Carolan v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1344

Supreme Court New South Wales

Medium Neutral Citation: Carolan v Fairfax Media Publications Pty Ltd (No 3) [2015] NSWSC 1344 Hearing dates: 11 September 2015 Date of orders: 15 September 2015 Decision date: 15 September 2015 Jurisdiction: Common Law Before: McCallum J Decision: Application to have particular A(xii) of the defence struck out dismissed; application to have subpoenas addressed to the New South Wales Police Force and the Department of Customs and Border Protection set aside dismissed. Catchwords: DEFAMATION – defences – defences of comment and honest opinion – adequacy of particulars as to truth of material identified as proper material for comment – relevance of timing of application Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 Sims v Wran [1984] 1 NSWLR 317 Category: Procedural and other rulings Parties: Sean Carolan (plaintiff) Fairfax Media Publications Pty Ltd (first defendant) Peter FitzSimons (second defendant) Representation: Counsel: K Smark SC with S Chrysanthou (plaintiff) ATS Dawson with C Amato (defendants)

Solicitors: Kalantzis Lawyers (plaintiff) Bank Haddock Fiora (defendants) File Number(s): 2014/245957 Publication restriction: None

Judgment 1. HER HONOUR: Sean Carolan sues the proprietor of The Sydney Morning Herald for defamation in respect of four articles republished on its website in September 2013. The proceedings are listed for trial on 19 October 2015. 2. On 11 September 2015, Mr Carolan had the proceedings relisted to make two applications. The first is an application to have one of the particulars in the defence struck out. The second, which is predicated on the success of the first, is an application to have two subpoenas set aside. For the following reasons, I have determined that each application should be dismissed. 3. The articles sued on by Mr Carolan relate, broadly, to his involvement in providing "blood profiles" for Sydney Roosters football players "in preparation for detox diets" (according to one of the articles). The articles report that the results of blood tests for six players showing elevated levels of the banned substance Human Growth Hormone were found on the mobile telephone of an "organised crime figure" when the phone was seized by law enforcement officers. 4. It is the reference to an "organised crime figure" that is at the heart of the present application. 5. The defendants rely on defences of comment and honest opinion in respect of the first matter complained of (insofar as it gives rise to imputation 4(c)) and the second matter complained of (as to which only one imputation is specified by the plaintiff). The relevant imputations are: 4(c) The plaintiff administered the illegal substance HGH on the Sydney Roosters Football players. 6(a) The plaintiff, a personal trainer, injected Sydney Rooters football players with the banned substance HGH. 1. The opinion is said to be that of the second defendant, Mr Peter FitzSimons, a journalist employed by the newspaper. 2. For those defences to succeed, the defendants will have to establish that material on which the opinion was based was proper material for comment. The defendants will seek to meet that requirement in the present case by proving that the material in question was substantially true. 3. The defendants have provided particulars of twelve items of information stated in the first and second articles said to amount to proper material on which the opinions were based. Although only particular (xii) is challenged in the present application, it is appropriate to set out the whole of the relevant paragraph: A The expression of opinion referred to above was based upon the facts and matters stated in the first and second matters complained of: i. That the plaintiff is a personal trainer; ii. That the plaintiff ran Advanced Peptide Solutions; iii. that the plaintiff ran Nubodi, a sports nutrition company; iv. That people who have dealt with the plaintiff's business have complained that he was offering growth hormones to customers who were trying to lose weight; v. That the plaintiff was introduced to the Club by Martin Kennedy; vi. That a former employee of the plaintiff and/or Nubodi, Ben Darcy, was now living in Thailand; vii. that the Club hired the plaintiff and/or Nubodi to conduct tests on players' blood in preparation for detox diets; viii. That the plaintiff and/or Nubodi conducted tests on players' blood; ix. that the plaintiff and/or Nubodi conducted tests on players' blood for HGH without the Club's knowledge or consent; x. That the results of the tests referred to at paragraph (ix) above showed elevated levels of HGH in some players; xi. That the result of the tests referred to at paragraphs (viii) and (ix) above were provided to the Club; xii. That the results of the tests referred to at paragraphs (viii) and (ix) above were found on the mobile phone of an organised crime figure, which was seized by law enforcement officers. 1. The defence was filed on 9 December 2014. By letter dated 10 December 2014, the solicitor for the plaintiff sought particulars as to para (xii): 1. the name of the "organised crime figure"; and 2. the facts, matters and circumstances upon which it is alleged that he or she is "an organised crime figure". 1. The matter was before the Court on 12 December 2014. On that date, the defendants consented to an order to provide those particulars. 2. By letter dated 5 February 2015, the defendants responded by providing the name of the alleged organised crime figure but otherwise stated that they were "currently not in a position to provide further particulars". It may be noted that the response did not assert that the defendants were "unable" to provide those particulars. While the defendants have not said so, the provision of those particulars may have been complicated by the fact that the newspaper obtained some of its information for these articles from confidential sources: see Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 at [5]-[6]. 3. The proceedings came before the Court for the second listing (in accordance with Practice Note SC CL 4) on 27 February 2015. That is the date on which the matter was allocated a hearing date. No issue was raised at that stage as to the adequacy of the particulars provided in the defendants' letter. 4. The proceedings were listed again on 10 July 2015 for the determination of two further interlocutory applications, one by the plaintiff and one by the defendants (determined in Carolan (No 2)). Again, no issue was taken by the plaintiff at that stage as to the adequacy of the particulars. 