Broome v Richardson and Anor [2002] NSWSC 446 (1 November 2002)

Last Updated: 15 November 2002

NEW SOUTH WALES SUPREME COURT

CITATION: Broome v Richardson & Anor [2002] NSWSC 446



CURRENT JURISDICTION:

FILE NUMBER(S): 20468/00

HEARING DATE{S): 13 May 2002
14 May 2002

JUDGMENT DATE: 01/11/2002

PARTIES:
John Harold BROOME (Plaintiff)
Graham RICHARDSON (1st Defendant)
HARBOUR RADIO P/L (2nd Defendant)

JUDGMENT OF: Simpson J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
K Smark (Plaintiff)
G Reynolds SC (Defendants)

SOLICITORS:
Deacons (Plaintiff)
Corrs Chambers Westgarth (Defendants)


CATCHWORDS:
defamation
release of information known as "leaking"
condonation
capacity of matter complained of to convey imputations pleaded
reference to Watergate
composite of ideas within imputations pleaded
transitory nature of radio broadcasting
linkage between broadcasts

ACTS CITED:


DECISION:
(i) I grant leave to the plaintiff to file a second further amended statement of claim, in the form proposed (with the exception of the proposed imputations numbered 4(c) and 6(b)), and subject to the further amendment of imputation 8(a)
(ii) I order that the plaintiff pay any costs thrown away by the amendment but otherwise order each party to pay his or its own costs.


JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION list


SIMPSON J


Friday 1 November 2002


20468/00
John Harold BROOME v Graham RICHARDSON & Anor


JUDGMENT

1 HER HONOUR: By statement of claim filed on 29 August 2000 the plaintiff claimed damages for defamation said to arise out of a series of radio broadcasts published by the first and second defendants on 29 June 1999. The statement of claim has been amended a number of times since then. The present proceeding is an application by the plaintiff to file what is entitled a “Second Further Amended Statement of Claim”. The defendants oppose the grant of leave on the sole ground that to grant leave would be futile since the proposed pleading is defective and would, on application by the defendants, be struck out in whole or in large part.

2 The claim as formulated in the document now under consideration concerns three separate segments of an early morning radio programme of which the first defendant was the presenter; the second defendant was the company that conducted and operated the radio station on which he broadcast. (For the purpose of the present determination only I shall assume such facts as are uncontroversial for this purpose, either as pleaded, or as assumed during the course of argument, including the words said to have been published.)

3 The general subject matter of the broadcasts could be said to be an investigation by the National Crime Authority (“the NCA”) into conduct alleged against a member of Parliament, Dr Andrew Theophanous. From the words attributed to the first defendant it may be inferred that the investigation had been extensively covered by a journalist called Kate McClymont in reporting in a Sydney daily newspaper, the Sydney Morning Herald. However, the substance of the broadcast was to criticise the NCA for releasing information to Ms McClymont about its investigation in the fashion or style known as “leaking”. The three segments of the programme have been pleaded as three separate “matters complained of”.

4 It is necessary to refer in more detail to what is alleged to have been said by the first defendant, and, in the second segment, by Dr Theophanous.

5 The first segment was broadcast at about 6.00 am. The first defendant introduced the subject matter, saying that “a very interesting story” had been running in the Sydney Morning Herald over the last week or so and that the story concerned an allegation that Dr Theophanous was about to be charged criminally for accepting money from members of the Chinese community for advice on immigration matters.

6 Inter alia, the transcript records that the first defendant said:

“Nonetheless, what amazes me and disappoints me is that the National Crime Authority have obviously been regularly briefing Kate McClymont at The Sydney Morning Herald on the fact that they want to charge him.

And I just find that staggering. If these crime bodies, and we seem to have millions of them, these days, these secretive crime bodies. They’re all secretive up until they think they’ve got a public figure on the rack and they can go out and bucket them in the paper.

I mean, what sort of fair trial do people get when there’s this build up with weeks of leaks about what people are supposed to have done in big newspaper articles? And that’s what they’ve done to Theophanous. I think it’s outrageous. ... he says that the National Crime Authority are orchestrating a vendetta against him.

He said NCA officers abused their powers and behaved in an improper manner in investigating allegations that he’d accepted money from members of the Chinese community for advice on immigration.

You see, they tapped his phones - ...

