Bonighton v Nationwide News Pty Ltd and Anor [2006] ACTSC 7 (24 February 2006)

Last Updated: 6 April 2006

RON BONIGHTON v NATIONWIDE NEWS PTY LIMITED

AND QUEENSLAND NEWSPAPERS PTY LTD

[2006] ACTSC 7 (24 February 2006)

PRACTICE AND PROCEDURE - defamation - pleading - interstate cause of action - need to identify plaintiff.

David Syme & Co Ltd v Grey [1992] FCA 479; (1992) 38 FCR 303

Waterhouse v Australian Broadcasting Corporation (1987) 87 FLR 369

John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503

Consolidated Trust Company Limited v Browne (1948) 49 SR (NSW) 86

Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, 221 ALR 186

Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658

Gatley on Libel and Slander, (2004) 10^th ed

No SC 90 of 2003

Judge: Connolly J

Supreme Court of the ACT

Date: 24 February 2006

IN THE SUPREME COURT OF THE )

) No SC 90 of 2003

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: RON BONIGHTON

Plaintiff

AND: NATIONWIDE NEWS PTY

LIMITED (ACN 008 438 828)

First Defendant

AND: QUEENSLAND NEWSPAPERS

PTY LTD (ACN 009 661 778)

Second Defendant

ORDER

Judge: Connolly J

Date: 24 February 2006

Place: Canberra

THE COURT ORDERS THAT:

1. Leave to file third further amended statement of claim pursuant to notice of motion of 1 February 2006 denied.

2. Plaintiff to file a further amendment within 28 days.

3. Defendants to have costs of this motion.

1. This is an application by way of the plaintiff's notice of motion of 1 February 2006 for leave to file a Third Further Amended Statement of Claim in defamation proceedings. The alleged defamatory material relates to four newspaper articles making certain allegations of misconduct within the Defence Signals Directorate. The flavour of the material is conveyed in the headline to the first mentioned publication "Sex Scandal Compromises Elite Spies". The defendants oppose the grant of leave, arguing that the proposed pleading is defective in the way it pleads publication in jurisdictions other than the Australian Capital Territory and New South Wales by failing to plead how the plaintiff is identified in each separate jurisdiction.

2. The plaintiff alleges that he was defamed in four publications, all of which, it is conceded, were published by the defendants. The first allegation relates to material published in The Courier Mail on or about 26 September 2002. The draft pleading alleges in par 4 that this material was published "in the Australian Capital Territory and in each other state and territory of Australia", and that the material was "of and concerning the plaintiff". The second allegation relates to publication in the Daily Telegraph newspaper State Edition, where it is alleged that material "of and concerning the Plaintiff" was published "in the Australian Capital Territory and each other state and territory of Australia outside the Sydney metropolitan area". The third allegation only goes to publication in the Sydney metropolitan area and the defendants do not object to the form of pleading. The fourth allegation goes to publication in the Daily Telegraph newspaper "in the Australian Capital Territory and each other state and territory of Australia" of material again said to be "of and concerning the Plaintiff".

3. It is apparent from exchanges of correspondence between the parties that the defendants have repeatedly sought clarification from the plaintiff's solicitors as to the way the matter is pleaded in respect of publication beyond the Australian Capital Territory and New South Wales. In a letter of 9 November 2005 the plaintiff's solicitors advised that -

As to the reference in the pleading to publication outside of the ACT and NSW in paragraphs 4, 8 and 16: as we have said in the past we rely on the publications outside of the ACT and NSW as matters going to damages only.

4. The defendants, reasonably, in my view, have taken this to be an attempt to plead in a manner held repeatedly to be inappropriate. In David Syme & Co Ltd v Grey [1992] FCA 479; (1992) 38 FCR 303 (per Neaves J at 309), the Full Court of the Federal Court, on an appeal from this Court, held that an attempt to plead publication in other jurisdictions as a matter of damages only:

cannot be allowed to disguise the fact that the plaintiff in such a proceeding is essentially suing upon a multiplicity of causes of action.

5. Gummow J at 323 said that to plead that publication in other jurisdictions was a matter "going only to damages and not as separate causes of action" and was "to assert what in law is impossible".

