Whelan v John Fairfax Publications Limited and 2 Ors

[2000] NSWSC 815

CITATION:

Whelan v John Fairfax Publications Limited & 2 Ors [2000] NSWSC 815

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20501 of 1998

HEARING DATE(S):

3 August 2000

JUDGMENT DATE:

18 August 2000

PARTIES :

PAUL FRANCIS PATRICK WHELAN
(Plaintiff)

v

JOHN FAIRFAX PUBLICATIONS LIMITED
(First Defendant)

DARREN GOODSIR
(Second Defendant)

HEATH GILMORE
(Third Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	T Tobin Q.C. P Gray (Plaintiff) S Rares S.C. A Abadee (Defendant)
SOLICITORS:	Jones Staff & Co (Plaintiff) Freehill Hollingdale & Page (Defendant)
CATCHWORDS:	Imputations - capacity
CASES CITED:	Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 Jones v Skelton (1963) SR (NSW) 644 Lewis v The Daily Telegraph Limited (1964) AC 234 Morgan v Odhams Press Limited (1971) 1 WLR 1239
DECISION:	See paragraph 18

DLJ: 1
CAV
[2000] NSWSC 815

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20501 of 1998

JUSTICE DAVID LEVINE

FRIDAY 18 AUGUST 2000

PAUL FRANCIS PATRICK WHELAN
(Plaintiff)

v

John Fairfax Publications Limited
(First Defendant)



DARREN GOODSIR
(Second Defendant)
HEATH GILMORE
(Third Defendant)
JUDGMENT (Imputations - capacity)

1    By an Amended Statement of Claim filed on 27 March 2000 the plaintiff contends that the matter complained of published on or about 29 November 1998 carries the following imputations said to be defamatory of him.

“4.
(a) The plaintiff misused his position as Minister for Police to ensure that police provided no evidence to the Licensing Court when one of the plaintiff’s hotels applied for and obtained a 24 hour licence, in circumstances where it would ordinarily be expected that police would do so.
(b) The plaintiff misused his position as Minister for Police to ensure that two senior police officers gave evidence to the Licensing Court in support of the plaintiff’s hotel when it was faced with charges of serving intoxicated persons, in circumstances where it would ordinarily be expected that police would not do so.
(c) the plaintiff had behaved in such a manner as to afford reasonable grounds for police investigations to determine whether he had misused his position as Minister for Police to ensure that police gave his hotel preferential treatment in applications before the Licensing Court.
(d) The plaintiff, notwithstanding that he was Minister for Police, went along with the existence and tolerance of violence at his hotel”.

2 This pleading was filed consequent upon the Court of Appeal dismissing an appeal ([2000] NSWCA 48, 13 March 2000) from a judgment of Dunford J ([1999] NSWSC 620) with respect to an earlier set of imputations. 3 The present application relates to the imputations pleaded in respect of an article published on 29 November 1998 bearing the headline “Two Police Probes into Whelan Hotel”. The imputations with which his Honour Justice Dunford dealt were as follows:

“(a) The Plaintiff abused his position as Minister for Police resulting in police giving his hotel preferential treatment in applications before the Licensing Court.

(b) The Plaintiff had behaved in such a manner as to afford reasonable grounds for an investigation by the Police Internal Affairs Branch to determine whether he had abused his position as Minister for Police resulting in police giving his hotel preferential treatment in applications before the Licensing Court.

(c) The Plaintiff as Minister for Police interfered with the course of justice so as to cause police evidence relating to an application before the Licensing Court to be suppressed.

(d) The Plaintiff had behaved in such a manner as to afford reasonable grounds for a police investigation to determine whether he had interfered with the course of justice so as to cause police evidence relating to an application before the Licensing Court to be suppressed.

(e) The Plaintiff while Minister for Police condoned violence and other unlawful activity at a hotel in which he was the major shareholder.

(f) The Plaintiff was a party to the misuse of police powers to cover up misconduct at a hotel in which he was the major shareholder”.

