Mooney v Nationwide News Pty Ltd [2014] NSWSC 938

Supreme Court New South Wales

Medium Neutral Citation: Mooney v Nationwide News Pty Ltd [2014] NSWSC 938 Hearing dates: 7 July 2014 Decision date: 10 July 2014 Before: McCallum J Decision: Defendant's objections to the form of the pleading rejected; defendant to pay the plaintiff's costs of the argument on 7 July 2014. Catchwords: DEFAMATION - pleadings - defendant's objections to imputations - whether the concept of negligence is different from the concept of incompetence - whether the words "acted negligently" is unclear in meaning - whether imputations differ in substance - whether the matter conveys that the plaintiff had a 'duty of care' -objection on the grounds of capacity Cases Cited: Brigg v Reid & Anor [2002] NSWSC 80 Field v Nationwide News Pty Ltd [2009] NSWSC 1285 Haertsch v Andrews & Anor [1999] NSWSC 359 Matheson v Kennedy & Anor (Hunt J, Supreme Court of New South Wales 3 November 1989) Tyndall Funds Management & Anor v Bhagat [1999] NSWSC 68 Warren & Anor v Tweed Shire Court [2002] NSWSC 1105 Category: Interlocutory applications Parties: Darren John Mooney (plaintiff) Nationwide News Pty Ltd (defendant) Representation: Counsel: M Richardson (plaintiff) L Barnett (defendant) Solicitors: Sparke Helmore Lawyers (plaintiff) Ashurst Australia Lawyers (defendant) File Number(s): 2014/71305 Publication restriction: None

Judgment 1HER HONOUR: These are proceedings for defamation arising out of the publication of two articles, one in The Sunday Telegraph and one in The Daily Telegraph. The defendant has taken a series of objections to the imputations pleaded by the plaintiff. This judgment determines those objections. 2Some of the objections are based on the form of the imputations. As to those objections, the application is to be dealt with on the basis that the Court has power to strike out any imputation liable to cause confusion in the proceedings. As to the objections based on capacity, the parties were agreed that the Court should determine as a separate question under the rules whether the matter complained of was reasonably capable of conveying the relevant imputation. The parties engaged in discussions between themselves as to a number of the objections and as a result significantly reduced the scope of matters for argument, for which I am grateful. 3Broadly speaking, the articles deal with the alleged involvement of the plaintiff, Mr Darren Mooney, in the broadly publicised events of the alleged administration of performance enhancing substances to football players at Cronulla Sutherland Rugby League Football Club. Mr Mooney was formerly in the role described as Football Manager at the club. 4The gist of the articles is the suggestion that Mr Mooney was aware of the administration of the substances to players by a "sports scientist", Mr Stephen Dank, but failed to bring that fact or those matters to the attention of the board. 5The first imputation objected to is imputation 6(b) which is that the plaintiff, whilst working in a highly paid management position for the Cronulla Sharks, acted negligently by failing to report to the board of the Cronulla Sharks the injecting of players with equine substances not suitable for human use. 6The defendant submits that this imputation is embarrassing in the legal sense in that it is unclear what is meant by the use of the phrase "acted negligently". Ms Barnett, who appeared for the newspaper, submitted that the phrase could invoke its legal meaning or some other unspecified sense and was apt to cause confusion in the proceedings. 7One of the propositions put in support of that argument was that the term "acted negligently" might mean nothing different from the proposition that the article suggests the plaintiff acted incompetently. In that event, so it was submitted, imputation 6(b) would not differ from one of the other imputations, namely, imputation (h), which alleges that the article conveyed the meaning that the plaintiff acted with gross incompetence in his role as football manager. 8In resisting that proposition, Mr Richardson, who appears for Mr Mooney, drew my attention to a series of authorities which hold, consistently, that the concept of negligence is different from the concept of incompetence: see Matheson v Kennedy (Supreme Court of New South Wales, Hunt J, 3 November 1989, unreported) at page 3; Haertsch v Andrews [1999] NSWSC 359 at [5] per Levine J (applying Matheson); Brigg v Reid [2002] NSWSC 80 at [16] to [17] per Levine J; Warren v Tweed Shire Council [2002] NSWSC 1105 at [18] per Simpson J. 9I would respectfully agree with the views expressed in those authorities. As submitted by Mr Richardson, the notion of incompetence entails an inability to perform a required duty or function whereas the notion of negligence conveys the idea of a person who, although able to perform a function or duty competently, neglects to do so. They are, in my respectful opinion, discrete concepts. 