Supreme Court New South Wales Medium Neutral Citation: Morten Christiansen v Fairfax Media Publications Pty Ltd & Ors [2012] NSWSC 1258 Hearing dates: 02.10.12, 03.10.12 Decision date: 19 October 2012 Before: Nicholas J Decision: Par 38 Catchwords: DEFAMATION - imputations - capacity of matters complained of to convey pleaded imputations - reference to plaintiff - class or group libel - assertion that one member responsible for conduct - no material identifying member responsible - whether defamatory imputations - nature of imputations and when available Legislation Cited: Uniform Civil Procedure Rules 2005 Cases Cited: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 Harbour Radio Pty Ltd v Trad [2012] HCA 44 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Lewis v Daily Telegraph Ltd [1964] AC 234 Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254; [2007] Aust Torts Reports 81-915 McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 Robbie Waterhouse v The Age Company Ltd [2011] NSWSC 159 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Texts Cited: Professor Brown: "The Law of Defamation in Canada" 2nd Ed "A Code of Defamation" 2nd Ed (1923) Category: Interlocutory applications Parties: Morten Christiansen - plaintiff Fairfax Media Publications Pty Ltd - first defendant Fairfax Digital Australia & New Zealand Pty Ltd - second defendant Matthew Moore - third defendant Representation: Counsel: K P Smark SC - plaintiff M A Polden - defendants Solicitors: Kalantzis Lawyers - plaintiff Johnson Winter & Slattery - defendants File Number(s): 12/266050 Judgment 1In this application the defendants seek to strike out some of the plaintiff's imputations on grounds that they are defective in form, and incapable of being conveyed by the matters complained of. 2By statement of claim filed 27 August 2012, the plaintiff claims damages against the first and third defendants for the publication of defamatory matter in the newspaper "The Sydney Morning Herald" (SMH) on 19 March 2012 of an article under the heading "Casino managers sacked for emails". He similarly claims against the second and third defendants for the publication of defamatory matter on about 19 March 2012 on the SMH website. The application proceeded on the basis that the contents of the publications are indistinguishable and, accordingly, it was convenient to take the matter published on the website, which is contained in schedule B of the statement of claim, as the matter complained of. 3In par 5 of the statement of claim it was alleged that the newspaper article conveyed, in its natural and ordinary meaning, the following defamatory imputations: (a) The plaintiff had so conducted himself to warrant him being dismissed as a manager of the Star in that he sent confidential company documents to third parties, including highly sensitive customer information. (b) The plaintiff breached his duties as a manager of the Star in that he sent confidential company documents to third parties, including highly sensitive customer information. (c) The plaintiff may have also conducted himself to warrant him being dismissed as a manager of the Star in that he may have possessed pornographic material and forwarded it to another employee. (d) The plaintiff may have breached his duty as a manger of the Star in that he may have possessed pornographic material and forwarded it to another employee. (e) The plaintiff may have so conducted himself to warrant him being dismissed as a manager of the Star in that he may have forwarded an email about gaming practices at the Star to a whistle blower. (f) the plaintiff may have breached his duty as manager of the Star in that he may have forwarded an email about gaming practices at the Star to a whistle blower. 4In par 7 of the statement of claim imputations in terms similar to those pleaded in par 5 were alleged to have been conveyed by the website publication. 5The defendants' initially challenged imputations 5(c) and 5(d), and 7(c) and 7(d) on grounds of form and capacity. During submissions, these imputations were not pressed, and the plaintiff proposed that imputations 5(c) and 7(c) be amended as follows: "The plaintiff may have been the person who possessed pornographic material and forwarded it to another employee." 6The plaintiff also did not press imputations 5(e) and 7(e), and proposed they be amended as follows: "The plaintiff may have been the person who forwarded an email about gaming practices at the Star to a whistleblower." 7The plaintiff also stated (T p 46) that imputations 5(a), 5(d), 5(f), 7(a), 7(d), and 7(f) were no longer pressed, and should be struck out. 8Ultimately, the questions for determination were whether or not the proposed amended imputations 5(c), 5(e), 7(c), and 7(e) were defective in form, and incapable of arising. 9The plaintiff was not named in the matter complained of. Particulars of identification pleaded under UCPR Pt 15, r 15.19(1)(b) included the assertions that (a), until 13 March 2012 the plaintiff was a casino pit manager at the Star Casino, and (b), on or about 13 March 2012 the plaintiff was terminated by the Star Casino. 