Barrow v The Herald & Weekly Times Pty Ltd

[2015] VSC 263

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2015 01281

DAVID CHARLES BARROW	Plaintiff
v
THE HERALD & WEEKLY TIMES PTY LTD (ACN 004 113 937)	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 June 2015
DATE OF JUDGMENT:	12 June 2015
CASE MAY BE CITED AS:	Barrow v The Herald & Weekly Times Pty Ltd
MEDIUM NEUTRAL CITATION:	[2015] VSC 263

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DEFAMATION – Pleadings – Online article about Supreme Court case - Imputation – Whether article is capable of conveying meaning relied upon - No reasonable prospect of success in establishing article conveys plaintiff’s asserted imputation – Consideration of defence of fair report of proceedings of public concern pursuant to Defamation Act 2005 (Vic) s 29.

PRACTICE AND PROCEDURE – Summary judgment application – No real prospect of success – Granted - Civil Procedure Act 2010 (Vic) ss 62, 63 and 64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appears for himself
For the Defendant	Dr M J Collins QC and Mr S Mukerjea	M+K Lawyers

HIS HONOUR:

Introduction

1. During the running of a defamation trial in October 2014[1] in which the plaintiff in this proceeding, David Barrow, was the plaintiff, and the defendant in this proceeding, The Herald and Weekly Times Pty Ltd (‘HWT’), was the second defendant, HWT published an online report about the case.  In this proceeding Mr Barrow claims that the article published by HWT about that proceeding defamed him. 

   [1]The proceeding number is S CI 2012 02412, and the reasons are Barrow v Bolt [2014] VSC 599 (2 December 2014). The reasons for the appeal are Barrow v Bolt [2015] VSCA 107 (21 May 2015).

1. HWT has applied for summary judgment on the ground that the Mr Barrow’s claim has no real prospect of success,[2] and it is that application I am now to decide.

   [2]Civil Procedure Act 2010 (Vic) s 62 (‘CPA’).

1. The article appeared early in the afternoon (1:36pm) on 20 October 2014 — the first day of the earlier trial.  Under the heading ‘Supreme Court judge reluctantly gives green light to catastrophically expensive Bolt defamation case’, the article stated as follows:

A SUPREME Court judge has reluctantly proceeded with a ‘catastrophically expensive’ defamation trial against Herald Sun columnist Andrew Bolt that centres on an email sent to two people.

Former ALP member turned failed Family First candidate David Barrow launched the action two years ago claiming he was defamed when Mr Bolt branded him a vexatious litigant in an email sent to his boss and then the Press Council.

The matter, which has already run up large legal fees, has made it to trial, but not before Judge [sic] Terence Forrest made a last ditch effort to have the case mediated.

Barrow claims Mr Bolt maliciously defamed him in the email because of his long-time criticism of the columnist. 

1. In this proceeding, Mr Barrow alleges that in its natural and ordinary meaning the article was understood to mean:

Mr Barrow refused to agree to a last ditch effort by Judge [sic] Terence Forrest to have a Supreme Court of Victoria defamation case mediated, and by Mr Barrow’s refusal, unnecessary large costs of a trial were not reasonably avoided through mediation.

1. By its defence, HWT denied that Mr Barrow’s pleaded meaning of the article was capable of arising from the words contained therein. Further or alternatively, if the article was defamatory of Mr Barrow, HWT said the article was a fair report of the proceeding, being ‘proceedings of public concern’ within the meaning of s 29(4)(e) of the Defamation Act 2005 (Vic) (‘the Act’), and accordingly that it had a defence pursuant to s 29 of the Act.

1. HWT grounds its argument that Mr Barrow’s claim has no real prospect of success on the same two points, namely, that (1) no defamatory imputation of and concerning the plaintiff is capable of arising from the words of the article, and (2) the defendant has an unassailable defence available to it by operation of s 29 of the Act.