6. His Honour cited with approval the decision of Kelly J in Waterhouse v Australian Broadcasting Corporation (1987) 87 FLR 369, where his Honour pointed out that, while it is properly open to a plaintiff to plead separate causes of action in defamation arising from publication in other jurisdictions, it is not appropriate to plead such publication as a matter going only to damages. His Honour said (at 379) -

In my opinion the course adopted by the three plaintiffs is embarrassing. It requires the defendant, if it wishes to plead any defences available to it in other jurisdictions within the Commonwealth of Australia, to plead to a matter which is not potentially in issue as part of a cause of a (sic) action in respect of publication in those other jurisdictions.

7. I have no doubt that this is still good law and indeed is more significant since the decision of the High Court in John Pfeiffer Pty Limited v Rogerson [2000] HCA 36; (2000) 203 CLR 503, as the trial court will need to apply the law of the jurisdiction of publication, and so full particularisation is necessary in order to allow a defendant to properly rely on what may be a multiplicity of defences given the differences in the law of defamation in different Australian jurisdictions.

8. At this hearing counsel for the plaintiff did not dispute that this was the law, and argued on the basis that the pleadings did in truth seek to plead separate causes of action in each jurisdiction. I will deal with the pleadings on this basis, but I make the observation that the letter from the plaintiff's solicitors does give rise on its ordinary meaning to the suggestion that the plaintiff was seeking to adopt the course of action held to be inappropriate in David Syme v Grey. Whatever the ultimate success of the defendants' pleading point, it seems to me that it was proper to raise this issue.

9. The substantive issue raised by the defendants is the claimed inadequacy of the pleadings in that they fail to properly identify the cause of action in relation to the publication beyond the ACT and New South Wales. In each case, the pleadings provide particulars of identification, but in each case this is restricted to persons who reside in the ACT or New South Wales. The defendants accept that this properly pleads publication in these jurisdictions.

10. The pleadings assert that the plaintiff was, from August 1998 to October 2002, the Director of the Defence Signals Directorate. The second and fourth matters complained of do not mention the plaintiff by name at all. In the first matter complained of, there is a reference to the plaintiff by name and he is identified as having given certain evidence to a Senate committee in his capacity as a "former Director of DSD". The article does not identify when the plaintiff was the Director or whether the period of his directorship coincided with the allegations going to the conduct of the agency that are at the heart of the material complained of. I do not regard this first matter complained of as being material that directly identifies the plaintiff as the subject of the claimed defamation, and so will consider the three articles on the same basis, that is, whether the pleadings adequately identify the plaintiff as having a cause of action in defamation in jurisdictions beyond the ACT and New South Wales.

11. It is common ground between the parties that, if a plaintiff is not expressly identified as the target of the defamatory allegations, it can be a requirement that the pleadings set out how the plaintiff has been connected to the defamatory material. The law is well stated in the oft cited remarks of Jordan CJ in Consolidated Trust Company Limited v Browne (1948) 49 SR (NSW) 86 at 89 where his Honour said -

If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that it was published, and publication to one person is enough. It is unnecessary to prove that the person to whom it was published had any knowledge of the person defamed, or that the matter complained of led him to think the less of that person. If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances.

12. This is not an inflexible rule, and there will be circumstances where, despite a name not appearing in the publication, it will be apparent to anyone who is being referred to. Thus, in Consolidated Trust v Browne, Jordan CJ said at 91 -

This is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as "the Prime Minister of Australia", it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated.

13. Where what is published is a photographic or video image, it may be inferred that a person in another jurisdiction who sees the image and who knows the plaintiff will connect the plaintiff with the allegation (Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30). It seems to me that publication of a photograph or image is not comparable to publication of a name. The authors of the 10^th edition of Gatley on Libel and Slander say at [7.3] -

It is uncertain whether there is any difference of principle between identifying a claimant by using his name and by publishing his photograph without his name. One view is that the latter case involves an innuendo and that the claimant must therefore show that persons who knew him saw the photograph. However, even on that basis, that conclusion may be arrived at by inference, as in the case where the publication is in a national newspaper with a wide circulation.

14. It seems to me that the authorities that have allowed an inference to be drawn from the publication of a photograph or image do not assist the plaintiff in this case where his case is that material that (as I have found) does not name him would nonetheless give rise to a cause of action because the material complained of would be linked to him as the person who held the office of Director of the Defence Signals Directorate. It seems to me that the question is whether that is analogous to the example of the defamation on "the Prime Minister".