10For the purpose of this application the defendants accepted that the matter complained of referred to the plaintiff, thus his identity was not in issue. It was also accepted that the matter complained of was capable of conveying meanings defamatory of the plaintiff. The crucial issue was the identification and formulation of the imputation(s). 11Relevantly, the matter complained of included the following: "Casino managers sacked for emails Matthew Moore March 19, 2012 ... THE strife-torn Star casino has sacked three more managers, including one who forwarded an email revealing that it allows international high rollers to gamble non-stop for more than 24 hours. The organisation brought in outside lawyers on Tuesday to help sack mid-level managers with more than 40 years' experience among them for breaches of its internet and email policies. This brought to at least seven the number of staff who have been dismissed or have left in the fallout surrounding the sacking, announced, last month of the managing director Sid Vaikunta. One of those dismissed had forwarded an email, dated February 21, from the director of VIP services, Dean Wilson, explaining why responsible gambling rules used to stop locals betting for more than 24 hours at a stretch did not apply to wealthy foreigners known as international rebate guests. ... The email was sent to Elizabeth Ward, a former long-serving manager turned whistleblower who is fighting the Star over wrongful dismissal after her termination this year. ... She said the three managers dismissed last week were friends of hers and she believed they had been targeted by the company, which had searched their emails and found reasons to dismiss them. A Star spokesman said the employees 'were dismissed for breaching several employment policies such as sending confidential company documents to third parties and private email addresses', including 'highly sensitive customer information'. 'One employee was also found to have possessed pornographic material which he forwarded to another employee on the Star's computer network. 'We consider such breaches of our policies and conduct to be extremely serious, particularly in relation to protection of the Star's confidential information'." 12It is convenient to deal with the challenge to imputations 5(c) and (e) which are: "(c) The plaintiff may have been the person who possessed pornographic material and forwarded it to another employee. ... (e) The plaintiff may have been the person who forwarded an email about gaming practices at the Star to a whistleblower." 13The matter complained of states that the plaintiff is one of three managers who were dismissed for breaches of the Star Casino's internet and email policies. It states that one of those dismissed forwarded an email about gambling rules to a whistleblower, Elizabeth Ward. It also states that one of those dismissed was found to have possessed pornographic material which he forwarded to another employee. Essentially, it reports that the plaintiff is one of three dismissed managers, one of whom, unnamed, is said to be guilty of certain misconduct. 14Common to both imputations is the phrase "may have been the person". It is the use of this phrase to which objection is taken. The question is to be determined with regard to the usual principles for the identification and formulation of a defamatory meaning. 15The plaintiff contends that the matter conveys defamatory meanings about him. In his statement of claim he is required to specify each imputation on which he relies, and to allege it was defamatory of him (Uniform Civil Procedure Rules Pt 14, r 14.30(2)). He is obliged to identify in his imputation the act or condition which he will ask the jury to accept was understood by the ordinary reasonable reader as having been attributed to him by the matter complained of, with such specificity as the nature and content of the defamatory matter allows (Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, pars 125, 128). 16In Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 (followed: Harbour Radio Pty Ltd v Trad [2012] HCA 44, par 56) the hypothetical referees of the issue of whether a person has been defamed were said to be (par 6): "... composed of ordinary reasonable people, whom Spencer Bower described as 'of ordinary intelligence, experience, and education'. Such persons have also been described as 'not avid for scandal' and 'fair-minded'. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs." 17The principles which guide a court in deciding whether a publication is capable of conveying a defamatory meaning are too well-known to justify extensive repetition, and were summarised by me in Robbie Waterhouse v The Age Company Ltd [2011] NSWSC 159, par 13ff. The question of meaning turns on what the publication, taken as a whole, conveys to the reasonable reader, and this must always be a matter of impression. Ultimately, the question is what a jury could properly make of it (see eg Lewis v Daily Telegraph Ltd [1964] AC 234, pp 258, 259, 277, 285; Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186, pars 10, 11, 17; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254, [2007] Aust Torts Reports 81-915 pars 14, 15). 