5. The documents discovered by Mr Carolan in accordance with discovery orders made at the second listing included copies of invoices from a specialist pathologist. The invoices were addressed to Nubodi, marked for the attention of Mr Carolan. They included charges for services provided both to a number of Sydney Roosters players and to the man named by the defendants as the "organised crime figure" referred to in the articles. After inspecting those documents, the defendants' solicitor wrote to the solicitor for the plaintiff pointing out that, according to those invoices, the man named was a client of Mr Carolan and was being tested at the same time as the players. The defendants asked the plaintiff in those circumstances to provide verified answers to further interrogatories. 6. At around the same time, the defendants issued the two subpoenas which the plaintiff now seeks to have set aside. Both subpoenas seek documents relating to the man named as the organised crime figure. One is addressed to the New South Wales Police Force seeking his antecedents and documents evidencing the contents of the mobile telephone seized from him by Customs. The second subpoena is directed to the Department of Customs and Border Protection seeking records relating to the seized mobile phone. 7. The plaintiff's solicitor ultimately responded to the request to answer further interrogatories by foreshadowing the present applications. The letter asserted, among other things, that the allegation in the matters complained of that the man named by the defendants was "an organised crime figure" was "made nakedly" and "without any material in support". The defendants responded by contending that particular (xii) was adequate but also provided the following further particular: [the man named] is an organised crime figure in that he is reasonably suspected by police of being involved in a scheme to deal in and/or import prohibited substances into Australia. 1. The plaintiff submitted that particular (xii) should be struck out on two grounds. First, it was submitted that it is simply not capable of forming any part of the basis for Mr FitzSimons' opinion and that its inclusion is antithetical to the just, quick and cheap conduct of the proceedings, as demonstrated by the issue of the subpoenas. 2. I do not accept that submission. Mr FitzSimons has identified twelve pieces of information on the strength of which he formed the opinion that Mr Carolan administered the banned substance Human Growth Hormone to Sydney Roosters Football Players. The sufficiency of that information to sustain the opinion is not to be tested by reference to any one fact individually but by reference to the combined force of the facts as a whole. I do not think it would be appropriate to take one of the pieces out of the puzzle at this stage. I am not persuaded that the particular in question is wholly incapable of being brought to bear in reaching the conclusion reached by Mr FitzSimons. The distribution of the players' personal medical information (showing elevated levels of a banned substance) beyond the club to a person alleged to have connections with organised crime is, in my view, reasonably capable of contributing to the formation of the relevant opinion. 3. The second basis for the application was the inadequacy of the particulars. In accordance with the Uniform Civil Procedure Rules 2005 (NSW), the defendants were required, in their pleaded defence, to give such particulars as are necessary to enable the plaintiff to know the case he has to meet: r 15.1. Pursuant to r 15.21, they were to include particulars of the facts, matters and circumstances on which the defendants rely to establish that particular (xii) is a matter of substantial truth: r 15.21(1)(d); and see r 15.28(2)(b). 4. As emphasised by Mr Smark SC, who appears with Ms Chrysanthou for the plaintiff, the defendants consented to an order to provide the particulars of that contention sought in the plaintiff's letter dated 10 December 2014. Mr Smark emphasised that he was not contending the allegation was not properly made in the pleading. 5. Importantly, the defendants did respond to the request that they name the man in question. They were otherwise "not in a position" to provide further particulars of that contention. As already noted, documents subsequently discovered by Mr Carolan reveal that the man named appears to be known to Mr Carolan. That is not to say that the content of the obligation to provide particulars is informed by the extent to which the relevant information is already within the knowledge of the party seeking it. On the contrary, as stated by Hunt J in Sims v Wran [1984] 1 NSWLR 317 at 321F: It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet. 1. In my view, there is some force in the plaintiff's complaint that the statement that a particular person is an organised crime figure does not give him adequate knowledge of what the defendants allege are the facts. The plaintiff is entitled to be put on notice of the facts alleged to support the allegation that the person named has the appearance or attributes of a person involved in organised crime. 2. It may be doubted whether the additional particular, which makes reference to a reasonable suspicion held by police, takes the matter much further. It does, however, go some way to identifying the case the defendants will seek to make. I do not accept, as submitted by Mr Smark, that the defendants will have to prove that the person in question has criminal convictions or else prove that he has committed crimes. In my view, the allegation that a person is an "organised crime figure" is capable of being proved substantially true by other means. 3. It is significant that, after learning the name of the person in question, the plaintiff took the matter no further in circumstances where the proceedings later came before the Court on two occasions, once for lengthy argument. The practice note contemplates that such issues, if of concern to a party, should be raised at the second listing. The present application, while properly invoking the overriding purpose, itself falls outside the procedures directed to that end. 4. It must of course be accepted that a party should not make serious, unsupported allegations in the hope that, through the interlocutory processes, something helpful will turn up. As already noted, however, senior counsel for the plaintiff was astute to renounce any suggestion that the allegation was made in the defence without proper foundation. 5. In all the circumstances, I am not persuaded that it would be appropriate to strike out the particular at this stage. It was accepted that the challenge to the subpoenas would follow the fate of the particulars. Accordingly, the plaintiff's application is dismissed. The orders are: 1. The application to have particular A(xii) of the defence struck out is dismissed. 2. The application to have the subpoenas addressed to the New South Wales Police Force and the Department of Customs and Border Protection set aside is dismissed.