Albert Jaime Grassby v Nationwide News Pty Ltd [1993] ACTSC 53 (14 May 1993)

SUPREME COURT OF THE ACT

ALBERT JAIME GRASSBY v. NATIONWIDE NEWS PTY LTD
No. SC302 of 1990
Number of pages - 9
Defamation - Practice and Procedure

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A Hogan(1)

CATCHWORDS

Defamation - Pleading - Imputations - Investigation by Crime Authority - Criminality - Whether imputations capable of arising.

Lewis v Daily Telegraph Ltd (1963) 1 QB 340

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

Practice and procedure - Pleading - Defamation - Imputations - Application to strike out - After defence - Delay - Point of law - Separate determination before trial - When appropriate - Whether imputations incapable of arising - Whether imputations embarrassing.

Baffsky v John Fairfax and Sons Ltd (1991) Aust Torts Reports 81-144 at 69, 391

Hoyle v Federal Capital Press (Supreme Court of ACT, Master Hogan, 29 January 1991, unreported)

CB Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601

Everett v Ribbands (1953) 2 QB 198 per Romer LJ at 206

Practice and procedure - Discovery - Documents relating to matters in issue - Defamation - Defence of comment - Reply that defendant did not hold opinion - Facts stated not in issue - Documents not material.

Sims v Wran (1984) 1 NSWLR 317 at 324

Aga Khan v Times (1924) 1 KB 675 at 679-686

HEARING

CANBERRA, 12 March 1993
14:5:1993

Counsel for the Plaintiff: M. G. Sexton

Instructing Solicitors: Gillespie-Jones and Co

Counsel for Defendant: T. Blackburn

Instructing Solicitors: Gallens Crowley and Chamberlain

ORDER

The Court orders that:
1. The application be dismissed.

2. The defendant pay the plaintiff's costs of and incidental

to the Notice of Motion.

DECISION

MASTER HOGAN In this action for defamation the defendant seeks orders relating to certain imputations that are pleaded in the Statement of Claim and an order for further and better discovery of documents that the plaintiff acknowledges are in his possession.

2. The publication in the defendant's newspaper of which the plaintiff complains dealt with investigations that had been made by the National Crime Authority ("NCA"), and the alleged reasons for the lack of successful prosecutions resulting from them.

3. The particulars of the publication were as follows:

"In an article headed 'Friction behind the crimebusters', the
following statements were made:
'The most controversial and frustrating case the NCA brought to
prosecution stage was that against former immigration minister
Mr Al Grassby.
Both the NCA and its parliamentary watchdog committee recognised
failings in the case and investigations into how it was initiated
and conducted are under way by members of both bodies.
The Grassby inquiries were launched in December 1986 under the NCA's
reference seven - a broad-based investigation into crime within the
Italian community.'
'But despite the scope of allegations concerning Mr Grassby the
resources and times devoted to the inquiry were astoundingly
limited.
After being looked at by NCA lawyers in December, one officer,
seconded from the Australian Federal Police (AFP), was put in
charge of the inquiry full time in January. This chief - and only
- investigating officer asked for help on the case but was not
given an additional two investigating officers until the following
April.
By the time charges - relating to an alleged conspiracy to pervert
the course of justice and the criminal defamation of Mrs Barbara
Mackay, the widow of murdered anti-drug campaigner Donald Mackay,
and others - were laid five officers were on the case. But they had
been on it little more than a month. Experienced investigators say
it was a case which could have taken two years to investigate fully
and corroborate.
The Australian understands that executives of the NCA were informed
that a number of people who should have been spoken to would not be
spoken to if more time were not allowed.
The case against Mr Grassby fell apart in the courts, with a Sydney
magistrate permanently staying the conspiracy charges last year,
finding that the evidence of a secret witness had been discredited.
The DPP won an appeal against the permanent staying of the criminal
defamation charge and a decision on an appeal by Mr Grassby against
that win has been reserved by the High Court. "You might say it was
a bit stuffed up but it got there - the Grassbys of this world had
never got charged", the chairman of the joint parliamentary NCA
watchdog committee, Mr Peter Cleeland told The Australian.
As far as the goals of the NCA were concerned, Mr Lenihan agreed
that it was through the attack on untouchables such as jailed Sydney
identity Abe Saffron, and high profile figures such as Mr Grassby -
that the NCA had broken new ground.
"I think that it was generally accepted that ordinary police methods
weren't up to those people at the time. Putting people like that
behind bars, we've achieved that sort of goal" he said.'

