Robert William Waterhouse; William Stanley Waterhouse; Malcolm Waters; William Allen v Australian Broadcasting Corporation [1988] ACTSC 15 (31 March 1988)

SUPREME COURT OF THE ACT

ROBERT WILLIAM WATERHOUSE; WILLIAM STANLEY WATERHOUSE; MALCOLM WATERS; WILLIAM
ALLEN v. AUSTRALIAN BROADCASTING CORPORATION
S.C. No. 1877 of 1986
S.C. No. 1878 of 1986
S.C. No. 1897 of 1986
S.C. No. 2006 of 1986
Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Defamation - Actions for - Pleading - Imputations - Whether words complained of capable of supporting imputation alleged - Redundancy - Whether redundant words should be struck out - Pleadings embarrassing for duplicity.

Gorton v. Australian Broadcasting Commission (1973) 1 ACTR 6; 22 FLR 181

Farquhar v. Bottom (1980) 2 NSWLR 380

Ron Hodgson (Trading) Pty Ltd v. Belvedere Motors (Hurstville) Pty Ltd (1971) 1 NSWLR 472

Mirror Newspapers Ltd v. Harrison [1982] HCA 50; (1982) 149 CLR 293

R. v. Weaver [1931] HCA 23; (1931) 45 CLR 321

Krahe v. TCN Channel Nine Pty. Ltd. (1986) 4 NSWLR 536

Foord v. John Fairfax & Sons Limited, Supreme Court N.S.W., Hunt J, 27 February 1987 (unreported)

Gatley on Libel and Slander, 8th edn., para. 1069.

WORDS AND PHRASES: Whether phrases "cheated and defrauded", "bribed and corrupted", "dishonest and fraudulent" embarrassingly redundant - "participated".

HEARING

CANBERRA
31:3:1988

Counsel for the Applicant (Defendant): Mr M.G. Sexton

Counsel for the Respondent (Plaintiff): Mr J.R. Young

Solicitors for the Applicant (Defendant): Messrs Colquhoun Murphy, Canberra as agents for Mr Bruce Donald, Sydney

Solicitors for the Respondent (Plaintiff): Messrs Macphillamy Macphillamy Cummins & Gibson, Canberra, as agents for P.J. Pollack & Co. Sydney

Counsel for the Applicant (Defendant) : Mr M.G. Sexton

Counsel for the Respondent (Plaintiff) : Mr A.J.J. Renshaw

Solicitors for the Applicant (Defendant): Messrs Colquhoun Murphy, Canberra as agents for Mr Bruce Donald, Sydney

Solicitors for the Respondent (Plaintiff): Messrs Macphillamy Cummins & Gibson, Canberra, as agents for P.J. Pollack & Co. Sydney

Counsel for the Applicant (Defendant): Mr M.G. Sexton

Counsel for the Respondent (Plaintiff): Mr J. Timbs

Solicitors for the Applicant (Defendant): Messrs Colquhoun Murphy, Canberra as agents for Mr Bruce Donald, Sydney

Solicitors for the Respondent (Plaintiff): Messrs Snedden Hall & Gallop Canberra as agents for Gallasheen & Quilty, Sydney

ORDER

S.C. No. 1877 of 1986

Each of paragraphs 3(a), 5(a), 7(a), 9(a), 11(a), 13(a), 15(a) and 17(a) of the amended statement of claim be amended by deleting the words "for financial gain and" and either the words "dishonest and" of "and fraudulent".

Each of paragraphs 3(b), 5(b), 7(b), 9(b), 11(b), 13(b), 15(b) and 17(b) of the amended statement of claim be struck out but leave be given the plaintiff to allege any imputation that may fairly arise from the words complained of.

Each of paragraphs 3(c), 5(c), 7(c), 9(c), 11(c), 13(c), 15(c) and 17(c) of the amended statement of claim be amended by deleting the words "managed and".

Each of paragraphs 3(d), 5(d), 7(d), 9(d), 11(d), 13(d), 15(d) and 17(d) of the amended statement of claim may be amended to show that the cheating and defrauding alleged was by rigging games.

Each of paragraphs 3(f), 5(f), 7(f), 9(f), 11(f), 13(f), 15(f) and 17(f) of the amended statement of claim be struck out but leave be given the plaintiff to plead afresh on any basis he may be advised.

The plaintiff have leave to amend paragraphs 5, 7, 9, 11, 13, 15 and 17 of the amended statement of claim by substituting the appropriate number for the number "2" where appearing in those paragraphs.

The plaintiff have leave to amend his statement of claim generally as he may be advised within 28 days from the date hereof.

The defendant file and deliver its defence to any further amended statement of claim within 21 days of its delivery.

The plaintiff pay three quarters of the defendant's costs of and incidental to the notice of motion dated 24 March 1987, those costs to be taxed.

S.C. No. 1878 of 1986

Each of paragraphs 3(a), 5(a), 7(a), 9(a), 11(a), 13(a), 15(a) and 17(a) of the amended statement of claim be struck out.

Each of paragraphs 3(c), 5(c), 7(c), 9(c), 11(c), 13(c), 15(c) and 17(c) of the amended statement of claim be amended by deleting the words "for financial gain and" and either the words "fraudulent and" or "and dishonest".

Each of paragraphs 3(d), 5(d), 7(d), 9(d), 11(d), 13(d), 15(d) and 17(d) of the amended statement of claim be amended by deleting the words "in order to obtain financial gain and" and either the words "fraudulent and" or "and dishonest".

Each of paragraphs 3(e), 5(e), 7(e), 9(e), 11(e), 13(e), 15(e) and 17(e) of the amended statement of claim be struck out.

