Supreme Court New South Wales

• Medium Neutral Citation: Brown v Random House Australia Pty Ltd [2014] NSWSC 1505
• Hearing dates: 24 October 2014
• Decision date: 30 October 2014
• Before: McCallum J

Decision

Plaintiff's imputations ruled to be capable of arising

• Catchwords: DEFAMATION - imputations - whether capable of arising - no question of principle
• Cases Cited: Corby v Allen & Unwin [2014] NSWCA 227; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581
• Category: Interlocutory applications
• Parties: Christopher Brown (plaintiff); Random House Australia Pty Ltd (defendant)
• Representation: Counsel: M Richardson (plaintiff); R Potter (defendant); Solicitors: Johnson Winter & Slattery (plaintiff); Kennedys (Australasia) Pty Ltd (defendant)
• File Number(s): 2014/258357
• Publication restriction: None

Judgment

1 HER HONOUR: These are proceedings for defamation arising out of the publication of a book called "He who must be Obeid, the untold story" by Ms Kate McClymont and Mr Linton Besser. The proceedings are brought against the publisher of the book, Random House Australia Pty Ltd.

2 Random House accepts that the book is defamatory of the plaintiff, Mr Christopher Brown. The book refers to "Chris Brown, the son of controversial former federal tourism minister John Brown". The plaintiff is in fact the son of the former minister John Brown and so is undoubtedly identified to readers by that description. However, the conduct described in that passage of the book is that of a different Chris Brown. It is a clear case of wrong identification.

3 Random House accepts that to be the case and, accepting that the book is defamatory of the plaintiff, has withdrawn the book and publicly apologised to him. The plaintiff has nonetheless commenced these proceedings seeking damages for defamation.

4 Although Random House accepts that the book is defamatory of the plaintiff, it does not accept that the book is capable of conveying the defamatory meanings he has specified in the statement of claim. There is no objection to the form of any of the imputations. Further, there is no objection to imputation (c), which is:

The plaintiff failed to pay a large debt that he owed the ANZ Bank so that that bank sued him and obtained judgment against him, amongst others.

5 Random House contends that the remaining four imputations relied upon by the plaintiff are incapable of arising. This judgment determines that issue as a separate question in the proceedings.

6 The applicable principles are well-established, were not in dispute and need not be repeated here. Brief reference should, however, be made to the recent decision of the Court of Appeal in Corby v Allen & Unwin [2014] NSWCA 227, which serves as a reminder of the great caution mandated before striking out an imputation.

7 Imputation (a) is:

The plaintiff knowingly associates with and engages in business activities with Eddie Obeid who is Australia's most corrupt politician.

8 Mr Potter, who appears for Random House, noted that the structure of the book is to follow a chronological account of the life of Eddie Obeid. Chapter 1, headed "The Family Man", is in the nature of a prologue. Each chapter after that has a title descriptive of Eddie Obeid during the relevant period (for example "The Immigrant", "The Political Aspirant", "The Entrepreneur", 'The Philanthropist", and so on).

9 Mr Brown is referred to in Chapter 5, headed "The Property Developer". As noted by Mr Potter, the events discussing the plaintiff in that chapter are clearly described as taking place between March and May 1992. The burden of the submission was that the description of Mr Brown is accordingly limited to that period of time. Mr Potter submitted that the book is not capable of conveying an imputation that, 22 years later, Mr Brown still associates with Eddie Obeid in business; still less that, at the time of his association with Eddie Obeid, the plaintiff knew he was corrupt. He submitted that such an understanding of the book could only arise from a strained or forced or unreasonable reading of its contents.

10 Mr Potter acknowledged that the promotional statements on the back cover of the book are capable of informing the meanings conveyed by the book. However, he submitted that such material is understood to be promotional and not attached to any specific reference within the book.

11 Mr Potter submitted that there is nothing in the book to say that the plaintiff had any personal knowledge of corruption on the part of Eddie Obeid and that the book makes clear in many places that it was not publicly known that Mr Obeid had a reputation for being corrupt in 1992 or for many years after that date.

12 Mr Potter relied in that context on references elsewhere in the book to the fact that recent revelations about Eddie Obeid's corrupt conduct came as a shock to many people including those close to Eddie Obeid.

13 Separately, Mr Potter relied on the acknowledged principle that, in considering the question of capacity, the Court must have regard to the nature of the publication. A transient publication such as a radio broadcast might more readily be held capable of conveying a defamatory meaning, whereas the Court must have regard to the opportunity, in the case of a book, for the reader to read the whole document at leisure, checking back in order to acquire a more careful impression of the meaning than only the first impression.

14 In my view, on the strength of the parts of the book to which I was taken during argument (which the parties agreed were sufficient for present purposes), the book is clearly capable of conveying imputation (a). The burden of the objection was the temporal point that the book refers to business done between Chris Brown and Eddie Obeid in 1992. Mr Potter submitted that it cannot be defamatory of a person to say that he did business with a person who was later determined to be a corrupt politician. In my view, the whole tenor of the book, as proclaimed in powerful language on the back cover, is that it reveals secrets of the past. I do not think it would be an unreasonable understanding of the book for the reader to understand that Chris Brown was being attributed with having been one of those within Eddie Obeid's association who knew he was corrupt, although the outside world did not.