4. The imputations alleged by the plaintiff to arise from that material were:

"(i) That the plaintiff was a major criminal who had for a long
time escaped proper judicial punishment.
(ii) That the plaintiff was a person who deserved major judicial
punishment.
(iii) That the plaintiff had a bad reputation.
(iv) That the plaintiff was a major participant in criminal
activity in the Italian community in Australia.
(v) That the plaintiff was a major criminal who had previously
used his influence to prevent being charged and/or investigated.
(vi) That the plaintiff's criminal conduct and influence was
such that it was beyond the power of normal law enforcement
agencies.
(vii) That the plaintiff was a person whose criminal behaviour
ranked with the criminal behaviour of one Abe Saffron.
(viii) That the plaintiff deserved to be put in jail by the work
of the National Crime Authority.
(ix) That the plaintiff was one of the major type of criminal
the National Crime Authority set as one of its aims to investigate,
prosecute and convict.
(x) That the plaintiff was a cheat and/or fraud and dishonest.
(xi) That the plaintiff's criminal conduct was such as required
extensive investigations by experienced investigators of the
National Crime Authority over a protracted period."

5. The Notice of Motion sought an order striking out all those imputations except (iii), that is "that the plaintiff had a bad reputation".

6. The publication was alleged to have taken place on 24 June 1989.

7. The Writ was issued on 29 May 1990. The defendant appeared on 4 June 1990. The Statement of Claim was delivered on 6 June 1990.

8. The defendant filed a Defence on 3 September 1990, admitting publication. The Defence denied that the matter published defamed the plaintiff, and denied that it bore or was capable of bearing the imputations set out. It also raised matters of qualified privilege as defences applicable in the various States and Territories where the publication occurred.

9. Before filing that Defence the defendant, in addition to seeking normal particulars, raised objections to the form of each of the imputations. The plaintiff's advisers, by letter dated 17 July 1990, stood their ground. The defendant took no action about the imputations at that stage, and proceeded to file the Defence.

10. There followed correspondence about particulars of the Defence, and mutual discovery was agreed upon without Court order.

11. Correspondence then proceeded to discuss the adequacy of the discovery given on each side.

12. By letter dated 28 August 1991 the solicitors for the defendant returned to the question of the imputations and invited their amendment.

13. On 18 October 1991 the solicitors for the plaintiff responded, offering to placate the defendant by making a number of suggested amendments to the imputations.

14. An Amended Statement of Claim, engrossed to effect those proffered amendments, was tendered on 29 October 1991.

15. By letter dated 5 November 1991 the defendant's solicitors raised continuing objections to the suggested amended imputations.

16. Meanwhile, proceedings in which the plaintiff had been charged with criminal defamation had been proceeding. On 18 March 1992 the plaintiff's solicitors suggested deferral of further discovery and particulars until after the hearing of an appeal in those proceedings in June 1992.

17. The decision in that appeal was handed down on 14 August 1992, all charges against the plaintiff being dismissed.

18. The defendant's solicitors insisted on the particulars and other matters detailed in their letter dated 5 November 1991. The plaintiff's solicitors responded on 6 October 1992 by withdrawing the offer to amend the imputations, and stated that they had been instructed to rely on the imputations originally pleaded. On the same day they filed a Reply, alleging malice with respect to the defences of qualified privilege, and joining issue otherwise.

19. Normally I would need to be persuaded that it is proper to entertain an application relating to imputations so long after the pleadings have closed, but the course of that correspondence is such that the delay is explained to some extent.

20. I respectfully agree with and adopt the remarks of Higgins J in Baffsky v John Fairfax and Sons Ltd, now reported at (1991) Aust Torts Reports 81-144 at 69, 391, which I have applied in Hoyle v Federal Capital Press (Supreme Court of ACT, Master Hogan, 29 January 1991, unreported).

21. But I repeat also what I remarked in that latter case immediately after citing the relevant passage from the judgment of Higgins J, namely:

"I do not understand His Honour to be there saying that I am
entitled, at an interlocutory stage, to strike out an imputation
simply because it appears to me to be imprecise. Whether or not
it is so imprecise as to be unsustainable will be a question for
the Judge at the trial. But if it is clear that it could not
possibly arise, or it is so imprecise as to be embarrassing, that
is, as to impede the fair trial of the action, then I should
strike it out."

22. The first basis on which it was submitted I might strike out the imputations was that the question of the capacity of the matter complained of to give rise to the imputations was a question of law, and therefore a question which I could decide before the trial pursuant to O.29 r 2 of the Rules.