Each of paragraphs 3(g), 5(g), 7(g), 9(g), 11(g), 13(g), 15(g) and 17(g) of the amended statement of claim be struck out but leave be given the plaintiff to amend to show as separate imputations that the allegation of cheating and defrauding relates to two different properties.

Each of paragraphs 3(h), 5(h), 7(h), 9(h), 11(h), 13(h), 15(h) and 17(h) of the amended statement of claim be amended by deleting the word "wrongly".

Each of paragraphs 3(1), 5(1), 7(1), 9(1), 11(1), 13(1), 15(1) and 17(1) of the amended statement of claim be struck out.

Each of paragraphs 3(n), 5(n), 7(n), 9(n), 11(n), 13(n), 15(n) and 17(n) of the amended statement of claim be struck out but leave be given the plaintiff to amend to allege any imputation fairly arising from the workds complained of.

The plaintiff have leave to amend paragraphs 5, 7, 9, 11, 13, 15 and 17 of the amended statement of claim by substituting the appropriate number for the number "2" where appearing in those paragraphs.

The plaintiff have leave to amend his statement of claim generally as he may be advised within 28 days from the date hereof.

The defendant file and deliver its defence to any further amended statement of claim within 21 days of its delivery.

The plaintiff pay three quarters of the defendant's costs of and incidental to the notice of motion dated 24 March 1987, those costs to be taxed.
S.C. No. 1897 of 1866

Paragraph 3(i) of the statement of claim be struck out.

The plaintiff have leave to amend paragraph 3(ii) of the statement of claim as he may be advised.

The plaintiff have leave to amend his statement of claim generally as he may be advised within 28 days from the date hereof.

The defendant file and deliver its defence to any amended statement of claim within 21 days of its delivery.

The plaintiff pay three quarters of the defendant's costs of and incidental to the notice of motion dated 24 March 1987, those costs to be taxed.

S.C. No. 2006 of 1986

Each of paragraphs 3(c), 5(c), 7(c), 9(c), 11(c), 13(c), 15(c) and 17(c) of the amended statement of claim be amended by deleting the word "wrongfully".

The plaintiff have leave to amend paragraphs 5, 7, 9, 11, 13, 15 and 17 of the amended statement of claim by substituting the appropriate number for the number "2" where appearing in those paragraphs.

The plaintiff pay 55% of the defendant's costs of and incidental to the notice of motion dated 24 March 1987, those costs to be taxed.

DECISION

Each of the plaintiffs has sued the defendant corporation for damages for defamation. The defamatory material is said to have been broadcast in a segment entitled "Horses for Courses" of the well-known television programme, "Four Corners". An identical transcript of the segment is now annexed to three of the statements of claim, those in the actions brought by Robert William Waterhouse, William Stanley Waterhouse and Malcolm Waters. Annexure A to the statement of claim filed on behalf of William Allen sets out part only of the transcript, that part identified as lines 602 to 616 inclusive and lines 644 to 648 inclusive in the three complete transcripts.

2. Annexure "A" to these reasons is a copy of the transcript of the programme annexed to the statement of claim delivered on behalf of Robert William Waterhouse. (ANNEXURE OMITTED)

3. The defendant has sought orders that each and every alleged imputation contained in paragraph 3 of each plaintiff's statement of claim should be struck out. It sought also that particulars of publication and re-publication contained in those statements of claim should be struck out or amended. Orders in respect of those particulars were made on 23 June 1987. Consideration of the sufficiency of the imputations in the statements of claim was deferred.

4. Following the orders made on 23 June 1987 the plaintiffs, Robert William Waterhouse, William Stanley Waterhouse and William Allen have filed, and I assume have delivered, amended statements of claim. The plaintiff, Malcolm Waters, has not yet done so. I proceed on the basis that he will do so in due course but meantime direct attention to the provisions of O.32, r.7.

5. I set out in their present form paragraphs 2 and 3 of each statement of claim. Lines referred to in paragraphs 3 serve to identify those parts of the transcript of which each plaintiff complains.

Action No. S.C. 1877 of 1986

Robert William Waterhouse v. Australian Broadcasting
Corporation

"2. On or about 10 November 1986 the

Defendant published of and concerning the
Plaintiff in the Australian Capital Territory
a certain television programme "Four Corners"
entitled "Horses for Courses" which said
programme was telecast for general reception
and which contained the words and pictures as
set out in annexure 'A' hereto.

3. The said words and pictures in the matter
complained of and referred to in paragraph 2
above in their natural and ordinary meaning
conveyed the following imputations each of
which are defamatory of the Plaintiff:-

(a) The Plaintiff participated in the doping
of the greyhound 'Kilcoyne' for
financial gain and to obtain a dishonest
and fraudulent advantage (lines
228-293).

(b) The Plaintiff intimidated and coerced
Malcolm Waters and Arthur Harris to lie
and make false statements to the
Stewards in respect of the 'Kilcoyne'
enquiry (lines 263-293).

(c) The Plaintiff managed and operated an
illegal casino known as 'The Palace'
(lines 456-459, 467-481 and 581-584).

(d) The Plaintiff cheated and defrauded
patrons of an illegal casino known as
'The Palace' and rigged games played
therein (lines 456-459, 467-481 and
510-585).

(e) The Plaintiff associated with an
underworld figure, a big-time heroin
dealer and other criminals (lines
491-508).

(f) The Plaintiff bribed and corrupted
police and politicians in order to
obtain protection for his illegal
gambling casino known as 'The Palace'
(lines 587-613)."

Action No. S.C. 1878 of 1986

William Stanley Waterhouse v. Australian Broadcasting
Corporation.