15 Imputation (b) is:

The plaintiff is a corrupt person who used his association with the notoriously corrupt Eddie Obeid to advance his business and financial affairs.

16 During the course of argument, Mr Richardson, who appears for the plaintiff, acceded to address part of the objection to that imputation by deleting the word "notoriously".

17 Mr Potter submitted that the description of the events concerning the plaintiff does not in terms describe any corrupt conduct or suggest that the plaintiff is a corrupt person, even by inference. He suggested that the only way in which the notion of corruption can arise is by association with a corrupt person.

18 I do not accept that submission. The book gives a detailed description of the involvement of Chris Brown and others in property developments in which Eddie Obeid was involved. The plain insinuation, in my view, is that those deals entailed corrupt dealings. What else is the point of including them in "the untold story" of Eddie Obeid? Whilst the sinister attribution of a corrupt association may not be the only meaning capable of being conveyed about Mr Brown, it is certainly one.

19 Imputation (d) is:

The plaintiff engaged in corrupt conduct by lobbying the National Parks and Wildlife Service in order to obtain favourable treatment for a company associated with Eddie Obeid.

20 The relevant passages related to the affairs of Scobde Pty Ltd, a company which was seeking to build a ski lodge on its leased land at Perisher. The book states that the National Parks and Wildlife Service had served a letter of demand in 1992 for arrears in the sum of $62,000. Following representations by Mr Brown, the National Parks and Wildlife Service is said to have agreed to receive instalments for the arrears to be paid by December 1992.

21 Mr Potter submitted that there is nothing remotely corrupt about a director of a company seeking to negotiate instalment payments for rent arrears with a landlord. That is undoubtedly correct, but that innocent reading is not the only possible reading of the matter complained of.

22 In a capacity argument, it is not enough for a defendant to note that the matter complained of could be read in a manner that is more benign than that which is captured in the defamatory meanings specified by the plaintiff. An argument in those terms poses a false dichotomy. The fact that an article is capable of being read benignly does not mean that it is not capable of being read in a defamatory sense. These remarks are not to criticise counsel for Random House, who presented the argument well. But it is an argument commonly run in this list, and one which should be tested with rigour before being raised.

23 Imputation (e) is:

The plaintiff was director of a company which employed a prominent member of the Mafia, Franco Labozzetta, to heavy the National Parks and Wildlife Service to obtain an increase in the amount of accommodation the Perisher Ski Resort.

24 Mr Potter initially objected to that imputation on the grounds that it cannot be defamatory of a person to say that he was a director of a company which engaged in misconduct. Further, he noted that the events in question (the employment of Mr Labozzetta) were said to have happened in 1982, some ten years earlier. He noted that there was nothing in the matter complained of to say that Mr Brown was a director at that earlier point in time.

25 Mr Richardson submitted that, if something defamatory is said about a company, the identification of a person as a director of that company is at least capable of having the effect of causing the person to be shunned and avoided, even if blame is not attributed to the director in question. There is force in that submission, in my view. The ordinary, reasonable reader would be taken to have an understanding that directors are responsible for the governance of a company and so take it that they bear responsibility for such events as occur on their watch, regardless of personal fault.

26 An similar analysis of the question of capacity to defame in the absence of attribution of personal fault was undertaken in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 where the Court of Appeal of England held that a film which imputed that a woman had either been ravished or raped by Rasputin was capable of being defamatory of her, notwithstanding her innocence of any moral culpability for the conduct of Rasputin.

27 After a further opportunity to consider those matters Mr Potter withdrew his objection to imputation (e). However, as a result of that exchange, Mr Richardson sought leave to plead an alternative, more serious imputation as follows:

That the plaintiff, as a director of Scobde, knew that one of the companies' owners had employed a prominent member of the mafia, Franco Labozzetta, to heavy the National Parks and Wildlife Service to obtain an increase in the amount of accommodation at the Perisher Ski Resort.

28 Mr Potter objected to the proposed additional imputation on the basis that it could only be conveyed by the tenuous process of drawing inference upon inference. First, the reader would have to infer that Mr Brown was a director of Scobde a decade earlier than the time attributed to him in the book. Secondly, it would require the reader to draw a further inference that he had actual knowledge of the events described.

29 I accept that the proposed new imputation is more tenuous than those previously specified on behalf of the plaintiff. In my view, however, having regard to the high hurdle a defendant must meet in order to have an imputation rejected on the grounds of capacity, I consider that leave should be granted to plead an imputation in those terms. Having regard to the overall tenor of the book, including the material on the back cover, I consider that the new meaning identified is reasonably capable of being conveyed.

30 Accordingly, my ruling is that each of the imputations specified by the plaintiff is reasonably capable of being conveyed.

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Decision last updated: 30 October 2014