Bazzi v Dutton

Case [2022] FCAFC 84

FEDERAL COURT OF AUSTRALIA

Bazzi v Dutton [2022] FCAFC 84 

Appeal from: Dutton v Bazzi [2021] FCA 1474
File number(s): NSD 1333 of 2021
Judgment of: RARES, RANGIAH AND WIGNEY JJ
Date of judgment: 17 May 2022
Catchwords:

APPEAL AND NEW TRIAL – test for determining whether primary judge erred in finding ordinary reasonable reader would understand defamatory publication conveyed imputation – whether appellant must demonstrate error in finding of fact or error in exercise of discretionary judgment – whether obiter dicta in Gatto v Australian Broadcasting Corporation [2022] VSCA 66 correct – Held: test is whether error of fact established

DEFAMATION – where matter complained of was tweet – whether ordinary reasonable reader would understand tweet read as a whole and in way users of Twitter read tweets conveyed imputation – where primary judge used dictionaries to interpret imputations and matter complained of – Held: appeal allowed 

Legislation:

Federal Court of Australia Act 1976 (Cth) s 27

Defamation Act 2005 (NSW) s 31
Cases cited:

Bailey v WIN Television NSW Pty Ltd (2020) 104 NSWLR 541

Chau v Australian Broadcasting Corporation (2021) 386 ALR 36

Dutton v Bazzi [2021] FCA 1474

Fleming v Advertiser-News Weekend Publishing Co Pty Ltd [2016] SASCFC 109

Gatto v Australian Broadcasting Corporation [2022] VSCA 66

Kemsley v Foot [1952] AC 345

Lee v Lee (2019) 266 CLR 129

Lesses v Maras (2017) 128 SASR 292

Lewis v Daily Telegraph Ltd [1964] AC 234

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Mirror Newspapers Limited vHarrison (1982) 149 CLR 293; Capital & Counties Bank v Henty (1882) 7 App Cas 741

Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632

Monroe v Hopkins [2017] 4 WLR 68

Plato Films Ltd v Speidel [1961] AC 1090

Stocker v Stocker [2019] UKSC 17; [2020] AC 593

Trkulja v Google LLC (2018) 263 CLR 149

Warren v Coombs (1979) 142 CLR 531
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 80
Date of hearing: 3 May 2022
Counsel for the Appellant: Mr P Gray SC and Mr B Dean
Solicitor for the Appellant: O’Brien Criminal and Civil Solicitors
Counsel for the Respondent: Mr N Ferrett QC and Mr H Clift
Solicitor for the Respondent Baker McKenzie

ORDERS

NSD 1333 of 2021
BETWEEN:

SHANE BAZZI

Appellant
AND:

CRAIG PETER DUTTON

Respondent

ORDER MADE BY:

RARES, RANGIAH AND WIGNEY JJ

DATE OF ORDER:

17 MAY 2022

THE COURT ORDERS THAT:

1.The appeal be allowed.

2.Order 1 made on 8 December 2021 be set aside and in lieu thereof it be ordered that:

1.The proceeding be dismissed.

3. On or before 24 May 2022 each party file and serve any evidence and written submissions limited to 3 pages on which he proposes to rely on the question of costs of the proceeding below and on appeal.

4.On or before 31 May 2022 each party file and serve any evidence and submissions limited to…

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AGLC
Bazzi v Dutton [2022] FCAFC 84
Case
[2022] FCAFC 84
Decision Date

CaseChat Overview and Summary

In the appeal of Bazzi v Dutton, the Federal Court of Australia was asked to determine whether a tweet posted by Shane Bazzi defamed Peter Dutton by implying that he excuses rape. The primary judge had found in favour of Dutton, but Bazzi appealed the decision. The central issue before the court was whether the tweet conveyed the imputation that Dutton excuses rape. The court found that the tweet did not convey that imputation, and thus the appeal was allowed, and the judgment in favour of Dutton was set aside. The court held that determining whether a publication conveys an imputation is an objective fact, and the ordinary reasonable reader would interpret the tweet as suggesting that Dutton was sceptical about claims of rape, but not that he excuses rape itself. The court emphasised the importance of considering the context in which the ordinary reasonable reader would read the tweet, and the need for an impressionistic approach rather than an elaborate analysis.

The court also addressed the test for determining whether the primary judge erred in finding that the ordinary reasonable reader would understand the tweet to convey the imputation. The court found that the error must be an error of fact, not an error in the exercise of discretionary judgment. The court rejected the obiter dicta in Gatto v Australian Broadcasting Corporation [2022] VSCA 66 as incorrect, and held that the test is whether an error of fact has been established. The court held that Dutton failed to discharge the onus of establishing, on the balance of probabilities, that the reader reasonably would have understood that the tweet conveyed the imputation that he asserted it conveyed. Therefore, the appeal was allowed, and the proceeding was dismissed. Both parties were asked to be heard on the issue of costs, and were directed to file and serve evidence and submissions within specified time frames.

Orders

Orders of the court

1. The appeal be allowed.

2. Order 1 made on 8 December 2021 be set aside and in lieu thereof it be ordered that:

1. The proceeding be dismissed.

3. On or before 24 May 2022 each party file and serve any evidence and written submissions limited to 3 pages on which he proposes to rely on the question of costs of the proceeding below and on appeal.