18In considering the nature of the publication in this case insofar as it concerns the plaintiff, the court must keep in mind Lord Devlin's statement (Lewis p 285) that it is the broad impression conveyed by the libel that counts and not the meaning of each word under analysis. He said (p 285): "... A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." 19Also apt is the following passage from Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, p 137 per Gleeson CJ: "Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology ... Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says "X is disgusting", the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter." 20In McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485 Hunt J considered meanings carried by a publication similar to the matter complained of in these proceedings. The issue was whether the plaintiff may sue as a member of a class of three in relation to the allegation that only one of that class was responsible for perverting the course of justice and for dealing with stolen property, where the matter complained of denied on its face that each member of the class was guilty of that conduct, and where there was nothing in the matter complained of itself which pointed to the plaintiff as the one who was guilty of that stated conduct (p 488D). In rejecting an imputation of guilt, his Honour held (p 491C): "As the matter complained of in the present action cannot, by its express wording, be interpreted asserting that each member of the class was guilty of this particular conduct, and as there is nothing in the matter which points to the plaintiff as the one who was alleged to have been guilty of that conduct, it is incapable of conveying the imputation that it was the plaintiff who was guilty of that conduct." 21His Honour proceeded to consider what he referred to as the slur or reflection which is cast upon all of the members of a class where the matter complained of asserts that only one member of that class was guilty of the particular discreditable conduct (p 491E). He concluded: "Spencer Bower A Code of Actionable Defamation, 2nd ed (1923) at 12 suggests that each member of the class would be defamed as either probably or possibly guilty of that conduct, the degree of probability being in inverse ratio to the number of persons in the class; an imputation of some degree is there, he says, and suspicion to some extent is cast upon each of them. I am completely unable to accept that statement. If only one of a class of three (or even one of a class of two) is alleged to have done a particular act, how could that allegation possibly be interpreted reasonably as asserting that all three of them (or both of them) probably did that act? The question has only to be asked for the fallacy in that proposition to be revealed. The highest that could be put is that the reader could suspect each of the members of the class of having done that act if the class is sufficiently small. That is, of course, quite a different proposition from saying that the imputation conveyed by the matter complained of was that each member of the class was suspected by someone - for example, the police - of having done that act: cf Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669. There is nothing in the matter complained of in the present case to suggest that each of the partners was suspected by anyone of having perverted the course of justice. What it says is that one of that class of three did in fact do so, and it is left to the reader to suspect that each of them may have been guilty of that particular conduct. Duncan & Neill Defamation, 2nd ed (1983) par 6.13 at 28, agree that the test is the "intensity" of the suspicion cast upon each member of the class, and they suggest that each such member of the class would be seen as, for example, associates of criminals or persons who had not made sufficient inquiry as to the character of their business associates. I feel that to limit the possible imputations to those suggested there may be too restrictive, but in my view they are good illustrations of the nature of the imputations which might apply in such a case. The slur (Fleming) or the reflection (Gatley) upon the reputation of each member of the class cannot be based upon an assumption by the reader that he was guilty of that conduct himself; it may only be based upon the relationship of that member of the class with the person who was guilty of that conduct." 22Relying upon this passage, the defendants submitted that proposed imputations 5(c), and 5(e) which allege that the plaintiff may have been the culprit were, in substance, imputations of suspicion which were incapable of arising. It was put that nothing in the matter complained of suggests that each of the dismissed managers was suspected by anyone of the misconduct alleged in each case. The effect of the submission was that where the publication failed to identify any person or body (eg the police) who held the suspicion it would not be open to the ordinary reasonable reader to conclude that each of the dismissed managers was under suspicion as the culprit. 23On the other hand, the plaintiff submitted that the matter complained of was capable of suggesting that each of the dismissed managers was possibly guilty of the misconduct described and, effectively, it cast suspicion upon him. Accordingly, it was put that the proposed imputations as formulated sufficiently encapsulated the sting of the libel, it being accepted that the matter complained of was capable of conveying meanings defamatory of the plaintiff. 