Stoner v Jones [2015] NSWSC 585

Supreme Court New South Wales

Medium Neutral Citation: Stoner v Jones [2015] NSWSC 585 Hearing dates: 10 April 2015, 21 April 2015 Date of orders: 24 April 2015 Decision date: 24 April 2015 Jurisdiction: Common Law Before: McCallum J Decision: Rulings on imputations; plaintiff granted leave to amend his amended statement of claim in accordance with these reasons. Catchwords: DEFAMATION – procedure – pleadings – objections to statement of claim – objections to imputations – requirements of specificity and precision Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.30 Cases Cited: Tempe Recreation Reserve Trust v Sydney Water Corporation [2014] NSWCA 437 Waller v Nationwide News [2011] NSWSC Category: Procedural and other rulings Parties: Andrew Stoner (Plaintiff) Alan Jones (First Defendant) Harbour Radio Pty Limited (Second Defendant) Jeremy Nova Buckingham (Third Defendant) Representation: Counsel: T Tobin QC, B Kelleher (Plaintiff) M Richardson (Defendants)

Solicitors: Pikes & Verekers Lawyers (Plaintiff) Banki Haddock Fiora (Defendants) File Number(s): 2015/57534 Publication restriction: None

Judgment 1. HER HONOUR: These are proceedings for defamation brought by Mr Andrew Stoner arising out of five segments broadcast on the radio programme known as "The Alan Jones Breakfast Show" in June and August 2014. At the time of the broadcasts, Mr Stoner was the leader of the National Party for New South Wales and deputy premier. 2. The defendants in the action are the presenter of the program, Mr Alan Jones; the corporate proprietor of the radio station; and, in respect of the fifth matter complained of only, Greens Member of Parliament, Mr Jeremy Buckingham. 3. The proceedings were commenced by statement of claim filed 24 February 2015. As required by Practice Note SC CL 4, the defendants brought forward their objections to the form of that pleading prior to the first listing hearing, prompting the plaintiff to make some amendments. This judgment determines the defendants' remaining objections to the amended statement of claim. 4. The objections relate to the defamatory meanings Mr Stoner contends were conveyed about him by the matters complained of. The rules of Court require a plaintiff in a defamation action to specify each imputation on which the plaintiff relies and further provide that a plaintiff must not rely on two or more imputations unless they differ in substance: see Uniform Civil Procedure Rules 2005 (NSW), r 14.30. 5. The requirement of specificity is to enable a defendant to know the case he has to meet so as to consider how to defend the action. In particular, the defences of truth and contextual truth are framed by reference to the imputations relied upon by the plaintiff. A defendant must prove that those imputations, rather than the content of the matter complained of, were substantially true. It is for that reason that objections to imputations are determined, preferably once and for all, at an early point in the proceedings, before any defence is required to be filed. 6. The first, second and third matters complained of in the present proceedings were broadcast on consecutive days and raised a common theme. The objections to the imputations pleaded as arising from those three broadcasts were argued together. 7. The first matter complained of opened with a discussion of fears held in a community affected by coal seam gas mining that the government would "do a back flip" on its decision to suspend a mining company's licence to drill at Bentley, near Lismore. I think it is fair to say that in each of the broadcasts that week, Mr Jones was a champion of the cause for a gasfield-free Northern Rivers; that is, the cause of farmers, primary producers and other members of that community who are opposed to coal seam gas mining. 8. Mr Jones reported that Mr Stoner had, at a National Party conference in Canberra, referred to such persons protesting against coal seam gas mining as "professional bludgers". Mr Jones was highly critical of Mr Stoner's description of those persons in those terms and repeated that theme throughout the week. 9. The first category of imputations objected to by the plaintiffs relates to that topic (referred to in argument as "the bludger imputations"). The imputations objected to are imputations 12(c) and 20(a), as follows: 12(c) That the plaintiff regarded respectable and hard-working members of the community making a legitimate protest as bludgers; 20(a) That the plaintiff held decent peaceable Australians in contempt by calling them bludgers. 1. There was no objection to a third "bludger" imputation in 16(b): 16(b) That the plaintiff was a contemptible person because he described respectable and hard-working members of the community making a legitimate protest as bludgers. 1. The explanation for the distinction drawn between imputation 16(b) and the other two was that 16(b) meets the requirement of specifying a defamatory condition allegedly attributed to the plaintiff (that of being a contemptible person). 2. Mr Richardson, who appears for the defendants, submitted that imputations 12(c) and 20(a) are objectionable because they do not disclose any defamatory act or condition or are otherwise apt to cause confusion, since it is not clear whether what is alleged is that the matters complained of conveyed the meaning that Mr Stoner was careless or something worse. 3. I do not accept that those imputations require further refinement in that respect. As submitted by Mr Tobin QC, who appears with Mr Kelleher for the plaintiff, I think the act of regarding persons described variously as "respectable and hardworking" and "decent peaceable Australians" as bludgers is self-describing. 4. Those imputations will be allowed to stand on the pleading in their present form. 5. The second category of imputations objected to (referred to by the parties as the "preparedness imputations") arise from remarks made by Mr Jones broadly relating to the manner in which Mr Stoner was prepared to act in the discharge of his office as an elected representative. 