...And by the way, how dangerous do you reckon it is that Crime Authorities are willy nilly tapping the phones of our Federal members of parliament?

I mean, that’s pretty terrifying because the capacity to the Watergate-style interference in the political affairs of the country is pretty obvious. I’m just staggered with this. And I don’t blame Theophanous for saying he’s amazed that NCA Chairman, John Broome, had commented publicly, during a TV interview, on the investigation.
...
Theophanous ... says the campaign against him is politically motivated. ...”

7 The second part of the broadcast commenced at about 7.30 am on the same day. On this occasion Dr Theophanous and the first defendant engaged in a telephone conversation. The first defendant began by saying that Dr Theophanous had accused the NCA of “waging a vendetta against him”, of abusing their powers and behaving in an improper manner in investigating the allegations. He said that Dr Theophanous had emphatically denied the accusation, and had consistently maintained his innocence but said that he knew he would be arrested or charged. The first defendant said:

“The NCA has denied any suggestion of a vendetta and the Chairman, John Broome, has defended his officers.”

8 There then followed the conversation between the first defendant and Dr Theophanous. The first defendant began by saying:

“This has been an extraordinary story. I was dismayed to see the Sydney Morning Herald last week, on a front page article, get a leak from NCA. Now it’s not normal that these crime authorities leak information on the field they are investigating is it?”

9 Dr Theophanous replied by saying that it was “very disturbing”, and that no newspaper would have published such statements “unless they had in fact got pretty confident briefing from the NCA”.

10 The first defendant agreed that the McClymont articles made it appear that “she had been briefed well and truly by the NCA” and he said that he found that “very very disturbing”.

11 Dr Theophanous commented unfavourably upon the plaintiff’s having spoken publicly in the media. The first defendant asked if Dr Theophanous knew that his phones had been tapped and Dr Theophanous said that he had known that for a long time and was of the opinion that his telephones were still being intercepted.

12 There was a protracted conversation in which the two men agreed that the conduct of the NCA had been “really bizarre” or “pretty amazing”. There was reference to the undesirability of interfering with the telephone calls of members of Parliament. Dr Theophanous suggested that the NCA had, in some way, been responsible for entrapping him, he said by involving a convicted drug dealer. The first defendant said that what the NCA had done was “very very wrong”. Dr Theophanous agreed, saying that the issue had raised “a lot of civil liberty issues”.

13 The third segment commenced at about 9.30 am. On this occasion the broadcast featured an incoming telephone call from a listener identified as “Elizabeth”. It seems that “Elizabeth” was intending or attempting to put an alternative view, possibly defending the NCA. The first defendant said:

“... What I’m annoyed about is that what they’re doing here is leaking all the details in the weeks leading up to it.

Because you know what happens here, Elizabeth? The NCA take a brief to the Director of Public Prosecutions. And what they’re doing is placing pressure on the Director of Public Prosecutions – which means, usually, they think their case might be a bit weak – to make sure he takes action. They’re trying to create a public climate so that it will look bad for the DPP if he backs off. That’s what I object to.”

14 As is asserted in the extract above, the plaintiff was, at the time of the broadcast, the Chairman of the NCA. The plaintiff has pleaded that each of the first and second segments individually conveyed imputations which defamed him, and that the third segment, taken in conjunction with the first and second, conveyed a further imputation that defamed him. No allegation is made that the third segment, taken on its own, conveyed any defamatory imputation.

the first matter complained of

15 The imputations pleaded by the plaintiff to have been conveyed by the first segment are contained in paragraph 4 of the statement of claim and are framed in the following terms:

“4(a) The plaintiff had condoned the leaking by the NCA, to Kate McClymont of the Sydney Morning Herald, of matters relating to its investigation of Dr Andrew Theophanous and of its intention that Dr Theophanous be charged with criminal offences.

(b) The plaintiff had condoned conduct by the NCA, namely the deliberate leaking of material to the media, which would deny Dr Theophanous a fair trial.

(c) The plaintiff had condoned the illegal tapping by the NCA of Dr Theophanous’ telephone.

(d) The plaintiff had condoned the indiscriminate tapping by the NCA of the telephones of Federal parliamentarians.

(e) The plaintiff had been motivated by partisan political considerations in relation to the investigation of Dr Theophanous.

(f) The plaintiff had condoned Watergate-style interference by the NCA in the political affairs of Australia.”