24It was put that the suggestion of Spencer Bower to which Hunt J referred and found unacceptable should be taken to be correct, and provided legitimate support for the plaintiff's case. The relevant passage is from "A Code of Defamation" 2nd Ed (1923) pp 11ff in which are stated the rules of evidence and construction applicable to the determination of whether any defamatory matter relates to any particular person, or to a person at all. The rules include: "(b) It is immaterial whether the defamatory matter refers to the person in question by his name ... or as one of a class (l), or as one of several persons alternatively charged or disparaged (m), ... provided that it be proved by evidence that those to whom the defamatory matter was published ... recognised him as the person indicated by such defamatory matter." The relevant passage in note (m), which includes the suggestion to which Hunt J referred, is: "[In] Harrison v Thornborough (1714), 10 Mod. 196, it is said per cur (at p 198): 'if the words were, A or D did ... etc, either A or D might bring an action, ... It is conceived ... that either or any, or both or all, of such persons might sue, setting out the defamatory matter, and simply adding 'meaning the plaintiff,' or 'the plaintiffs,' as the case may be. Obviously, in any such case, all are, and each is, defamed as a probable or possible perjurer, or murderer, or criminal, the probability suggested, and the gravity, therefore, of the imputation, being in inverse ratio to the number of persons alternatively charged; but whatever be the number, an imputation of some degree is there, and suspicion to some extent is cast upon every one of them." 25The plaintiff also referred to the following passage from Brown "The Law of Defamation in Canada" 2nd Ed, par 6.10, p 6-109: "The general rule is that a particular member of a group has no cause of action where the defamatory statement is directed to some but not all of the group and there is otherwise nothing to single out the particular member. However, whether a particular person is pointed to may be affected by the number of people in the class to which the words refer ... The late Professor Prosser thought that where the words referred to a small group, each person should be able to sue since the words undoubtedly affect each and every one. However he also suggested that this conclusion may be affected by the numbers involved such as the statement that all but one of 16 are corrupt as against one of the 20 are corrupt ..." 26Reliance was placed on Professor Brown's analysis of the relevant cases including McCormick, and to his conclusion that (note 591): "With respect, the American Cases are to be preferred on the issue of identification. The McCormick decision favours form over substance. The real issue is whether the plaintiff's reputation has been significantly implicated by the defamatory remarks. Any accusation short of absolute certitude leaves it open that someone other than the plaintiff may have committed a crime. This should not necessarily defeat the cause of action. If I say that either A or B committed the crime, I cast equal suspicion on both of them. If I say that either one or the other of a class consisting of A and B committed the crime, the suspicion cast on each of them is no less. Until the ratio reaches a point where the suspicion of guilt is significantly diminished, a jury should be permitted to decide whether the suspicion cast upon the plaintiff by the defamatory remarks was sufficiently great so that the plaintiff and each member of the class was pointed to and their reputation adversely implicated. I have no doubt that a plaintiff who was part of a small class of persons identified as suspected of being the Yorkshire Ripper would suffer a significant decline in cocktail party invitations, no matter how clearly it was pointed out that only one of them could be the guilty party." 27In deciding the extent to which the observations in McCormick are applicable to the issue in this case it is necessary to keep in mind that the imputations for Hunt J's determination were imputations of guilt, and of being a knowing associate of a criminal who was the culprit. An imputation of suspicion was not before him. The imputations of guilt were rejected, and the imputations of knowing association were held capable of arising. In this context, Hunt J rejected Spencer Bower's proposition that each member of the class would be defamed as "either probably or possibly guilty" of the particular discreditable conduct, and held that an allegation that only one of such a class was guilty was incapable of being reasonably understood as an assertion that all of them probably did the act. With respect, I would agree that an imputation of probable guilt or possible guilt (putting aside requirements of form) could not reasonably be understood. 28His Honour appears to accept that it was open to the reader to suspect each of the members of the class of having done the act if the class is sufficiently small (p 491F). With reference to Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 he, correctly, with respect, distinguished an imputation in which the holder of the suspicion is identified, and held that there was nothing in the publication to support such an imputation. 