Supreme Court New South Wales Medium Neutral Citation: Cornish v Australian Broadcasting Corporation [2014] NSWSC 1936 Hearing dates: 21 November 2014; 3 December 2014 Date of orders: 02 December 2014 Decision date: 02 December 2014 Jurisdiction: Common Law Before: McCallum J Decision: Leave is granted to file an Amended Statement of Claim in accordance with these rulings; defendant is to pay the plaintiffs' costs of the application Catchwords: DEFAMATION – pleadings – determination of defendant's objections to plaintiffs' imputations Cases Cited: Casella v Fairfax Media Publications Pty Ltd [2011] NSWSC 1256 Category: Procedural and other rulings Parties: Adam Charles Cornish (First Plaintiff) Mark Hilton Hevers (Second Plaintiff) Australian Broadcasting Corporation (Defendant) Representation: Counsel: RK Weavers (Plaintiffs) DR Sibtain SC (Defendant) Solicitors: Campbell Paton & Taylor (Plaintiffs) ABC Legal & Business Affairs (Defendant) File Number(s): 2014/305196 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings for defamation arising out of the broadcast of a story on the Four Corners programme on ABC Television. The proceedings came before me for the first listing (in accordance with Practice Note SC CL 4) on 21 November 2014, when the parties began argument in respect of the imputations relied upon by the plaintiff. The argument was unable to be completed on that occasion due to lack of time and continued today. 2. This judgment determines the defendant's objections to the plaintiffs' imputations. 3. The programme related to the tragic death of two teenagers who were run over while sleeping in a swag at a rural party. The driver of the utility that ran over the two teenagers was Rhys Colefax. The focus of the programme was to recount, in chronological order and in a careful, factual way, various stages of the investigation of Rhys Colefax's involvement in the two deaths with particular emphasis on alleged inadequacies in the police investigation. 4. On the last occasion, Mr Sibtain, who appears for the ABC, submitted that the first imputation relied upon by the plaintiff was "horribly unclear". During the adjournment, Mr Weaver, who appears for the plaintiffs, has determined to abandon that imputation. 5. Imputation (b) is that the plaintiffs, in breach of their duty as police officers, provided favourable treatment to Rhys Colefax when he was in their custody because he was the son of their close colleague and friend, Brett Colefax. 6. The plaintiffs rely upon the whole of the matter complained of, with its focus on the adequacy of the police investigation, but in particular passages dealing with their involvement at lines 338 to 352 as follows: "CARO MELDRUM-HANNA: Senior Constables Adam Cornish and Mark Hevers arrived on the scene. They were told to take the driver to hospital for a blood and urine test. They recognised the name Colefax. Rhys was the son of one of their own. ADAM JOHNSON: Hevers was the officer on duty. Hevers recognised him. Asked him if his father was Brett Colefax. And when he was then, Hevers gave him the phone, said look you better ring your father. CARO MELDRUM-HANNA: Rhys's father Brett Colefax, a senior highway patrol officer at Orange police for three years – a close colleague and friend of Constables Hevers and Cornish – was stationed six hours away, on the NSW mid north coast. ADAM JOHNSON: Well, um, I don't know. The, we were never told what was discussed. MICHAEL SCHWAB: There is always a need for transparency and clarity and what they should have done was demonstrated that transparency and clarity by referring the investigation to somebody who had nothing to do with the police officer whose son was involved in this accident, or the officers who knew that police officer." 1. Mr Sibtain submitted that imputation (b) is not reasonably capable of being conveyed. 2. He submitted that the matter complained of gives no indication as to the applicable duty or how performance of any duty might be benchmarked. He further submitted that, based on the extracts set out above, the viewer is left with no basis for drawing any inference that the provision of a mobile telephone to a minor to make a telephone call to a guardian would constitute a breach of duty as a police officer and that any such inference, if drawn, would be unreasonable. 3. In that context, Mr Sibtain relied upon an extract from the judgment of Nicholas J in Casella v Fairfax Media Publications Pty Ltd [2011] NSWSC 1256 at paragraph [26] as follows: It is arguable that the article as a whole is capable of suggesting that the plaintiff is one of a close Italian family in control of substantial commercial operations, members of which have a criminal background and against whom allegations of criminality have been made. However, in my opinion, the guilt or involvement in criminal activities of the identified family members provides no rational basis for the inference that the plaintiff himself is involved in the criminal organisation, the Mafia. Such a conclusion would be the product of speculation on the part of the reader, and not the product of the article reasonably read. The following passage from the judgment of Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 (p 172) is apt: "But, in the end, the test remains one of reasonableness - whether it is reasonable to hold the publisher responsible for a conclusion which is not reasonably understood to have been expressed or implied by what the publisher has said, but which the ordinary reasonable reader (or listener or viewer) has drawn for himself or herself, perhaps by having taken into account his or her own beliefs which have been excited by what was published. As I understand the law of defamation, that is fundamental to the publisher's responsibility. If the publisher does anything which makes it reasonable for him to be held responsible for something more (such as by an invitation to speculate), then he is made responsible for it." 1. As submitted by Mr Weaver, there is a distinction to be drawn between the circumstances of that case and the present. The matter complained of in Casella conveyed serious imputations of involvement in a criminal organisation, broadly against the Casella family, the real question being whether the plaintiff was properly the object of those very serious imputations. 2. It was in that context that his Honour concluded that any imputation of guilt or involvement in the criminal activities of identified family members other than the plaintiff provided no rational basis for any inference that the plaintiff himself was involved in the criminal organisation. 3. The present matter complained of is different in that it specifically identifies the plaintiffs and the conduct impugned to them. I accept, as submitted by Mr Sibtain, that it does so in a careful, factual way. Nonetheless, the overall tenor of the program is criticism directed at the police investigation at every stage. 