6. Imputations 12(d) and (e) are: That the plaintiff in his role as an elected representative was not prepared to act in the interests of the community unless it was also in his own interests; and that the plaintiff in his role as an elected representative preferred the interests of the mining industry over the welfare of the community. 1. Mr Richardson submitted that neither of those imputations discloses or adequately specifies any defamatory act or condition. He submitted that the matters complained of permitted greater specificity in that respect. 2. Mr Tobin resisted that objection by reference to the notion that the community would understand elected representatives to be required to serve the community as a whole, not to serve sectional interest at the cost of the national interest. 3. On that basis, as I understood the submission, it was contended that the plaintiff's preparedness to act in each instance in the manner identified was in itself a condition capable of being adequately identified and regarded as defamatory. 4. In my view, there is force in Mr Tobin's submissions on that issue. I consider that imputations 12(d) and (e) should be allowed to stand on the pleading. 5. The third imputation objected to under that head was imputation 16(c): that the plaintiff in his role as an elected representative was not prepared to act in the interests of the community unless it was also in his own interests. 1. For substantially the same reasons, I consider that imputation sufficiently clearly discloses a condition or attribute in the discharge of public office contrary to that expected by the community. 2. In the alternative, Mr Richardson objected that imputation 16(c) does not differ in substance from imputation (a). Imputation 16(a) is: That the plaintiff was prepared to prefer the interests of the mining industry over the welfare of the community in order to obtain employment in the mining industry at the end of his political career. 1. Mr Tobin responded that imputation (a) focuses on the plaintiff's position as at the end of his career, whereas imputation (c) is in more general terms. The question whether those imputations differ in substance must be considered having regard not only to the words of the imputations alone but the context of the matter complained of. In my view, there is force in the submission that, as understood in context, those imputations convey effectively the same sting. Accordingly, I accept that they do not meet the requirement of differing in substance. The plaintiff should elect one or the other, or else plead them as alternatives. 2. The third category of objection in respect to the first, second and third matters complained of was referred to by the parties as the "gutless imputations". Imputation 12(g) is "that the plaintiff is a weak and gutless person"; imputation 16(e) is in the same terms; while imputation 20(b) is "that the plaintiff is a gutless person". The word "gutless" appears in the first and third matters complained of, but not the second. 3. Mr Tobin expressed, in passing, a measure of understandable dismay at the use of such terms as "bludgers" (the term attributed to Mr Stoner) and "gutless" (the term used by Mr Jones) as the accepted language of public discourse. He noted, however, that every word in the dictionary takes its meaning from other words and that every word is capable of creating controversy in the minds of lawyers. 4. "Gutless" is the word employed by Mr Jones at least in two of the three matters complained of. Mr Jones is an experienced and accomplished wordsmith. There is a body jurisprudence as to the appropriateness of formulating any imputation appropriating the precise words of the matter complained of. No principle emerges from those authorities that the words of the matter complained are off limits, as it were. The critical question is whether the imputation adequately distils the meaning conveyed so as to avoid embarrassment at the interlocutory stage or at trial. In my view, the word "gutless" is an ordinary word of sufficiently clear meaning to the ordinary reasonable listener. The "gutless" imputations should be permitted to stand. 5. I would observe, in passing, that the law of defamation is not the only field of the law in which there is such acute focus on the meaning of ordinary words. An example in a different field of jurisprudence may be found in the delightful discussion by Leeming JA of the meaning of the word "on": see Tempe Recreation Reserve Trust v Sydney Water Corporation [2014] NSWCA 437 at [60] to [77]. 6. Those are the objections to the imputations pleaded in respect of the first, second and third matters complained of. 7. There was no objection to either of the two imputations pleaded as arising from the fourth matter complained of. 8. The fifth matter complained of was broadcast at a later point in time, in August 2014. The broadcast on that occasion included a discussion of coal seam gas mining in the Gloucester Valley. Mr Jones opened by remarking, as to Gloucester Valley AGL, "they will put a coal seam gas well down their grandmother's grave if they could". The presenter continued by posing the question as to how it is that Labor and Liberal governments are prevailed upon to allow such mining to proceed contrary to the interests of agriculture. 9. The question was answered with the proposition that mining interests employ lobbyists and plant them in appropriate offices. Mr Tobin submitted that the whole of the broadcast on that occasion was a virulent attack on politicians generally and Mr Stoner in particular. He submitted that "like sand in sugar" it is impossible to separate out the different allegations loosely thrown around at other politicians from those specifically attributed to Mr Stoner. 10. Mr Tobin further noted that the broadcast must be assessed as one of a transitory nature. That, of course, informs the question of the capacity of the matter complained of to convey any of the pleaded imputations. 11. Imputation 28(a) is: That the plaintiff sold out the farmers he was supposed to represent to coal mining interests. 1. The particular objection to that imputation rested on the adoption of the words "sold out". Words in those terms appear in the matter complained of, and indeed, the imputation is effectively drawn, in terms, from part of the matter complained of at lines 58 to 59. 