Philip Sullivan v Andrew Griffin [2012] NSWSC 687

Supreme Court New South Wales

Medium Neutral Citation: Philip Sullivan v Andrew Griffin [2012] NSWSC 687 Hearing dates: 04.06.12 Decision date: 22 June 2012 Before: Nicholas J Decision: Par 29 Catchwords: DEFAMATION - parties - further proceedings against same defendant - whether proceedings in respect of same or like matter - application for dismissal under s 23 Defamation Act 2005 - Internet publications - whether "matter" as defined in s 4 Defamation Act incorporates mode of communication - turns on facts - no question of general principle Legislation Cited: Defamation Act 2005 Cases Cited: Buckley v Herald and Weekly Times Pty Ltd (No. 2) [2008] VSC 475 Carey v Australian Broadcasting Corporation [2012] NSWCA 176 Rastogi v Nolan [2010] NSWSC 735 Reynolds v Nationwide News Pty Ltd [2012] VSC 226 Waterhouse v Age Company Ltd [2011] NSWSC 159 Category: Interlocutory applications Parties: Philip Sullivan - plaintiff Andrew Griffin - defendant Representation: Counsel: B R McClintock SC - plaintiff P Gray SC - defendant Solicitors: Bransgroves Lawyers - plaintiff Clayton Utz - defendant File Number(s): 11/355412

Judgment 1By notice of motion filed 24 April 2012 the defendant sought an order that the proceedings against him for damages for defamation be struck out on the basis that they were commenced by the plaintiff without first having obtained leave to do so pursuant to s 23 Defamation Act 2005 (the Act). The application was opposed. 2The plaintiff was formerly the founder, chief executive officer, and managing director of City Pacific Ltd which was the Responsible Entity for the City Pacific First Mortgage Fund (the fund). The defendant is the joint chief executive officer of Balmain Trilogy which was appointed as the Investment Manager by Trilogy Funds Management Ltd which replaced City Pacific Ltd as Responsible Entity in respect of the fund in 2009. 3By statement of claim filed 14 June 2011, the plaintiff brought proceedings in the Supreme Court of Queensland (no. 5041/11) (the Queensland proceedings) against the defendant for damages for defamation arising out of the publication at a meeting of the fund's investors in Brisbane on 22 November 2010 of the following words: "Third question is why isn't Phil Sullivan behind bars? If I was the DPP, he would be but I am not. I can only bring civil action. We are encouraging authorities to so [sic] all they can to redress the wrongs brought upon you by your fund." 4It is alleged that, in its natural and ordinary meaning, the matter complained of conveyed the following defamatory imputations: "(a) The plaintiff is a criminal; (b) The plaintiff behaved in such a way as to deserve to be convicted of a serious criminal offence and imprisoned; (c) The plaintiff had defrauded investors of the Fund." 5By statement of claim filed 7 November 2011, the plaintiff brought these proceedings against the defendant for damages for defamation arising out of the publication of words spoken at a meeting of the fund's investors in Sydney on 24 November 2010. A transcript of the matter complained of is Annexure A to the statement of claim. The plaintiff makes a similar claim arising out of the publication on the internet from about 6 December 2010 until the present time of: "(a) A document entitled 'Pacific First Mortgage fund - Investor Information Sessions' which purported to be a transcript of the investors' meeting held on 24 November 2010 and which is annexed and marked 'B'. (b) Documents entitled 'Investor Information Sessions - Videos' which were a number of video recordings of the investors' meeting held on 24 November 2010 a typescript of which is annexed and marked 'A'." 6It is alleged that, in its natural and ordinary meaning, each of the matters complained of conveyed the following defamatory imputations: "A The plaintiff is a criminal; B The plaintiff behaved in such a way as to deserve to be convicted of a serious criminal offence and imprisoned; C The plaintiff had defrauded investors of the Fund; D Before the Global Financial Crisis in September 2008, the plaintiff was responsible for the decimation of the Fund by reason of his gross mismanagement. E The plaintiff misled and deceived fund members by falsely describing the Fund as income-producing. F The plaintiff misled and deceived Fund members by using dishonest accounting methods and manipulating valuations. G The plaintiff defrauded Fund members by preferring the interest of City Pacific and its joint ventures to the interest of Fund members. H The plaintiff sought to conceal his fraud on the Fund members by destroying documents. I The plaintiff, in the final stages of his management of the Fund, fraudulently took all the Fund's remaining cash for his own benefit and for the benefit of his friends. J The plaintiff is amoral and opportunistic and preys on vulnerable people. K The plaintiff has a history of unethical dealings." 7It was common ground that the plaintiff had commenced the later proceedings in this Court without having first obtained the leave of the court to do so. 8On 16 January 2012, by consent, the Supreme Court of Queensland made a cross-vesting order pursuant to which the Queensland proceedings were transferred to this Court. 9The defendant's application is based on the ground that these proceedings are in relation to matter which is the same as, or like, the matter the subject of the Queensland proceedings, and were brought without the necessary leave of the court. 10Section 23 of the Act provides: "23 Leave required for further proceedings in relation to publication of same defamatory matter If a person has brought defamation proceedings for damages (whether in this jurisdiction or elsewhere) against any person in relation to the publication of any matter, the person cannot bring further defamation proceedings for damages against the same defendant in relation to the same or any other publication of the same or like matter, except with the leave of the court in which the further proceedings are to be brought." 