15. This proposition is reflected in Gatley on Libel and Slander at [7.3] where it is said:

Where a plaintiff is referred to in an indirect way or by implication it will be a question of degree how far evidence will be required to connect the libel with him. At one extreme, if there is a libel on `the Prime Minister' that officer does not need to produce witnesses to testify that they know who he is.

16. The plaintiff argues that it is at least arguable (which is of course the appropriate test on an application to strike out, or not permit to be filed, a defamation pleading (Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, (2005) 221 ALR 186)) that the plaintiff's position was of sufficient notoriety that an inference may be drawn that persons in jurisdictions other than the ACT and New South Wales understood the matters complained of to be of and concerning the plaintiff.

17. It seems to me that this argument carries considerably less weight where the claimed notoriety goes to a person holding a position as Director of a sensitive aspect of Australia's defence and security service. True it is that everyone knows who the Prime Minister is, and it may be said that, together with Cabinet Ministers, certain senior office holders in the Commonwealth Government would also be sufficiently well known that an allegation concerning "the Secretary to the Treasury", or "the Secretary of the Department of Foreign Affairs and Trade" would be actionable by the office holder without special pleading going to identification. In argument with counsel I asked whether there was any evidence to show that the holder, from time to time, of this office is publicly identified. No such evidence was forthcoming.

18. It seems to me that the plaintiff should be required to plead expressly how it is said that the material complained of has been identified as being of and concerning him. If it is pleaded on the basis of notoriety, which appears to be the argument set out in submissions, this should be made clear. If it is to be said that, although the holder of the office of Director of the Defence Signals Directorate is not widely publicised and notorious (if that be the case) the plaintiff was identified by certain persons holding, perhaps, positions of responsibility in security and intelligence services in other jurisdictions, this also should be made clear. Obviously, the defendant would need to know how the interstate publication is put in order to properly frame its defence, and the defence to a claim going to notoriety may well be quite different to a defence if the only persons who identified the plaintiff may be those persons to whom a qualified privilege defence could well apply.

19. Despite a widespread view that the rules relating to pleading in defamation proceedings are particularly arcane, at the end of the day the purpose of pleadings in defamation actions are the same as the purpose of pleadings in any civil litigation - to "define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial" (see Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658 at 664). Given that, post Pfeiffer v Rogerson, it is necessary for the trial court to apply the law of the place of publication in respect of interstate defamation actions, it seems to me that it is particularly important that a plaintiff who choses to plead multiple defamation by way of separate causes of action in a multiplicity of jurisdictions, to plead with some precision how the separate causes of action arise. Where the matter complained of does not expressly identify the plaintiff as the subject of the defamatory allegations, as I am satisfied all of these matters do not, it seems to me that in order to ensure that the defendant has the opportunity to fairly defend the action, the plaintiff should plead how they are connected to the matter complained of. The present form of the pleadings does this with appropriate precision in respect of publication in the ACT and New South Wales. The matter could well go to trial on this basis (subject, of course, to the pleadings closing and any interlocutory matters being dealt with). If the plaintiff wishes to proceed on the interstate defamation, however, it seems to me that he should set out with equivalent precision how the plaintiff is identified.

20. The appropriate course is to deny the plaintiff leave to amend as proposed, and to direct that a further proposed amended statement of claim be filed within 28 days. The plaintiff's solicitors will thus have the opportunity to re-plead, and this will either plead publication by way of separate causes of action in jurisdictions beyond the ACT and New South Wales and sufficiently identify the basis by which the plaintiff is connected with the material complained of in those other jurisdictions, or limit the pleadings to the way it is presently pleaded, that is by way of causes of action properly identified in the ACT and New South Wales alone.

21. The defendants should have their costs of this notice of motion and I make the following orders -

(1) Leave to file third further amended statement of claim pursuant to notice of motion of 1 February 2006 denied.

(2) Plaintiff to file a further amendment within 28 days.

(3) Defendants to have costs of this motion.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 24 February 2006

Counsel for the plaintiff: Mr P Flanagan SC and Mr P Farrell

Solicitor for the plaintiff: Nicholas Dibb Solicitors

Counsel for the defendants: Mr A Leopold

Solicitor for the defendants: Blake Dawson Waldron

Date of hearing: 3 February 2006

Date of judgment: 24 February 2006