29His Honour's conclusion (p 492B) that "The slur ... or the reflection ... upon the reputation of each member of a class cannot be based upon an assumption by the reader that he was guilty of that conduct himself; it may only be based upon the relationship of that member of the class with the person who was guilty of that conduct" appears not to have taken into account the suggestion that each member could be suspected of doing the act. On one view of the case he did not decide, and left open, the question of an arguable imputation that there are grounds (or reasonable grounds) for suspecting the plaintiff did the act. On another view, although in terms he does not say so, his Honour may be taken to have rejected such an imputation as being only the product of the reader's thinking rather than attributable to the words of the publication (p 491F-G). If the latter view prevailed, I would treat it as obiter and non-binding. Because I would respectfully disagree with it, I would decline to follow it. 30There are many cases which discuss imputations conveyed by an accusation of wrongdoing against only one, or some, but not all of a group, but necessarily all are with regard to the content of the publication, and the facts and circumstances in the particular case. Sometimes they afford helpful, but not determinative guidance for the approach to be taken. Nevertheless, the question remains one of impression in light of the principles applicable to issues of form and capacity. As Lord Devlin said (Lewis p 285): "... One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that." 31What, then, is the act or condition attributed to the plaintiff by the matter complained of which is capable of conveying to the ordinary reasonable reader a meaning defamatory of him? 32For the resolution of this question I find the reasoning of Spencer Bower and Professor Brown is persuasive, and I gratefully adopt it. Although they provide guidance as to the approach to be taken on the issue of capacity, the learned authors stop short of formulating the terms of the libellous imputations conveyed. In my opinion, the allegations that one of the three dismissed employees was the culprit is clearly capable of casting a cloud of suspicion over each of them. By reason of their association as described, all three are branded as suspects. Such an allegation is capable of raising in the mind of the reasonable reader the possibility that the plaintiff was the culprit. It follows, in my opinion, that by reason of the publisher's inclusion of the plaintiff in this group one of whom is the culprit, the matter complained of is capable of leaving the reasonable reader with the impression that there are grounds for suspecting that the plaintiff is the culprit. The fact that the group consists of only three persons provides the basis for the imputation that there are reasonable grounds for the suspicion. Such a meaning is the product of what the matter complained of is saying, and is not an impermissible conclusion reached as a result of the reader's own beliefs and prejudices (Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, p 301). 33Proposed imputations 5(c) and 5(e) allege that the plaintiff "may have been the person who" was the culprit. As formulated, it may be understood as encapsulating the sting of suspicion which arguably arises. However, in my opinion, the objection that each is defective in form should be upheld. This is because the incorporation of the phrase "may have been the person" in each case renders it embarrassingly imprecise, ambiguous, and confusing. Conclusion 34For the above reasons I hold that the objection to imputations of suspicion on the ground of capacity should be rejected, and the objection as to form should be upheld. 35In my opinion, the matter complained of is capable of conveying defamatory imputations formulated as follows: (i) there are reasonable grounds for suspecting that the plaintiff forwarded an email about gaming practices at the Star to a whistleblower, and (ii) there are reasonable grounds for suspecting that the plaintiff possessed pornographic material and forwarded it to another employee. 36I decline leave to amend the statement of claim in accordance with proposed imputations 5(c), 5(e), 7(c), and 7(e), otherwise there should be leave to amend. 37On the issue of costs, my prima facie view is that it is appropriate to order that each party pay his and its costs of this application. Orders 38It is ordered that: (1)Leave is declined to amend the statement of claim to include proposed amended imputations 5(c) and (e) and 7(c) and (e). (2)The imputations pleaded in pars 5(a), (c), (d), (e), (f), and 7(a), (c), (d), (e), and (f) be struck out. (3)The imputations pleaded in pars 5(b) and 7(b) are to be left to the jury. (4)The plaintiff have leave to replead. (5)The proceedings, including any argument as to costs, be stood over to the defamation list 9.30am 5 November 2012. ********** 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. Decision last updated: 19 October 2012