Supreme Court New South Wales Medium Neutral Citation: Toben v Mathieson Toben v Nationwide News Pty Limited [2013] NSWSC 1530 Hearing dates: 10 October 2013 Decision date: 18 October 2013 Before: McCallum J Decision: Leave to amend the statement of claim in the terms of paragraphs 2D and 2E of the proposed amended pleading refused Imputations (a) and (b) struck out Catchwords: COMPETITION LAW - comments made by a politician to a journalist - whether capable of amounting to conduct in trade or commerce - whether plaintiff should have leave to amend to plead a cause of action under the Australian Consumer Law (NSW) DEFAMATION - imputations - objections as to form - rhetorical Legislation Cited: Australian Consumer Law (NSW), s 18 Competition and Consumer Act 2010 (Cth) Defamation Act 2005 Fair Trading Act, s 28 Uniform Civil Procedure Rules 2005, r 19.1 Cases Cited: Concrete Constructions v Nelson [1990] HCA 17; (1991) 169 CLR 594 Dank v Whittaker (No 1) [2013] NSWSC 1062 Dank v Whittaker (No 2) [2013] NSWSC 1064 Davis v Nationwide News Pty Limited [2008] NSWSC 693 Drummoyne v ABC (1990) 21 NSWLR 135 TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9; (2008) 71 NSWLR 323 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] Hanson-Young v Bauer Media Limited [2013] NSWSC 1306 Harvey v John Fairfax [2005] NSWCA 255 HCA 69; (1964) 112 CLR 125 Unilan Holdings Pty Ltd v Kerin [1992] FCA 179; (1992) 35 FCR 272 Unilan Holdings Pty Ltd v Kerin [1993] FCA 420; (1993) 44 FCR 481 Category: Interlocutory applications Parties: Proceedings 2013/200128: Dr Fredrick Toben (plaintiff) Clive Mathieson (first defendant) Christian Kerr (second defendant) Senator Christine Milne (third defendant) Proceedings 2013/200157 Dr Fredrick Toben (plaintiff) Nationwide News Pty Limited (defendant) Representation: Counsel: CA Evatt with R Rasmussen (plaintiff) J Hmelnitsky SC (first and second defendants) R Potter (third defendant) Solicitors: File Number(s): 2013/200128 2013/200157 Publication restriction: None Judgment 1HER HONOUR: These are proceedings for defamation brought by Dr Fredrick Toben arising out of the publication of an article in the national newspaper, The Australian. 2Two sets of proceedings have been commenced in respect of the article. The article was published in almost identical terms in the printed version of the newspaper and in its online edition. In proceedings 200157 of 2013, Dr Toben sues Nationwide News Pty Limited, the proprietor of the website on which the newspaper is published. In proceedings 200128 of 2013, Dr Toben sues Mr Clive Mathieson (the editor of the newspaper), Mr Christian Kerr (the journalist under whose by-line the articles were published) and Senator Christine Milne, the leader of the Australian Greens Party, to whom several direct quotes are attributed in the article. The imputations relied upon by the plaintiff in each set of proceedings are identical. 3The explanation for the duplication of proceedings appears to be the existence of a statutory cap on the amount of damages for non-economic loss that may be awarded in defamation proceedings: see s 35(1) of the Defamation Act 2005. That provision has been interpreted as imposing a single cap in any single set of proceedings even where there is more than one matter complained of in those proceedings: Davis v Nationwide News Pty Limited [2008] NSWSC 693 per McClellan CJ at CL at [8] to [9]. The appropriateness of commencing multiple proceedings where virtually identical matter is published in different versions of the same newspaper remains to be tested in this list: see Dank v Whittaker (No 2) [2013] NSWSC 1064 at [4]. 4Whilst the two sets of proceedings are travelling together, the present application concerns only the proceedings in which Senator Milne is a defendant (proceedings 200128 of 2013). In those proceedings, Senator Milne filed a notice of motion on 22 August 2013 moving the court for an order that the proceedings as against her be stayed or the statement of claim struck out. At that stage, the action against Senator Milne was based on the contention that she was jointly liable as a publisher of the whole of the article. The basis for the application to have the statement of claim struck out was the principle stated in my decision in Dank v Whittaker (No 1) [2013] NSWSC 1062. In that case I held that, where a person contributes to an article but is not alleged to have had any control over the publishing process, that person is not liable as a publisher of the whole of the article unless he or she has assented in some way to its final form (at [26]). 5The plaintiff responded to the notice of motion by serving a proposed amended statement of claim. The amended pleading cures the defect in the manner in which the element of publication is pleaded in that Senator Milne is now sued only for publication of the words attributed to her in the article and the republication of those words by the newspaper. She is no longer sued on the article as a whole. 