23. I do not agree with that submission. It is true that the question so posed is a point of law. And it is true that it is, if one reads the Defence carefully, a point which is raised by the pleadings. It is also true that there are some cases where it is proper to make an order that a point of law so raised be determined before the trial. Whether any particular case is such a case should be determined on an application for such an order, and there are some guidelines in decided cases which help in deciding the manner in which the discretion to make such an order should be exercised. There has not been any application for such an order in this case, and if there had been it would not have had much chance of success. As the New South Wales Court of Appeal held in CB Productions Pty Ltd v O'Neill (1985) 1 NSWLR 601, this procedure should be confined to cases where the question posed is a central issue in contention between the parties, the resolution of which will either obviate the necessity of litigation altogether or substantially narrow the field of controversy. Compare Everett v Ribbands (1953) 2 QB 198 per Romer LJ at 206. This is not such a case. The matter published is obviously defamatory of the plaintiff. Apart from the issues of qualified privilege raised by the Defence, the defendant does not seek to justify it. Different considerations might apply in a case where justification is pleaded. That is a matter for discussion on some other occasion. But in this case there is no benefit to be gained by my deciding as a matter of law whether a particular imputation is capable of arising, when the judge will, at the trial, be able to consider exactly the same arguments while deciding whether it does in fact arise. Both are questions which depend simply upon a comparison of the published matter and the imputations as set out in the pleadings. They do not depend upon the calling of evidence. To decide the question of law now neither obviates the necessity of litigation altogether, nor does it substantially narrow the field of controversy in such a way as to affect the course of the trial.

24. The tests to be applied are therefore whether it is so obvious that the imputations could not possibly arise that it is a waste of time to leave them on the record to be argued about, or whether they are so imprecise as to be embarrassing, that is, to impede the fair trial of the action.

25. The first objection raised by counsel for the defendant related to all the imputations pleaded except (iii). It was summarised by pointing out that the whole of the matter complained of did not impute actual criminality, but only suspicion of criminality, and was based on the distinction highlighted by Lewis v Daily Telegraph Ltd (1963) 1 QB 340 and Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293.

26. My first reaction to that submission is to point out that none of the imputations pleaded take the form of an allegation that the plaintiff was guilty of the offences with which he was charged. The actual decision in those cases was that a report that a person had been charged is not capable of sustaining the imputation that he is guilty of the offence with which he is charged. They are not decisions to the effect that it is not defamatory of someone to publish that he is suspected of having committed an offence.

27. All the Justices who delivered judgment in Harrison seem to have agreed that a report which does no more than state that a person has been arrested and charged is capable of bearing the imputation that the police suspected the person of having committed the offence. Mason and Wilson JJ thought it was capable of sustaining the additional element that the police had reasonable cause for their suspicion. Gibb CJ and Brennan J did not decide that question.

28. But those are not the imputations pleaded in this case, and the matter published goes far beyond the mere statement that the plaintiff had been charged with one or two offences. I am therefore not persuaded by that submission to strike out any of the imputations pleaded here.

29. Counsel for the defendant then dealt with a number of the imputations individually. During the course of his argument counsel for the plaintiff withdrew imputations (iii) and (x).

30. The complaint about (i), (ii), (iv), (v) and (ix) was founded on the imprecision inherent in the use of the word "major". I think that in the contexts in which it is used it is capable of an ordinary English meaning, and will not be the cause of any embarrassment at all in the conduct of the case. Whether the imputations including it are in fact made out will be for the judge to decide.

31. The criticism of imputation (vi) was that it does not make clear what precisely was being said to be beyond the power of normal law enforcement agencies. Was it the plaintiff himself, his criminal conduct or his influence? Let it be conceded that it would be possible to make the imputation more precise. Its imprecision might be more significant if the defendant were faced with the task of proving that it was true. But when the only relevant question to be decided is whether it does arise, I do not think that its imprecision is so glaring as to make it meaningless or embarrassing.

32. Objection was taken to the reference to Abe Saffron in imputation (vii), and the absence of a true innuendo making clear who Abe Saffron was or what he had done. Part of the imprecision in the innuendo does in fact arise from the imprecision in the matter published. What classes of persons were being contrasted, "untouchables" and "high profile figures", or "jailed Sydney identity Abe Saffron" and "high profile figures such as Mr Grassby"? The first may well be the more likely, but the context of the reference to the plaintiff is to my mind such as to make it quite appropriate to leave to the trial judge the question whether the imputation alleged did arise, and I can foresee no embarrassment to the defendant in being required to argue the point. Similarly, so far as imputation (xi) is concerned, the imprecision in the published matter arising from the use in the context of the words such as "untouchables", "those people" and "people like that" in the final paragraphs leaves it at least arguable that the imputation arose from the matter complained of, and also that there is no embarrassment caused by the requirement to argue that position.

