Brian Dominick v John Fairfax Group Pty Limited and Peter Hartcher [1994] ACTSC 3 (21 January 1994)

SUPREME COURT OF THE ACT

BRIAN DOMINICK v. JOHN FAIRFAX GROUP PTY LIMITED and PETER HARTCHER
No. SC732 of 1991
Number of pages - 6
Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Defamation - imputations - application to strike out - fraud being investigated - imputation that plaintiff guilty of fraud - plaintiff not named - member of class - whether matter published "of and concerning the plaintiff".

Mirror Newspapers v Harrison (1982) 109 CLR 293

Lewis v Daily Telegraph Ltd (1963) 1 QB 340

Knupffer v London Express Newspaper Ltd [1944] UKHL 1; (1944) AC 116

Mann v The Medicine Group Pty Ltd [1992] FCA 524; (1992) 38 FCR 400

Morgan v Odhams Press Ltd (1971) 2 All ER 1156

HEARING

CANBERRA, 13 August 1993
21:1:1994

Counsel for the Plaintiff: Mr B Connell

Instructing Solicitors: Macphillamy Cummins and Gibson

Counsel for the Defendants: Mr M G Lynch

Instructing Solicitors: Freehill Hollingdale and Page

ORDER

THE COURT ORDERS THAT:
1. Imputations (e), (f) and (g) in paragraph 6 of the Statement of

Claim filed herein be struck out.
2. The plaintiff pay the costs of and incidental to this application.

DECISION

MASTER A HOGAN This is an application to strike out certain imputations in a Statement of Claim in an action for defamation.

2. The plaintiff was a director of the Canberra District Rugby League Football Club from the first half of 1989 to mid 1991, and was also a director and chief executive of a company which owned and leased to the Club its premises at Mawson.

3. The defendants, on 30 August 1991, published throughout Australia in the Sydney Morning Herald an article, the main thrust of which was to criticise the Governor of the Reserve Bank, Mr Fraser, for agreeing to head the management committee of the Club.

4. The plaintiff complains that in the course of the article some of the statements made defamed him. The part of the article of which the plaintiff complains was as follows. For ease of reference, numbers have been added to the paragraphs as they appeared in the paper.

"4. How could so innocent an involvement in something as inherently
frivolous as a footy club possibly conflict with anything so weighty
as bank supervision, the stability of the currency, or the setting of
interest rates?
5. While they were laughing, some of the most senior people in both the
Liberal and Labor parties were seriously weighing whether they should act
to discourage Fraser from pursuing the job with the Raiders.
6. At least one of them did. One of the most senior figures on the Labor
totem asked a mutual acquaintance to dissuade Fraser from taking the
position. He asked the mutual acquaintance to alert Fraser to the
likelihood that extensive fraud had occurred in the club and that the
governor of the Reserve Bank could not afford to be associated with any
scandal, however innocently.
7. There is a public impression that the potential for scandal

surrounding

the club has ended. That impression is absolutely wrong.
8. It was widely known that the Australian Securities Commission (ASC)

was
investigating the club's directors for continuing to trade in the knowledge

that the club was insolvent, with accumulated losses of $2.3 million.
9. But at the time of the Fraser appointment, on July 22, the club's

chief

creditor, the ANZ Bank, extended another $700,000 credit to the club,
thereby restoring its short-term solvency. The ASC investigation was

then

dropped.
10. What has not been disclosed is that the ASC has found other reasons

to

investigate the club. It is pursuing at least two matters, understood to
be potential cases of fraud, and expects to have some clear idea in the
next month or so about whether to proceed against the club.
11. One of the matters under investigation is the unduly high rent that

the

Raiders, based in the Canberra suburb of Mawson, pay for their lease -
almost a quarter of a million dollars a year - and whether the lease was
fraudulently arranged.
12. Another little-known fact is that an influential figure in the club

was
mentioned in evidence before the Winchester inquest as having attempted to
bribe a police officer to protect an illegal gambling casino. Publication

of the figure's name was suppressed by the ACT Coroner, Ron Cahill.
13. A further unpublicised fact is that the Australian Taxation Office

also

is investigating the club for suspected violations of tax law.
14. It was well-known that the club had a couple of tax problems. It had
run up $800,000 in unpaid group taxes, and had been slinging some of its
players cash on the sly for home renovations and other worthy causes.