16 The imputations said to arise from the second segment were pleaded in paragraph 6, as follows:

“6(a) The plaintiff had condoned the leaking by the NCA, to Kate McClymont of the Sydney Morning Herald, of matters related to its investigation of Dr Andrew Theophanous.

(b) The plaintiff had condoned the illegal tapping of Dr Theophanous’ telephone.”

17 The plaintiff asserts, in paragraph 8, that a single imputation defamatory of him is conveyed by a combination of the first, second and third segments. He has framed it as follows:

“8(a) The plaintiff had condoned the intentional placing of pressure on the Director of Public Prosecutions to bring criminal charges against Dr Theophanous.”

18 As I have indicated above, the present proceeding is an application by the plaintiff to file a second further amended statement of claim containing the imputations above. The defendants contend that no proposed imputation can survive scrutiny and that leave to file the document should therefore not be granted. They take a variety of points, of which one is common to all except one of the imputations. It is therefore convenient to deal with that contention first. This point concerns the use of the word “condoned”, which appears in every proposed imputation except that numbered 4(e). The point taken is a simple one. It is that “condoned” is a word redolent of ambiguity, creating uncertainty about the precise meaning to be attributed to each imputation. It was pointed out that the word was not used in any of the broadcasts, and thus amounts to the plaintiff’s paraphrase of the statements of which he complains.

19 It is not uncommon to find imputations framed in a fashion that uses language not derived directly from the publication of which complaint is made. Indeed, it has been suggested that more often than not a properly framed imputation will shy away from the language of the publication and interpret it in other words. This view appears to have originated in the judgment of Hunt J (as he then was) in Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663. His Honour wrote:

“What the plaintiff must plead as the imputation upon which he relies is, in my opinion, the precise act or condition asserted of, or attributed to, him, or with which he is charged. Words are but instruments which men use to express and convey their meaning: Lewis v Daily Telegraph Ltd [[1964] AC234 at p266] but, outside of legal documents, it is recognised that words are imprecise instruments for that purpose: Slim v Daily Telegraph Ltd [[1968] 2QB 157 at p171]. Yet it is the meaning alleged to have been conveyed by the words, rather than the words themselves which it is important to have precisely defined in the imputation complained of by the plaintiffs. In very few cases would it be sufficient merely to repeat the wording of the matter complained of itself. Very rarely is that act or condition stated expressly in the matter complained of; rather it is more usually implied or to be inferred: Jones v Skelton [[1963] SR(NSW) 644 at p 650]. The charge is often to be read only between the lines: Lewis v Daily Telegraph Ltd ...[at 258]; or by insinuation [[1964] AC 234 at p 78]. As Lord Devlin said in that case [... at p 278] a derogatory implication may be so near the surface that it is hardly hidden at all, or it may be more difficult to detect. But this is not to suggest, his Lordship said, that, where the words are plain, a rhetorical type of imputation should be alleged. The requirement that the plaintiff specify his imputation in the statement of claim should not, of course, be construed as an invitation to dress up the matter complained of in fanciful and ingenious terms: Grubb v Bristol United Press Ltd [[1963] 1QB309, at p 328]. But I maintain that, in very few cases, will the words be plainly expressed as a charge against the plaintiff, so that a mere repetition of the words in the matter complained of will be a sufficient compliance with [SCR Part 67]r.11(2).” (emphasis added)

20 The two sentences I have emphasised have been seized upon by defendants who regularly argue that the passage, in effect, prohibits adoption of the language used by the defendants, and requires of a plaintiff a greater degree of precision and refinement than has characterised the defendants’ language.

21 It is therefore a little surprising to find the defendants in the present case relying on the absence of the word “condoned” from any of the segments of the broadcast in support of their objections to most of the imputations. However, that is peripheral to their main point. Their main point is that, while use of the word in the broadcasts (had it been used) may have justified the use of it in the imputations, its absence deprives the plaintiff of that comfort, and they contended that the word is not susceptible of clear definition. To support this argument they pointed to four meanings of the word given in the Macquarie Dictionary. The revised edition (1985) of that dictionary contains the following four meanings:

“1. to pardon or overlook (an offence);
2. to cause the condonation of;
3. to atone for; make up for;
4. law. To forgive or act so as to imply forgiveness of (a violation of the marriage vow).”