"2. On or about 10 November 1986 the
Defendant published of and concerning the
Plaintiff in the Australian Capital Territory
a certain television programme "Four Corners"
entitled "Horses for Courses" which said
programme was telecast for general reception
and which contained the words and pictures as
set out in annexure 'A' hereto.

3. The said words and pictures in the matter
complained of and referred to in paragraph 2
above in their natural and ordinary meaning
conveyed the following imputations each of
which are defamatory of the Plaintiff:-

(a) The Plaintiff bribed and corrupted
Neville Wran, one-time Premier of New
South Wales (lines 38, 92-96, 173-177
and 602-613).

(b) The Plaintiff wrongfully influenced
Neville Wran, one-time Premier of New
South Wales (lines 38, 92-96, 173-177
and 602-613).

(c) The Plaintiff participated in the doping
of the racehorse 'Big Philou' for
financial gain and in order to obtain
fraudulent and dishonest advantage
(lines 68-70 and 75-88).

(d) The Plaintiff participated in a race
fixing conspiracy with Charles Pearson
and others in order to obtain financial
gain and a fraudulent and dishonest
advantage (lines 110-114, 117-127,
130-138).

(e) The Plaintiff bribed and corrupted Robin
Askin, one-time Premier of New South
Wales (lines 72-74, 140-147, 150-153 and
154-161).

(f) The Plaintiff wrongfully influenced
Robin Askin, one-time Premier of New
South Wales (lines 72-74, 140-147,
150-153 and 154-161).

(g) The Plaintiff cheated and defrauded the
widow and children of his late brother
Charles Waterhouse in respect of
property situated at 54-56 Alfred
Street, Milsons Point and at Seaforth
(lines 332-381).

(h) The Plaintiff conspired to wrongly
smuggle $210,000 in cash out of the
country (lines 382-399).

(i) The Plaintiff bribed and corrupted
Deputy Police Commissioner Bill Allen in
order to obtain protection for an
illegal casino known as 'The Palace'
(lines 606-613).

(j) The Plaintiff was associated with an
illegal casino known as 'The Palace'
which cheated and defrauded its patrons
(lines 449-613).

(k) The Plaintiff was associated with an
illegal casino known as 'The Palace'
(lines 449-613).

(l) The Plaintiff was associated with an
underworld figure and a big time heroin
dealer and other criminals (lines
491-508).

(m) The Plaintiff bribed and corrupted
police and a senior politician in
respect of protection of an illegal
casino known as 'The Palace' (lines
587-613).

(n) The Plaintiff conspired with a Sydney
solicitor in respect of the false
witnessing of the transfer document of
property at Seaforth in order to cheat
and defraud the widow and children of
his late brother Charles Waterhouse
(lines 364-381)."

Action No. S.C. 1897 of 1986

Malcolm Waters v. Australian Broadcasting Corporation.

"2. On 10 November 1986 the defendant
telecast the television programme known as
"Four Corners" in which there was an edition
entitled "Horses for Courses". The programme
was transmitted to a large audience
throughout the States and Territories of
Australia including the Australian Capital
Territory. In that segment of the programme
entitled 'At the Dogs - The Kilcoyne Affair'
the defendant published of and concerning the
plaintiff the words and pictures set out in
annexure 'A' hereto.

"3. The said words and pictures referred to
in paragraph 2 in their natural and ordinary
meaning conveyed the following imputations,
each of which is defamatory of the
plaintiff:-

(i) that the plaintiff had wrongfully and
fraudulently participated with Robbie
Waterhouse and others in the doping of
the greyhound 'Kilcoyne' at Wentworth
Park Racetrack on 11 March, 1978 to
secure financial gain for himself (lines
69-88, 111-144, 186-199, 200-266,
276-293, 307-311);

(ii) that, as a bookmaker, the plaintiff
cheated punters by accepting bets on
'Kilcoyne' for the 'Journalists' Cup'
knowing that 'Kilcoyne' had been doped
(lines 69-88, 111-144, 186-199, 200-266,
276-293, 307-311, 636-639, 644-645)."

Action No. S.C. 7806 of 1986

William Allen v. Australian Broadcasting Corporation

"2. On or about 10 November 1986 the
Defendant published of and concerning the
Plaintiff in the Australian Capital Territory
a certain television programme "Four Corners"
entitled "Horses for Courses" which said
programme was telecast for general reception
and which contained the words and pictures as
set out in annexure 'A' hereto.

3. The said words and pictures in the matter
complained of and referred to in paragraph 2
above in their natural and ordinary meaning
conveyed the following imputations, each of
which are defamatory of the Plaintiff:-

(a) The Plaintiff while Deputy Police
Commissioner corruptly received money as
bribes to protect the operations of an
illegal casino known as 'The Palace'.

(b) The Plaintiff while Deputy Commissioner
of Police connived with a Senior New
South Wales Politician receiving money
as bribes for the protection of an
illegal casino known as 'The Palace'.

(c) The Plaintiff while Deputy Commissioner
of Police wrongfully conspired with Bill
Waterhouse to protect an illegal casino
known as 'The Palace'."

6. By their amended statements of claim, each of the plaintiffs, Robert William Waterhouse, William Stanley Waterhouse and William Allen, has pleaded publication of the matter complained of in each of the States and Territories of Australia and has further pleaded that in respect of each such publication the imputations conveyed were the same as those said to have been conveyed by paragraph 3 of each of the original statements of claim. The argument put on behalf of the plaintiff, Malcolm Waters, proceeded on the same basis. I need only deal, therefore, with one set of imputations in respect of each action but, of course, any resulting orders will have to take into account the several paragraphs of the statements of claim which allege that those imputations were conveyed in each of the several States and Territories.

