Bell v Kingsbay Pty Ltd
[2001] VSC 498
•18 December 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 4618 of 2001
| ANTHONY EDWARD BELL | First Plaintiff |
| SOUTHERN CROSS BROADCASTING (AUSTRALIA) LTD (ACN 006 186 974) | Second Plaintiff |
| v | |
| KINGSBAY PTY LTD (ACN 095 736 753) | First Defendant |
| DERRYN HINCH | Second Defendant |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2001 | |
DATE OF JUDGMENT: | 18 December 2001 | |
CASE MAY BE CITED AS: | Bell and Ors v Kingsbay Pty Ltd and Anor (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 498 | |
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Libel – radio broadcast – application to strike out – Polly Peck defence as not disclosing a defamatory meaning – application to strike out pleaded imputations as not being capable of being defamatory.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms G.L. Schoff | Corrs Chambers Westgarth |
| For the Defendants | Mr M. Dreyfus QC with Mr D. Gilbertson | Holding Redlich |
TABLE OF CONTENTS
The Proceeding................................................................................................................................... 2
The Amended Defence..................................................................................................................... 4
The Two Summonses........................................................................................................................ 6
Striking Out Imputations................................................................................................................. 6
The Plaintiffs' Summons.................................................................................................................. 8
Defendants' Summons.................................................................................................................... 17
Conclusion......................................................................................................................................... 20
HIS HONOUR:
Before the Court are two summonses, one filed by the plaintiffs, and one filed by the defendants.
The Proceeding
The three plaintiffs seek damages for defamation. The first plaintiff, Anthony Edward Bell ("Mr Bell"), at all relevant times, was the managing director of the second plaintiff, Southern Cross Broadcasting (Australia) Ltd ("Southern Cross"), which, at all relevant times, was the owner of radio station 3AW. The third plaintiff, 3AW Southern Cross Radio Pty Ltd ("3AW"), at all relevant times, was the holder of a commercial radio broadcast licence to broadcast to listeners through radio station 3AW.
The first defendant, Kingsbay Pty Ltd ("Kingsbay"), at all relevant times, was the holder of a commercial radio broadcast licence to broadcast through radio station 3AK, and the second defendant, Derryn Hinch ("Mr Hinch"), was, at all relevant times, employed by Kingsbay as a radio presenter on 3AK.
On 8 February 2001, Mr Hinch informed the listeners of 3AK that certain actions of Mr Bell and the other plaintiffs had, in effect, sought to unfairly control radio station 3AK. Up to July 1996, Southern Cross owned 3AK, which it sold to 3AK Fusion Media Pty Ltd.
The words attributed to Mr Hinch and which do not appear to be denied, were –
"Well, it's true. You haven't heard the bull roar yet. I tell you one thing, the barn yard door's now being flung open. For too long I believe 3AW has dominated this town with no opposition, no alternative. And I've only discovered in recent weeks since I came here to 3AK just how ruthless and how manipulative those owners, my former employers, have been in keeping the old 3AK in its place and down in the gutter. How it used financial muscle to get pledges from the old owners not to even compete in the talk format market place. And I bet the Australian broadcasting authorities would love to see some of that correspondence. Tony Bell, I've seen it.
But anyway, as of today the bully-boy tactics will not work. Brand new day. Those shackles have been broken. It is a whole new ball game, the bull will roar."
("the first words").
On 20 February 2001, the three plaintiffs issued proceedings against the two defendants and complained that the said words in their normal, natural and ordinary meaning were defamatory of the plaintiffs and each of them. The plaintiffs have pleaded five false innuendos in their amended statement of claim.
The five innuendos are –
"(a)That the plaintiffs had unlawfully used their financial strength to bully a competitor in the talk format market place in order to maintain their dominance in that market;
(b)that the plaintiffs had unlawfully used their financial strength to control a competitor in the talk format market place in order to maintain their dominance in that market;
(c)that the plaintiffs had committed breaches of the Broadcasting Services Act ('the Act') in seeking to control radio station 3AK;
(d)that the plaintiffs had committed breaches of the Act, in that they had exercised control over radio station 3AK without obtaining the approval of the Australian Broadcasting Authority;
(e)that the plaintiffs had committed breaches of the law by using their financial strength to force radio station 3AK not to compete with radio station 3AW."
On 16 May 2001, Mr Hinch broadcast to the listeners of 3AK, further words, which Mr Bell claimed defamed him. The statement of claim was amended to include the claim and two false innuendos were pleaded.
The second set of words attributed to Mr Hinch were –
"Now, I'm committed. I don't know for how long, but I'm committed to fight a misogynist, blokey-blokey bully boy station called 3AW. Their boss, Tony Bell, is suing me personally because I put some heat in his kitchen. Their own staff across town in Bank Street I know loathe and fear their management and their bully boy tactics."
("the second words").
The two innuendos relied upon by Mr Bell are –
"(a)that the first plaintiff was loathed and feared by his staff;
(b)that the first plaintiff bullied his employees."