22 None of these, it was argued, precisely fits the existing circumstances, or what the plaintiff intends to assert is attributed to him in the broadcasts.

23 Notwithstanding the definitions contained in the dictionary, I am of the view that, in common parlance, the notion of “condoning” carries with it a measure of approval, and I think it is probably in this sense that the plaintiff has used the word in the imputations.

24 I do not perceive the ambiguity in the word which is asserted on behalf of the defendants. In my opinion, despite the different meanings and concepts given to the word in the Macquarie Dictionary, and my view that it ordinarily conveys something a little more than those meanings, a jury will be well able to grapple with the concept of condonation. Many commonly used English words have a variety of meanings attributed to them in dictionaries. Leave to file the amended statement of claim will not be refused on the basis that there is, in any imputation, an ambiguity by reason of the use of the word “condoned”. This disposes of the same argument advanced in relation to all imputations in which that word appears.

25 The next argument concerning a number of the imputations was based upon the asserted incapacity of the matter complained of to convey a specific pleaded imputation. To many of these there was a common thread, but it will be necessary to deal with each of these individually. The general point was that, where the matters complained of may have conveyed imputations about the NCA, there was insufficient linkage between the NCA and the plaintiff for a reasonable listener to conclude that the plaintiff had condoned the particular conduct the subject of the specific imputation.

imputation 4(a)

“4(a) The plaintiff had condoned the leaking by the NCA, to Kate McClymont of the Sydney Morning Herald, of matters related to its investigation of Dr Andrew Theophanous and of its intention that Dr Theophanous be charged with criminal offences.”

26 The defendants pointed out that, by reason of the formulation of the imputation, it is necessary to be able to find within the first segment of the broadcast an assertion that the plaintiff condoned no less than five individual matters or items. These were:

· leaking by the NCA;
· to Kate McClymont;
· of the Sydney Morning Herald;
· matters relating to its investigation of Dr Theophanous;
· and of the NCA’s intention that Dr Theophanous be charged with criminal offences.

27 In my view, the correct way of looking at the imputation as formulated is that “the leaking by the NCA, to Kate McClymont of the Sydney Morning Herald” is a composite of ideas or asserted facts, each of which is clearly conveyed by the broadcast. That is, the broadcast clearly asserts that the NCA leaked information to Ms McClymont and Ms McClymont published her articles in the Sydney Morning Herald. The next part of the imputation is also a composite of ideas. What is said to have been leaked is “matters related to [the NCA’s] investigation of Dr Theophanous [and] of its intention that Dr Theophanous be charged with criminal offences”. That also is clearly capable of being conveyed.

28 One sentence in the matter complained of makes it plain that the NCA is being accused of leaking information to Ms McClymont. That sentence reads:

“Nonetheless, what amazes me and what disappoints me is that the National Crime Authority have obviously been regularly briefing the Kate McClymont at the Sydney Morning Herald on the fact that they want to charge him.”

29 It was pointed out, also, that, although the plaintiff was named later in this segment of the broadcast and identified as “NCA Chairman”, at the time of the broadcast of those passages on which the plaintiff relies to support this imputation, his name had not yet been mentioned. In my opinion this factor should be accorded little, if any, weight. The argument was that, by reason of the transitory nature of a radio broadcast, accusations made earlier, without identification of the subject matter, are likely to have less impact upon the casual listener. Put perhaps more accurately, an imputation that might otherwise be defamatory if the subject matter is immediately named or identified in the context in which the defamatory imputation is published, is less likely to carry the same force if the subject is not named or identified until later. There is substance in this point and in some cases it may be of considerable weight. Whether the absence of immediate identification of a person to whom later reference is explicitly made has the consequence that the matter complained of lacks the capacity to convey an imputation “of and concerning” that person will depend upon a proper analysis of all the facts. Capacity to convey an imputation will depend upon the individual facts and circumstances of each case, including the severity of the accusations and the distance in time between the accusation and the identification. To some extent, that will depend upon how sensational (or otherwise) the initial accusation is. The defendants argued that, by reason of the transitory nature of a radio broadcast, it is reasonable here to infer that a listener might not readily have linked the later mention of the plaintiff’s name with what had been said earlier.