4. On or before 31 May 2022 each party file and serve any evidence and submissions limited to 2 pages in reply.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Dutton’s submissions on the appeal did not articulate how the reader would understand the tweet to convey the imputation. The imputation is not the natural and ordinary meaning of either Mr Bazzi’s six word statement, read as a discrete subject within the tweet as a whole, or a combination of all of the contents of the tweet. Whatever the tweet was saying about Mr Dutton defending rape, or otherwise imputing about his attitude to it, as a rape apologist, it is impossible to discern, how the reader reasonably could understand it to convey a meaning that Mr Dutton excuses rape. The Guardian material centres on allegations of rape, not the actual commission of it. When that material is read with Mr Bazzi’s six words, the reader would conclude that the tweet was suggesting that Mr Dutton was sceptical about claims of rape and in that way was an apologist. But that is very different from imputing that he excuses rape itself.Conclusion It is not sufficient that the tweet was offensive and derogatory. Mr Dutton had the onus to establish, on the balance of probabilities, that the reader reasonably would have understood that the tweet conveyed the imputation that he asserted it conveyed. In our opinion, he failed to discharge that onus so that the appeal must be allowed, the judgment entered for Mr Dutton in the sum of $35,825 must be set aside and the proceeding dismissed. Both parties asked to be heard on the issue of costs. That was because Mr Bazzi has raised crowd funding to support the engagement of his lawyers. The parties should file and serve any evidence on which they propose to rely together with written submissions limited to 3 pages within 7 days and any further evidence and written submissions in reply limited to 2 pages within a further 7 days. The central question raised by this appeal is whether a ‘tweet’ – a short message appearing on the social media platform Twitter – posted by the appellant, Mr Shane Bazzi, conveyed the defamatory imputation that the respondent, the Hon Peter Dutton MP, “excuses rape”. The primary judge found that the tweet did convey that imputation: Dutton v Bazzi [2021] FCA 1474 (Judgment). Mr Bazzi contended that his Honour erred in so finding. I agree with Rares and Rangiah JJ that the primary judge erred and that the impugned tweet did not convey the imputation that Mr Dutton excuses rape. Subject to the brief observations that follow, I also substantially agree with their Honours’ reasons for so concluding. The tweet, as it appeared to the ordinary reasonable reader of Twitter, is set out in full in the reasons of Rares and Rangiah JJ. The pertinent points about the tweet are: first, the words “Peter Dutton is a rape apologist” appear on the first line of the tweet immediately under Mr Bazzi’s Twitter handle; second, a large photograph of Mr Dutton, a well-recognised public figure, appears immediately underneath the first line – with the words “The Guardian” superimposed on the lower right-hand corner of the photograph; third, the words: “Peter Dutton says women using rape and abortion claims as ploy to ge…” and (on the following line) “Home affairs minister says ‘some people are trying it on’ in an attempt to get to Australia from refugee centres on Nauru” appear below the photograph of Mr Dutton; and fourth, a symbol, which appears to resemble a link in a chain, together with the words “the guardian.com”, appear immediately under the aforementioned text.

Ratio Decidendi

Legal Principle Established

The determination of whether a publication conveys an imputation is an objective fact (as distinct from the anterior enquiry of whether it is capable of conveying such a meaning which is a question of law: see Mirror Newspapers Limited vHarrison (1982) 149 CLR 293; Capital & Counties Bank v Henty (1882) 7 App Cas 741 at 776 per Lord Blackburn). There cannot be a range of possible outcomes when a tribunal of fact applies the objective test for determining whether the ordinary reasonable reader, listener or viewer would understand a publication to have conveyed an imputation. A publication either conveys a meaning or it does not. The answer to that question cannot be, like beauty, in the eyes of the beholder.Consideration – did the natural and ordinary meaning of the tweet convey the imputation? In Stocker [2020] AC at 605–606 [41]–[43], Lord Kerr JSC said:[41] The fact that this was a Facebook post is critical. The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.[42] In Monroe v Hopkins [2017] 4 WLR 68, Warby J at para 35 said this about tweets posted on Twitter:“The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.”[43] I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre-eminently one in which the reader reads and passes on.(emphasis added) In Trkulja v Google LLC (2018) 263 CLR 149 at 160–161 [32] Kiefel CJ, Bell, Keane, Nettle and Gordon JJ said of the task of ascertaining the meaning that a publication conveys:…that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person (Favell [v Queensland Newspapers Pty Ltd] (2005) 79 ALJR 1716 at 1719 [6]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ …); and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking (Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; [1971] 2 All ER 1156 at 1162–1163 per Lord Reid). He or she may be taken to “read between the lines in the light of his general knowledge and experience of worldly affairs” (Lewis [v Daily Telegraph Ltd] [1964] AC 234 at 258 per Lord Reid; Favell (2005) 79 ALJR 1716 at 1719–1720 [10]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), but such a person also draws implications much more freely than a lawyer, especially derogatory implications (Lewis [1964] AC 234 at 277 per Lord Devlin; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 573–574 [134] per Kirby J; Favell (2005) 79 ALJR 1716 at 1720 [11]; 221 ALR 186 at 190 per Gleeson CJ, McHugh, Gummow and Heydon JJ), and takes into account emphasis given by conspicuous headlines or captions (Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aickin J; [John Fairfax Publications Pty Ltd v] Rivkin (2003) 77 ALJR 1657 at 1661–1662 [26]; 201 ALR 77 at 83 per McHugh J; at 1699 [187] per Callinan J; Favell (2005) 79 ALJR 1716 at 1719 [8]; 221 ALR 186 at 189 per Gleeson CJ, McHugh, Gummow and Heydon JJ). Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd ((1998) 193 CLR 519 at 574 [134]), “[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject”.(emphasis added)