6Separately, however, the proposed amended statement of claim seeks to add a cause of action against Senator Milne alleging that she engaged in misleading or deceptive conduct contrary to s 18(1) of the Australian Consumer Law. Dr Toben requires leave to amend the statement of claim at this stage of the proceedings, the original statement of claim having been filed on 1 July 2013, more than 28 days ago: see r 19.1 of the Uniform Civil Procedure Rules 2005. Accordingly, the issue ultimately brought forward by Senator Milne's notice of motion was whether the plaintiff should have leave to file the proposed amended statement of claim. This judgment determines that issue. 7Mr Potter accepted that he faced a high bar in contending that leave to include the new cause of action should be refused. The test is whether the claim is so obviously untenable that it cannot possibly succeed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-30 per Barwick CJ. The Chief Justice noted in that case (at 130) that "great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal." 8Dr Toben's proposed claim for misleading or deceptive conduct is pleaded in the following terms: 2D Further and in addition on or about 20 June 2013 the third defendant in trade or commerce (to wit in her profession as a politician) engaged in conduct which was misleading or deceptive or which was likely to mislead or deceive contrary to the provisions of Section 18(1) of Schedule 2 of the Australian Competition and Consumer Legislation. Particulars (A) The third defendant represented to the second defendant and/or other journalists of and concerning the plaintiff: (a) The plaintiff engaged in the fabrication of history. (b) The Plaintiff spread and engaged in anti-Semitism. (c) The plaintiff's conduct in denying the holocaust is abhorrent and should be condemned universally. (d) The plaintiff is a holocaust denier. (e) Holocaust denials have no place in Australian Society. (f) The plaintiff is an anti-Semite. (B) When the third defendant made the representations above referred to she knew they would be or would likely to be republished in "The Australian" and subsequently the said representations were republished in an article in "The Australian" of 21 June 2013. (C) The said representations were misleading and deceptive or capable of being misleading or deceptive because: (a) The plaintiff did not engage in fabrication of history. (b) The plaintiff did not spread and engage in anti-Semitism. (c) The plaintiff is not an anti-Semite. (d) The Plaintiff is not a holocaust denier. 2E Further and in addition the third defendant in trade or commerce (to wit in her profession as a politician) engaged in conduct that was unconscionable within the meaning of the unwritten law from time to time pursuant to Section 20(1) of Schedule 2 of the Australian Competition and Consumer Legislation. Particulars See particulars for paragraph 2D above. 9A request by Senator Milne for particulars of the facts, matters and circumstances relied upon to support the contentions that her conduct was in trade or commerce and was unconscionable was met with the assertion that the representations were made by the Senator "in the course of her business and/or profession as a politician" and "in the course of the plaintiff's business and/or profession as an historian and researcher". 10During the course of argument, Mr Evatt sought to add, by way of further particulars, that the plaintiff publishes books and articles and gives lectures, particularly relating to the holocaust (at T16.35). The additional particulars were reduced to writing during in the lunch adjournment (MFI1). 11The legislation referred to in the pleading is the Australian Consumer Law, which is contained in schedule 2 to the Competition and Consumer Act 2010 (Cth). It applies as a law of this State by virtue of s 28 of the Fair Trading Act 1987, where it is specified that it may be referred to as the Australian Consumer Law (NSW). 12Section 18(1) of the Australian Consumer Law (NSW) provides: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. 13The term "trade of commerce" is defined in s 2 of the Australian Consumer Law (NSW) as follows: "Trade or commerce" means: (a) trade or commerce within Australia; or (b) trade or commerce between Australia and places outside Australia; and includes any business or professional activity (whether or not carried on for profit). 14That definition follows the form of the definition in s 4 of the Fair Trading Act itself, which provides: "Trade or commerce" includes any business or professional activity 15The inclusion of business or professional activity in the definition of trade or commerce in the State legislation did not appear in the Commonwealth legislation in force prior to the introduction of Australian Consumer Law (ss 4 and 52 of the Trade Practices Act 1974). It was nonetheless held in respect of that earlier legislation that, because the provisions of the Fair Trading Act so closely mirrored those of the Trade Practices Act, s 42 of the Trade Practices Act was to be given a similar interpretation, subject to any contrary legislative intention: see Plimer v Roberts [1997] FCA 1361; (1997) 150 ALR 235 at 237 per Davies J; and see 241 per Branson J. In my view, the position is plainly the same in respect of the Australian Consumer Law (NSW). 16Mr Potter submitted that, in accordance with long-standing authority, the Court would be satisfied that the representations allegedly made by Senator Milne to a journalist in the present case are not capable of amounting to conduct in trade or commerce. 