3AW Southern Cross Radio Pty Ltd v Yaffa Publishing Group Pty Ltd
[2000] VSC 453
•5 October 2000
SUPREME COURT OF VICTORIA
| COMMON LAW DIVISION |
No. 5479 of 2000
| 3AW SOUTHERN CROSS RADIO PTY.LTD. (ACN 006 186 974) | Plaintiff |
| v | |
| YAFFA PUBLISHING GROUP PTY.LTD. (ACN 002 699 354) | Defendant |
---
JUDGE: | HEDIGAN, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 October 2000 | |
DATE OF JUDGMENT: | 5 October 2000 | |
CASE MAY BE CITED AS: | 3AW Radio v. Yaffa Publishing | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 453 | |
---
Defamation – Whether imputations open to be viewed as relating to the plaintiff – Relevant principles.
---
APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr W. Houghton, Q.C. | Corrs Chambers Westgarth |
| For the Defendant | Mr M. Wheelahan | Minter Ellison |
HIS HONOUR:
The applications that are before me are with respect to the publication by the defendant in a circulated trade news periodical known as "Ad News" of a letter which addressed issues which were described not only in the letter itself, but under a heading, probably being the work of a sub-editor or editor at Ad News, rather than the writer of the letter.
As to the "cash for comment" issue, the substance of the complaint by the plaintiff 3AW Southern Cross Radio Pty Ltd is that the letter published in the defendant's periodical (written by one Hoser) was defamatory of the company.
The letter referred to Sydney radio broadcasters, Laws and Jones, being investigated for the taking of secret commissions from large companies in exchange for making favourable comments about them on air and went on to claim that what the author of the letter described as the "same insidious practice" had been going on in Melbourne for years. It then asserted that "Radio 3AW's Steve Price" took free cars from a Volvo dealer and also had a cosy commercial deal with City Link. It went on to suggest that "it's time the cash for comment inquiries took place in Melbourne" and that, using the phrase, "these hired mouths" ought to be deprived in their jobs and banned from commercial radio.
The plaintiff's statement of claim alleged four of secret commissions, to the effect that 3AW had engaged in the conduct alleged, to the effect that 3AW had engaged in taking secret commissions from companies in exchange for favourable comments on air, and that specifically 3AW had accepted a secret commission from City Link for the same reason and from a Volvo dealer for the same reason.
I was told, without objection, that an apology and an admission of falsity had been made to Steve Price, the announcer referred to, concerning the allegations. The defendant contends these were confined to allegations about Price and which could not be reasonably understood to have been made in respect of the plaintiff.
There was a fourth imputation in the language that the plaintiff had "secret generous benefactors" for whom it had made favourable on air comments.
Mr Wheelahan for the defendant put his arguments on the basis that, firstly, that the publication was incapable of defaming the plaintiff, and on that basis he sought summary judgment for the defendant and, secondly, that the imputations relied on were incapable of arising from the published words so that the relevant paragraph ought be struck out, effectively terminating the proceeding, unless leave to re-plead were given.
I proceed on the basis that the fact that the defendant has accepted that the statements concerning Price were false, thereby leading to the apology, are background only. I do not take them as having any diluting effect upon the arguments advanced by the defendant with respect to whether or not the article was defamatory of the plaintiff, and that the claimed imputations do not arise.
There has not been much dispute between the parties as to the applicable principles. At the outset, Mr Wheelahan accepted that on an application for strike out, or for that matter, summary judgment, the principles of law routinely articulated and dependent upon statements by the High Court in Dey v. Victorian Railway Commissioners[1] and General Steel Industries v. Commissioner for Railways[2], and many other cases, are applicable. This involves that the defendant has the burden of establishing essentially that the claim is groundless or hopeless, or could not succeed on any reasonable approach.
[1](1949) 78 C.L.R. 62.
[2](1964) 112 C.L.R. 125.
There does not appear to be any doubt either, or dispute between the parties, as to what the appropriate principles are in the court's necessary approach to the question of whether published words are capable of bearing imputations defamatory of the plaintiff. I will not amplify in these brief reasons, the myriad of expressions used in the cases to denote the capacities of the reasonable reader, which the relevant tests contemplates as the person whose understanding of the meaning of the words should be in contemplation. There is little doubt that the test is one of an ordinary reasonable reader with ordinary knowledge and experience of human affairs, of average intelligence, not particularly suspicious, not particularly gullible, not avid for scandal, not residing in ivory towers, and other phrases used from time to time.
Both counsel have sensibly approached the matter on the basis of addressing it under the broad rubric of would be open to reasonable members of the community, in this case, it would appear reasonable jurors, since both sides have sought trial by jury.
The defendant's submissions in support of the strike out, and indeed summary judgment, are really founded upon its central argument that the words used in the publication were concerned with Mr Steve Price (described in the letter as Radio 3AW's Steve Price) and were not concerned to attribute the observations to radio station 3AW which apparently employed Mr Price. In support of that argument, reliance was placed on the compendious references to 3AW's Steve Price in the first place, other references to "hired mouths", taking in Sydney announcers as well as the 3AW announcer, all being indicative that the references being made in the article did not refer to 3AW and could not be reasonably so interpreted. This argument was advanced on its own merits, but also in conjunction with a more direct attack upon the imputations 4(a)(b) and (c) to the effect that a reference to the taking of "secret commissions", bore the meaning of taking unlawful commissions without the knowledge of the employer from companies or, to use another phrase, benefactors, in exchange for making favourable comments about them on air. This argument involved the meaning that "secret" meant secret from the employer, as well as from members of the public.