7. I have been able to see a recording of the programme.

8. As I have said, three of the statements of claim, whether amended or not, have annexed to them an identical transcript of the programme. The transcript, the schedule to the three statements of claim, does not accord exactly with what was said on the programme nor does a transcript of it furnished by the defendant but the inaccuracies are, I think, slight and of so little importance as not to affect the decision in the matters with which I am presently concerned.

9. As I have done before (in Australian Consolidated Press Ltd & Others v. Bond & Others (1984) 56 ACTR 14 at p 19) I respectfully adopt two passages from the judgment of Fox J in Gorton v. Australian Broadcasting Commission (1973) 1 ACTR 6; 22 FLR 181:-

"It is important to bear in mind that the
alleged defamation occurred in the course of
a television programme. . . . it is the law of
libel, and not that of slander which is to be
applied (s. 124 of the Broadcasting and
Television Act 1942 . . . ), but this does not
alter the fact that viewers heard the spoken
word. The publication was in a transient and
not a permanent form."

at p. 184.

"When a plaintiff sues in defamation he
invokes the understanding, and the standards
of the 'ordinary reasonable man'; of
'right-thinking members of society
generally'. Matter is defamatory if it tends
'to lower the plaintiff in the estimation of
right-thinking members of society generally'
(Gatley on Libel and Slander, 6th ed., par.
41), or 'if it is likely to cause ordinary
decent folk in the community, taken in
general, to think less of him' (per Jordan
C.J. in Gardiner v. John Fairfax & Sons Pty.
Ltd. ((1942) 42 SR (NSW) 171, at
p 172)). . . . The question is not one of what
the defendant meant, or how the words were
understood by the plaintiff. Nor, in a case
such as the present, is it a question of how
the words affected the opinion of a
particular class or section of viewers. The
appeal is to a greater universality of
opinion.

The meaning to be given to the words used is
the meaning they would convey to 'the
ordinary reasonable man'. They are to be
construed 'in their natural and ordinary
meaning, i.e. in the meaning in which
reasonable men of ordinary intelligence, with
the ordinary man's general knowledge and
experience of worldly affairs, would be
likely to understand them' (Gatley, op.cit.,
par. 93). In Lewis v. Daily Telegraph Ltd.
((1964) AC 234, at p 258) Lord Reid said:
'There is no doubt that in actions for libel
the question is what the words would convey
to the ordinary man: it is not one of
construction in the legal sense. The
ordinary man does not live in an ivory tower
and he is not inhibited by a knowledge of the
rules of construction. So he can and does
read between the lines in the light of his
general knowledge and experience of worldly
affairs'. Lord Devlin said in the same case
(at p 280): 'There must be added to the
implications which a court is prepared to
make as a matter of construction all such
insinuations and innuendoes as could
reasonably be read into them by the ordinary
man'.

What I believe the hypothetical ordinary man
would take from the words used can only be a
matter of impression. Moreover, it must be
my impression of the impression an ordinary
man would get from a fleeting episode, he
having no opportunity to hear the words
again, or to read and study them."

at pp. 186-7.

10. Further guidance on the proper approach to be taken may be obtained from Farquhar v. Bottom (1980) 2 NSWLR 380 at pp 385-6. There, Hunt J said:-

"In deciding whether the matter complained of
is capable of conveying to the ordinary
reasonable reader the imputations relied upon
by the plaintiff, I must be guided and
directed by the test of reasonableness. I
must reject any strained, or forced, or
utterly unreasonable interpretation: Jones
v. Skelton ((1963) SR(NSW) 644 at p 650). I
must proceed upon the basis that the ordinary
reasonable reader is a person of fair,
average intelligence: Slatyer v. Daily
Telegraph Newspaper Co Ltd ((1908) [1908] HCA 22; 6 CLR 1
at p 7); who is neither perverse: ibid; nor
morbid or suspicious of mind: Keogh v.
Incorporated Dental Hospital of Ireland
((1910) 2 Ir.R. 577 at p 586); nor avid for
scandal: Lewis v. Daily Telegraph Ltd ((1963)
1 QB 340 at p 374).

This ordinary reasonable reader does not, we
are told, live in an ivory tower. He can,
and does, read between the lines, in the
light of his general knowledge and experience
of worldly affairs: Lewis v. Daily Telegraph
Ltd ((1964) AC 234 at p 260); Jones v.
Skelton (pp 650, 656); Lang v. Australian
Consolidated Press Ltd ((1970) 2 NSWR 408 at
p 412). It is important to bear in mind that
the ordinary reasonable reader is a layman,
not a lawyer, and that his capacity for
implication is much greater than that of the
lawyer: Lewis v. Daily Telegraph Ltd ((1964)
AC 234 at p 277); Morgan v. Odhams Press Ltd
((1971) 1 WLR 1239 at p 1245); Lang v.
Australian Consolidated Press Ltd ((1970) 2
NSWR 408 at p 412); Middle East Airlines
Airliban SAL v. Sungravure Pty Ltd ((1974) 1
NSWLR 323 at p 340)."

11. Of course, in applying the passage from the judgment of Hunt J just quoted, I must take account of the fact that I am dealing not with a reader but with somebody who is viewing a television programme. With that reservation the words of Hunt J seem to me, with respect, to be entirely applicable to the circumstances which I am considering.

12. I propose to deal successively with the notices of motion in the order in which the actions were commenced. I will identify each alleged imputation as it is identified in each statement of claim.