30 It is only a few paragraphs – and I would assume, a few seconds – after the allegation that the NCA had been leaking information to Ms McClymont of the Sydney Morning Herald that the plaintiff was named and identified as NCA Chairman. The fact that, at the time the principal accusation was made, the plaintiff had not been identified does not bear significantly on the question of the capacity of the matter complained of to convey imputation 4(a). It might have been different had the naming of the plaintiff been very much later in the broadcast.

31 The principal submission put on behalf of the defendants was that the whole of the matter complained of fell short of linking the plaintiff with the conduct of the NCA that was strongly criticised and that it therefore lacked the capacity to convey the imputation that he condoned that conduct. This argument is common to all imputations pleaded in paragraph 4, except 4(e).

32 Although I have wavered in relation to this submission, I have, in the end, concluded that the broadcast, taken as a whole, does not lack the capacity to convey the imputation. In this respect it is proper to have regard, as counsel for the plaintiff pointed out, to the tone, language and style of the broadcast. I have not listened, or been invited to listen, to any tape recording of the broadcast and my impression as to these matters must come from a reading of the transcript. However, it is possible to discern from the transcript that the first defendant’s views were expressed in vigorous and strong language, and it may be inferred that his tone was of the same ilk. Throughout the comments, reference was made to the NCA, to officers of the NCA, and to “these crime bodies” in general terms. References to the NCA or to NCA officers tended to be followed by the personal pronoun “they”. When his name was mentioned the plaintiff was expressly linked with publicity given to the investigation – adverse comment was made as to his participation in a media interview on the subject. Taking the broadcast as a whole, a jury could conclude that the plaintiff was associated with the NCA, or with the conduct of the NCA, sufficiently to be held responsible for its conduct or misconduct.

33 I have come to the conclusion that the matter complained of does have the capacity to convey imputation 4(a).

34 A further criticism made of the imputation was that it is, in reality, two imputations: that is, that the plaintiff condoned leaking of matters relating to its investigation of Dr Theophanous; and that he condoned leaking of the NCA’s intention that Dr Theophanous be charged with criminal offences.

35 One matter put in support of this submission was that pleading in the manner chosen by the plaintiff renders it more difficult for a defendant to justify the imputation. There is no principle of law of which I am aware pursuant to which a plaintiff claiming to have been defamed is obliged to frame the pleadings in order to make the defendants’ task easier, or to facilitate the pleading and pursuit of any particular defence, including justification. It is, of course, also true that, if the imputation remains in its present form, the plaintiff will have the more difficult task of persuading the jury that both parts of the imputation were in fact conveyed.

36 In my opinion this imputation is a composite one but there is no reason why a plaintiff should not plead a composite imputation. A plaintiff is entitled to plead in that way if so advised.

37 The formulation of imputation 4(a) gives no reason for declining leave to file the proposed amended statement of claim.

imputation 4(b)

“4(b) The plaintiff had condoned conduct by the NCA, namely the deliberate leaking of material to the media, which would deny Dr Theophanous a fair trial.”

38 The second objection to this imputation (the first having been the general objection to the use of the word “condoned”) raised the capacity of the broadcast to convey the imputation as framed. The criticism here was twofold; firstly, it was argued that, while there were passages in the broadcast capable of suggesting that the NCA was deliberately leaking information, it was not capable of suggesting that that deliberate leaking was condoned by the plaintiff; secondly, that the broadcast was not capable of conveying the imputation that the deliberate leaking would deny Dr Theophanous a fair trial.

39 In my opinion the concession that there was material capable of suggesting that the NCA was engaged in deliberate leaking of information was properly made. The whole tenor of the broadcast is to that effect and constitutes a spirited attack upon the NCA as an organisation for having engaged in such tactics. As to the second part of the argument, the first defendant is recorded as saying:

“I mean, what sort of a fair trial do people get when there’s this build up with weeks of leaks about what people are supposed to have done in big newspaper articles? And that’s what they’ve done to Theophanous.”

40 In my view, this passage amply demonstrates that the broadcast was capable of conveying the suggestion that the NCA’s conduct had the potential to interfere with a fair trial of Dr Theophanous. That leaves the question of its capacity to convey the imputation that the plaintiff had condoned that conduct. This argument is really the same argument as was put on the same question in relation to imputation 4(a) and must meet the same fate.

