Hawes v Fairfax Media Limited [2015] NSWSC 1534

Supreme Court New South Wales

Medium Neutral Citation: Hawes v Fairfax Media Limited [2015] NSWSC 1534 Hearing dates: 2 October 2015 Date of orders: 02 October 2015 Decision date: 02 October 2015 Jurisdiction: Common Law Before: McCallum J Decision: Rulings on imputations. Catchwords: DEFAMATION – pleadings – imputations – requirement for imputations to differ in substance – whether imputation is pleaded with requisite specificity Category: Procedural and other rulings Parties: Robert John Hawes (plaintiff) Fairfax Media Limited (first defendant) Fairfax Digital Australia & New Zealand Pty Limited (second defendant) Representation: Counsel: T Hale SC (plaintiff) T Blackburn SC (defendants)

Solicitors: Bilbie Dan Solicitors and Attorneys (plaintiff) Banki Haddock Fiora (defendants) File Number(s): 2015/235268

Judgment – Ex Tempore 1. HER HONOUR: This is an action for defamation commenced by Mr Robert Hawes against the proprietors of the Sydney Morning Herald newspaper (printed edition and online) arising out of the publication of an article in each edition on 10 February 2015, in each case under the headline "A City Caught Between a Rail Line and a Harbour". The primary focus of the article, which is the same in each case, is the conduct of Mr McCloy during the period when he was the mayor of Newcastle. The plaintiff, Mr Hawes, is referred to incidentally in the discussion of Mr McCloy. 2. The subject of the article is a decision made while Mr McCloy was mayor to truncate the Newcastle rail line so as to clear the area between the end of the rail line and the harbour for the obvious benefit of developers owning property in that area. 3. The plaintiff pleads two imputations as follows: That the plaintiff used his position as General Manager of Hunter Development Corporation, which sits within the Department of Planning, to obtain for himself the benefit of a property windfall profit at the public's loss by his involvement in achieving the truncation of the Newcastle rail line; That the plaintiff, as General Manager of Hunter Development Corporation, which sits within the Department of Planning, was knowingly involved in a corrupt arrangement to truncate the Newcastle rail line at the public's loss for the purpose of delivering private gains to himself and other members of a secret planning group which he attended. 1. At the first listing of the proceedings today, the defendants took an objection that those imputations do not differ in substance. 2. Mr Hale of Senior Counsel, who appears for the plaintiff, contended that the difference lies in the fact that the first imputation specifies conduct attributed to the plaintiff acting alone, consisting in his misuse of his position in public office. The imputation presently uses the verb "used" rather than "misused". Mr Hale accepted that the imputation would be clearer if that verb were substituted. 3. Mr Hale submitted that the second imputation attributes to the plaintiff a broader and more serious form of misuse of that position, consisting in his involvement in the corrupt arrangement referred to. Understood in that way the second imputation does, in my view, attribute a more serious level of conduct to the plaintiff, although in substance the sting is the same, being misuse of office. Mr Hale accepted on that analysis that the first imputation should be relied upon as a fall-back to the second. 4. Mr Blackburn of Senior Counsel, who appears for the defendants, submitted that, understood in that way, the second imputation suffers from a different vice of lacking adequate specificity. In particular, he noted that the imputation does not specify the participants in the corrupt arrangement. My first impression is that it is tolerably clear from the imputation that it was intended to identify a corrupt arrangement with the other members of the "secret planning group" referred to but, in any event, Mr Hale is content to re-order the wording of the imputation to make that plain. My ruling is that both imputations can stand but that the first imputation may be relied upon only as a fall-back to the second. 5. I order that each party bear his or its own costs of the application.