Abela v Grimshaw & Ors (Ruling)
[2020] VCC 1237
•20 August 2020
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Defamation List |
Case No. CI-17-04479
| BEAU ABELA | Plaintiff |
| v | |
| TRACY GRIMSHAW | First Defendant |
| and | |
| THE NINE NETWORK AUSTRALIA PTY LTD (ACN 008 685 407) | Second Defendant |
| and | |
| NEIL MITCHELL | Third Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 August 2020 | |
DATE OF RULING: | 20 August 2020 | |
CASE MAY BE CITED AS: | Abela v Grimshaw & Ors (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1237 | |
RULING
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Subject: DEFAMATION
Catchwords: Summary Judgment – application to strike out statement of claim – whether imputations could reasonably arise from the published matter
Legislation Cited: Civil Procedure Act 2010 (Vic), s63
Cases Cited:Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; General SteelIndustriesInc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Trkulja v Google LLC (2018) 263 CLR 149; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263; Abela v State of Victoria (2015) FCA 902; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd (2011) 35 VR 1; CEG Direct Pty Ltd v Schnapper Point Plaster Pty Ltd [2020] VSC 319; Rizzo v VicRoads [2019] VSC 770
Ruling: Order for Summary Judgment for the defendants.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Hancock | Starnet Legal |
| For the Defendants | Mr A Anderson | Macpherson Kelley |
HIS HONOUR:
1 In this proceeding, the plaintiff claims that a program – “A Current Affair” – and a preview of that program – (both hereafter referred to as “the program”) shown on Channel 9 on 26 and 27 September 2016 are defamatory of him.
2 He claims damages from:
·The Nine Network Australia Pty Ltd (the second defendant) – the broadcaster of the program;
·Tracy Grimshaw (“Grimshaw”) (the first defendant) – the host or presenter of the program; and
·Neil Mitchell (“Mitchell”) (the third defendant) – a journalist and broadcaster who provided various comments which were broadcast on the program.
3 The proceeding has had a somewhat lengthy history.
·The program was broadcast in September 2016.
·The Writ was issued in September 2017 but was not served until 12 March 2019 pursuant to an extension of time granted by a Judicial Registrar of this Court.
·An Amended Statement of Claim was filed and served on 1 May 2020.
·By Summons dated 30 June 2020 (“the Summons”), the defendants sought summary judgment in their favour against the plaintiff or, alternatively, that the Amended Statement of Claim be struck out.
·On 3 August 2020, the plaintiff filed and served a Draft Proposed Further Amended Statement of Claim.
·On 11 August 2020, the plaintiff filed and served a Second Draft Proposed Further Amended Statement of Claim.
·On 12 August 2020, the plaintiff filed and served a Third Draft Proposed Further Amended Statement of Claim.
·The Summons was heard by me on 12 August 2020.
4 The defendants seek summary judgment in their favour pursuant to s63 of the Civil Procedure Act 2010 (Vic) (“the CPA”) on the basis that the plaintiff’s claims have no real prospect of success.
5 Alternatively, the defendants seek an order pursuant to Rule 23.02 of the Rules of the Court that the Statement of Claim be struck out on the grounds that:
(a)it does not disclose a cause of action; or
(b)it may prejudice, embarrass or delay the fair trial of the proceeding.
6 The plaintiff relies on the Third Draft Proposed Further Amended Statement of Claim and sought leave to file and serve it.
7 In order to facilitate the hearing of the Summons, I gave leave to the plaintiff to file and serve a further amended statement of claim in the form of the Third Draft Proposed Further Amended Statement of Claim provided to the Court earlier on the day of the hearing. I also gave leave to the defendants to make minor, consequential amendments to the Summons so that it referred to this Amended Statement of Claim.
8 The publications relied upon by the plaintiff, and which are alleged to be defamatory of him, arise from the broadcast of the program on 27 September 2016 (hereafter referred to as “the segment”) and a short preview of the segment broadcast on the previous night (“the preview”).
9 Annexure “A” to the Statement of Claim is a transcript of the segment and the preview. It is also an annexure to this Ruling.
10 Relevant parts of the segment and preview are set out in sub-paragraphs 5(a) to (o) of the Statement of Claim.
11 The imputations alleged to arise from the segment and the preview are set out in paragraph 7 of the Statement of Claim.