4    His Honour found that the matter complained of was incapable of giving rise to any of those imputations. 5    In paragraph 21 his Honour said:

“Once again the plaintiff's difficulty is that there is no suggestion either that he is being investigated or that he has been in any way involved in securing preferential treatment for his hotel, that he caused evidence to be suppressed, that he condoned violence or other unlawful activity at the hotel or misused his powers as Police Minister to cover up misconduct at the hotel. Notwithstanding the reference in the heading to "Whelan hotel", it is the police who are said to be under investigation, not the plaintiff”.

6    This was seized upon by Meagher JA in the Court of Appeal where his Honour expressed respectful agreement with what Dunford J had said (paragraphs 4 and 5). 7    It is submitted for the defendant in respect of imputations 4(a) and 4(b) that the addition of the words “the plaintiff misused his position as Minister for Police to ensure” add nothing to overcome the situation reflected in the decision on the question of law made by Dunford J on the original imputations. The amended imputations for the reasons stated by his Honour and by applying the usual tests of reasonableness (Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158) the article is incapable of conveying them. 8 As to imputation 4(c) it is in a similar category: there is still “no suggestion” as was referred to by Dunford J. In the absence of any such suggestion there is no reasonable basis upon which it would be concluded that it was open for someone to “suspect” the plaintiff. 9    As to imputation 4(d): again Dunford J was of the view that in respect of the relevant imputation with which his Honour was dealing that there is no suggestion that the plaintiff condoned violence or any other unlawful activity at the hotel. No reasonable reading of the publication could give rise in the mind of the reader to any notion of “condonation” or “going along with”. This, at the very least, would be a strained and forced meaning especially in the light of paragraphs 17 to 31 relating to the Magistrate’s finding that the hotel had a good record. 10    For the plaintiff in written and oral submissions I was reminded of the profoundly important statements of principle found in Marsden (supra), Jones v Skelton (1963) SR (NSW) 644 at 650; Lewis v The Daily Telegraph Limited (1964) AC 234 at 258; Morgan v Odhams Press Limited (1971) 1 WLR 1239 at 1245. 11 In a legal context it was submitted for the plaintiff that the gravamen of the matter complained of is that it is “the identity of the plaintiff which explains the otherwise inexplicable”. It is said that the matter complained of points to the fact that the plaintiff owns the hotel thereby providing an answer to “the puzzles”. The “puzzles” or the matters said to be inexplicable are what are described as the “surprising events” in the article concerning especially the licensing matters. What is made perfectly clear in the matter complained of namely, is that the conduct of the police and not of the plaintiff was the subject of inquiry. 12    True it is that the plaintiff is referred to nine times in the matter complained of. None of those matters however warrants or can found a conclusion as to “capacity” applying the usual tests. 13    The substance of the imputations now pleaded by the plaintiff and indeed the substance of the imputations with which Dunford J was concerned (and there is hardly any difference) is simply not available for the formulation of any imputation that as a matter of law can be said to be capable of being carried by this publication. 14    Both sets of imputations must be taken to reflect that which has been perceived by the plaintiff as to constitute the range of causes of action upon which he had chosen to rely. 15    As to the set of imputations with which I am concerned, I hold that the matter complained of is incapable of conveying them. The reasons Dunford J gave I respectfully adopt as here applicable. 16    Thus twice the plaintiff has sought to plead causes of action arising from this publication. Twice has he failed. 17    This appears to be a case in which it is quite inappropriate to grant the usual leave to the plaintiff “to try again”. The plaintiff will have to formally move the Court by Notice of Motion accompanied by the proposed Second Amended Statement of Claim sought to be filed (absent consent from the defendant). 18    The formal orders are:

1. The imputations pleaded in paragraph 4 of the Amended Statement of Claim, as a matter of law are incapable of being carried by the matter complained of.

2. The plaintiff, within 21 days, is to formally move the Court by Notice of Motion, returnable on 13 October 2000, to seek leave to file a Second Further Amended Statement of Claim.

3. By 4.00pm on Wednesday 11 October 2000 written outlines of submissions are to have been exchanged.

4. The matter is listed for argument in the Defamation List on Friday 13 October 2000.

5. The plaintiff is to pay the defendants’ costs.

**********

Last Modified: 09/27/2000