4. Further, the particular passage relied upon by Mr Weaver, in my view, juxtaposes what the plaintiffs did in providing a mobile telephone to Mr Rhys Colefax and giving him the opportunity to call his father with what Mr Michael Schwab is quoted as saying "they should have done", which was to demonstrate transparency and clarity by referring the investigation to somebody who had nothing to do with the police officer whose son was involved in the accident. 5. I was initially troubled by the inclusion of the term "favourable treatment". There is some force in Mr Sibtain's submission on this issue that it is not favourable treatment to allow a minor in custody to make a telephone call to a guardian. The difficulty, however, is that the matter complained of itself suggests there was something different in the treatment allowed to Rhys Colefax in the present case. The extract set out above is at least reasonably capable of suggesting that it was only upon recognising Rhys Colefax and confirming that his father was Brett Colefax that the plaintiff Hevers handed Rhys Colefax a phone and suggested he ring his father. Particularly at line 346, the matter complained of says, "inside the police car, using Constable Hevers' Mobile phone, 17-year old Rhys Colefax had a private conversation with his dad". 6. Further, as the extract indicates, the matter complained of described Rhys as the "son of one of their own". Each of those aspects of the content of the matter complained of, in my view, lends it at least the capacity to convey the imputation that allowing Rhys Colefax to use Constable Hevers' mobile phone to make a phone call privately to his father, a police officer, amounted, in the circumstances, to favourable treatment which would not have been afforded to a person who was not the son of a police officer. 7. I should add, however, that it has been made plain by Mr Weaver in argument that the use of the mobile telephone and the opportunity to make the call to his father is the only aspect of any favourable treatment allegedly imputed to the plaintiff. 8. I do not think the imputation is ambiguous in that respect. It plainly refers to that aspect of the conduct and only that aspect of the conduct. The trial will have to be conducted on that basis. I would not be inclined to require the plaintiff to amend the imputation as to do so would result in a clumsy imputation with too many subordinate clauses but, in my view, there is no ambiguity in that respect. 9. Imputation (c) is as follows: The plaintiffs, in breach of their duty as police officers, failed to refer the investigation of Rhys Colefax's involvement in the deaths of two people on 26 January 2010 to independent police officers when they knew Rhys Colefax was the son of Brett Colefax, their close colleague and friend. 1. Mr Sibtain submitted that that imputation is not reasonably capable of being conveyed by the matter complained of. The first basis for that submission repeated the contention in respect of imputation (b), that the matter complained of is silent as to the existence of or standards applicable to police. I reject that submission, for the reasons already given. 2. Secondly, Mr Sibtain submitted that the matter complained of does not reasonably convey any charge against the plaintiffs in respect of a failure to act, pointing rather to Senior Constable Gannon as the officer in charge of the investigation. I accept that Senior Constable Gannon certainly comes in for a large measure of criticism later in the matter complained of. 3. In my view, however, the juxtaposition of what Hevers and Cornish did with what "they should have done" is reasonably capable of imputing to them also the breach of duty captured in the imputation. The suggestion put in submissions that the investigation was out of their hands and very much in the hands of Senior Constable Gannon is, in my view, a jury argument. 4. Imputation (d) is as follows: The plaintiffs, as police officers, were incompetent by failing to refer the investigation of Rhys Colefax's involvement in the deaths of two people on 26 January 2010 to independent police officers when they knew Rhys Colefax was the son of Brett Colefax, their close colleague and friend. 1. For substantially the same reasons as given in respect of imputation (c), I consider that imputation (d) is reasonably capable of being conveyed. In respect of both imputations (c) and (d), Mr Sibtain submitted that the matter complained of, at worst, conveyed a sense of imprudence rather than breach of duty or incompetence. For the reasons already given in respect of imputation (c), I do not accept that submission. I do, however, think that imputations (c) and (d) should properly be relied on as alternatives to each other. Mr Weaver accepted that that is the case. 2. Finally imputation (e) is: The plaintiffs, in breach of their duty as police officers, compromised a police investigation by allowing Rhys Colefax, a person in custody and in their presence, to use the second plaintiff's personal mobile telephone to call his father, another police officer known to the plaintiffs, without subsequently disclosing the contents of that telephone conversation. 1. Mr Sibtain repeated the submission that the matter complained of is silent as to the existence of standards applicable or the relevant breach of duty. For the reasons already given, I do not accept that submission. Separately, he submitted that there is no suggestion that the police investigation was compromised by the plaintiffs' actions in permitting Rhys Colefax to make a phone call to his father. 2. Whilst I accept that the imputation may be barely there, I do think the conduct attributed to the plaintiffs is reasonably capable of being understood by the ordinary, reasonable viewer as having contributed to what is plainly characterised, in the programme as a whole, as a compromised investigation. In particular, that comes from the reference within the matter complained of to the fact that the content of the private conversation between Rhys Colefax and his father, a police officer, was never disclosed. It may be that a jury would ultimately conclude that that fact in itself did not contribute in any way to the compromise of the investigation, but I think that is plainly a jury question. 3. I do, however, think that the concluding phrase of the imputation "without subsequently disclosing the contents of that telephone conversation" is both unnecessary and potentially confusing in distilling the defamatory sting intended to be relied upon. In my view, that clause should be struck out as surplusage. 4. The plaintiffs should have leave to file an Amended Statement of Claim in accordance with these rulings. 5. I order the defendant to pay the plaintiffs' costs of the application. ********** 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: 10 March 2015