41 The criticisms of imputation 4(b) do not persuade me that leave to file the proposed amended statement of claim should be refused.

imputation 4(c)

“4(c) The plaintiff had condoned the illegal tapping by the NCA of Dr Theophanous’ telephone.”

42 Objection was taken on three bases: the form of the imputation arising from the use of the word “condoned”; the capacity of the matter complained of to convey the imputation that the plaintiff had condoned the relevant conduct; and the capacity of the matter complained of to convey the imputation that any telephone tapping perpetrated by the NCA was illegal.

43 The first two of these matters fall to be determined in the same way as the same arguments in relation to the two earlier imputations. The third requires examination of what was said about the nature of the telephone tapping alleged to have taken place. What the first defendant said was this:

“He [Theophanous] said NCA officers abused their powers and behaved in an improper manner in investigating allegations that he’d accepted money from members of the Chinese community for advice on immigration.

You see, they tapped his phones – and certainly if you read the Sydney Morning Herald you have to believe they’ve been tapping his phones - ...And by the way, how dangerous do you reckon it is that crime authorities are willy nilly tapping the phones of our Federal Members of Parliament?

I mean, that’s pretty terrifying because the capacity to the watergate-style interference in the political affairs of the country is pretty obvious ... “

44 There was no direct assertion that any telephone tapping in which the NCA had engaged was illegal. Counsel for the plaintiff relied upon the reference to abuse of power and improper behaviour, to “willy nilly tapping”, and to the reference to “Watergate-style interference”. The last of these references, to “Watergate-style interference” prompts recollections of a notorious period in United States (and, indeed, world) history. “Watergate” has entered the language and is, in my opinion, generally regarded as conveying something sinister. It seems to me likely that the precise import of the word “Watergate” will depend, at least to an extent, on generational factors: those of an age who recall this period of American history may have a more precise or detailed perception of the nature of the scandal from which the expression is derived. It is interesting to note that “watergate” (with a lower case “w”) appears in the 1985 edition of the Macquarie Dictionary. It is said to be a colloquial expression, defined as follows:

“1. a leader
2. a downfall of a political leader, caused by a scandal
3. (as a transitive verb) to conceal; cover up.”

45 The dictionary goes on to explain that the expression is derived:

“... from Watergate, hotel in Washington, the bugging of which led to a political scandal, and the resignation of the US President, Richard Nixon.”

46 Some attempt was made on behalf of the plaintiff to link the “bugging” in the Watergate events to telephone tapping and thereby to create a suggestion of illegality. This attempt should – and does – fail. The Macquarie Dictionary definitions suggest that the notion of “bugging” has faded from the meaning attributed to “Watergate” and was included in the entry only to explain the origin of a term which is relatively new in the use of everyday English.

47 It is true that the first defendant made it plain that the accusation was of abuse of power, of impropriety, and of indiscriminate (“willy nilly”) telephone tapping, but I am satisfied that this does not go so far as to be capable of conveying an imputation that the NCA behaved illegally in doing so. To make such an accusation against a crime authority would be quite extraordinary, and I do not think it possible that the ordinary reasonable listener to this programme could have drawn the inference that this is what was being alleged. The very term “abused their powers” tends to suggest otherwise – that powers were exercised lawfully but improperly.

48 I decline to grant leave to the plaintiff to amend the statement of claim by pleading an imputation in the form of imputation 4(c).

imputation 4(d)

“4(d) The plaintiff had condoned the indiscriminate tapping by the NCA of the telephones of Federal parliamentarians.”

49 It was, I think, accepted on behalf of the defendants that the broadcast suggested that the NCA had indiscriminately engaged in tapping telephones of Federal parliamentarians. The issues which arose were the use of the word “condoned” as to which it is necessary to say no more; and the capacity of the matter complained of to convey the imputation that the plaintiff had condoned that indiscriminate telephone tapping. Other matters were raised, but, having heard the argument, counsel for the plaintiff made a suitable amendment to the imputation. That had the effect of disposing of the further objection.

50 The determination of the outstanding issues follows what are really the same points taken in relation to earlier imputations. I will not refuse leave to file the amended statement of claim on the basis that imputation 4(d) is objectionable.

imputation 4(e)

“4(e) The plaintiff had been motivated by partisan political considerations in relation to the investigation of Dr Theophanous.”