1. In summary, I intend to allow the defendant’s application.  My reasons for doing so follow.

Summary judgment jurisdiction

1. Section 62 of the CPA provides that a defendant in a civil proceeding may apply to the court for summary judgment on the ground that the plaintiff’s claim has no real prospect of success. Subject to s 64, the court may give summary judgment if satisfied that a claim has no real prospects of success (s 63). But even if satisfied there are no real prospects of success, the court may nevertheless order that the matter should proceed to trial if satisfied it is not in the interests of justice to summarily dismiss the proceeding or that the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64).

1. As well as s 62 of the CPA, HWT also relied upon the court’s jurisdiction contained in O 23 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic). Until 4 May 2015, r 23.03 permitted the court to give judgment for a defendant against the plaintiff ‘if the defendant has a good defence on the merits’. But on 4 May 2015 the rules were amended: Rule 23.03 was revoked and a new O 22 was substituted for the former O 22. Part 3 of O 22 now provides for application by a defendant for summary judgment. Rather than providing a separate and differently worded test for summary judgment, the new rule simply provides machinery provisions for the bringing of an application under s 62 of the CPA. 

1. In the result, as this application was brought after 4 May, I only need to consider the application of ss 62 and 63 of the CPA.

1. The test under s 63 of the CPA is whether the plaintiff has a real as opposed to a ‘fanciful’ chance of success in the proceeding.  The test permits of the possibility that there may be cases in which it appears that, although a plaintiff’s case is not hopeless or bound to fail, it does not have a real prospect of success. It follows that the exercise of the discretion is not limited to cases that are hopeless or bound to fail.  In this sense, the applicable test is to some degree more liberal to a defendant than the test applicable under the former rule 23.01.[3]

   [3]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, [29].

Is the article capable of conveying the alleged defamatory meaning?

1. The principles concerning the pleading and summary dismissal of defamatory imputations are well known and have been conveniently summarised from earlier authorities in several recent cases.[4] Those principles are:

   [4]Sali v Australian Broadcasting Corporation [2013] VSC 388 [18]–[22] (Beach J); Soultonov v The Age Company Ltd (2009) 23 VR 182, 186 [11] (Kaye J) (‘Soultonov’); Horlick v Associated Newspapers Ltd [2010] EWHC 1544 (QB) [8] (Eady J) (‘Horlick’).

(a)   the test is whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputation on which the plaintiff relies;[5]

[5]Farquhar v Bottom [1980] 2 NSWLR 380, 385-6 (Hunt J) (‘Farquhar’).

(b)   in applying this test, a court must reject any strained, forced or utterly unreasonable interpretation of the matter complained of.[6]  The exercise of imputation is to a large degree that of forming an impression, not to be obscured by over-elaborate analysis in a search for hidden meanings;[7]

[6]Ibid (and cases cited therein).

[7]Horlick [2010] EWHC 1544 (QB) [8].

(c)    a court must proceed on the basis that the ordinary reasonable reader is a person of fair, average intelligence, who

(i)     is neither perverse, morbid or suspicious of mind;

(ii)  is not avid for scandal or unusually suspicious or naïve;  

(iii)             engages in a degree of loose thinking, can and does read between the lines in the light of his or her general knowledge and experience of worldly affairs, and has a capacity for implication that is greater than that of a lawyer;[8] and

(d)  a court must draw a distinction between the ordinary reasonable reader’s understanding of what the matter complained of is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs or prejudices.[9]

[8]Farquhar [1980] 2 NSWLR 380, 385-6 (and cases cited therein).

[9]Soultonov (2009) 23 VR 182, 186 [11] (and cases cited therein).

1. The HWT article was short, containing only four sentences.  As can be seen, the article refers to a ‘catastrophically expensive’ defamation trial which a judge had ‘reluctantly’ proceeded with after making a ‘last ditch’ effort to have the case mediated. 