13. During the course of argument in respect of some imputations reference was made to the context of the whole telecast as well as to the parts specifically complained of in paragraph 3 of the statements of claim as supporting some of the imputations alleged. It is, I think, clear that some parts of the telecast, although, in my opinion, in no case all of it, may be used to support some of the alleged imputations. But I do not think the defendant should be required to guess what unidentified parts of the telecast any of the plaintiffs will rely on in support of any imputation. See, for example, Ron Hodgson (Trading) Pty Ltd v. Belvedere Motors (Hurstville) Pty Ltd (1971) 1 NSWLR 472, particularly at p 477, and Gatley on Libel and Slander, 8th edn., para. 1069.

S.C. No. 1877 of 1986

Robert William Waterhouse v. Australian Broadcasting
Corporation

Imputation 3(a)

14. The defendant objects to the use of the words "participated in the doping", alleging that they do not identify the precise activity imputed to the plaintiff by the alleged defamatory material. There was, said counsel for the defendant, a range of possibilities and the relevant activity within that range was not sufficiently identified. In my opinion the objection fails. The word "participate" may be defined as "to take part in". Participation may be direct or indirect; it may precede joint acts, it can, I think, hardly succeed them. Accordingly it is open to the plaintiff to allege that the defendant has imputed to him direct or indirect involvement in the doping of the greyhound "Kilcoyne".

15. The words complained of are, I think, enough to support the imputation of participation in the doping whether directly or indirectly. An allegation that a plaintiff suing for defamation was directly or indirectly involved in unlawful activities does not seem to me to lack appropriate particularity. This would seem to be the view which was taken of the phrase "directly or indirectly involved" considered in Mirror Newspapers Ltd v. Harrison [1982] HCA 50; (1982) 149 CLR 293. Admittedly no direct reference was made to the use of those words in the several judgments of the High Court but it would be a matter for some surprise if they were in fact inappropriate and that that had escaped the attention, initially, of counsel engaged and of the nine Judges who, in the event, dealt with the matter.

16. The defendant also objects to the use of the words "for financial gain and to obtain a dishonest and fraudulent advantage" as part of the imputation. It is, no doubt, possible to participate in the doping of a greyhound for reasons other than financial gain or the obtaining of a dishonest or fraudulent advantage. Revenge could be a motive. But I think that the imputation that the plaintiff participated in the doping for financial gain is available on the material. So too is the imputation that he participated in it to obtain a dishonest or fraudulent advantage. However, it seems to me that participation in the doping of a greyhound for financial gain can only be for the purpose of obtaining a dishonest or fraudulent advantage. I can see no real distinction in the context between the words "dishonest" and "fraudulent". I think it redundant to plead participation to obtain a dishonest advantage and, as well, participation to obtain a fraudulent advantage. Once either of those expressions is used it follows that the words "for financial gain" are necessarily to be imputed for it is, I think, difficult to see what other dishonest or fraudulent advantage could be gained. I think, therefore, that, assuming the words complained of do convey the imputation, the paragraph ought to be amended by deletion of the words "for financial gain" and of either of the words "dishonest" or "fraudulent".

17. I have considered the material in lines 228-293 of the transcript and think that it is capable of conveying the imputation alleged. I do not think it appropriate to say more at this stage.

Imputation 3(b)

18. I can see nothing in the material complained of to suggest that the plaintiff intimidated or coerced Waters or Harris to lie and make false statements to the stewards in respect of the inquiry. I think the imputation should be struck out but I give leave to the plaintiff to allege any imputation that may fairly arise from the words complained of.

Imputation 3(c)

19. The imputation is that the plaintiff managed and operated an illegal casino. Counsel for the plaintiff conceded that use of the word "operated" would be sufficient for the plaintiff's purposes. I propose to order that the words "managed and" be struck out of the imputation.

Imputation 3(d)

20. In my opinion a reasonable view of the material complained of indicates that such cheating and defrauding as is imputed to the plaintiff was done by rigging games. No other basis for the cheating and defrauding is suggested. I think that the imputation should be amended accordingly.

21. It was submitted that the use of the phrase "cheated and defrauded" involved redundancy. The phrase "cheat and defraud" is commonly used. It was discussed in R. v. Weaver [1931] HCA 23; (1931) 45 CLR 321, although not on the ground that it involved duplicity, without attracting any adverse criticism on that account. At p 343, Evatt J said:-

"In 1716 Hawkins had defined cheating as
consisting in 'any deceitful practice in
defrauding, or endeavouring to defraud a man
of his known right by some artful device
notoriously contrary to the plain rules of
common honesty.'"

22. It would seem, therefore, that to cheat is to defraud or to endeavour to defraud but the common use of the phrase "to cheat and defraud" indicates, I think, that it is to be treated as a compendious one which involves both the necessary nefarious action and the result. I think the phrase is therefore appropriately used.

Imputation 3(e)

23. I think this imputation arises fairly from the material complained of. To say of a person that he associated with an underworld figure, a big-time heroin dealer and other criminals is to define sufficiently an imputation of unsavoury association with those referred to. A well-known phrase "an associate of criminals" illustrates the point sufficiently.

Imputation 3(f)

24. The use of the expression "bribed and corrupted" is, I think, acceptable. To say of a man that he bribed another is necessary to say of him that he corrupted that other and, generally speaking, corruption involves bribery of some kind. If the phrase is not strictly an hendiadys it is close enough to being one in modern usage as to have the effect of one and may, in my opinion, stand.

25. But counsel for the defendant submitted as well that the part of the transcript which is alleged by the plaintiff to have conveyed the imputation that he bribed and corrupted police and politicians makes no reference to him. It does not in terms and, whether or not the imputation may fairly be said to arise when considered in relation to other parts of the material which was broadcast, I do not see how it arises from the precise words complained of. The imputation should be struck out but the plaintiff may have leave to plead it afresh on any basis he may be advised.