51 The challenge that is made to this imputation concerns its capacity to be conveyed by the matter complained of. It is to be noted that Dr Theophanous was quoted as asserting that the campaign against him was “politically motivated”. However, senior counsel for the defendants argued that there was nothing in that passage to convey the notion of “partisan” political motivation or considerations. In my opinion this too narrowly construes the broadcast. At the very beginning of the broadcast Dr Theophanous was identified as “a Federal Victorian Labor backbencher” who had been in Parliament since 1980.

52 In that context, I am of the view that an assertion of “political motivation” is capable of conveying the further notion that that political motivation was “partisan” political motivation.

53 I will not refuse leave to file the amended statement of claim on the basis of the asserted defect in this imputation.

imputation 4(f)

54 This imputation, after minor amendment during the course of the proceedings, is framed as follows:

“4(f) The plaintiff had condoned Watergate-style interference in the political affairs of Australia.”

55 Leaving aside challenges to the word “condoned” and the capacity of the broadcast to link the plaintiff with what was asserted against the NCA, the remaining challenge to be determined in relation to this imputation is that, because of the reference to “Watergate-style interference”, it is ambiguous, non-specific, and too vague. Senior counsel conceded that, where the actual words of the imputation are used in the matter complained of, a plaintiff has greater flexibility in incorporating the words in the imputation, but argued that this is subject to the caveat that the words can only be used if the plaintiff is unable to plead the case in any other way. He referred to Monte (above) and Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, in which something of a gloss was put upon the passage from Monte extracted above.

56 I have already stated my views and conclusions about the reference to “Watergate”. I am satisfied that the expression is sufficiently well understood to warrant going before a jury. This is one of those cases where the defendants have to live with the words that they published. The framing of this imputation does not persuade me that leave to file the amended statement of claim should be refused.

the second matter complained of

57 The second segment of the broadcast began at about 7.30 am, approximately an hour and a half after the first. The plaintiff complains that it, standing alone, conveyed two imputations which defamed him, as set out above.

58 The same objections as to form concerning the word “condoned” were taken and must be resolved in the same way as the earlier objections.

59 Here, it was further argued that an assertion contained in the introductory remarks by the first defendant to the effect that the plaintiff had “defended” his officers underlined the asserted ambiguity in the use of the word. I am satisfied that this has no bearing on the objection.

imputation 6(a)

“6(a) The plaintiff had condoned the leaking by the NCA, to Kate McClymont of the Sydney Morning Herald, of matters related to its investigation of Dr Andrew Theophanous.”

60 A separate challenge was made concerning the capacity of the matter complained of to convey the various items that go to make up imputation 6(a) as a whole – that is, leaking by the NCA, to Ms McClymont, of matters related to the NCA’s investigation of Dr Theophanous. Having regard to the formulation of the proposed pleading, these must be examined in the context of the second segment of the broadcast in isolation from the others.

61 In my opinion the broadcast is clearly capable of conveying the whole of the imputation. The first defendant is recorded as saying that the Sydney Morning Herald had a leak from the NCA on a front page article; very shortly afterwards he made a reference to “Kate McClymont’s piece in the Sydney Morning Herald” and asserted that she had been “briefed well and truly by the NCA”. It was plain from the context that the subject matter of the leak or briefing was the investigation of Dr Theophanous. The plaintiff’s name was introduced by the first defendant at a very early stage. He was criticised for making public comments. I am satisfied that the broadcast was capable of suggesting that he had condoned the conduct of NCA officers.

62 I will, accordingly, not disallow the proposed amendment on the basis of the framing of this imputation.

imputation 6(b)

“6(b) The plaintiff had condoned the illegal tapping of Dr Theophanous’ telephone.”

63 The specific complaint made in respect of this imputation concerns the inclusion of the word “illegal”. The reference, in the matter complained of, to telephone tapping began with a question by the first defendant of Dr Theophanous whether he knew that his phones had been tapped. Dr Theophanous replied that he did know that and that it had made life virtually impossible, and that he and “Kathryn” (who, presumably, is his wife) were of the view that the phones continued to be tapped in both his offices and his home.

64 As with imputation 4(c), there is no suggestion that any telephone tapping by the NCA was not done pursuant to lawful authority. I will not allow the statement of claim to be amended by the inclusion of imputation 6(b).

the third broadcast

65 The single imputation, imputation 8(a), pleaded in relation to this broadcast was reformulated during the course of the argument. It is said to have been conveyed by a combination of the three broadcasts and was ultimately framed in the following terms:

“8(a) The plaintiff had condoned the intentional placing of pressure on the Director of Public Prosecutions to bring criminal charges against Dr Theophanous.”