12 The basic principles governing an application under s63 of the CPA are not in dispute. They are set out in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd:[1]
(a)The test for summary judgment under s63 of the CPA is whether the respondent to the application for summary judgment has a “real” as opposed to “fanciful” chance of success;
(b)The test is to be applied by reference to its own language and without paraphrasing or comparison with the “hopeless” or “bound to fail test” which was previously the applicable test;
(c)The test is to some degree a more liberal test than the “hopeless” or “bound to fail test” essayed in General SteelIndustries Inc v Commissioner for Railways (NSW)[2] and, therefore, permits of the possibility that there might be cases in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)The power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
[1](2013) 42 VR 27 (“Lysaght”) at paragraph [35]
[2](1964) 112 CLR 125
13 The issue concerning the degree of caution which should be exercised was referred to by Neave JA in Lysaght as follows:
“… I am concerned that undue emphasis on the caution with which a court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s 63 having little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s 1(2)(e) of the [CPA], and with the requirement that the Court give effect to the over-arching purposes of that Act, imposed by s 8.”[3]
[3]Lysaght (ibid) at paragraph [41]
14 Further, Rule 23.02 of the Rules of the Court provides:
“Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading –
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c) may prejudice, embarrass or delay the fair trial of the proceeding; or
(d) is otherwise an abuse of the process of the Court –
the Court may order that the whole or part of the indorsement or pleading be struck out or amended.”
15 The defendants raised three arguments in support of their applications:
·First, that the words complained of were not capable of conveying the pleaded defamatory imputations.
·Second, that neither Grimshaw nor Mitchell published any of the material but merely contributed to the program and were therefore not liable as publishers.
·Even if the imputations pleaded were capable of arising from the program, they should be struck out under Rule 23.02 on the basis that they were excessively broad and imprecise.
Imputations
16 In Trkulja v Google LLC,[4] the High Court said:
“The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd ‘[s]ome are unusually suspicious and some are unusually naïve’. So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.”
[4](2018) 263 CLR 149 at paragraph [31]
17 I accept the submissions of counsel for the defendants that:
(a)each alleged imputation is to be considered in the context of the entire publication;[5]
(b)in deciding whether words are capable of conveying a defamatory meaning, the Court will reject those meanings which can only emerge as the product of a strained, or forced, or utterly unreasonable interpretation.[6]
[5]Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 (“Favell”) at paragraph [17]
[6]Favell (ibid) at paragraph [9]; Barrow v The Herald & Weekly Times Pty Ltd [2015] VSC 263 at paragraph [12]
18 The segment contained a number of statements concerning a claim brought by or on behalf of the plaintiff about ten years earlier in the Federal Court of Australia against the Government (the Victorian Education Department).[7] There were a number of statements on the program to the effect that the plaintiff had received a large sum of money from the Government in settlement of his claim.
[7]Abela v State of Victoria (2015) FCA 902 (24 July 2015)
19 The plaintiff has pleaded three imputations: They are:
(a) There were reasonable grounds for suspecting that the plaintiff had acted dishonestly in connection with the institution of a claim brought on his behalf by his family against the Education Department of Victoria for damages arising from the alleged failure of the State of Victoria to provide him with an education which would ensure that upon completion of his education, he would be able to read and write and as a result of the final disposition of which claim he received as much as $1 million from the State of Victoria;
(b) There were reasonable grounds for suspecting that the plaintiff had acted dishonestly in connection with the prosecution of a claim brought on his behalf by his family against the Education Department of Victoria for damages arising from the alleged failure of the State of Victoria to provide him with an education which would ensure that upon completion of his education, he would be able to read and write and as a result of the final disposition of which claim he received as much as $1 million from the State of Victoria;
(c) There were reasonable grounds for suspecting that the plaintiff had acted dishonestly in connection with the final disposition of a claim brought on his behalf by his family against the Education Department of Victoria for damages arising from the alleged failure of the State of Victoria to provide him with an education which would ensure that upon completion of his education, he would be able to read and write and as a result of the final disposition of which claim he received as much as $1 million from the State of Victoria.
(In each case, my emphasis.)
20 These imputations are similar but not identical. Imputation (a) is that there were reasonable grounds for suspecting the plaintiff had acted dishonestly in connection with the institution of the claim. Imputation (b) is that there were reasonable grounds for suspecting he had acted dishonestly in connection with the prosecution of the claim. Imputation (c) is that there were reasonable grounds for suspecting that he had acted dishonestly in connection with the final disposition of the claim.
21 The program contains a number of references to the plaintiff being dishonest, that he has a criminal record, and that his father has a criminal history of his own. Further, a reporter in the segment asks it if there is any more that can be done before the plaintiff “slips completely through the cracks”.
22 The program contains a statement by the plaintiff himself that he still steals cars. He describes a vehicle shown on the program outside his home as a stolen vehicle. Further, the plaintiff states that he has “done drugs” and is “still on ice”.
23 Notwithstanding, the imputations pleaded do not relate to the stealing of cars or to his use of illicit drugs or to any sundry acts of dishonesty. They relate only to the suspicion that he had acted dishonestly in connection with the institution of the Federal Court claim, the prosecution of that claim and the final disposition of it.