S.C. No. 1878 of 1986

William Stanley Waterhouse v. Australian Broadcasting Corporation

Imputation 3(a)

26. A challenge was made to this imputation on the ground that the use of the phrase "bribed and corrupted" involved an embarrassing redundancy. I do not, for the reasons earlier given, so see it. More importantly, however, the defendant alleges that the words specifically complained of are incapable of conveying the imputation alleged.

27. In essence those words make reference to -

(a) a friendship and association between the plaintiff
and Mr Neville Wran, the former Premier of New
South Wales;

(b) the fact that Mr Wran represented the plaintiff at
the bankruptcy hearing of one Huxley;

(c) the fact that Mr Wran did other legal work for the
plaintiff which included several trips to Las
Vegas about that time;

(d) the fact that in a New South Wales State election
the seat of Monaro was won by the ALP, that Mr
Wran took power with a one seat majority, that in
his first budget Mr Wran dropped a projected
bookmaker's turnover tax from 2% to 1 1/4% and that
the plaintiff and his bookmaking colleagues backed
another winner.

(e) the fact that a senior New South Wales politician,
named by David Waterhouse (but unnamed in the
broadcast) as having been paid a percentage of
illegal casino's profits to ensure protection of
its operations, was in fact receiving half of
protection money being paid by the plaintiff to
the then Deputy Police Commissioner, Bill Allen.

There were other words broadcast which would expand and give greater meaning to the matters just referred to but they are not specifically complained of.

28. I do not think that any reasonable meaning which the ordinary viewer might ascribe to the words complained of as supporting imputation 3(a) could lead to the imputation that the plaintiff bribed and corrupted Mr Wran. In the immediate context which states merely that "bookies forwarded an estimated one hundred thousand dollars to ALP coffers" there can, I think, be no suggestion that Mr Wran corruptly received any of that money as a bribe.

29. The physical gap in the programme between the references to Mr Wran and the references to a senior New South Wales politician was so great that no imputation of bribery and corruption of Mr Wran by the plaintiff could be said to have been conveyed.

30. I do not think, either, that, in the overall context, the phrase "a senior politician" would have caused the image of Mr Wran to spring to the mind of the type of viewer with whom I am concerned. There are many "senior politicians". I think a more detailed description or material from which identification could be established would be necessary before the imputation could be said to arise.

31. In my opinion imputation 3(a) should be struck out.

Imputation 3(b)

32. I think this imputation should go to trial. It may or not be the case that the contribution of funds to a political party with a view to influencing that party's eventual action on a specific narrow fiscal issue if returned to Government is perfectly proper. As to that I express no opinion. But I am satisfied that an imputation, which I think the words complained of are capable of suggesting, that a bookmaker or group of bookmakers influenced the first Minister of a Government to reduce a projected and announced increased bookmakers turnover tax as a result of a large contribution to his party's campaign funds for an election could fairly and reasonably be seen by an ordinary reasonable viewer as an imputation of wrongfully influencing that Minister. The word "wrongfully" is, of course, a word of reasonably wide import but it connotes a degree of inappropriateness of conduct which may generally be held to be less than an allegation of improper conduct. I would respectfully follow the views of its meaning and of the unlikelihood of its causing the defendant any difficulty in the circumstances expressed by Hunt J in Krahe v. TCN Channel Nine Pty. Ltd. (1986) 4 NSWLR 536 at pp 546-7.

Imputation 3(c)

33. I have formed the same opinion about the form of this imputation, mutatis mutandis, as I have in respect of imputation 3(a) in Mr Robert Waterhouse's action. I think the imputation, suitably amended, should go to trial.

Imputation 3(d)

34. Again I have formed the same opinion about the form of this imputation, mutatis mutandis, as I have in respect of imputation 3(a) in Mr Robert Waterhouse's action. Again I think the imputation, suitably amended, should go to trial.

Imputation 3(e)

35. I do not think this imputation should go to trial. The words complained of describe Sir Robert Askin as a betting client of the plaintiff and as the Punting Premier. They clearly impute to him, as I believe the ordinary and reasonable viewer would think, some improper conduct in respect of what that viewer might well take to be an allegation of wrongful suppression of an investigation into the plaintiff's conduct concerning alleged race fixing. It is to be noted, however, that the words complained of make no specific reference to the race fixing allegation although the context does. The inference that the plaintiff wrongfully influenced Askin in this regard may well be drawn but I cannot see that any inference of bribery and corruption fairly appears.

36. The ordinary and natural meaning of the words used in lines 150-153 and 154-161 are that money collected was to go to Askin in his capacities of Premier of New South Wales and head of the Liberal Party. The words used do not, in my opinion, involve any imputation that the payment in question was used to bribe Askin. Indeed, the words used would not by themselves indicate that any money had been paid to Askin at all. What was said about payment of money to Askin (it differs slightly from the words set out in the annexure to the statement of claim) was:-

"He claims he was told by his colleagues that
they were attempting to collect about $70,000
from a group of bookies, which would go to
Sir Robert Askin, as Premier and head of the
Liberal Party, to stop the turnover tax
increases. A short time later though, Askin
retired and the Liberals promptly doubled the
tax."

Those words do not, in my opinion, indicate that money was paid to Askin in any capacity. Rather, they indicate only that the approach to the Premier in respect of turnover tax increases was still in the planning stage.