66 Initially, the manner of pleading by reference to three separate parts of the broadcast was the subject of challenge. However, having regard to the decisions in Burrows v Knightly (1987) NSWLR 651 and Phelps v Nationwide News Pty Ltd [2001] NSWSC 130, unreported, 9 March 2001, that argument was not pressed.

67 It was argued that there was insufficient linkage between the broadcasts to permit a reasonable listener, having heard the first and/or second segments of the broadcast, followed by the third, to make the connection between what was said then and what was said later. I reject this proposition. The subject matter was obviously a continuing theme in the broadcast of that morning. Whether or not any listeners heard all three broadcasts raises a question of fact, and not a pleading point. Taken together, the three segments of the broadcast have the capacity to convey imputation 8(a).

68 After the conclusion of the oral agreement, the defendants provided a further written submission, taking the additional point that the imputation, as framed, lacks precision by failing to identify the person having the intention to place pressure on the DPP. The plaintiff accepted this argument, and, accordingly, in a written communication, sought leave further to amend the imputation by adding the words “by the NCA” after the word “pressure”.

69 The defendants were invited to respond to this application and did so, opposing the grant of the leave sought, on the basis that any imputation so framed would be struck out. They restated the arguments concerning the use of “condoned”, and concerning capacity. These I reject for reasons already given.

70 The defendants’ submission then went beyond the narrow issue of the proposed addition of the words “by the NCA” and encompassed material that would have been equally applicable to the imputation as previously pleaded. This submission concerned the manner in which the plaintiff pleads the three segments of the broadcast, relying on the first two segments as individual publications, but, in relation to the third, relying upon it by incorporating the first and second segments. They submitted:

“ ... that there is no basis in law for this pleading.”

71 They argued that the decisions in Burrows and Phelps are not authority for the proposition that a plaintiff may sue on separate segments of the broadcast both individually and in composite with a third segment. They therefore submitted that if their earlier arguments failed, the plaintiff should be given leave to make the amendment only upon the condition that the paragraph 8 imputation should be pleaded alternatively to the imputations pleaded in paragraphs 4 and 6.

72 Again not without hesitation, I reject this submission. This is because of the peculiar nature of a radio broadcast. I infer from the pleading that the program was in the nature of a breakfast program. It may be assumed that such a program will have listeners who hear only short parts of the broadcast, either tuning in early, or later, and hearing only parts of it. However, it may be assumed that other listeners are tuned in from beginning to end and will hear the whole of the program. These issues go not to the capacity of the program, taken as a whole, to convey the imputations, but (where a jury holds that the imputations have been conveyed) to the assessment of damages. I do not think it would be fair to confine the plaintiff to putting this case only in the alternative. Although the pleading is somewhat unorthodox, that is because of the manner in which the matters complained of were published.

73 The consequence of these rulings is that, apart from imputations 4(c) and 6(b), there is no reason resulting from the formulation of the proposed second further amended statement of claim to refuse leave to the plaintiff to file it. No other discretionary argument concerning prejudice or hardship was put in opposition to the order sought. Accordingly, I grant leave to the plaintiff to file a second further amended statement of claim in the form of that provided following the argument in this proceeding, with the deletion of the imputations numbered 4(c) and 6(b), and with the further amendments to imputation 8(a).

74 An argument was put on behalf of the defendants that, even if I were to come to the view that the amendment should be permitted, I should nevertheless order the plaintiff to pay the defendants’ costs. Counsel for the plaintiff accepted that the plaintiff would have to pay the costs thrown away by the amendment but argued that otherwise the appropriate order, assuming the result in his favour, is an order that each party pay his or its own costs. I regard that as a fair proposition; and propose to make an order in those terms.

75 The orders I make are:

(i) I grant leave to the plaintiff to file a second further amended statement of claim, in the form proposed (with the exception of the proposed imputations numbered 4(c) and 6(b)), and subject to the further amendment of imputation 8(a);

(ii) I order that the plaintiff pay any costs thrown away by the amendment but otherwise order each party to pay his or its own costs.

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LAST UPDATED: 04/11/2002