Both

of these problems have been addressed retrospectively. The unpaid tax is
now being paid off in monthly instalments, with the last to be paid next
month. And the under-the-table cash payments to players were belatedly
added to players' group certificates.
15. But the ATO is now pursuing other lines of inquiry.
16. These are just some of the potential sources of scandal to which

Fraser
has exposed himself. Some or all of these issues may be considered grounds

for prosecution and proceed into the light of day by normal routes.
17. And although all of the events under scrutiny occurred before Fraser
joined the club, he and his office may not be able to avoid all of the
odium."

5. In the Statement of Claim the plaintiff set out seven imputations. The defendant objects to five of them. The relevant paragraph is as follows:-

"6. The matter complained of in paragraph 5 hereof in its natural and
ordinary meaning was defamatory of the plaintiff and was understood to
mean:
(a) that the plaintiff was a party to an extensive fraud in relation to

the

Raiders Football Club;
(b) that the plaintiff was party to a fraud in relation to the arranging

of

a lease of premises for the Raiders Football Club;
(c) that the plaintiff was reasonably suspected by the Australian
Securities Commission of being party to a fraud in relation to the
arranging of a lease of premises for the Raiders Football Club;
(d) that the plaintiff so misconducted himself in relation to the

arranging

of a lease of premises for the Raiders Football Club as to warrant an
investigation by the Australian Securities Commission to determine

whether

he was guilty of fraud;
(e) that the plaintiff attempted to bribe a police officer to protect an
illegal gambling casino;
(f) that the plaintiff was reasonably suspected by the Australian
Securities Commission of having attempted to bribe a police officer to
protect an illegal gambling casino;
(g) that the plaintiff so misconducted himself as to warrant an
investigation by the Australian Securities Commission to determine

whether

the plaintiff was guilty of having attempted to bribe a police officer to
protect an illegal gambling casino.
PARTICULARS OF IDENTIFICATION
(a) The matters pleaded in paragraphs 1 and 2 of the Statement of Claim
were well known in rugby league circles and by business associates,

family

and friends of the plaintiff as well as other persons who had dealt with
the plaintiff and/or Canberra District Rugby League Football Club, which
was known as the Raiders Football Club.
(b) The defendant had identified the plaintiff as the lessor of the club
premises and in a prominent article in "The Sydney Morning Herald" on the
subject of the Raiders on Saturday, 3 August 1991 at the front page of

the

Sports Section headed "Raiders of the Lost Chance".
(c) The plaintiff had been widely identified as to the matters pleaded in
paragraphs 1 and 2 of the Statement of Claim in an article in "The

Canberra
Times" of 24 July 1991 headed "Raiders to get $700,000, set to buy Leagues

Club" on pages 1 and 2, published widely throughout the ACT and also
published in the other States and Territories of Australia.
(d) The Raiders Football Club had for some years attracted widespread
public interest and attention in the media including in the publications

of

the defendant so that the matters pleaded in paragraphs 1 and 2 of the
Statement of Claim would be expected to be ventilated by persons having

an
interest in sport, in rugby league football and/or in the Raiders Football

Club.
(e) The financial difficulties of the Raiders Football Club including its
expenditure on its premises had attracted widespread public interest and
attention in the media including in the publications of the defendant so
that the matters pleaded in paragraphs 1 and 2 of the Statement of Claim
would be expected to be ventilated by persons having an interest in

sport,

in rugby league football and/or in the Raiders Football Club. The
plaintiff will rely on documents discovered by the defendant in this

regard
as well as other media publications including in "The Canberra Times" of 17

July 1991 headed "Team Fund Risk" and articles in "The Canberra Times" of
24 July 1991 headed "Raiders to get $700,000, Set to buy Leagues Club" on
pages 1 and 2, and "Patrons back 'Gamble' of Mawson move" also on pages 1
and 2, such newspaper being published widely throughout the ACT and also
published in the other States and Territories of Australia."

6. The objection to the imputations (a), (b) and (e) is that the imputations are, as a matter of law, incapable of arising from the published material. The objection to imputations (e), (f) and (g) is that they are incapable of being read as relating to the plaintiff.

7. The defendant has not yet entered a defence.

8. The submission about imputations (a), (b) and (e) proceeds on the basis that it would be open to the tribunal of fact to decide that the matter referred to the plaintiff.

9. The attack upon them is based on the decision of the High Court in Mirror Newspapers v Harrison (1982) 109 CLR 293, which followed and applied Lewis v Daily Telegraph Ltd (1963) 1 QB 340. It was submitted that a statement that fraud was being investigated could not support an imputation that the plaintiff was guilty of fraud.

10. The submission is not that it cannot be defamatory of someone to publish that he is suspected of having committed an offence. Imputations (c) and (d) relate to that type of imputation, and they are not the subject of the defendants present attack.

