Anderson v Nationwide News Pty Ltd - [2004] WASC 119

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ANDERSON -v- NATIONWIDE NEWS PTY LTD & ORS [2004] WASC 119

CORAM: MASTER NEWNES

HEARD: 24 MAY 2004

DELIVERED : 4 JUNE 2004

FILE NO/S: CIV 2592 of 2003

BETWEEN: WARREN PERRY ANDERSON
Plaintiff
AND
NATIONWIDE NEWS PTY LTD (ACN 008 438 828)
First Defendant
SUELLEN HINDE
Second Defendant
ADAM HARVEY
Third Defendant

Catchwords:

Defamation - Application to strike out imputations pleaded in statement of claim - Turns on own facts

Legislation:

Nil

Result:

Application successful in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr J C Giles
First Defendant             :     Ms C Galati
Second Defendant         :     Ms C Galati
Third Defendant           :     Ms C Galati

Solicitors:

Plaintiff:     Solomon Brothers
First Defendant             :     Edwards Wallace
Second Defendant         :     Edwards Wallace
Third Defendant           :     Edwards Wallace

Case(s) referred to in judgment(s):

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gumina v Williams (No 1) (1990) 3 WAR 342
John Fairfax & Sons v Cojuangco (1988) 165 CLR 346
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Taylor v Jecks (1993) 10 WAR 309

Case(s) also cited:

Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Chan v Trevor [2004] WASC 53
Cock & Anor v Hughes & Ors [2001] WASC 24
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Wiley v Farrell [2001] WASC 316