37. It was urged upon me that it was well known that at the time of the broadcast programme Askin was a corrupt politician and that, consequently, as one understands the submission, such an approach as was alleged to have been made to him by the plaintiff must have been some form of bribery. It may be that there is extraneous material in existence which would support such an innuendo but I think it is incapable of being drawn from the material broadcast and in the absence of a plea of facts which would support an innuendo to the effect alleged, I think the imputation should be struck out.

Imputation 3(f)

38. I think that the whole tenor of the allegations is that the plaintiff wrongfully influenced Askin to suppress the investigation and to reduce the bookmakers' turnover tax. I think imputation 3(f) should go to trial.

Imputation 3(g)

39. It was submitted that the use of the phrase "cheated and defrauded" involved redundancy and that the defendant was embarrassed by the fact that allegations of cheating and defrauding were made in respect of two properties. I have already discussed the use of the expression "cheated and defrauded" and will not repeat what I have said. But the imputation alleges cheating and defrauding in respect of two different properties. I think the defendant ought to be able to deal separately with an imputation concerning each property. Different defences may be available or sought to be raised. The imputation in its present form should be struck out but the plaintiff should have leave to amend as indicated.

Imputation 3(h)

40. It was conceded that the word "wrongly" was inappropriately used and that it should be struck out of the imputation. It is contended, however, that it is necessary for the plaintiff to give the name of the person or persons with whom he is alleged to have conspired. I do not agree. The material complained of makes it clear, I think, that there was an imputation that the plaintiff's son, David, attempted to smuggle $210,000 out of the country. He is alleged, when caught, to have telephoned the plaintiff and to have said, cryptically, "I'm at the airport, I've been caught". In the context that could only mean that the plaintiff had been involved in some way with the proposed smuggling of currency out of the country. That precise particulars of the imputed conspiracy were not given would not, I think, prevent a reasonable viewer with whom I am concerned from concluding that it was being imputed to the plaintiff that he had joined in some fashion with his son David in the illegal enterprise of smuggling currency out of the country. I think the imputation should stand with the deletion of the word "wrongly".

Imputation 3(i)

41. I think this imputation should stand.

Imputation 3(j)

42. I think this imputation should stand also. There is no question but that the programme alleged that "The Palace" was an illegal casino in which cheating and defrauding of patrons took place. The association alleged cannot be that involved in managing or operating the casino since those functions are assigned by the programme to the plaintiff's sons. Nevertheless, the allegation of payment by the plaintiff of bribes for protection against police raids on the casino is a clear imputation that he was associated with it in some fashion which can hardly be particularised but which is nevertheless clear. The association, whatever its precise nature, extended at least, according to the telecast, to the giving of bribes to ensure the continued operation of the illegal casino, free of the risk of police raids. The imputation concerning the cheating and defrauding of patrons is clear. Whether a suitably qualified viewer would assume that the plaintiff's association with the casino was enough to involve his knowledge and support, tacit or otherwise, for the cheating and defrauding which is said to have gone on is a matter, I think, for the tribunal of fact to decide in all the circumstances.

Imputation 3(k)

43. For the reasons given in the earlier part of the previous paragraph I think this imputation should stand also.

Imputation 3(1)

44. The plaintiff by his counsel concedes that this should be struck out.

Imputation 3(m)

45. The imputation is that the plaintiff bribed and corrupted police and a senior politician in respect of protection of an illegal casino known as "The Palace". Clearly the phrase "bribed and corrupted" governs both "police" and "a senior politician". I do not propose to repeat what I have said earlier about the expression "bribed and corrupted". Counsel for the defendant did not submit that it would be embarrassed because, for example, it might wish to raise different defences to the allegation concerning police and to that concerning the politician. Had he done so I would have been prepared to order that the imputation be split. The objection taken was, however, purely on a matter of grammar and I see no pleading difficulty arising from that. In the absence of a submission that the matter is embarrassing I think the imputation should stand.

Imputation 3(n)

46. This imputation is said to arise from the allegation that the plaintiff's brother's widow signed a number of documents after her husband's death at the plaintiff's instigation. One of them was a transfer document in respect of certain land at Seaforth. According to the programme she alleged that her signature on that transfer document was witnessed by a Sydney solicitor who read to her her husband's will after his death. But no solicitor, she alleged, and, it would appear, certainly not the solicitor whose signature appears on the transfer document and who read the will to her, was present when she signed it. The inference seems to me to be clear. The plaintiff, having had his brother's widow sign the document of transfer, then had it witnessed unlawfully by the solicitor in question. The conspiracy imputed must be in respect of the false witness. The purpose of the false witness would be that of the plaintiff, not necessarily that of the solicitor. In the way the imputation is framed the defendant may be left with the embarrassment of pleading in respect of an irrelevant allegation of conspiracy. The difficulty and the embarrassment may be readily overcome by putting the phrase "in order to cheat and defraud the widow and children of his late brother Charles Waterhouse" in an earlier position. But, as it stands, the imputation should, I think, be struck out, the plaintiff having leave to amend.