11. It is also necessary to emphasise that it is not my task to decide whether the imputations do in fact arise. That will be a question for the Judge at the trial.

12. Nor, in this jurisdiction, am I in the same position as a Judge would be, for example, in New South Wales, when asked at the end of a plaintiff's case to withdraw an imputation from the jury.

13. The legal test in both situations would be the same, namely, whether the imputation is capable of arising.

14. But in a jurisdiction where the Judge is the tribunal both of fact and of law at the trial, and where imputations are particulars and not the precise cause of action, there is not always the same need to determine this question at an interlocutory stage.

15. It would be easier to tell whether deciding the point now would matter very much if it were known, for example, whether the defendant proposed to justify the publication. Because it has not yet entered a defence that must remain at least a possibility.

16. But it seems to me that the real answer to the plaintiff's submission in this case is that the published material is capable of being read as imputing more than simply that the plaintiff had been arrested and charged (as in Harrison) or that he was being investigated (as in Lewis). There is the "likelihood that extensive fraud had occurred in the club" in paragraph 6 of the article. There is the reference to evidence given in the Winchester inquest in paragraph 12. There is the reference to the "well known" tax problems in paragraph 14. There is the statement in paragraph 16 that "These are just some of the potential sources of scandal to which Fraser has exposed himself".

17. The trial Judge may well decide at the end of the case that these considerations are not sufficient to found the imputations. But I am not prepared at this stage to rule that he must do so. I would not strike out imputations (a), (b) or (e) on this ground.

18. The basis of the objection to imputations (e), (f) and (g) is that a defamatory statement concerning members of a class generally is actionable at the instance of a member of that class only if the member is able to point to circumstances which would indicate to a reasonable reader that the statement refers particularly to him or her.

19. The leading authority on the point is Knupffer v London Express Newspaper Ltd [1944] UKHL 1; (1944) AC 116, a decision of the House of Lords. A fairly recent decision which is directly binding on me, in which that case was followed and applied, is Mann v The Medicine Group Pty Ltd [1992] FCA 524; (1992) 38 FCR 400.

20. The imputations attacked on this ground all relate to the statement in paragraph 12 of the article published, in which reference is made to an attempt to bribe a police officer to protect an illegal gambling casino. The plaintiff is not named in that paragraph. The only material tending to identify the person connected with the bribe attempt is the phrase "an influential figure in the club".

21. This particular part of the published material, and the imputations based on it, may be contrasted, for example, with the imputation in 6(c) relating to the arranging of a lease of premises. The fact that the plaintiff was a director of the club, together with the matters referred to in the Particulars of Identification, could well help to identify the plaintiff as being one of the people being defamed, even though the reference was to a class.

22. As Viscount Simon LC said at 119 in Knupffer,

"Where the plaintiff is not named, the test which decides whether the
words used refer to him is the question whether the words are such as
would reasonably lead persons acquainted with the plaintiff to believe
that he was the person referred to. There are cases in which the
language used in reference to a limited class may be reasonably
understood to refer to every member of the class, in which case every
member may have a cause of action."

23. As Miles CJ pointed out at 411 of Mann, there is no rule of law that there must be a prior determination whether the class of persons subject to the libel be determinate or indeterminate. That is simply one test which may be applied in order to answer the ultimate question whether the words are published "of and concerning the plaintiff".

24. To state the test more precisely for the purposes of this application, the defendants, in order to succeed on this point, must persuade me that the tribunal of fact could not, as a matter of law, decide that some readers, having knowledge of the facts alleged in the Statement of Claim, would reasonably understand the words complained of as referring to the plaintiff. See Morgan v Odhams Press Ltd (1971) 2 All ER 1156 per Lord Morris at 1168.

25. The relevant class is certainly indeterminate, even if the range of people who are "in the club" is narrowed by the additional characteristic of being "an influential figure". It would certainly extend far beyond the range of those who were members of the Board of Directors of the Club or of its landlord.

26. It is to my mind so wide that it would not be possible for a tribunal of fact, on the basis of the facts alleged, to find that the matter was published of and concerning the plaintiff.

27. To that extent therefore, the application succeeds.

28. I order that imputations (e), (f) and (g) in paragraph 6 of the Statement of Claim be struck out.

29. The defendant did not succeed in all its contentions, but achieved substantial success in its application. I do not think that the costs were increased by reference to the matters on which it did not succeed.

30. I order the plaintiff to pay the costs of and incidental to the application.