17Mr Potter relied upon the well-known passage in decision of the High Court in Concrete Constructions v Nelson [1990] HCA 17; (1991) 169 CLR 594 at 602 to 603: The phrase "in trade or commerce" in s.52 has a restrictive operation. It qualifies the prohibition against engaging in conduct of the specified kind. As a matter of language, a prohibition against engaging in conduct "in trade or commerce" can be construed as encompassing conduct in the course of the myriad of activities which are not, of their nature, of a trading or commercial character but which are undertaken in the course of, or as incidental to, the carrying on of an overall trading or commercial business. If the words "in trade or commerce" in s.52 are construed in that sense, the provisions of the section would extend, for example, to a case where the misleading or deceptive conduct was a failure by a driver to give the correct handsignal when driving a truck in the course of a corporation's haulage business. It would also extend to a case, such as the present, where the alleged misleading or deceptive conduct consisted of the giving of inaccurate information by one employee to another in the course of carrying on the building activities of a commercial builder. Alternatively, the reference to conduct "in trade or commerce" in s.52 can be construed as referring only to conduct which is itself an aspect or element of activities or transactions which, of their nature, bear a trading or commercial character. So construed, to borrow and adapt words used by Dixon J. in a different context in Bank of N.S.W. v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at p 381, the words "in trade or commerce" refer to "the central conception" of trade or commerce and not to the "immense field of activities" in which corporations may engage in the course of, or for the purposes of, carrying on some overall trading or commercial business. 18The Court adopted the narrower interpretation. 19The requirement that the conduct be within the "central conception" of trade or commerce has stood since that decision. The conduct in question must, of its nature, bear a trading or commercial character: Concrete Constructions at 604.3. 20The application of that principle in the context of statements made by a politician was considered in the decision in Unilan Holdings Pty Ltd v Kerin [1992] FCA 179; (1992) 35 FCR 272. The impugned conduct in that case was a speech given by the Minister for Primary Industries and Energy to the annual conference of the International Wool Textile Organisation, the international body governing the wool trade in what was then Yugoslavia. The decision records that the conference was allegedly attended by "representatives of bodies involved in the international wool trade including growers, exporters, spinners, weavers, topmakers, brokers, buyers' agents and representatives of the Australian Wool Corporation". Mr Kerin had requested that he be invited to attend and address the conference. 21The applicant alleged that the speech was conduct in trade or commerce and contravened s 52 of the Trade Practices Act. Hill J struck out that claim. His Honour said: It is obvious that a statutory body could engage in trade or commerce. The treasury might mint coins to be marketed for collection; its sale of those coins would be conduct in trade or commerce. If the Treasurer, acting on behalf of his department, were to make a misleading statement in the course of promoting the sale of the coins, he could be representing the Treasury in its dealing with potential consumers. But such a case is remote from the present. The conduct complained of here is a speech of the Minister dealing with governmental policy which impinges directly upon the international trade in wool. It is not conduct which itself has a trading or commercial character, as the exhibiting of the film in Glorie clearly was. 22An application for leave to appeal against that decision was refused, the Full Court later reflecting that the claim "could not be described as colourable": [1993] FCA 420; (1993) 44 FCR 481 at [2] and [4]. 23The decision in Unilan is compelling authority for the contention that political remarks such as those attributed to Senator Milne cannot amount to conduct in trade or commerce on the basis that the remarks were made in the course of the Senator's profession as a politician. Mr Evatt submitted, however, that the Senator's remarks were capable of amounting to conduct in the course of Dr Toben's business or profession as a historian. 24In my view, that submission reflects a misconception as to the principles stated in Concrete Constructions. The Senator's remarks were not undertaken in any business, trade or profession. In my view, they are not capable of bearing the character of a business or professional activity in the sense considered in the authorities. 