10It is necessary then to consider whether the term "acted negligently" is otherwise apt to confuse or unclear in meaning. I do not accept that it is. In my view, it is a term which the ordinary reasonable reader can readily understand. Accordingly, I would reject the objection that the imputation is bad in form. 11Separately it was submitted that the imputation is not reasonably capable of arising from the first matter complained of. The article was published on the front page of The Sunday Telegraph with the newspaper's familiar two-inch headline "Players Given Horse Drugs". Above that heading is the subheading "Sharks Boss Reveals Why He Sacked Staff". 12The content of the article which follows is presented in the form of a question and answer between the journalist, Mr Phil Rothfield, and the person described as "Sharks Boss", Damian Irvine. The interview is presented in the form of a confronting questioning process in which Mr Rothfield asserts that the difficulties being encountered by the Sharks in the fall-out relating to the allegation of injection with horse drugs was the fault of Mr Irvine. Perhaps unsurprisingly, the content of the article moves to Mr Irvine deflecting any such responsibility and in effect asserting that people who had an obligation to report to him matters of importance had failed to do so. 13Specifically, as submitted on behalf of Mr Mooney, the article makes reference to "guys" who have been "sacked", a matter plainly capable of referring to Mr Mooney as one of the relevant people. As submitted by Mr Richardson, the passages of the article to which he referred me convey suggestions that Mr Mooney made "poor decisions" and that he "should know better" than to have failed to report the matters in question. 14In my view, those passages are plainly capable of conveying to the ordinary reasonable reader the meaning that the plaintiff acted negligently in his role of football manager of the club. 15The remaining objections relate to the second matter complained of. That was an article published in the Daily Telegraph on Friday 5 July 2013 under the heading "The Mooney Minutes". The subheading for the article asserts "Explosive Document Sheds More Light on 2011 Events". The article includes a large photocopy of a handwritten document under the handwritten heading "Mooney Minutes" with the editor's stamp imprinted on that document, "Revealed". 16The first objection to the imputations relied on upon by Mr Mooney as arising from that article is to imputations (c) and (g) which it is asserted are liable to a forced election on the part of the plaintiff on the grounds that they do not differ in substance. 17Imputation (c) is that the plaintiff, as football manager of the Cronulla Sharks, acted with gross incompetence by failing to stop the administering of injections to players after 7 April 2011, by which time he knew the club doctor had demanded this end. 18Imputation (g) is that the plaintiff, as football manager of the Cronulla Sharks, acted with gross incompetence by failing to stop the provision of tablets to players by Steven Dank for a seven week period after 7 April 2011, by which time he knew that the club doctor had required that no more tablets be handed out. 19The principal difference between the two imputations is that one alleges incompetence by failing to stop the administering of injections, while the other refers to incompetence by failing to stop the provision of tablets. Ms Barnett submitted in the circumstances that the sting of the imputations is the same, namely the incompetent failure to prevent players from being provided with supplements. 20In my view, however, the difference between failing to prevent the provision of tablets and failing to prevent the administration of an injection could be important in this case. I note that the Mooney minutes referred to in the article treat those items separately. They purport to record "DG wishlist", evidently a reference to the desires expressed in the meeting by Dr Givney, the doctor who, according to the article, expressed his unhappiness about the administration of the relevant substances to players. 21The minutes record as separate items that Dr Givney was "not happy with injections" with the annotation "SD" (presumably a reference to Mr Dank) "happy to stop this". Separately as item 5, the minutes record, "No tablets to be given by SD"; again, presumably a reference to Mr Dank. 22The separate treatment of the items of injections and tablets in the minutes suggests that there could be important separate medical considerations in respect of each of those forms of supplement. 23To test the proposition whether the imputations differ in substance, the Court is often reminded of the importance of considering what it would be required to prove in order to establish the truth of either imputation. It could well be, having regard to the apparent separate consideration by Dr Givney of the different forms of supplement, to consider separate evidence as to whether Mr Mooney knew at any relevant time that Dr Givney had, on the one hand, demanded Mr Dank not administer any further injections and, on the other hand, whether he knew that Dr Givney had required that Mr Dank provide no more tablets to players. 24In my view, the imputations do differ in substance and each should be allowed to stand on the pleading. 