me to the convenient summary of those principles in the decision of the Court of Appeal in Malcolm v National Wide News Pty Limited [2007] NSWCA 254. It may be acknowledged that the first principle derives not from that decision but from the decision of the High Court to which it refers: Favell v Queensland Newspapers Pty Limited [2005] HCA 52. The starting point is of course to have regard to the principles stated by the High Court. However, the decision in Malcolm provides a convenient reminder of some of the further principles relating to strike out applications, particularly in a case such as the present. In particular, the court noted in Malcolm that, in determining whether a matter is reasonably capable of conveying the imputation alleged, regard must be had to the whole of the published matter. It follows that, in a case of bane and antidote, each must be taken together: see Malcolm at [10]. 21Separately in Malcolm the Court acknowledged that, notwithstanding that principle, it is recognised that the ordinary reasonable reader may not give equal weight to every part of the publication. The emphasis given to separate parts may vary according to the manner and form of publication. In Malcolm the matters of variance referred to were the existence of headlines, headings and captions, which might be given greater weight as they were in that case. 22Finally, the Court noted that in circumstances where reasonable minds may differ as to their understanding of the matter complained of, the matter must, in accordance with authority, be left to the jury: see Malcolm at [30]. 23Separately, Mr Potter referred me to the decision in Morosi v Broadcasting Station 2GB Pty Limited [1980] 2 NSWLR 418 which is reported as an editor's note to the decision of Gordon v Amalgamated Television Services [1980] 2 NSWLR 410. In particular, Mr Potter acknowledged that the circumstances where a publication which seeks to refute a calumny which it expressly states may be held incapable of conveying any defamatory meaning are comparatively rare. An example cited of a case in which the matter was incapable of conveying an imputation may be found in the decision there referred to of Bik v Mirror Newspapers Limited [1979] 2 NSWLR 569. In Bik, the Court noted that the whole tenor of the article was to inform the reader that Mr Bik had been wholly cleared of the charges reported in the article. The Court concluded that no fair-minded reader could imply that Mr Bik bore any responsibility for the fatality in question. 24In my view the present case, so far as imputations (a) and (aA) are concerned, clearly falls in the rare category of cases where the matter complained of is not capable of conveying those imputations by reason of the antidote within the matter complained of to the bane published by the defendant in her initial statement. It may be acknowledged that the defendant first stated, in terms, that the plaintiff was the auditor of Lane Cove Alive and that she said so in the context of references to potential conflicts of interest on the part of councillors consisting in their role in that organisation. 25However, what followed after that single statement so plainly swamped any potential defamatory meaning based on the alleged conflict, in my view, as to warrant striking out those imputations on the grounds of capacity. In particular, I note that the defendant's remarks took up some nine seconds. From the time that the plaintiff then interrupted her to correct her statement she had, within 20 seconds (as I hear the tapes of the matter complained of), quickly and contritely withdrawn the allegation. In my view, no fair-minded listener could imply or infer that the plaintiff in fact stood in the role initially attributed to him by the defendant. Imputations (a) and (aA) should be struck out on that basis. 26The next objection as to imputation (b) set out above is again based on the capacity of the matter complained of to convey the imputation. Specifically, Mr Potter submitted that the matter complained of says nothing as to the misuse by the plaintiff of his position as a councillor of Lane Cove Council. 27A difficulty with the imputation as presently formulated is that it rolls up within it the contention, which I have already rejected, that the matter complained of conveys the sense that the plaintiff was the auditor of Lane Cove Alive. At the very least, in my view those words must fall away. 28Once those words fall, in my view the separate allegation contained within the imputation, that the plaintiff threatened two local community members for criticising Lane Cove Alive, lacks any connection in the content of the matter complained of with use or misuse by the plaintiff of his position as a councillor of Lane Cove Council. In my view, notwithstanding the strictures outlined in the decision of the High Court in Favell, I am satisfied that this is a case in which the imputation pleaded should be struck out for want of capacity. 29Finally, as to imputation (c), the defendant again submitted that the matter complained of is incapable of conveying an imputation that turns on the allegation of conflict of interest or failure to disclose such. For the reasons already outlined, in my view the imputation must be struck out for its reference to those matters. 30As to imputations (b) and (c), the plaintiff may wish to consider some reformulation of defamatory meanings based on the contention, squarely made by the defendant, that the plaintiff threatened two local community members for criticising Lane Cove Alive. There is no antidote as to that separate allegation and in my view the plaintiff should have leave to re-plead, having regard to that circumstance.