11The issue is whether the publication of the matter the subject of these proceedings is the same as, or like, the matter the publication of which is the subject of the Queensland proceedings. 12Under s 4 of the Act "matter" is defined to include: "matter includes: (a) an article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical, and (b) a program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication, and (c) a letter, note or other writing, and (d) a picture, gesture or oral utterance, and (e) any other thing by means of which something may be communicated to a person." 13The matter the subject of the Queensland proceedings and these proceedings are words spoken by the defendant at meetings of fund investors in Brisbane on 22 November 2010, and in Sydney on 24 November 2010, respectively. The matter complained of in the Queensland proceedings, as pleaded, consisted of a short passage taken from a lengthy presentation to the Brisbane meeting by the defendant. The matters complained of in these proceedings, as pleaded, consisted of the whole of the presentation to the Sydney meeting by the defendant, and of the whole of the internet publications complained of. 14The transcript of each presentation was in evidence. There was no evidence of their duration. They demonstrate that the content of each, although not identical, is substantially similar. In summary, the thrust of each was the explanation to attendees of the recent history, present situation, and future prospects of the fund, and proposals for returns to investors. Blame was attributed to the management of the fund by City Pacific Ltd as the Responsible Entity, and the question of taking legal action to recover losses was raised. Topics included strategies involving the management, sale and/or development of various assets, and matters relevant to the general future of the fund. 15The presentation to the Sydney meeting included the passage (statement of claim Annexure A, lines 583-588) relied upon in support of imputations (J) and (K) as follows: "...We just thought it was too hard. I should tell you that we knew Phil Sullivan's operations reasonably well. He used to be a sub-tenant of ours and we used to see very elderly ladies and gentlemen arriving in his foyer, giving them cheques and it used to make our stomach turn to be quite frank. So we sort of knew the history of Phil. We knew it would be a bit messy of Mr Sullivan I should say, but we sort of knew the history and we knew it'd be very messy." 16Equivalent statements were not included in the Brisbane presentation. 17Another difference was between the passage included in the Sydney meeting (statement of claim annexure A, lines 268-273): "The next question, why isn't Phil Sullivan behind bars? Or somewhere else out of harm's way. Well we can only bring civil suits as your responsible entity, we cannot bring criminal proceedings. We can, however, tell you that ASIC have appointed an individual recently who is specifically looking into a couple of funds and one of which is ours and we are encouraging ASIC as best we can to bring proceedings as soon as possible." and the passage sued upon in the Queensland proceedings namely (T ll 184-187): "Third question: Why isn't Phil Sullivan behind bars? If I was the Department of Public Prosecutions he would be, but I'm not, I can only bring civil action. We are encouraging authorities to do all they can to redress the wrongs brought upon you by your fund and I believe ASIC have now appointed an individual who is looking at taking charge of this matter along with one other fund." 18In Waterhouse v Age Company Ltd [2011] NSWSC 159 (pars 48, 49) I adhered to the test to be applied in determining whether matter is the same, or like, matter as expressed in Buckley v Herald and Weekly Times Pty Ltd (No. 2) [2008] VSC 475 by Kaye J as follows: "15. ... in order that there be a relevant "likeness" for the purposes of s 23, the similarities between the matter sued on in the earlier proceedings, and the matter the subject of the present proceedings, must, in a real sense, be significant and substantial. It is not sufficient that there be some similarity, or common features, between the two sets of publications. Rather, the plain terms of the section, its underlying purpose, and its history, all lead to the same conclusion, namely, that in order that the publication in the instant proceeding be considered to be "like" the publication sued on in an earlier proceeding, there must be a real and substantial similarity between the two sets of publications." He also said: "13. ... The test postulated by s 23 is not that of likeness between the sets of meanings pleaded and relied upon by the plaintiff. Rather, the relevant test is that of likeness between the articles or publications relied upon by the plaintiff in the two proceedings. Obviously, the imputations pleaded by the plaintiff in each proceeding are relevant, indicating the defamatory meanings which the plaintiff seeks to place on the two sets of publications. However, the imputations pleaded by the plaintiff, and any identity or commonality between them, cannot be determinative of the issue." (See also Rastogi v Nolan [2010] NSWSC 735; Reynolds v Nationwide News Pty Ltd [2012] VSC 226, pars 23, 24.) 19For the plaintiff it was submitted that if, consistently with the approach taken in the cases referred to, the task involved consideration of the content of the relevant publications, it could not be said that the Sydney presentation, the subject of these proceedings, is the same as, or like, the Brisbane presentation, which is the subject of the Queensland proceedings. It was put that the inclusion of the statement in these proceedings which is not to be found in the Queensland proceedings, and the difference in the wording of the statements in each which raise the question of criminal proceedings against the plaintiff were differences sufficient to preclude the application of s 23, and the necessity for leave. 