1. In my view, the article is capable of conveying to the ordinary reasonable reader that the judge reluctantly proceeded with the trial either after having the case mediated with it failing to resolve, or after trying to have the case mediated but not managing to get it mediated.  In that sense it was ambiguous.

1. But for Mr Barrow to be able to succeed in his proceeding, he would need to persuade the court that the article conveyed the meaning that the mediation did not take place and that it did not take place because he refused to agree to it.   In its terms, the article does not assign any reason for the case not being mediated (assuming it was not mediated) much less allocate blame or responsibility to any party for it not being mediated.

1. To arrive at the meaning that he has alleged, Mr Barrow submitted that the ordinary, reasonable reader would infer: (1) that the mediation did not take place; (2) that it did not take place because one party refused to mediate; and (3) because the article was written by the HWT, a defendant to the proceeding, it was unlikely to have been HWT that refused, so it must have been Mr Barrow.

1. Put simply, this line of reasoning, which is necessary to give rise the alleged imputation, offends a number of the principles that apply to determining whether a matter complained of is capable of conveying to the ordinary reasonable reader the imputation relied upon. 

1. In my view, Mr Barrow’s analysis requires a reader who will engage in over-elaborate analysis in search of a hidden meaning – or put another way, a reader who engages in unreasonable and speculative ‘inference upon inference’.  There are a number of reasons why a mediation might not take place, assuming it did not take place.  Refusal by a party to mediate is only one of them, and refusal by a particular party is another sub-set again.  Nothing in the article points to any particular reason, and to arrive at a particular reason for the mediation not occurring involves an exercise in arbitrary speculation. 

1. The meaning Mr Barrow draws is not an understanding a reader would reach from what the article was actually saying.  To draw from it what Mr Barrow infers would require viewing the article through the prism of a personal belief about some design on the part of HWT that the ordinary reasonable reader would have no cause to hold.

1. Mr Barrow further argued that the matter should go to trial so that the tribunal of fact (in this case a jury) could see the ‘whole’ article in its full context in order to decide what meaning the article conveyed.  Mr Barrow submitted that its real meaning could not be appreciated unless seen in the form as it appeared online at 1:36pm on 20 October 2014. Although Mr Barrow has pleaded the full terms of the article—which have been admitted by HWT in its defence—he claimed that HWT has not yet discovered and produced the actual article as it appeared online at relevant time.

1. Mr Barrow made the point that, although containing only the text as pleaded, the original article was clearly identifiable as an HWT article by it appearing under HWT masthead, featured the heading in a larger, bold font, and may have featured a photograph of Mr Bolt.  The visual appearance, he maintained, contributed some important interpretive elements for the hypothetical ordinary reasonable reader.

1. Such a possibility cannot be denied.  But, a form of the article as it appeared online at 10:44pm that day was in evidence.[10]  Although that version contained some different text, it is depicted under HWT’s masthead, features a bold heading in large font and also features a photograph of Mr Bolt. Mr Barrow does not rely upon that particular version of the article but insists that HWT can and should produce the 1:36pm version.

   [10]Exhibit DCB-02 to affidavit of David Charles Barrow affirmed 6 June 2015 (‘Mr Barrow’s affidavit’).

1. HWT maintains there is nothing more to discover.  It explained through its counsel[11] that the article appeared online in an ‘iterative’ fashion, changing in appearance and content as it was updated.  The form of the article as depicted in the exhibit to Mr Barrow’s affidavit bore the same unique document number in its URL (‘uniform resource alocator’) as did the article appearing at 1:36pm.[12]  There was no longer any surviving version of the earlier iteration.   

   [11]No practical opportunity was available to file an affidavit in response to Mr Barrow’s affidavit.

   [12]See the numbers appearing in the URL’s at [8] of Mr Barrow’s affidavit.

1. In any event, I have taken into account that the article appearing at 1:36pm may have had the same or similar style and visual elements as the version that appeared at 10:44pm that day.  My analysis and the outcome I have reached would not differ if I assumed that the pleaded article appeared in a visual form akin to the form in which it appeared later that same day. 

