Greenfield v Fairfax Media Publications Pty Ltd [2014] NSWSC 1940

Supreme Court New South Wales

Medium Neutral Citation: Greenfield v Fairfax Media Publications Pty Ltd [2014] NSWSC 1940 Hearing dates: 4 November 2014 Date of orders: 04 November 2014 Decision date: 04 November 2014 Jurisdiction: Common Law Before: McCallum J Decision: Imputation 4(b) is struck out under r 14.28; defendant's objections to plaintiff's imputations otherwise rejected. Catchwords: DEFAMATION – pleadings – determination of defendant's objections to plaintiff's imputations Legislation Cited: Uniform Civil Procedure Rules, r 14.28 Defamation Act 2005 (NSW) Cases Cited: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 King v Fairfax Media Publications (No 2) [2014] NSWSC 124 Category: Procedural and other rulings Parties: Darren Greenfield (plaintiff) Fairfax Media Publications Pty Ltd (cefendant) Representation: Counsel: G McGrath (Plaintiff) ATS Dawson (Defendant)

Solicitors: Taylor & Scott Lawyers (plaintiff) Banki Haddock Fiora Lawyers (defendant) File Number(s): 2014/197994 Publication restriction: None

Judgment 1. HER HONOUR: These are proceedings for defamation commenced by Mr Darren Greenfield against Fairfax Media Publications in respect of two articles published in the Sydney Morning Herald. 2. The proceedings have been in the Defamation List previously when, I think following discussion between the parties, the plaintiff agreed to file an amended statement of claim to address the defendant's objections to the imputations specified by him. The Amended Statement of Claim was filed on 19 September 2014. There is a small number of remaining objections to the imputations specified in that pleading. This judgment determines those objections. Argument was heard in the Defamation List last Friday but, owing to the shortness of time in the List, it was not practicable to give an oral judgment at that time. 3. The first matter complained of is an article which begins on the front page of the Herald with a photograph of Mr Brian Fitzpatrick (described as a CFMEU whistle‑blower) with the caption, "I'm coming out tomorrow, and you are f‑‑‑ing bang". The thrust of the article is to report upon a threat to Mr Fitzpatrick, who is described as a building union stalwart. 4. The article continues on page 6. Following a reference to death threats, the article says: "Brian Fitzpatrick, a senior industrial officer and 25‑year veteran of the Construction, Forestry, Mining and Energy Union in NSW, said the infiltration of organised crime into the union had plunged it into a "crisis" and called for "a very serious clean up"". 1. The first objection is to imputation 4(b), which is: "Darren Greenfield was part of an infiltration of the CFMEU by organised crime." 1. The defendants object to that imputation on the basis that it is bad in form so as to be liable to be struck out as embarrassing under r 14.28 of the Uniform Civil Procedure Rules 2005 (NSW). 2. The principles relating to the requirement for precision in a plaintiff's imputation are well known. The requirement of precision initially developed or was at least refined during the period when the imputation was the cause of action. The content of the requirement was considered by the Court of Appeal in the well-known decision of Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. 3. For the reasons I endeavoured to explain more recently in King v Fairfax Media Publications (No 2) [2014] NSWSC 1244 at [8] to [9], precision remains an important requirement of a defamatory imputation, notwithstanding the fact that the imputation is no longer, under the Defamation Act 2005 (NSW), the cause of action. 4. On behalf of the plaintiff, it was submitted that the meaning of the word "infiltration" is clear and is well-known. In aid of that submission, counsel for the plaintiff handed up a printout of the Oxford English Dictionary definition of the word "infiltration". It may be accepted that the word itself is one of clear meaning, depending upon the context in which it is used. In my view, however, that does not address the objection, which complains of imprecision in the imputation. In particular, in my view, it is not clear what conduct or condition it attributes to the plaintiff to say that he was "part of an infiltration of the CFMEU by organised crime." 