33. The first type of relief sought by the Notice of Motion is therefore refused.

34. The second type of relief sought is that the plaintiff give further and better discovery. It was common ground that the plaintiff has in his possession documents relating to his defence to the charges brought against him, which charges were referred to in the matter complained of.

35. If there were, or were alleged to be, imputations in the subject matter that the plaintiff was in fact guilty of those crimes, despite the fact that they were later dismissed and he was discharged, those documents would obviously be such as should be listed in the plaintiff's affidavit of discovery. Which of them would then be privileged from inspection would be a separate question, which need not be discussed here. But they would relate to a matter that would then be in issue between the parties. But the plaintiff's guilt of those crimes is neither stated nor imputed in the matter complained of.

36. Counsel for the plaintiff submitted that the matter or matters in issue between the parties to which the documents relate arose from the various defences of which comment was an element.

37. The relevant paragraphs of the Defence and the allegations about comment in them concerning the matter complained of are as follows.

Para.4(b) (New South Wales publication)
"amounted to comment based upon proper material for comment and
upon no other material".
Para.4(c)
"amounted to comment based to some extent on proper material for
comment".
Para.5(d) and 6(d) (Queensland and Tasmanian publication)
"was fair comment on a communication made to the public on a
subject".
Para.7(b) (Publication in Common Law States and Territories)
"was fair comment on matters of public interest".

38. In their request for particulars dated 30 August 1990 the solicitors for the plaintiff sought the following relevant particulars (amongst others).

In relation to paragraph 4
2(c) "What does the defendant say was the comment referred to in
(b)."
2(d) "What does the defendant say were the 'proper material for
comment referred to in (b)'."
2(e) "Identify the comment of the servant or agent of the
defendant."
2(i) "Identify the comment referred to in (c)."
2(j) "Identify the proper material for comment referred to in (c)."
In relation to paragraph 7
5(b) "Identify the comment referred to in the matter complained of."

39. The response that they received from the defendant's solicitors was.

2(c) "This is not a proper request for particulars: See Sims v
Wran (1984) 1 NSWLR 317 at 324, Aga Khan v Times (1924) 1 KB 675
at 679-686."
2(d) "The defendant relies only on the facts stated in the
article in 'The Weekend Australian' from which the matter complained
of was extracted, and on no extraneous facts. The plaintiff is not
entitled to greater particularity."
2(e), 2(i) and 5(b) elicited the response: "This is not a proper
request for particulars."
2(j) was answered: "As for 2(d)."

40. It is clear therefore that such of the matter as constituted comment was based upon factual material stated in the matter complained of and no other facts.

41. As Hunt J pointed out in Sims v Wran, cited in that correspondence, at 323 F-G, the defendant ought to have identified in the particulars which statements in the matter complained of were alleged to be fact rather than comment, but it chose not do so, and the plaintiff did not seek those particulars, or any further particulars. The plaintiff proceeded to file and serve his Reply.

42. In the Reply, so far as paragraphs 4(b), 4(c), 5(d), 6(d) and 7(b), are concerned, the plaintiff alleged that the defendant did not hold the opinion represented by the alleged comment at the time of the publication. That therefore is the only matter in issue between the parties, so far as the defences concerning comment are concerned. I am unable to see how any documents in the plaintiff's possession could relate to that issue simply because of the fact that they were produced or obtained in connection with his defence of the criminal charges brought against him, even though there is a reference to those charges in the matter published. Facts stated in the matter complained of, such as that the case against the plaintiff fell apart, that a magistrate stayed the proceedings, that a secret witness was discredited, that the DPP won an appeal, and that a decision on an appeal by Mr Grassby against that decision had been reserved by the High Court, were simply not put in issue by the reply. Documents in the plaintiff's possession which might have related to those facts if they had been put in issue are not, by virtue of that fact, material to the question whether the defendant did or did not hold the opinion represented by so much of the material published as was comment. If it is not clear which parts are comment and which parts are fact the defendant has brought that result on itself by its own manner of pleading and supplying of particulars.

43. I refuse the application for further discovery.

44. The Notice of Motion is dismissed. I do not think that the two minor concessions made by counsel for the plaintiff had any material effect on the conduct of these interlocutory proceedings.

45. I order the defendant to pay the plaintiff's costs.