Supreme Court New South Wales

• Medium Neutral Citation: Scott Gartrell v Fairfax Media Publications Pty Ltd [2011] NSWSC 632
• Hearing dates: 16 June 2011
• Decision date: 16 June 2011
• Before: McCallum J

Decision

Imputation 2(a) in the amended statement of claim will not go to the jury. That imputation struck out with leave to replead. Plaintiff ordered to pay the defendant's costs of the previous listing for argument on 4 April 2011 and of today.

• Catchwords: DEFAMATION - form of imputation pleaded by plaintiff - whether imputation adequately distils any defamatory sting allegedly directed at the plaintiff
• Category: Interlocutory applications
• Parties: Scott Gartrell (Plaintiff); Fairfax Media Publications Pty Limited (Defendant)
• Representation: R K Weaver (for the plaintiff); D R Sibtain (for the defendant); Bob Whyburn Solicitor (Plaintiff); Johnson Winter & Slattery (Defendant)
• File Number(s): 2011/49844
• Publication restriction: None

JUDGMENT

HER HONOUR:

1 These are proceedings for defamation arising out of the publication of an article in the Sun Herald newspaper under the headline "A rotting government, as if voters needed reminding". The theme of the article, announced in one of the opening paragraphs, is that a recent incident (concerning someone other than the plaintiff) is "another reminder that there's something rotten at the heart of the government of NSW". The article cites the case of Scott Gartrell, the plaintiff, and discusses his recent move from the role of Carmel Tebbutt's advisor to the private sector.

2 This judgment determines an objection to one of the imputations alleged to arise from the matter complained of. The plaintiff initially pleaded an imputation that he is corrupt. As I understand what I have been informed by the parties, that imputation was withdrawn voluntarily without argument, albeit at a time when the matter was listed for argument before the Defamation List Judge.

3 The form of imputation now proposed to be propounded (imputation (a)) is:

That the plaintiff's conduct in accepting the position as head of InfraShore warranted his being referred to the Independent Commission Against Corruption, because his long standing association with the ALP and his term as Carmel Tebbutt's Chief of staff when she was New South Wales Health Minister means that he was likely to use his influence and knowledge to gain unfair commercial advantage for InfraShore in its dealings with the New South Wales Health Department.

4 That imputation is now relied upon in substitution for the "corruption" imputation which, as I have said, was voluntarily withdrawn.

5 There are three further imputations but no objection is taken to any of those. Mr Sibtain, who appears for the defendant, has submitted that the new imputation should be struck out as suffering from the following deficiencies: that it is unwieldy; that it fails to distil a comprehensible defamatory sting of and concerning the actions or characteristics of the plaintiff; that it impermissibly rolls up that critique of the plaintiff's conduct with a critique of the attributes of his former position and an attack upon his character; and that to the extent that it purports to convey a sting to the effect that the plaintiff's conduct warrants investigation, the imputation does not differ in substance from imputation (b). The form of imputation (b) as it presently stands is that the plaintiff should be investigated by the Independent Commission Against Corruption over his acceptance of the position of head of the consortium InfraShore.

6 As to the last point, I do not agree. It seems to me that the imputation sought to be brought forward as imputation (a) is pitched at a higher level in terms of its defamatory sting than an imputation in the nature of one which alleges that someone's conduct warrants investigation.

7 As to the other complaints, however, I think there is force in Mr Sibtain's contentions. I do not know whether unwieldiness in itself is separately a proper objection to the form of an imputation. However, I do think the imputation in its present form fails to distil that which the plaintiff alleges the article attributes to him. The form of the imputation rather appears to be a social observation that any person who has long standing employment with government may be prone to use his influence and knowledge gained in that sector upon moving into the private sector.

8 The article, it seems to me, is capable of attributing some act or condition more specifically to Mr Gartrell. As with many such articles, the report of the bare facts is interwoven and to an extent spiced up with suggestions pointing to the darker inferences that the reader might draw from the matter complained of. For example, immediately after a reference to Mr Gartrell's departure "last week" in paragraph 7, there is reference to his having been sighted shopping for an M class Mercedes, "the must-have luxury sports utility vehicle of all former labour staffers".

9 In my view there is enough in the article for the pleader potentially to find a meaning higher than merely that alleged in imputation (b) of the plaintiff's conduct warranting investigation, but I do not think such a meaning has yet been properly propounded on behalf of the plaintiff.

10 Mr Sibtain submitted that the pleader has "mined" the matter complained of for all potentially available imputations and should not have leave to replead. For the reasons already stated I disagree. The imputation presently pleaded in paragraph 2(a) in the amended statement of claim will not go to the jury. That imputation is struck out with leave to replead.

11 I order the plaintiff to pay the defendant's costs of the previous listing for argument on 4 April 2011 and of today.

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Decision last updated: 24 June 2011