5. The particular conduct attributed to him is addressed with greater specificity in the matter complained of than is captured in that imputation. Indeed, the particular conduct attributed to Mr Greenfield by the matter complained of is, in my view, adequately and more specifically captured in imputations 4(a), 4(c), 4(d) and 4(e). Imputation 4(b) is, however, impermissibly imprecise in my view. It should be struck out. 6. The next objection is to imputation 4(d), which is that the plaintiff, knowing that George Alex was a participant in organised crime, used his position as a union organiser to assist a company associated with George Alex to get a contract at Barangaroo. The imputation was objected to on the grounds that it is incapable of arising. 7. The particular passage of the matter complained of focused on by counsel for the defendant in argument was the following paragraph: "Mr Fitzpatrick, who has reported the threat to police alleged Mr Greenfield helped get Mr Alex's company, a contract at Barangaroo, and that some New South Wales union officials had given Mr Alex's business 'a dream run' ‑ despite being aware of his links to crime figure asks history of owing workers money." 1. Mr Dawson, who appeared for the defendant, submitted that awareness of "links to crime figures" does not amount to knowledge that Mr Alex was "a participant in organised crime", the notion captured in the imputation. That ignores the tenor of the whole of the matter complained of which, in my view, focuses on the infiltration of organised crime into the CFMEU. Indeed, that is the phrase adopted to the passage I have set out above. 2. The whole focus of the article is the unacceptable conduct of people involved with or having links to crime figures. I do not think it is too far a stretch to say that the matter complained of would have conveyed to the ordinary reasonable reader knowledge attributed to Mr Greenfield that George Alex was a participant in organised crime. As already noted, it is his alleged death threat to Mr Fitzpatrick which is the whole focus of the article. I am satisfied that imputation 4(d) is reasonably capable of being conveyed by the matter complained of. That imputation will stand. 3. The final objection relates to imputation 7(b) pleaded respect of the second matter complained of. That is an article headed "Big Jim and the bagman". Again, that was an article published on the front page of the Sydney Morning Herald. A passage in the article reports that the "Big Jim" referred to, Mr Jim Byrnes, had vowed to give evidence at the Royal Commission into union corruption and, in particular, had said that he would "identify the union official" and "bagman" Mr Byrnes says he saw take an envelope of cash at the home of Mr Alex. 4. The first objection was that that imputation, without more, is too imprecise to give it any defamatory quality. In my view, perhaps as a result of the colourful history probably over centuries of corruption in this State, certainly its history over the last few decades, the word "bagman" is one that has crept into the English language and which is well understood in this jurisdiction by the ordinary reasonable reader. 5. Secondly, or perhaps in aid of the first complaint, it was noted that the word bagman appears in quotation marks in the passage I have just set out. That, it was submitted, indicated that whatever its ordinary meaning, that meaning did not apply to its use in the present context. I do not accept that submission. In the first instance the word "bagman" does not appear in quotation marks in the large headline of the article. 6. Secondly, where it does appear in quotation marks, in my view that punctuation is used not to suggest that the description of "bagman" was only an allegation or was used in some other sense, but rather to indicate that that was Mr Byrnes' word. I do not think the attribution of the quote to him in any sense derogates from the reader's understanding of the word. 7. Finally, it was submitted that there is no justification for the imputation appearing in the present tense, since the matter complained of identifies only one occasion on which Mr Greenfield is attributed with having acted as a "bagman". I do not accept that submission. As already noted, he is described in large letters in the headline as "The Bagman". He is described in the passage I have already set out by the occupation of "bagman", and the overall tenor of the article is that it exposes the activities of people within the building industry. In my view, imputation 7(b) is reasonably capable of arising from the second matter complained of. 8. Accordingly, my rulings are that imputation 4(b) be struck out under r 14.28; that imputation 4(d) will go to the jury and the application to have imputation 7(b) struck out under r 14.28 is refused.