2. Mr Richardson submitted that those words, "sold out", do not sufficiently distil a defamatory act or condition. He contended that, for instance, it is not clear whether that is a reference to a political betrayal of the plaintiff's constituency or something more sinister, involving personal benefit to the plaintiff. 3. In that context, Mr Richardson again invoked the putative prohibition on appropriation of the words of the matter complained of, relying on the decision in Waller v Nationwide News [2011] NSWSC 611 at [16] to [22]. 4. In my view, this is an instance in which the plaintiff can do little better than to adopt the words of the matter complained of. If the meaning of the phrase "sold out" is unclear that, in my view, is a reflection of the words of the matter complained of and the disparate nature of the allegations they contain. 5. Imputations 28(b), (d) and (e) were addressed together. They are: That the plaintiff, as an elected representative, acted at the bidding of Nathan Tinkler in exchange for Tinkler's donations to the National Party; That, as a deputy premier of New South Wales and leader of the National Party, the plaintiff acted corruptly in promoting the coal interests of Nathan Tinkler as a payoff for donations to the party; and That, on becoming deputy premier of New South Wales, the plaintiff did Nathan Tinkler's bidding by corruptly using his position in government to advance Tinkler's private interests at the expense of the public interest. 1. Mr Richardson submitted that each of the imputations is imprecise and, alternatively, that they do not differ in substance. 2. Mr Tobin submitted that there is a difference in substance between (b) and (b) in that one focuses on the period prior to the plaintiff's becoming a member of parliament, while the other focuses on a later period. 3. I am unable myself to discern the temporal distinction referred to from the manner in which the imputations are presently pleaded. In my view, imputation (b) is problematic. If it is intended to capture a temporal difference from the sense conveyed by imputation (d), that difference has escaped me. In my view, the imputation is bad in form because its meaning cannot be clearly understood. That imputation will be struck out. 4. I do not accept, having regard to the language of the matter complained of itself, that imputations (d) and (e) suffer from the vice of being improperly imprecise. However, I would accept Mr Richardson's submission that those imputations, as understood in the manner explained in argument, do not differ in substance. In my view, the plaintiff should elect between those imputations or else plead them as alternatives. 5. Mr Tobin submitted that imputation (d) focuses on the notion of a pay-off, while imputation (e) focuses on private versus public interests. I think, when regard is had to the content of the matter complained of, that is a semantic distinction without a substantive difference sustained by the matter complained of. 6. Imputation 28(c) is: That, as a government minister, the plaintiff was a willing participant in a corrupt process which allowed miners to place their lobbyists in ministerial offices where they were free to make decisions in favour of the miners against the public good of New South Wales. 1. As submitted by Mr Richardson, I think that imputation is impermissibly imprecise. It is unclear precisely what act or condition is attributed to Mr Stoner in characterising him as "a willing participant in a corrupt process". 2. Mr Tobin submitted that the imputation is intended to convey the sense that Mr Stoner was more than just an innocent part of the crowd, but I do not think that addresses the difficulty identified by Mr Richardson. Mr Richardson submitted, in the alternative, that the imputation is incapable of arising since other politicians are expressly identified as persons who accepted lobbyists into their offices, whereas Mr Stoner is not. There is considerable force in that submission. However, it is not necessary to decide that issue, since the imputation in its present form cannot stand. 3. Imputation 28(f) is: That, as leader of the National Party, the plaintiff betrayed the farmers who were his constituents by assisting the Shenhua Coal Company to destroy the farmlands of the Namoi Valley in pursuit of the greedy profits. 1. The essential objection to that imputation rested on the phrase "greedy profits". I accept, as submitted by Mr Tobin, that that is a phrase of sufficient clarity. As Mr Tobin submitted, lawful profits can nonetheless be regarded by ordinary members of the community as entailing an element of greed. 2. Separately, Mr Richardson submitted that imputation (f), if allowed to stand, does not differ in substance from imputation (h). I will return to that question. 3. Imputation (g) is: That, as deputy premier, the plaintiff used a corrupt process set up by Tripodi and Roozendaal to serve the financial interests of Nathan Tinkler at the expense of local farmers. 1. I accept, as submitted by Mr Richardson, that that imputation is also impermissibly imprecise by reason of the inclusion of the phrase "used a corrupt process". I accept that this is not a situation where no greater specificity is available, having regard to the content of the matter complained of. 2. Imputation (h) is: That the plaintiff used his power as a minister so that he could advance the interests of greedy foreign miners by building a rail link to Port Kembla to the ruin of his own supporters in the farm sector. 1. The objection to that imputation was that it is incapable of arising, specifically because there is no suggestion that the building of the rail link itself will "ruin" the plaintiff's "own supporters in the farm sector", as opposed to a suggestion that allowing the Shenhua mine would damage the interests of Namoi Valley farmers. 2. The objection that imputation (h) does not differ in substance from imputation (f), I think, must be rejected. Whilst I would accept that there is a degree of overlap in the two imputations, I think they do capture a slightly different sense. 3. My rulings are in accordance those reasons. The plaintiff should have leave to amend the amended statement of claim in accordance with those rulings.