MASTER NEWNES: This is an application by the defendants for orders striking out certain of the defamatory imputations which the plaintiff pleads were conveyed by four articles published by the defendants concerning him.
The plaintiff pleads in par 8 of the statement of claim that the first and third defendants published in the edition of The Sunday Times newspaper of 16 November 2003 the following words of and concerning him:
"Millionaire Anderson and the animal saga
'IT'S a long way to Tipperary,' jokes Kevin Freeman, the wildlife sanctuary manager at the 12,000sq km outback property.
He's right – this week's events related to the remote Northern Territory cattle station are so bizarre they could have occurred on another plant.
One of Australia's richest men had threatened to 'smoke' several thousand exotic animals, he'd been charged with neglect, ordered to face the courts and pulled over at gunpoint by a posse of NT police.
Warren Anderson is famous for his love of animals – and his unorthodox way of displaying that affection.
The multimillionaire property developer once paid Alaskan Inuit people $30,000 for the right to shoot a polar bear, he displayed a stuffed Chihuahua in his home, and he regularly hosted all‑star pig hunting trips on the station.
A 200sq km wildlife sanctuary within massive Tipperary property, which Mr Anderson sold four months ago, is still stocked with one of the country's biggest private zoos – a menagerie of about 2000 animals that includes three hippopotamuses, four pygmy hippos, two southern white rhinos, tapirs and deer. The sanctuary is also home to water buffalo and cattle.
This month, all these animals ran out of food.
The NT Animal Welfare Authority began trucking four tonnes of feed each day to the property, 200km south of Darwin, and charged Mr Anderson with neglect.
The NT Supreme Court also granted an injunction to bar Mr Anderson from killing any of the animals after the property developer's reported response to the feed crisis at Tipperary.
'We'll go down and smoke the lot of them,' he allegedly told John Tobin, chief of staff to Local Government Minister John Ah Kit.
Perhaps this was a hollow threat.
Mr Anderson says now that he never intended to kill any animals – though when asked on Thursday whether he intended to slaughter his menagerie, he responded: 'Well, so what, they belong to me.'
He had arrived at Darwin Airport a few minutes earlier with his gun case.
During an extremely entertaining exchange with the local press, he repeatedly told waiting journalists to leave him alone.
'Go away, you pests,' he said. 'You're all pests. You don't know what's going on down there …
'Go and annoy some pedophile [sic] or some murderer somewhere, or kick some poor drunk to death. Go on, go away!'
'You press just go and go to church and go to confession. You go down there and have a look and see whether there's one animal that's starved. You won't find any. They weren't starving.'
Mr Anderson is legally able to kill any animal that is not endangered or on a protected species list.
But he is at odds with the NT's local government minister. Mr Ah Kit said 'It is very distressing to think that so many animals appear to have been left to starve and I can only praise the public servants involved for their swift response to what could have been a tragedy.'
The NT Government has been feeding the animals since early October, when Mr Freeman called and asked for help.
The sanctuary manager said there was no feed on the ground and the remaining hay would last less than 24 hours. He had been unable to contact Mr Anderson to send more money for feed.
The Government immediately sent vets to Tipperary.
They confirmed that though the animals were perfectly healthy there was no food left.
On October 10 the Government began sending in daily road trains stacked with four tonnes of hay, six bags of horse pellets, a bag of chicken pellets, ⅓ a bag of bran and 36 pieces of fruit.
So far, it has supplied 100 tonnes of feed hay.
The Territory estimates it has spent $50,000 on feed and transport in a month.
A government spokesman said Mr Anderson had not responded to repeated requests to pay the feed bill.
'We've sent numerous letters to eight different addresses,' the spokesman said. 'We don't even have a telephone number for him – he calls us up regularly to rant at us.'
Mr Anderson is responsible for the welfare of the animals because he sold Tipperary on the condition that he would remove the animals within two years. He claims he had a contract with the NT Government to feed his animals.
'That's bulls—t,' a government spokesman said. 'There is no contract'.
'This was not the first time Mr Anderson had been in trouble for treatment of his animals', said RSPCA national president Hugh Worth.
There was an outcry during the 1980s after the death of two black rhinos imported by the developer, Mr Worth said.
'We received many complaints about the manner of their transportation,' he said.
The RSPCA believes that all private zoos should be banned. Even one's run by millionaires.
'There zoos are privately funded by enthusiastic individuals,' Mr Worth said.
'And while they often start off with great enthusiasm the realities of running a zoo soon hit home. Infrastructure, staff and feed are very expensive.'
If visitor numbers fell private zoos quickly became tatty and attracted even fewer visitors, the RSPCA president said.
Before long owners could not afford to spend money on facilities and feed – and the animals suffered.
The public has never been welcome at Tipperary – the station has been used by Mr Anderson to entertain wealthy mates such as Paul Keating and Kerry Packer, before he and Mr Packer fell out in the late 1980s.
There is no suggestion that the animals on the property have ever been badly treated.
They were all in good condition, said Mr Freeman and vets from the NT Animal Welfare Authority.
The animals are still being fed by the NT Government, which says there is no sign of payment from Mr Anderson.
Mr Freeman is still employed by Mr Anderson – although the relationship appears to be fairly cool.