1. In my view, having regard to the principles outlined and the reasons given above, Mr Barrow has no reasonable prospect of success in establishing that the article conveys the meaning that he asserts. 

1. Mr Barrow did not suggest any other defamatory imputation that may be understood from the article nor seek the opportunity to consider an amendment to his pleadings to allege a separate, alternate defamatory imputation. No alternative readily springs to mind. Although, as will appear, I am not persuaded that HWT’s s 29 defence of fair report is an ‘unassailable defence’ to the defamatory imputation that is alleged, it is nonetheless evident that each of the propositions set out in the four sentences is fairly established from the transcript of the proceeding. That observation provides support for the conclusion I have reached that any alternative imputation, properly grounded in what the article actually says, is likely to be defeated by the s 29 defence.

1. My conclusion on this issue is fatal to Mr Barrow’s claim. Strictly speaking I need not consider HWT’s further basis of ‘unassailable defence’ under s 29. However, I will briefly state my conclusion on that ground.

Is the article a fair report of the earlier court proceedings?

1. Section 29 of the Defamation Act 2005 (Vic) provides:

(1)It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.

…

(3)A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or the advancement of education.

1. There is no dispute that the proceeding before T Forrest J was ‘proceedings of public concern’ since that expression, as defined in subsection (4) includes ‘any proceeding in public of a court or arbitral tribunal of any country’. Pleadings have closed and Mr Barrow has not sought to invoke s 29(3) as an answer to HWT’s defence.

1. A report is fair and accurate for the purposes of the s 29 defence where it is a substantially accurate summary of what took place in proceedings, even if it reports only part of the proceedings, is brief or is selective. Omissions or inaccuracies in a report that do not result in the impression or effect of the actual proceedings being substantially misrepresented, in a manner that defames the plaintiff, do not render a report unfair or inaccurate. There must be a substantial misrepresentation of the material fact prejudicial to a plaintiff’s reputation before the defence will be lost.[13]

   [13]Chakravarti v Advertising Newspapers (1988) 193 CLR 519, 525-6 [2]–[4], 587 [153] (‘Chakravarti’); Sands v Channel 7 Adelaide Pty Ltd [2010] SASC 202 [129]–[142]; Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, 63; Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317, 321; Thom v Associated Newspapers Limited (1964) 64 SR (NSW) 376, 380, 383.

1. Having read the transcript of the earlier proceeding I am comfortably satisfied that the content of each of the sentences in the article can be traced directly to sections of the transcript, as tabulated in the annexure to the outline of submissions filed by HWT and now annexed to these reasons.[14] 

   [14]See Annexure A.

1. However, in Chakravarti[15] Brennan CJ and McHugh J explained,

A plea of fair and accurate report is a plea in confession and avoidance of the plaintiff's claim. Until the plaintiff's claim is defined, the tribunal of fact cannot know what the plea confesses and avoids. Nor can the Court determine whether the report in defaming the plaintiff is nevertheless fair.

…

Where a defamatory imputation is alleged to arise out of a word or phrase or its implication, it may make little practical difference whether the tribunal considers the fairness of the report before it considers the meaning of the word or phrase. But where, as is often the case, the imputation is an inference drawn from various paragraphs or sections of a publication, it invites error, in our view, to attempt to determine whether the report is fair before determining the defamatory imputation.[16]

[15]Chakravarti (1988) 193 CLR 519.

[16]Ibid 525-6 [2], 526[4].

1. Applying those principles to this case, given that this issue can only be judged upon the pleadings, it must be assumed that the s 29 defence is a confession of the pleaded defamatory imputation, but with a plea in avoidance relying upon the article being a fair report of what transpired.   

