Supreme Court New South Wales Medium Neutral Citation: Cowper v Australian Broadcasting Corporation [2015] NSWSC 1001 Hearing dates: 22 July 2015 Date of orders: 22 July 2015 Decision date: 22 July 2015 Jurisdiction: Common Law Before: McCallum J Decision: Rulings on imputations Catchwords: DEFAMATION – pleadings – imputations – capacity – requirement of precision in pleading – requirement of imputations to differ in substance Cases Cited: Cowper v Fairfax Media Publications Pty Ltd [2015] NSWSC 1000 Category: Procedural and other rulings Parties: Graeme Cowper (Plaintiff) Australian Broadcasting Corporation (First Defendant) Matthew Peacock (Second Defendant) Representation: Counsel: K Smark SC, ST Chrysanthou (Plaintiff) ATS Dawson (Defendants) Solicitors: Kalantzis Lawyers (Plaintiff) Australian Broadcasting Corporation (Defendants) File Number(s): 2015/141755 Publication restriction: None Judgment – Ex Tempore 1. HER HONOUR: These are proceedings for defamation arising from the broadcast of a number of segments on ABC television. The proceedings raise common issues to those dealt with in my judgment published earlier today in Cowper v Fairfax Media Publications Pty Ltd [2015] NSWSC 1000. This judgment should be read together with that judgment. This judgment determines the defendants' objections to the imputations pleaded by the plaintiff. The two proceedings should travel together, at least for the purpose of case management. 2. The first objection is to imputation 4(a) in regard to the first matter complained of: the plaintiff, a financial planner, was fired by the NAB for falsifying documents and forging signatures. 1. The objection is on the grounds of capacity and raised similar issues to those dealt with in the Fairfax judgment regarding the question of whether the wrongful conduct described in the broadcast could be attributed to the plaintiff as opposed to other financial planners fired by the NAB. 2. For substantially the reasons stated in the Fairfax judgment, in my view, the question whether the imputation is conveyed should be left to the jury. I accept that, in the television broadcasts, the plaintiff is not the subject of the degree of focus placed on him in the newspaper articles. The format of the television piece is to make extensive reference to generic conduct not attributed to the plaintiff and then to refer to him as one of "at least some financial planners identified in the leaked NAB report" who are still giving advice. However, as submitted by Mr Smark SC, who appears with Ms Chrysanthou for the plaintiff, the plaintiff is the only person named in the broadcast. I accept, as Mr Smark submitted, that the naming of the plaintiff at the conclusion of the piece could act "like a lightning rod" for all the suspicion conveyed by the broadcast. There is nothing in the specific reference to the plaintiff to carve him out of that conduct, the matter complained of simply stating that he had been subject to "a compliance breach report" to ASIC. Imputation (a) will go to the jury. 3. Objection was taken to imputations (c) and (g) on the grounds that they do not differ in substance. The difference is that one refers to the plaintiff having ripped off his clients whereas one refers to his having committed a financial crime by ripping off "mum and dad investors". The additional element of preying upon vulnerable people conveyed in the second I accept distinguishes it from the first but I would regard imputation (c) as one which should be relied upon only as a fall-back imputation to (g). Mr Smark accepted that to be the case, and that should be the ruling. 4. Mr Dawson, who appears for the defendants, stated at the outset of the argument that imputation (d) was objected to on the grounds of capacity but no submissions were directed to that imputation. Accordingly, I will make no ruling in respect of it. 5. Imputations (e) and (f) are: (e) the plaintiff had misconducted himself as a financial planner working for the NAB by giving inappropriate financial advice to Victoria Coulston. (f) the plaintiff as a financial planner working for the NAB had given such inappropriate advice to Victoria Coulston that she could not service her loans, maxed out her credit cards and could not sleep or eat. 1. Each of those imputations was objected to on the grounds of capacity. In this case, the submission carefully put by Mr Dawson in respect of a number of imputations but in each case rejected until now has some force, in my view. The matter complained of takes the form of setting out detail in relation to the complaints of Veronica Coulston but saying nothing to suggest that Mr Cowper was the financial adviser there concerned. What is said about Mr Cowper is in a different part of the broadcast and given a very different context. I do not think there is anything in the matter complained of from which the ordinary reasonable viewer could reasonably understand it to be the case that Mr Cowper was the financial planner referred to anonymously in the discussion of the fate of the hapless Ms Coulston. Those imputations, in my view, are not reasonably capable of being conveyed and will be struck out. 2. In respect of the third matter complained of there was a narrow capacity objection to imputation (j). That imputation is: the plaintiff as a financial planner working for the NAB misconducted himself in that he advised hundreds of clients to borrow more than they could afford and excessively gear resulting in them incurring substantial losses 1. The objection was that the matter complained of was is capable of attributing that specific advice to the plaintiff. I do not accept that submission. At paragraph 38 of the transcript of the matter complained of, the following words are attributed to Mr Jeff Morris, the man elsewhere identified as the whistle-blower: They trusted him I think because they trusted NAB. It's a big institution; it's the same with CBA. People trust the big institutions. And these people are representing those institutions and the institutions turn them loose, but the advice was appalling. In every case that I've seen so far, there's been excessive gearing, far too much borrowing that people couldn't service and substantial losses that have ruined people's lives. 1. The "him" identified in the third word of that paragraph is plainly Mr Cowper. In my view, those remarks are reasonably capable of conveying the meaning that the specific advice identified in the imputation was the advice given by Mr Cowper. 2. Otherwise, the objections in respect of the third matter complained of were that the imputations do not differ in substance. First it was submitted that imputations (d), (g) and (j) do not differ in substance. 3. Mr Smark submitted that the difference added by imputation (d) was a consequence in that the clients referred to had lost substantial sums in assets and savings. He likened the distinction to that of a surgeon accused of negligence causing a minor result and a surgeon accused of negligence with catastrophic result. 4. I accept that the addition of the consequence in imputation (d) constitutes a difference but on that basis I would regard imputation (g) as necessarily a fall-back to imputation (d), and I think that was accepted by Mr Smark. 5. The question is then whether imputation (j) differs from imputation (d). The characterisation in imputation (j) of the conduct as misconduct in advising hundreds of clients to borrow more than they could afford I think, although perhaps barely, adds a degree of specificity and a greater degree of seriousness, and I am inclined to allow that imputation to stand. 6. The final objection is whether imputations (e) and (f) differ in substance, the only difference being the reference to the consequences faced by Danielle Wilke. One imputation alleges that the financial advice given to her was so inappropriate that it caused her to face financial ruin whereas the second alleges that the advice was so inappropriate as to cause the National Australia Bank to pay her compensation. 7. Ultimately, the essential sting of each imputation is the giving of inappropriate financial advice which caused compensable loss. I do not think those imputations differ in substance. The plaintiff will have leave to re-plead those either to elect or to distil the imputations into a single imputation. 8. I direct the parties to bring in short minutes to give effect to these rulings. ********** 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: 29 July 2015