24 Having viewed both the segment and the preview, and having read Annexure “A” carefully, I have come to the conclusion that an ordinary reasonable viewer of the program would not understand the words spoken on the program as defamatory in the sense of the imputations pleaded. Rather, the words spoken on the program make it clear that any payout that the plaintiff received as a consequence of his Federal Court claim related to a claim brought by him in a court of law and was the result of a settlement of his claim with the Government. There is, in my opinion, no suggestion that the claim was brought dishonestly, prosecuted dishonestly or settled dishonestly. In reaching that decision, I have taken note of the plaintiff’s denial in paragraph 6A of his Statement of Claim that he received any payout.
25 I assume for the purpose of this decision that the plaintiff did not receive any payout, let alone a near million-dollar payout, and that the statements that he received a large payout are incorrect.
26 I am of the view that a reasonable viewer of the program would not have come to the conclusion that the plaintiff had been dishonest in connection with any aspect of the claim brought by him or on his behalf in the Federal Court. To the contrary, I consider that the program made it clear that whatever payout he received (if any), he received it pursuant to a settlement with the Government. There is no suggestion of dishonesty on his part. The meaning pleaded by the plaintiff (that is, the imputations pleaded) could, in my view, only emerge as a product of a strained, forced or utterly unreasonable interpretation. Put another way, a viewer reaching such a conclusion would, in my view, have been unreasonably searching for hidden meanings.
27 I accept that each of the alleged defamatory imputations must be considered in the context of the whole of the publication rather than each individual statement or part. At best, in my view, the thrust of the program, insofar as it relates to the Federal Court proceeding, is that the plaintiff has been fortunate to recover any money from the Government or that the settlement was a generous one. I do not consider such statements are defamatory of him.
28 The case put forward by the plaintiff is, effectively, that the reasonable viewer would conclude that he received a settlement as a consequence of his dishonesty. I do not consider that the program is to that effect or could be understood by the reasonable viewer to be so.
29 It follows that there should be summary judgment for the defendants.
30 Counsel for the plaintiff submitted that, if I were to find that the plaintiff’s claim had no real prospect of success, I should nevertheless exercise my discretion pursuant to s64 of the CPA and order that the proceeding proceed to trial.
31 Section 64 of the CPA provides:
“Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.”
32 Section 64 of the CPA was discussed by Dixon J in Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd.[8]At paragraph [18], his Honour set out a number of principles applicable in applications for summary judgment. He stated that although a court might be satisfied that there was no real prospect of success in a proceeding, it might:
“… nevertheless consider the dispute to be of such a nature that only a full hearing on the merits is appropriate. Whether a full hearing on the merits is appropriate is a relevant discretionary consideration in the circumstances of each proceeding.”
[8](2011) 35 VR 1
33 I am satisfied that, in this matter, there is nothing in the proceeding of such a nature as to warrant a conclusion that only a full hearing on the merits was appropriate. The issue here is whether any of the three pleaded imputations could be understood by the reasonable viewer to arise from it. This is not a question of fact to be determined upon evidence and where the credit of witnesses would be an important consideration. Whether a pleaded imputation could arise from a publication is a matter of law. In the event that this application had not been brought before me, the issue would still have to be determined as a preliminary matter at the commencement of a trial.
34 Section 64 was also considered judicially in CEG Direct Pty Ltd v Schnapper Point Plaster Pty Ltd[9] and Rizzo v VicRoads.[10]The issues to be determined in those cases bore no resemblance to the issues in the case before me.
[9][2020] VSC 319
[10][2019] VSC 770
35 In view of my Ruling in relation to the application for summary judgment, it is not necessary for me to consider the alternative application pursuant to Rule 23.02 of the Rules of the Court. However, on the same basis upon which I have come to the conclusion that the pleaded imputations do not arise from the alleged defamatory material, I am of the view that the Statement of Claim does not disclose a cause of action and should, accordingly, be struck out.
36 It is unnecessary for me to consider whether the first or third defendants were publishers of the program.
37 I shall make the following Orders:
(1)There is judgment for the defendants pursuant to s63 of the Civil Procedure Act 2010 (Vic);
(2)The plaintiff is to pay the costs of the defendants of and incidental to the proceeding;
(3)In default of agreement between the parties, the quantum of the defendants’ costs is to be determined by the Costs Court on a standard basis.
38 In the event that either party considers that any further orders are required in relation to the defendants’ costs, they should notify my associate by 4.00pm on Wednesday, 19 August 2020 and I will arrange for the matter to be listed for further hearing on a convenient date in the near future. In the absence of such notification, I shall make the Orders referred to on 20 August 2020.
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