1. But, if the article is to be understood as conveying the pleaded meaning that the mediation did not take place because Mr Barrow refused to participate, the article was clearly not a fair and accurate report.  In fact, the mediation did not occur — but not because Mr Barrow refused to mediate. On the first day of trial the judge, initially, indicated a strong preference to hold a mediation. Mr Barrow supported it but HWT opposed it, essentially on the grounds that it was not likely to be productive and HWT was concerned about losing the trial date.  After making inquiries, his Honour announced he would not be directing the parties to attend mediation. There were several reasons: logistically, it was difficult if not impossible to organise; on reflection, his Honour was not satisfied there was a realistic prospect of achieving anything; and there was some risk of losing the trial date.[17]

   [17]Exhibit JHQ-1 to affidavit Justin Healy Quill sworn 15 May 2015, pp 4-7, 9-11.

1. So, I would not order summary judgment in favour of HWT on the second ground it relies upon.  On the assumption that the meaning of the article is properly defined as alleged by Mr Barrow, the article did not contain a fair report of the proceeding.

Conclusion

1. I am satisfied that Mr Barrow’s claim has no real prospect of success because (1) the article is not capable of conveying the defamatory meaning he has alleged and (2) there is no real prospect of him succeeding in respect of some other (presently unidentified) defamatory meaning. Further, I am not satisfied that the trial should proceed for any reason referred to in s 64 of the CPA.  Accordingly, I will give summary judgment in favour of HWT.    

1. HWT would not have succeeded on its application upon its alternative ground, namely its defence under s 29 of the Act.