20In my opinion, however, there is a substantial similarity between each of the matters, or oral presentations, under consideration. In so finding, I have taken into account the differences between them identified in argument, and referred to above. In my opinion these differences do not affect the overall impression which each conveys to a reasonable reader of the transcript of what was spoken by the defendant, taken in context, during a lengthy presentation. 21An alternative ground for opposition turned on the proper construction of the definition of "matter" under s 4 of the Act. It was put that the approach taken to the application of s 23 by Kaye J in Buckley, and followed in Waterhouse, Rastogi, and Reynolds, was wrong in that the provision requires consideration of the mode of communication, rather than the contents, of the matter the subject of defamation proceedings. In this case it was argued that, as each matter was published on a different occasion in a different place to a different audience s 23 had no application. 22It was not suggested (nor could it have been) that the content of each matter under consideration was affected or qualified by the time and place of its publication, or the composition of the audience to whom the defendant spoke. In my opinion these are irrelevant factors in determining the issue under s 23. 23In my opinion, the submission must fail. In rejecting a similar submission in Waterhouse (par 61-63), I held that, upon its proper construction, the statutory definition of "matter" incorporated a distinction between the matter, and the mode by which it is communicated. I am unpersuaded that I was wrong to do so. 24The plaintiff relied on an additional, alternative ground upon which it was submitted that these proceedings were not proceedings in relation to the same, or like, matter as the matter the subject of the Queensland proceedings. It was put that the significant difference was the difference between the content of the matter complained of as pleaded in the Queensland proceedings, and the content of the matter complained of as pleaded in these proceedings, i.e. in the Queensland proceedings the plaintiff sued only on a short extract which he claims conveys three imputations of criminality, whereas in these proceedings the whole of the defendant's presentation was sued upon, and is claimed to convey the 11 imputations pleaded in par 5 of the statement of claim. It was put that as the defendant had made no "strike-in" application in the Queensland proceedings for the inclusion of additional matter from the Brisbane presentation, the issue of "same" or "like" under s 23 must be determined with regard only to the matter as pleaded by the plaintiff in each set of proceedings. It was put that the relevant publication for consideration is identified by the words and/or passages which are pleaded. 25In my opinion, the submission should not be accepted. The situation which triggers s 23 is the bringing of further defamation proceedings in relation to the publication of the same, or like, matter. As its definition makes plain, "matter" is the vehicle by means of which something is communicated to a person. Relevantly, defamation proceedings are brought in relation to the publication of matter which conveys a defamatory meaning or imputation. The principles applicable to the correct approach to the question of meaning are too well known to justify repetition with reference to authority. The reasonable listener, reader, or viewer is assumed to have heard, or read, or seen the whole of the matter the publication of which is claimed to convey the defamatory meaning(s) which, ultimately, must always be a matter of impression. Each alleged imputation is to be considered in the context of the entire publication, and the tribunal of fact, whether judge or jury, will be required to consider each publication as a whole in order to determine whether the imputations are conveyed. 26The ordinary language of s 23 shows that the comparative exercise involves analysis of the whole of the matter which is claimed to convey defamatory imputations in relation to which the plaintiff has brought proceedings. Necessarily, analysis of the relevant matter cannot be confined to the particular words or passages which the plaintiff has chosen to plead in support of the imputations alleged. 27In this case, the task is to look at the content of the whole of the matter published in the Brisbane and Sydney presentations in order to decide whether the plaintiff required the leave of the court to bring the present, further, proceedings. I have already decided that issue against the plaintiff. 28With regard to the internet publications (statement of claim par 5), it was my understanding that the plaintiff accepted that their contents were substantially similar to the Sydney presentation. 29For these reasons, I find that the Sydney presentation and the internet publications in these proceedings are the same as, or like, the Brisbane presentation which is the subject of the Queensland proceedings. Nevertheless, the plaintiff is not automatically barred from continuing these proceedings as it open to the court to grant leave nunc pro tunc where leave was not obtained before the proceedings were commenced (Carey v Australian Broadcasting Corporation [2012] NSWCA 176). 30It was agreed that the issues of leave, and costs, should await further consideration, if need be, for another occasion. Accordingly I make no final order at this stage in respect of these proceedings.