S.C. No. 1897 of 1986

Malcolm Waters v. Australian Broadcasting Commission

47. Two imputations only are complained of. The first is that the plaintiff had wrongfully and fraudulently participated with Robbie Waterhouse and others in the doping of the greyhound "Kilcoyne". I have read and re-read the material which the plaintiff says conveys the imputation just referred to. I have considered it, I hope correctly, as a matter of impression, fleeting though it might be, to be obtained from the broadcast of a television programme. From whichever point one views the material upon which the plaintiff bases the imputation, it is not, I think, possible to draw the inference that the plaintiff was a participant in the doping of the greyhound "Kilcoyne". After allegations that their betting sheets showed that Robert and David Waterhouse stood to lose more than $31,000 on "Kilcoyne" should it have won, that certain bookmakers were offering remarkably good odds on the dog and that it should have been at long odds on but instead was 7-4, even 2-1, against, the story went on to say that other bookies were acting for Robert Waterhouse taking bets on Kilcoyne for him. They were, in the vernacular of the dogtracks, "laying the dog", on his behalf. One understands this to mean that they were accepting bets on the dog as agents for Robert Waterhouse so that if the dog lost he would gain at least a substantial share of the money won by the other bookmakers who had been laying the dog on his behalf. A later allegation is that Robert Waterhouse said, "I got a bookmaker from Wollongong by the name of Mal Waters to lay the dog on my behalf (that is to get money out of it) for me. He was caught as one of the bookmakers that laid Kilcoyne and had to attend a stewards' enquiry after the last event." These allegations were made in the programme after the secretary of the Greyhound Control Board had said that the very heavy backing for the greyhound on the night indicated that "someone knew something". The inference is plain. Someone knew that the dog would not run on its merits and that it had been either doped or, to use the racy colloquial expression, nobbled in some other way. One understands that this can be done, for example, by giving to the dog in question an excessive amount of food or water.

48. I am unable to see that when all the relevant material which may fairly be considered as referring to him is taken together, it amounts to anything more than an allegation that the plaintiff, Mr Waters, accepted bets on Kilcoyne knowing that, for whatever reason, be it doping or nobbling, the dog would not run up to its form. Accepting bets in that knowledge, of course, would amount to an attempt to cheat punters. But however they be read, the words complained of do not support the imputation alleged.

49. I think, therefore, that imputation 3(i) is not available and should be struck out.

Imputation 3(ii)

50. When one considers the material it is obvious that although the allegation might be that the plaintiff took bets from punters when he knew the dog had been doped or nobbled there can be no suggestion that he was successful in cheating punters because the dog was scratched from the race, the Journalists' Cup. However, assuming that the word "cheated" involves the act of attempting to put a cheat into effect, I think the imputation sufficient although the plaintiff may wish to amend. The use of the expression "knowing that 'Kilcoyne' had been doped" may be subject to criticism as a matter of strict logic but I think it represents the way the ordinary reasonable viewer could have interpreted the relevant segment. The imputation may stand.

51. Many of the segments upon which the plaintiff relies seem to me to be entirely inappropriate in respect of his claim and I have accepted only those which relate to the "laying of the dog". The plaintiff should have leave to amend the imputation if he wishes.

S.C. No. 2006 of 1986

William Allen v. Australian Broadcasting Commission

Imputation 3(a)

52. This imputation seems to me to arise from the material complained of, now restricted to lines 602-616 of the transcript, and ought to go to trial. The use of the word "corruptly" in conjunction with the words "received money as bribes" is not, in my opinion, a source of embarrassment to the defendant for the reasons earlier given. I direct attention to remarks of Hunt J in Foord v. John Fairfax & Sons Limited a decision handed down on 27 February 1987 and as yet, so far as I know, unreported. At p 17 of the typescript of that judgment he said:-

"The dictionaries define the adjective
'corrupt' in both senses. In Collins English
Dictionary (Australian edition, 1981), the
primary meaning given is 'lacking in
integrity; open to or involving bribery or
other dishonest practices'. The examples
given are 'a corrupt official; corrupt
practices in an election'. The Macquarie
Dictionary (1981) defines the adjective as
'dishonest; without integrity; guilty of
dishonesty, especially involving bribery'.
The example given is 'a corrupt judge'. The
Concise Oxford Dictionary (1976) defines the
adjective as 'rotten; depraved; wicked;
influenced by bribery'. The example given is
'corrupt practices, forms of bribery
especially at elections'. The sense in which
the noun 'corruption' is understood appears
to me to have been effected to some extent
because of its frequent use in the phrase
'bribery and corruption', almost to the
extent of that phrase becoming an hendiadys
meaning corruption by means of bribery. This
has led to the word 'corruption' becoming
itself corrupted (in the sense of a departure
from correct or standard word use), so that
its usual meaning, in my view, is the more
serious one of being open to or involving
bribery."

Imputation 3(b)

53. While not happily phrased, this imputation is, it seems to me, available on the material referred to. It should go to trial.

Imputation 3(c)

54. The word "wrongfully" seems to me to be redundant. It is sufficient to allege that the plaintiff conspired to protect an illegal casino to demonstrate the wrongfulness or the illegality of his conduct. With the word "wrongfully" struck out, the imputation should go to trial.

55. I note in matters Nos. S.C.1877 of 1986, S.C. 1878 of 1986 and S.C. 2006 of 1986 that in paragraphs 5, 7, 9, 11, 13, 15 and 17 reference is made to paragraph 2 of the statement of claim when clearly there should be references successively to paragraphs 4, 6, 8, 10, 12, 14 and 16. No doubt the relevant plaintiffs will wish to correct these errors and they may do so.

56. Having regard to the quite substantial amendments which will be necessary following publication of my reasons herein, it may be that the plaintiffs Robert William Waterhouse, William Stanley Waterhouse and Malcolm Waters would wish to amend their statements of claim generally as they may be advised. I can see no reason why they should not, if they wish, have such leave.

57. As to costs, I think that the defendant has succeeded substantially in respect of the matters raised in its notices of motion against each of the plaintiffs. It did not succeed in respect of all matters raised and I think the proper order is that it should have three quarters of its costs of the motion against each of the plaintiffs Robert William Waterhouse, William Stanley Waterhouse and Malcolm Waters. I think it should have only 55% of its costs against the plaintiff William Allen.