ANNEXURE A

Comparison of Article to Trial Transcript

Sentence	Transcript Ref	Content
[1]       A Supreme Court Judge has reluctantly proceeded with a “catastrophically expensive” defamation trial against Herald Sun Columnist Andrew Bolt that centres on an email sent to two people.	T 2/25 – T 3/11	HIS HONOUR:  Am I correct in understanding, and this is a question again addressed to both of you, that the plaintiff’s case is that the impugned paragraph within what’s called the Bolt response was published to two people, Mr Armsden, the managing editor of the second defendant, and subsequently to Mr Herman of the Australian Press Council; is that the position? MR BARROW:  Yes, Your Honour.  There were a number of paragraphs but it’s the one document. HIS HONOUR:  As I understand it the imputations are said to arise from the one paragraph within the email document that’s been alleged in the statement of claim. MR BARROW:  There are a number of imputations.  It’s the one document, Your Honour, that I can take you to and there are only the two recipients and there’s a great vine effect. HIS HONOUR:  Is that so? DR COLLINS:  Yes, that’s so, Your Honour, two recipients.
T 4/14 – T 4/19	HIS HONOUR:  Does it follow from all that, that what is not in dispute are the contents of the email and that the alleged defamation was published, whether by the first defendant or the second defendant to a total of two people, is that correct, Mr Barrow? MR BARROW:  That’s correct.
T 4/20 – T 4/27	HIS HONOUR:  At this stage obviously enough I have no view as to the merits or otherwise of this piece of litigation but I do have a strong view that it should go if possible to judicial mediation.  Running a Supreme Court trial, whether it’s for three or four days or seven days can be a catastrophically expensive exercise and if the parties can be encouraged to resolve their differences that often can be the most sensible of all possible outcomes.
T 10/22 – T 10/29	HIS HONOUR:  All right.  It seems to me that before I can progress the matter, if I intend to do so, I need to understand whether there is in fact a mediator available for Wednesday and whether there is in fact someone available under the pro bono scheme who would be able to represent the applicant — I’m sorry, the plaintiff, in the event that I were to order a mediation. I will make those inquiries now.
T 11/15 – T 11/23	HIS HONOUR:  I won’t be referring the matter to judicial mediation.  Logistically it’s going to be a pretty difficult exercise, if not impossible to organise.  I’m not satisfied that there is a realistic prospect of achieving anything and the risk of losing the trial date is a factor that weighs in the mix in the decision that I’ve made.  So Mr Barrow will be proceeding with the trial today and we’ll commence with the preliminary issue relating to these subpoenas.
[2]       Former ALP member turned failed Family First candidate David Barrow launched the action two years ago claiming he was defamed when Mr Bolt branded him a vexatious litigant in an email sent to his boss and then the Press Council.	T 2/25 – T 3/11	As above.
T 5/8 – T 5/10	MR BARROW:  Yes, Your Honour.  In the earlier stages of this proceeding, which has been running since 2012, I explored that option.
T 14/13 – T 14/19	DR COLLINS:  We have some difficulty following the argument but it appears to be this.  In the email which is the heart of the defamation action Mr Bolt said that in his opinion Mr Barrow had been a vexatious litigant in many fora over a long period of time and, as Your Honour rightly identified, that’s the passage which seems to found the defamatory imputations.
T 37/10 – T 37/17	MR BARROW:  Your Honour, he actually uses the word vexatious twice.  He said it would be vexatious for you — it’s vexatious because you have gone this way to the Press Council rather than to us.  I think that’s in the general expression, the vexatious, it’s like you’ve chosen an option that you ought not to have chosen.  And then he actually uses the term vexatious litigant and that has a special meaning, Your Honour, in the community.
T 51/17 – T 51/28	MR BARROW:  Will do, Your Honour.  The next article, Your Honour, as part of — this 2E strand.  As part of Mr Bolt’s research on me, or shoddy research I would say, on me, he found a submission that I’d made around 2008 to a parliamentary inquiry on superannuation and within all of that content I had put a footnote in there that I was a member of the Australian Labor Party, the ALP, as I was briefly at that time and am no longer and out of all the material he grabbed that particular snippet and included it in his research notes to Alan Armsten who is the managing editor at that time that was handling the Press Council complaints.
[3]       The matter, which has already run up large legal fees, has made it to trial, but not before Judge Terence Forrest made a last ditch effort to have the case mediated.	T 4/20 – T 4/27	As above.
T 10/22 – T 10/29	As above.
T 11/15 – T 11/23	As above.
T 9/27 – T 9/29	DR COLLINS:  We’re here, we want to run the case.  We’re ready to get on with it.  Vast amounts of money have been spent on this.  Vast —
[4]       Barrow claims Mr Bolt maliciously defamed him in the email because of his long-time criticism of the columnist.	T 36/28 – T 37/1	MR BARROW:  The key battleground, Your Honour, in this case as I see it will be around malice, to destroy a defence of qualified privilege, and I will be coming — the evidence on that is quite detailed so perhaps an unusually long reply, Your Honour, but there are many strands to it.
T 41/16 – T 41/27	MR BARROW:  The next thread is, I have actually made nine complaints to Herald Sun prior to the Bolt response.  Mr Bolt says that if you had come to us first we would almost certainly have published your comments. I actually did it nine times before, Your Honour, with content which is of equivalent criticism, politely written criticism, which was the same as my Barrow application to the Press Council.  I did it nine times before and none of them, there was no response, nothing was published.  And these were brought to Mr Bolt’s attention.
T 42/18 – T 42/21	HIS HONOUR:  Were those nine complaints that you made to the Herald Sun all concerning Mr Bolt? MR BARROW:  Yes, and they were all serious criticisms of Mr Bolt’s articles.
T 46/9 – T 46/16	MR BARROW:  Then on to Paragraph 2B.  This is now we’re going into the proper motives of retaliation, and that is, that the five complaints that were successful for me with the Press Council and it led to the articles being removed from the Andrew Bolt blog, Mr Bolt was striking out against me in retaliation for that as he was very upset.  And I have one of his blog articles talking about his articles being — disappeared.
T 46/30 – T 47/2	MR BARROW:  I would say in the context of that, if I’m having articles removed from him and he’s also having articles removed due to the Prime Minister, he’s seeking to lash out at those who have his articles removed.