25Mr Evatt submitted that Dr Toben's claim was capable of falling within the principles stated by the Court of Appeal in TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9; (2008) 71 NSWLR 323. That was an unusual case. I do not think it supports the plaintiff's claim in the present case. Two journalists posed as potential customers of the respondent. Having expressed some doubt as to the correctness of the contention that their conduct was in the trade or commerce of Channel Nine (in producing a film for profit), Spigelman CJ said (at [47] to [49]): 47 The present matter is, in any event, determined by the fact that, even if the steps taken to procure the involuntary interview with Mr Cox were not "in trade or commerce" of TCN Nine, the very misrepresentation meant that the conduct did occur "in trade or commerce" of the respondents. I refer to the misrepresentation that the TCN Nine employees were there in order to inquire about procuring services from the respondents for the building of a house. 48 The High Court has determined that a representation can be made in trade or commerce even though it is not in the trade of the person making the representation, so long as it is in the trade of the person to whom the representation is made. (See Houghton v Arms [2006] HCA 59; (2006) 225 CLR 553 at [34]-[35].) That is the case here. 49 The communications, directed as they purported to be for the sole purpose of acquiring the services of the respondents as builders, bore the requisite trading or commercial character. (See Concrete Constructions and Village Building Co Ltd v Canberra International Airport Pty Ltd [2004] FCAFC 240; (2004) 139 FCR 330 esp at [52] and at [44] approving Dowsett J in Hearn v O'Rourke at [28].) 26No such argument is available in the present case. I am satisfied that the conduct complained of in the present case is incapable of amounting to conduct in trade or commerce and, accordingly, that the proposed claim under the Australian Consumer Law (NSW) is so obviously untenable that it cannot possibly succeed. Leave to amend the pleading to include that claim must be refused. 27Senator Milne also objects to two of the imputations relied upon by the plaintiff. Imputation (a) is that the plaintiff fabricated history. The objection was to the form of that imputation, which it was submitted is vague and imprecise. Mr Potter relied upon the well-known principle stated in Drummoyne v ABC (1990) 21 NSWLR 135 at 137E per Gleeson CJ where his Honour said: If a defendant has posted in a public area 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. 28Mr Potter submitted that the nature and content of the article sued on in the present case permits greater specificity than is captured in imputation (a). He submitted that the real sting of the article is the allegation of denying that the holocaust happened. Understanding the imputation in its context, he submitted that imputation (a) does not differ in substance from imputation (c), which is that the plaintiff is a holocaust denier. 29Mr Potter further submitted that the allegation of "fabricating history" fails to distil any clear defamatory act or condition attributed to the plaintiff by the matter complained of. He submitted that the imputation constitutes a rhetorical conclusion which might be drawn from the act of denying that the holocaust happened but which is not in itself an act or condition attributed to the plaintiff. 30Mr Evatt, who appears with Mr Rasmussen for Dr Tobin, submitted that the charge of fabricating history, levelled as it is against a historian, does convey a different sting. It amounts to an allegation of that the plaintiff invented, faked or constructed history. 31I accept Mr Potter's submissions on that issue. In my view, the only sense in which the article is capable of conveying any such meaning is in the sense that the plaintiff's denial of the holocaust amounted to a fabrication of history. Imputation (a) must be struck out. 32Imputation (b) is that the plaintiff's conduct in denying the holocaust is abhorrent and should be condemned universally. The objection to that imputation was also an objection as to form. Specifically, Mr Potter submitted that the imputation is bad in form as being rhetorical. He noted that the imputation of being a holocaust denier is pleaded separately (in imputation (c)). He submitted that the additional words that the conduct is abhorrent and should be condemned universally do not add anything to differentiate it in substance from that imputation. Mr Potter further submitted that the description of the conduct as "abhorrent" does not adequately distil the act or condition attributed to the plaintiff. The requirement to do so is beyond dispute: see Harvey v John Fairfax [2005] NSWCA 255 per Hunt AJA. 33I recently had occasion to consider the vice of rhetorical imputations in Hanson-Young v Bauer Media Limited [2013] NSWSC 1306. I that case, I expressed the view that an imputation which merely states how the reader should react to a person without identifying any act or condition allegedly attributed to him or her should not stand. For the reasons considered in that decision and in the submissions of Mr Potter, and noting that the imputation of being a holocaust denier is not the subject of any objection, I am of the view that imputation (b) should be struck out as being bad in form. 34The orders are: (1)That leave to amend the statement of claim in the form proposed in paragraphs 2D and 2E of the proposed amended statement of claim be refused. (2)That imputations (a) and (b) in the existing statement of claim be struck out. 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: 24 October 2013