I am being careful in these reasons to avoid the expression of any opinions, notwithstanding the matter will be for trial by jury. Arguments of that kind may clearly be advanced at trial, and if advanced, it will be a matter for the jury as to how they understand the words of the relevant publication. The test at the present time however, is considerably more difficult for the defendant, namely that it could not be reasonably thought by reasonable jurors to have referred to 3AW too. That is, it would not, on the usual tests, be open to be left to a jury to conclude that the taking of secret commissions was attributed to the radio station and not just the announcer. This involved, of course, the argument that 3AW was a victim and not a perpetrator. Mr Houghton who appeared with Ms Schoff for the plaintiff, strongly attacked what he contended to be a narrow view of "secret commissions", driven by the argument that what was really being referred to was the offence arising under s.176 of the Crimes Act. Mr Houghton argued that that was an excessively narrow view and that the meaning of the phrase should be derived from the whole of the context, which he claimed included as background, the secret commissions alleged to have been taken by radio announcers Laws and Jones, in the State of New South Wales, and included legitimate reference to phrases such as the "insidious practice" and other matters.
Submissions were also advanced, in addition to the ones to which I have referred, by Mr Wheelahan that because of that, none of the imputations alleged in paragraph 4 were capable of arising from the words. He further argued that the imputation 4(d) which referred to the plaintiff's secret generous benefactors, were incapable of arising from the words, "at least incapable as being defamatory of 3AW."
However, I am of the view that under the principles which I must apply for the present purpose is that it cannot be legitimately and persuasively argued that it would not be open to a jury, that is, the kind of persons the tests contemplate, to conclude that the words do give rise to the meanings or imputations contended for by the plaintiff. That is, that 3AW was either directly involved in or arguably a monetary beneficiary of payments by way of commission, kept secret, in return for favourable on air comments.
It is true enough to say, as Mr Wheelahan did, that recent authorities have not added any particular dimension in terms of the perception of principle concerning the correct approach at this point of the case. Nevertheless, reliance was placed by Mr Houghton on the Court of Appeal decision in Wal Oakley v. 3AW/Southern Cross Pty. Ltd.[3], a case in which, on the application of the defendant, the trial judge had in effect dismissed in limine and not left to the jury at all claimed defamatory allegations made by 3AW Radio in respect of a certain broadcast of Mr Oakley, the Court of Appeal determining that that should not have occurred in that case and allowing the appeal.
[3](1999) VSCA 96.
Some reliance was placed upon the relatively recent decisions in a different context of the High Court in Naxakis v. Western General Hospital[4] as reiterating and demonstrating forcibly the power of a judge to withdraw the decision from a jury is one to be exercised with considerable caution, on the basis that the only verdict that might be open on the evidence adduced at trial would be one for the defendants. One must be cautious about using the authority of both Naxakis and Wal Oakley as directly governing the situation here, although the principles that underwrite the decisions are not much different from the principles of approach to the task which I have to discharge.
[4](1999) HCA 22.
But in any event, whether or not the Court of Appeal had spoken in Wal Oakley or the High Court in Naxakis, I am of the view, which I have already expressed, that on the application of the well-known principles, I would conclude that it would be open to a reasonable jury, properly instructed, to find the meanings alleged and contended for by the plaintiff.
Some argument was advanced as to whether or not on a fair reading of the words, they could not have the effect of relating to a corporate plaintiff, the words being primarily directed to, in the argument of Mr Wheelahan, Mr Price. There has been recently published in the authorised reports the decision of the Court of Appeal (given late last year) in Feo v. Pioneer Concrete[5], an appeal from a judge in a defamation proceeding sitting without a jury. In that appeal statements made by President Winneke in the principal judgment addressed the question of some aspects of the application of defamation principles in the context, in that case, of a trading corporation.
[5](1999) 3 V.R. 401.
It is not necessary for me to say much about that other than the Court of Appeal clearly confirmed the statements of Lord Justice Lopes in South Hetton Coal Company Ltd v. N-E News Association Ltd[6], with respect to statements made with regard to corporations carrying on their business which are defamatory, that the same law as applies to an individual may apply to a corporation.
[6](1894) 1 Q.B. 133.
By way of an aside, although I would not have found it necessary to resort to it, I note that in the judgment of the President paras 51-52, the statement was made that the interpretation of the defamatory words should not be constrained by the technical rules of criminal law and that the real question is whether the words, properly understood, convey an imputation injurious to the trading reputation of the company. That confirms, if any confirmation is necessary, that the approach to the meaning of "secret commission" may be broader and is open to be broader, than a reference to the kind of criminal conduct contemplated as falling within s.176 of the Crimes Act 1958.
Accordingly, (not expressing any opinion at all and indeed holding none as to whether the imputations may ultimately be held to be made out, which would depend on many matters not yet under consideration) I am of the view that they are open and, for the reasons I have given, the applications must be dismissed.
---
0
0
0