Brian Stanley Fisher v Channel Seven Sydney Pty Ltd [2014] NSWSC 1343

Supreme Court New South Wales

Medium Neutral Citation: Brian Stanley Fisher v Channel Seven Sydney Pty Ltd [2014] NSWSC 1343 Hearing dates: 15 September 2014 Decision date: 15 September 2014 Before: Rothman J Decision: 1. Plaintiff's application to strike out defence dismissed. Catchwords: DEFAMATION - procedural application to strike out paragraph of defence dealing with contextual truth - hypothetical imputation - use of the term "fit and proper" appropriate in the circumstances - lateness of objection - case management and issues of delay Legislation Cited: Civil Procedure Act 2005 Cases Cited: Ainsworth v Burden [2000] NSWSC 105 Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 Category: Interlocutory applications Parties: Brian Stanley Fisher (Plaintiff) Channel Seven Sydney Pty Ltd (First Defendant) Representation: Counsel: C.A Evatt with R. Rasmussen & M. Fozzard (Plaintiff) M. Richardson (First and Second Defendants) Solicitors: Michael Kreveld Legal (Plaintiff) Addisons Lawyers (First and Second Defendants) File Number(s): 2011/408095 Publication restriction: None

EX TEMPORE Judgment 1HIS HONOUR: The Court is hearing defamation proceedings. This is the first day of a jury trial. The plaintiff takes issue with a pleading in the defence that alleges contextual truth. The pleading, relevantly, alleges an imputation that is said to be substantially true and by which imputation the sting of the other imputations is overcome, in the following terms: "The plaintiff's conduct as a bus driver is so poor that he is not a fit and proper person to be allowed to drive a bus carrying school children." 2There are, it seems, a number of aspects to the application of the plaintiff. The first and second (I will deal with them together) is that the imputation, the contextual truth of which is relied upon by the defendant, is said to be, on the one hand, hypothetical, and, on the other hand, not to arise from the publication that has been impugned in the proceedings. 3Exhibit 1 on the voir dire is a transcript of the publication, which was a television publication, that is agreed by the parties as an accurate or relatively accurate transcript of the publication. During the course of it, the publication presents an imputation or allegation that the plaintiff is a person who has been behaving in a manner in relation to which some persons have compiled, or sought to compile evidence "in a bid to get the driver taken off the buses". 4There is also an imputation deriving from the report that the NSW Transport Department had acted to suspend the plaintiff's licence while it investigates the complaints. I am not sure that the latter goes quite far enough to suggest that the person is not a fit and proper person to drive a bus, given that it is expressly a suspension only during the course of an investigation of complaints. 5Nevertheless, the imputation or allegation that the evidence that has been compiled about Mr Fisher, who is a bus driver, and which evidence was, either in whole or in part, reported in the course of the publication, was done "in a bid to get the driver taken off the buses" is and must be an allegation that the plaintiff is not a person who is suitable to drive buses, or at least buses with school children. Further, the implication from the entire article is to that effect. 6The question then arises, as put by counsel for the plaintiff, that the use of the term in the contextual imputation "fit and proper" renders the imputation or pleading not one which the Court ought accept. The plaintiff relies upon the judgment of Hunt J in Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260, and in particular the passage at 272, in relation to the question of the rhetorical imputation, but also in relation to the use of the term "improper". In Morris, the term "improper" was used to describe or impugn conduct. It lacked specificity and was ambiguous. 7Simpson J in Ainsworth v Burden [2000] NSWSC 105, had occasion to deal with the issue of the term "fit and proper" and in particular its use, given the judgment of Hunt J in Morris, to which I have referred and on which the plaintiff relies. Her Honour said at [12]: "[12] The imputation here pleaded is distinguishable from that in Morris to which his Honour was referring. The charge is not one of improper conduct, subject to the variations of degree upon which his Honour reflected in that case. It is a charge of lack of suitability to engage in certain particular activities that require established probity. The imputations might equally have been framed in other terms, for example in terms of lack of suitability, but the fact that an imputation may be framed in a different way does not mean that that formulation should be substituted for the plaintiff's selected formulation of the imputations alleged to have been conveyed. Generally speaking it is for a plaintiff to identify the imputations which he or she alleges are conveyed, subject only to remedying any unfairness to the defendant that accrues by reason of that identification. I do not consider the present imputations to be either rhetorical or imprecise. The phrase "fit and proper person" is one commonly heard in ordinary language, and readily understood by the ordinary reader or listener when placed in context. Alone, it is meaningless; it derives its meaning when related to an object - fit and proper person for what? Once related to an object its meaning is clear and its truth becomes a matter for assessment. A defendant who seeks to justify takes on a task the magnitude of which is determined by the role for which it is said that the plaintiff is not a fit and proper person." 8There may be slightly different issues when one is considering contextual truth as distinct from imputations alleged by a plaintiff in proceedings. However, that which has been stated by Simpson J is as good a guide as any to the approach one should take to the issues before us. 9When dealing with the question of fairness, to which her Honour refers, an interesting and obvious proposition is the time and circumstance in which the issue has been raised. Not taking into account that latter matter, to which I will come shortly, I do not consider that an allegation that the plaintiff is not a "fit and proper person to be allowed to drive" is either rhetorical or imprecise, and I consider it ought be allowed as an allegation on which the defendant relies for contextual truth. 10Even if I were wrong in relation to the foregoing, I take the view, given, particularly, the provisions of ss 56, 57 and 58 of the Civil Procedure Act 2005, that the delay that would be occasioned in a jury trial by raising at the eleventh hour, and eleventh hour may be an understatement, a matter that has been before the plaintiff since 2012, is one that the Court ought properly take into account. 11It is the Court's function, as it is the function of legal practitioners and parties, to facilitate the just, quick and cheap resolution of the real issues between the parties. The real issues are those that are defined by the pleadings. Those pleadings have been finalised, for all intents and purposes, since 2012. There has been a defamation list on a weekly basis in the last little while, and before that for one week every month. There has been abundant opportunity for the plaintiff to raise the objection it now takes. 12Procedural fairness requires the Court to give to each of the parties a proper opportunity to prepare and to present its case. The parties have had a proper opportunity to define the issues between them. 13Not to allow the plaintiff the opportunity to strike out a pleading, in circumstances where it would be necessary to give the defendant further time and occasion further delay in the finalisation of the matter, is not in any sense a denial or impediment to the principles of procedural fairness. As I said earlier, even if I were wrong on the question, which is the substance of the objection taken to the defendant's pleading, I would deny the plaintiff the capacity to raise it at this late stage. 14The application to strike out the pleading is dismissed.