Mr Freeman was stranded in Darwin during the week after his fuel card was frozen, and had to ask an NT government employee for a lift back to Tipperary.
(the 'First Sunday Times Publication')."
The plaintiff alleges that the words carried, among others, the following imputations:
"10.3The plaintiff had lied about his dealings with the Government of the Northern Territory relating to the care of animals on Tipperary Station;
10.4The plaintiff had caused the death of two black rhinoceroses by mistreating them."
The plaintiff also pleads in par 16 of the statement of claim that the first and third defendants published an article in the same terms in The Sunday Telegraph newspaper of 16 November 2003. In par 18, identical imputations to those pleaded in par 10 are alleged in respect of The Sunday Telegraph article.
The defendants contend that the imputations pleaded in par 10.3 and 10.4, and in par 18.3 and 18.4, of the statement of claim are not capable of being conveyed by the words complained of.
The principles to be applied on an application of this nature are relatively well established. Imputations will be struck out at this stage if they are plainly incapable of being conveyed by the words complained of: Gumina v Williams (No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319.
The test to be applied in determining whether the defamatory imputations alleged are capable of being conveyed by the words complained of was discussed is the well‑known passage from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 ‑ 1371:
"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 some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty & Sons [1882] 7 AC 741, 745 Lord Selborne LC said:
'The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.'
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063; [1963] 2 All ER 151 HL(E). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."
The person to whom it is alleged the words were spoken will be assumed to be a reasonable person, not unusually suspicious or unusually naive, nor avid for scandal. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Reid said at 258:
"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of world affairs."
There is, however, an important distinction to be drawn between a person's understanding of a publication and judgments or conclusions which that person may arrive at as a result of his or her own beliefs and prejudices: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 per Mason J at 301.
It is also well established that an imputation must specify the act or condition which the plaintiff alleges the words complained of attributed to him: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678 and Taylor v Jecks (supra) at 319. But that, in its practical application, raises questions of degree. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137, almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation and that, in any given case, a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion and as to what constitutes the necessary specificity. As his Honour said (ibid), the solution will usually be found in "considerations of practical justice rather than philology".
The defendants submitted in relation to par 10.3 that there was nothing in the words complained of which suggested that the plaintiff had lied about his dealings with the government of the Northern Territory. The statement by the plaintiff that he had a contract with the government to feed his animals and the denial by a government spokesman that there was such a contract merely set out the parties' conflicting contentions. The imputation that the plaintiff had lied is a strained and unreasonable interpretation and is not open.
The plaintiff's counsel submitted that the report went beyond simply a report of a conflict of contentions. By attributing the denial of the contract to an unidentified government spokesperson, the denial was given credit and was far more damaging than a mere assertion that there was a conflict of position. Counsel referred to John Fairfax & Sons v Cojuangco (1988) 165 CLR 346 at 358. It was also submitted that the denial by the government spokesperson has to be read in context. In this case it is contained in an article that alleged that the plaintiff had left animals to starve and that vast volumes of feed were supplied by the Northern Territory government. Immediately following that statement is an assertion that the plaintiff had previously "been in trouble for treatment of his animals". It was submitted that when the article is read as a whole, the imputation that the plaintiff lied about his dealings plainly arises.
In my view, the imputation is not capable of arising. In the ordinary course, simply a statement by A that he contracted with B and a denial, even an emphatic denial, by B that there was such a contract, is not capable of conveying an imputation that A is lying. I do not think there is anything in the context in the present case that gives a different complexion to the exchange. Nor do I consider that there is anything in John Fairfax & Sons Ltd v Cojuangco (supra) that supports the proposition that the attribution of the denial to an unidentified government spokesperson gives it a credibility that is sufficient to impute that the plaintiff is lying about the contract. To the extent one can glean the import of the article in that case from the report, it was a long way removed from the present case. In any event, each case must depend upon its particular facts and a general proposition of the sort contended for by the plaintiff is not, in my view, to be derived from the case.
I would strike out par 10.3 and the comparable imputation in respect of The Sunday Telegraph article pleaded in par 18.3.
The defendants further submitted that there was no suggestion in the article that the plaintiff had caused the death of the rhinoceros and therefore no basis for the imputation pleaded in par 10.4. It was also submitted that the word "cause" is vague and ambiguous.
I do not agree. The reference to the deaths of the two black rhinoceroses occurs in the following passages in the article:
" 'This was not the first time Mr Anderson had been in trouble for treatment of his animals', said RSPCA National President Hugh Worth.
'There was an outcry during the 1980s after the death of two black rhinos imported by the developer', Mr Worth said.
'We received many complaints about the manner of their transportation', he said."
In my view, the imputation is arguably capable of arising and I would not strike it out. I do not consider that the use of the word "cause" renders the imputation embarrassingly imprecise or ambiguous.
The other two articles in respect of which the plaintiff claims are said to have been published in The Sunday Times newspaper and The Sunday Telegraph newspaper and are pleaded in pars 12 and 20 of the statement of claim respectively. The articles differ slightly, but not in a way which is material for the purposes of this application. The plea in par 12 is as follows:
"12.On the 53^rd page of the 16 November 2003 edition of the Sunday Times newspaper in an article headlined 'Powerful pals in a punch up' the first and third defendants and each of them published the following words defamatory of the plaintiff:-
'Punch-up : Kerry Packer
Good Mate:Alan Bond
Party Pal:Paul Keating
'COLOURFUL' isn't a strong enough adjective to describe Perth property developer Warren Anderson
He's a former bulldozer driver and farmer who made his fortune building Coles shopping centres.
He's had a punch‑up with Kerry Packer, and partied with Paul Keating and Alan Bond.
He's owned Australia's most expensive home, Boomerang at Elizabeth Bay, and built a replica of an 18^th century English mansion in the NT outback.
Stone for the mansion's construction was hauled in from Newcastle and he paid about $800,000 for the chandeliers alone. He claims to have built shopping centres worth a combined $1.5 billion and prides himself on paying as little tax as possible.
He's been immersed in controversy in Papua New Guinea over developments, and was once charged by Customs officers with bringing a pistol into Australia.
He beat those charges with a bit of help from high-profile referees Paul Keating and Graham Richardson.
He remains friends with Mr Keating and is reported to have bought antique clocks from the former prime minister.
He hates journalists to whom he refers as 'leeches, pests and grubs' – though his distaste for the media didn't deter him from boasting to one reporter about his fist‑fight with Kerry Packer.
'This bloody thing, I remember, it hit the deck and lollies went everywhere,' Mr Anderson told The Australian Financial Review.
'We had a bloody fist fight in there. We were on the ground … and, oh, it was all on.'
That heated exchange, as Mr Anderson tells it, marked the end of a volatile partnership during which the pair had holidayed and hunted together at Tipperary.
(the 'Second Sunday Times Publication')."
The plaintiff pleads that the words carried, among others, the following defamatory imputations:
"14.3The plaintiff had enlisted the assistance and influence of Mr Paul Keating (a former Prime Minister of Australia) and Mr Graeme Richardson (a former Senator and Minister of the Crown) to defeat a charge of unlawfully importing a firearm into Australia.
…
14.5The plaintiff took pride in minimising the tax he paid."
As I have said, the plaintiff pleads in par 20 of the statement of claim an article in The Sunday Telegraph newspaper of 16 November 2003 in essentially the same terms, which he says was published by the first and third defendants. In par 22, imputations in the same terms as those contained in pars 14.3 and 14.5 are pleaded.
The defendants contend that the imputations pleaded in pars 14.3 and 14.5, and the identical imputation pleaded in pars 22.3 and 22.4, are not defamatory of the plaintiff.
It was argued in respect of par 14.3 that it is not defamatory to say that a person had enlisted the assistance of high profile individuals to defend a legal case. There was no suggestion of any impropriety involved in doing so.
Counsel for the plaintiff submitted that use of the word "beat" in the article carried an imputation that the plaintiff used the influence of the high profile individuals named to have the charges dismissed and that he would have been found guilty of the charges if their influence had not been exerted for his benefit.
The imputation, however, does not use the word "beat" and the imputation does not, in my view, have the connotation which counsel for the plaintiff contended was conveyed by that word in the article. It is therefore unnecessary to comment on whether or not the word, in this context, does carry any such connotation.

I accept the defendants' submissions that the imputation as formulated is not defamatory of the plaintiff. The imputation does not assert that the plaintiff acted improperly in any way in enlisting the assistance of the persons named, or that it was to his discredit that he did so. I would strike out the imputation.
The defendants also contended that the imputation pleaded in par 14.5 was not defamatory of the plaintiff. It was submitted that it is not defamatory to say that a businessman takes pride in minimising the tax he is required to pay. It suggests no more than the plaintiff is a smart businessman.
The plaintiff submitted that the sting of the imputation lay in the assertion that the plaintiff took pride in minimising the tax he paid. It was not necessary to impute any illegal conduct on the part of the plaintiff; it was sufficient to impute conduct that would lower him in the standing of right‑thinking members of the community. It was one thing to say that a person paid as little tax as possible; it was quite another to suggest that the person took pride in doing so. The latter would cause the average person to think less of the plaintiff.
On balance, I am not persuaded that the plaintiff's contention is manifestly hopeless and, accordingly, I consider the imputation should not be struck out at this stage, but should be left for determination at trial.
I would therefore strike out pars 10.3, 14.3, 18.3 and 22.3 and otherwise dismiss the plaintiff's application.