Supreme Court New South Wales Medium Neutral Citation: Lister v Harbour Radio Pty Limited [2016] NSWSC 1850 Hearing dates: 9 December 2016 Decision date: 09 December 2016 Jurisdiction: Common Law Before: McCallum J Decision: Imputation (g) struck out as imprecise Catchwords: DEFAMATION – form of imputations – no issue of principle Category: Procedural and other rulings Parties: Stephen Lister (plaintiff) Harbour Radio Pty Limited (defendant) Representation: Counsel: M Richardson (plaintiff) T Molomby (defendant) Solicitors: P Gibson (plaintiff) Banki Haddock Fiori (defendant) File Number(s): 2016/321241 Judgment 1. HER HONOUR: These are proceedings for defamation arising out of the broadcast of a number of segments on Radio 2GB by the well-known presenter, Mr Ray Hadley. The broadcasts were made during a period when the conduct of the Independent Commission Against Corruption and, in particular, its investigation of the barrister, Ms Margaret Cunneen, were the subject of considerable public discussion. In that context, the broadcasts focused on the fact that ICAC had evidently obtained a number of search warrants on different occasions in each case from the same registrar of the Local Court. The gist of the criticism levelled at the registrar, who is the plaintiff in these proceedings, was that he had made himself a "go to registrar" within the Court system whom ICAC could approach whenever it wanted a search warrant to be issued by the Court. 2. The proceedings are before the Court today for the first listing. [1] The defendants take a small number of objections to the form of the pleading. 3. The first objection is to imputation 5(c): "that as a registrar of the court the plaintiff was derelict in his duty in that he had a connection with ICAC which should have prevented him considering applications by ICAC." 1. The objection to that imputation is a relatively minor one. Mr Richardson, who appears for the defendants, contends that the imputation, in failing to specify that the registrar did in fact consider applications by ICAC, fails to identify any discreditable conduct on the part of the registrar. 2. Mr Molomby, who appears for the plaintiff, submits that so much is plain from the language of the imputation. He conceded that, if there were any lack of clarity on that issue, it could easily be cured by the addition of the words "as he did" at the end of the imputation, but submitted that was a step which would reflect an unduly pedantic approach and that it should not be necessary as the meaning of the imputation is clear. I agree. In my view, the meaning of the imputation is clear. The phrase "should have prevented" conveys the notion that someone did something they should not have done. That imputation will stand. 3. Imputations (f) and (g) are pleaded in the alternative, as follows: (f) that, as a registrar of the court, the plaintiff's conduct has been contrary to his duty; and (g) that, as a registrar of the court, his conduct has been inadequate." 1. Each of those imputations is alleged to arise in particular from a short second segment of the same broadcast, in the following terms: We have some quality people listening to the program, one includes a former magistrate whom obviously I can't mention, and as I read through the e-mail he describes Mr Lister, who is the go to man for ICAC search warrants apparently, in the most derogatory terms, in fact if I were to share with you what the former magistrate thinks of Mr Lister I would probably find myself in the Supreme Court, defending myself against defamation ah, ha, ha, ha ,ha. I will pass that on to relevant authorities without your name attached. Thank you very much for that. But that, suffice to say your engagement with Mr Lister doesn't leave you thinking of him in a very positive light. I think perhaps that is the nicest thing I can say. 1. As submitted by Mr Molomby, those remarks plainly hint at the content of some derogatory communication received from a listener without specifying its precise content. Mr Molomby submitted in those circumstances that the diffuse and inexact meaning of the two imputations reflects the diffuse and inexact meaning of the matter complained of. 2. Mr Richardson objected to each of those imputations on the grounds that they are imprecise. As to imputation (f), he submitted that it could overlap entirely with imputation (c), although I think in argument he very fairly acknowledged the possibility that one might be conveyed as a specific imputation and the other as a general attribution conveyed at the same time. 3. Having regard to the unclear import of the part of the matter complained of from which the imputation is alleged to arise, I am satisfied that imputation (f) is as clear as the nature of the matter complained of permits. That imputation will stand. I do, however, accept that imputation (g) is problematic. First, the range of potential conduct to which it could refer is broad; as it was put by Mr Richardson in his written objections, it could mean virtually anything on the scale of moral obloquy and may not differ in substance from any one or more of the other imputations. 4. A separate difficulty with the imputation, in my assessment, is that the only attribution it does convey, that is, of conduct which has been "inadequate", is an evaluative or indeterminate attribution, the imprecision of which could potentially cause embarrassment both at the trial and in the interlocutory stages of the proceedings. That imputation will be struck out with leave to replead. ******* Endnote 1. See Defamation List Practice Note SC CL 4, clauses 12 and 13. 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: 22 December 2016