25The final objection is to imputation 8(e) which is that the plaintiff, as football manager of the Cronulla Sharks, failed in his duty to players by knowingly permitting them to be supplied with drugs after he knew the club doctor had demanded this stop occurring. 26The first objection to the imputation is that it is bad in form. Ms Barnett submitted that the imputation is apt to confuse in that it is not clear what duty the plaintiff is said to have owed to players or to have breached. 27The language of the matter complained of includes the term "duty of care". The full relevant passage at paragraph 11 is: Dank has repeatedly denied any wrongdoing. At some point, are the Cronulla sharks ever going to concede they failed in their duty of care to their playing roster? Some of the young men involved were too naive to know better than to follow club orders. 28The following paragraph goes on to talk about corporate governance, plainly a separate issue. 29The earlier discussion rhetorically posing the question as to whether there was a breach of duty of care deals with a different topic, which is the medical issue. The paragraph opens with the allegation that players were told by ex-trainer Elkin "not to tell the doctor". The next sentence asserts that Mr Mooney's notes state there were to be no more tablets handed out. 30Mr Richardson submitted that the answer to the question, what kind of duty is referred to, is contained within the imputation itself. The imputation asserts that the failure in duty was in knowingly permitting them to be supplied with drugs after he knew the club doctor had demanded this stop occurring. 31In my view, there is nothing confusing about the term used in the imputation when the imputation is read as a whole and in the context of the content of the matter complained of. I accept Mr Richardson's submission on this issue that the imputation contains the answer within itself. Accordingly, the objection on that basis must be rejected. 32Finally, it was submitted on behalf of the newspaper that the imputation is not reasonably capable of arising from the second matter complained of. In particular, Ms Barnett submitted that the article is not reasonably capable of conveying the meaning that the plaintiff owed any particular duty to the players, asserting only that the club "failed in their duty of care to their playing roster". It was submitted that the article says nothing of any duty owed by the plaintiff personally, and particularly not in relation to a duty to the players. 33It must always be remembered in considering an objection of that kind that it is not appropriate for the Court to supplant the role of the jury as the primary finder of fact. The question at this stage of the proceedings is whether the imputation is reasonably capable of being conveyed. If reasonable minds might differ on that issue, the imputation should go to a jury. 34In the present case, the article focuses very much on Mr Mooney and his role. The article describes him as "sacked football manager Darren Mooney". The headline names him and the focus of the article is on the content of his minutes. It is in that context that the rhetorical question whether the Sharks are ever going to concede that they failed in their duty of care is posed. 35In my view, the matter complained of is plainly capable of conveying the meaning that the plaintiff was one of those who owed such a duty. 36Separately it was submitted that the article is not reasonably capable of conveying the meaning that the plaintiff knowingly permitted the players to be supplied with drugs after he knew Dr Givney had demanded that this stop occurring. 37Ms Barnett drew my attention to the passage of the matter complained of which says that Mr Mooney received an email from Dr Givney 24 hours before the meeting "sounding the alarm about the regimen of injections at the club" at the time that the plaintiff was present at a meeting with Dr Givney, Mr Dank and others. 38It was further brought to my attention that, according to the minutes, Mr Dank agreed at that meeting to stop the injections and it was contended that the article does not allege that Mr Mooney had any knowledge of the players being supplied with drugs after that meeting. 39I do not accept those submissions. The parts of the article to which I have referred reveal that the whole tenor of the article was that it revealed, much in the nature of a piece of investigative journalism, some explosive matter identified in the Mooney minutes. The rhetorical questions posed as to when the Sharks would ever accept responsibility for those events plainly, in my view, is capable of conveying a sense that Mr Mooney had something to answer for following what was recorded in the minutes; the plain insinuation being that events recorded in those minutes had not occurred as anticipated at that time. For those reasons, the objection on the grounds of capacity must also be rejected, in my view. 40It follows that each of the newspaper's objections to the form of the pleading is rejected. COUNSEL ADDRESSED ON COSTS 41I order the plaintiff to pay the defendant's costs thrown away by reason of his filing the amended statement of claim. 42I order the defendant to pay the plaintiff's costs of the argument this week.