Supreme Court New South Wales Medium Neutral Citation: French v Fraser [2014] NSWSC 1937 Hearing dates: 5 December 2014 Date of orders: 05 December 2014 Decision date: 05 December 2014 Jurisdiction: Common Law Before: McCallum J Decision: Imputations 4(a) and (c) struck out; defendant's objections to pleadings otherwise rejected Catchwords: DEFAMATION – pleadings – determination of defendant's objections to plaintiff's pleadings Cases Cited: Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Category: Procedural and other rulings Parties: Brendan French (Plaintiff) Michael Fraser (Defendant) Representation: Counsel: M Richardson (Plaintiff) L Barnett (Defendant) Solicitors: Clayton Utz (Plaintiff) Levitt Robinson Solicitors (Defendant) File Number(s): 2014/181578 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings for defamation arising out of three publications made available on a website known as "The Arbitrator". 2. The current form of the plaintiff's pleading is an Amended Statement of Claim, filed on 3 December 2014. The defendant has taken a number of objections to the form of that pleading. This judgment determines those objections. 3. The first matter complained of appeared under the headline, "French Under Fire!" with a sub-heading above the main heading, "Brendan French is seriously under fire from victims, co-workers and whistleblowers." The body of the article addresses the conduct of Mr French who it appears, from the context, is a person who works for the Commonwealth Bank of Australia. 4. The first imputation objected to is imputation 4(a): "That the plaintiff fraudulently poses as a customer relations expert." 1. There is no doubt that the article levels a degree of criticism at Mr French in respect of his competence or ability as a self-styled customer relations expert. The first two paragraphs of the article state: "Dr Brendan French appears to have spent his entire adult life vigorously building the reputation that he is basically a customer relations expert. Brendan appears to pretty much pedal his personal brand to any corporation or organisation that will sign him up. I feel sorry for a lot of these corporations and organisations that do buy into the French brand in the hopes that they will improve their customer relationships and their brand. They are not getting their monies worth, or perhaps they are? 1. I think there is, however, a difficulty with an imputation that he posed in that role "fraudulently". The role of a customer relations expert is not one of a kind for which one must have specified qualifications, such as, for example, a medical practitioner or a person appointed to a position of Government. Rather, it is a role that a person could readily be understood by the reasonable reader to develop and propound with varying degrees of success. I am mindful of the care with which the court must approach an application to strike out an imputation, as the Court of Appeal has recently reiterated in the decision in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227. 2. However, I think that in the present case, to understand the matter complained of as imputing to the plaintiff fraudulently posing in the role is a stretch too far. I do not think the matter complained of is reasonably capable of conveying that imputation in accordance with the well-known tests. Accordingly, that imputation will be struck out. 3. Imputation 4 (c) is: "That the plaintiff is a violent and secretive thug who tries to cover up his assaults on innocent people." 1. That imputation primarily comes from the following words: "My experience with Brendan so far is that he is a lot like a phone book, full of information, spends most of the time hidden away somewhere, and is only utilised to beat innocent people without leaving a mark." 1. Ms Barnett, who appears for the defendant, submitted that those words are plainly intended by way of metaphor and that no ordinary, reasonable reader would take the meaning that the plaintiff literally beats innocent people. 2. Mr Richardson, who appears for the plaintiff, submitted that the words are plainly intended seriously and that the article is a serious piece. He noted that later in the article there are references to the plaintiff's "Underhanded behaviour", which is illustrated by the examples of, "Harassment, bullying and unethical practises." I accept that those references lend the colour of a degree of bullying or aggressive kind of behaviour to the conduct attributed to the plaintiff. I do think, however, that the ordinary, reasonable reader could only understand lines 16 to 18 as being used in a metaphorical sense. A reader who took the meaning that the plaintiff literally beat innocent people without leaving a mark, would, I think, be taking a strained or forced meaning from the matter complained of. Imputation 4 (c) will be struck out. 3. The next objection relates to the second matter complained of, which appears under the heading, "We value your contribution" and is styled as a "without prejudice" letter to CBA staff and constituents. The letter praises the contribution of whistle-blowers to the website and recites a number of whistle-blowers' topics. The letter then turns to the plaintiff with the following words: "I was surprised by the amount of CBA staff that complained about Brendan French. They all say pretty much the same thing. He came in with "It's my way or the highway" attitude and anyone who didn't like the questionable ethics was pushed out and replaced with Brendan's circle of friends (his click) that were often not properly trained or equipped for the job. Huge conflicts of interest in general. It's been alleged he awarded his then life partner (Gregory Tillett) a CBA contract, yet Brendan was a co-owner and would benefit from said contract personally. It was also alleged that he did not list it on the conflict of interest register. Do you think that is fair to you and the other staff?" 1. Imputation 6 (b), in respect of that article, is, "The plaintiff, upon arrival at CBA, fired employees who disagreed with his dishonest behaviour and replaced them with unqualified friends and associates who he knew would not challenge him." 2. At the outset of argument, Mr Richardson noted that one of the objections was to the word "fired". He indicated that he would be content to replace that word either with the word "removed" or the term "pushed out". Ms Barnett does not oppose such an amendment. 3. Ms Barnett submitted, however, that the matter complained of is incapable of conveying the notion of dishonest behaviour referred to in the imputation. The passage I have set out above refers only to "questionable ethics." However there are, elsewhere in the matter complained of, references to matters which are, in my view, reasonably capable of conveying a notion of dishonest behaviour. I accept that those references are not expressly connected to the conduct attributed to the plaintiff of "pushing out" people who disagree with him. But it is necessary to have regard to the whole of the matter complained of and its overall tenor of a complaint or tirade against the plaintiff who I think the article suggests ought reasonably be the subject of information from whistle-blowers and the like. 4. On balance, I am not persuaded that the imputation is incapable of arising. That imputation will not be struck out. 5. The final objection is to one of the particulars of aggravated damages (particular (a)), as follows: "The failure of the defendant to make inquiries of the plaintiff concerning the truth or falsity of the imputations prior to publication." 1. Ms Barnett submitted that that particular is liable to be struck out on the grounds that it is inherently inconsistent with the particulars in sub-paragraph (b) of paragraph 8, which recite many communications by the defendant to the plaintiff attempting to contact him in a manner the plaintiff contends amounts to a vendetta. 2. I accept that there is a measure of tension between the discrete complaints in paragraphs (a) and (b) of the particulars. However, I do not think it would be fair to the plaintiff to strike out particular (a) at this point. It may be that in the manner in which the evidence unfolds and the argument put at trial, the plaintiff will be able to make good a case that, notwithstanding the apparent conflict between those two propositions, all things considered, the defendant could be seen to have failed to make adequate or proper or fair inquiries of the plaintiff concerning the truth or falsity of the imputation prior to publication. 3. Accordingly, I am not inclined to strike the particular out at this stage, notwithstanding its apparent difficulty. 4. The cost of the argument today will be each party's costs in the cause. ********** Amendments 11 March 2015 - incorrect date on coversheet now amended 25 March 2015 - removed duplicate table following covesheet 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: 25 March 2015