The Amended Defence
In their amended defence, the defendants admit that the first words were spoken by Mr Hinch, deny that they were defamatory, and deny that the plaintiffs suffered any damage.
The defendants have pleaded, what is known as, a partial justification Polly Peck defence, and in the alternative, the defences of common law privilege, the government and political matter qualified privilege, and fair comment.
In respect of the second words, they do not admit that the words were spoken by Mr Hinch, deny that they were defamatory of Mr Bell, deny damages, and allege the two qualified privilege defences and fair comment.
The Polly Peck partial justification defence, in respect of the first words, is expressed as follows –
"9A. Further, if the first words were published of and concerning the first plaintiff and/or the second plaintiff (which is denied) and if the first words were defamatory of the first plaintiff and/or the second plaintiff (which is also denied), then in their ordinary and natural meaning the first words meant and were understood to mean that the first plaintiff or further or alternatively the second plaintiff applied financial pressure to the former owners of 3AK in order to induce them to agree not to compete in the talk format market and in that meaning the first words were true in substance and in fact.
PARTICULARS
On or about 2 July 1997, the first plaintiff wrote and sent a letter on the letterhead of the second plaintiff to Mr Vern Stone, General Manager, 3AK Fusion Medial Pty Ltd. A copy of the letter dated 2 July 1997 is annexed hereto and marked 'A'.
3AK Fusion Media Pty Ltd was the former owner of radio station 3AK.
By that letter, the first plaintiff and/or the second plaintiff tgave notice that the second plaintiff intended to charge a fee to 3AK Fusion Media Pty Ltd for a service which was hitherto provided free of charge for reasons that included that 3AK had increased the level of 'talk' on its station in order to attract 3AW's listeners.
It can be inferred from the terms of the letter, read as a whole, that the first plaintiff and/or the second plaintiff applied financial pressure to 3AK Fusion Media Pty Ltd in order to induce it to agree not to compete with3AW in the talk format market.
Further particulars may be provided after discovery and interrogation."
The first plaintiff claims, in respect of the first words, aggravated and/or exemplary damages. Particulars of the facts upon which Mr Bell relies are sub‑joined to paragraph 9. Paragraph 9(vii) provides –
"(vii)Further, on 16 May 2001 the defendants published the second words complained of which are set out in paragraph 10 hereof, and thereby aggravated the loss and damage suffered by the plaintiffs."
This particular should read "suffered by the first plaintiff".
The Two Summonses
The first summons in point of time was filed by the plaintiff. They seek an order that para 9A of the amended defence be struck out. They rely upon Rule 23.02.
Rule 23.02 is concerned with striking out, inter alia, a defence, because it does not disclose a defence, is scandalous, frivolous or vexatious, may prejudice, embarrass or delay the fair trial, or is otherwise an abuse of the process of court. It is the contention of the plaintiffs that the Polly Peck defence is not available to the defendants.
The defendants' summons seeks orders that the paragraph pleading the five false innuendos concerning the first words complained of, should be struck out or alternatively paragraphs 7(a), (b) and (c). Further, that paragraph 9(vii) be struck out and that the false innuendo pleaded in paragraph 11(a) should also be struck out. The attack upon paragraph 9(vii) disappears when the paragraph is amended, as stated above.
Striking Out Imputations
The law of defamation in this case, subject to a few statutory modifications, is the common law. It is different to the law which applies in the State of New South Wales.
What the words complained of mean, is a matter for the tribunal of fact, and whether the words are defamatory of any of the plaintiffs, is also a question of fact. No facts are pleaded by the plaintiffs to establish a true innuendo, and accordingly, it is not open to the parties to call evidence as to what the words mean and whether they are defamatory.
"Where no true innuendo is pleaded and the published words clearly relate to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees – Lord Selbourne's, reasonable men … or Lord Atkin's, right thinking members of society generally … or Lord Reid's, ordinary men not avid for scandal, would understand the published words in the defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation." – per Brennan J in Readers-Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505‑6.
The meaning and whether they are defamatory are questions for the tribunal of fact. The function of pleading imputations in a common law jurisdiction is to delineate the issues and to give notice to the defendants as to how the case is being put and what part of the alleged defamatory material is relied upon.
However, it is not appropriate for the jury to be asked questions, specifically, whether the words bore the imputations relied upon by the plaintiff. This point was made clear by the Full Court decision of Barclay v Cox (1968) VR 664 at 666, where Winneke CJ, Pape and Adam JJ said –
"But where the sole issue is whether the words in their natural and ordinary meaning are defamatory of the plaintiff and the pleading sets out meanings which the plaintiff alleges ordinary men would infer from the words used, we think that the better and more desirable course is that the jury should not be asked whether the words were understood to have those meanings. To ask such a question tends to concentrate the jury's attention unduly on the several meanings pleaded in the abstract and to distract them from their main task of reading the alleged libel as a whole and saying whether an ordinary fair minded reader would understand it as being defamatory of the plaintiff. Once the jury are told that 'often the sting is not so much in the words themselves as in what the ordinary man will infer from them and that is regarded as part of their normal and natural meaning', a jury should have no difficulty when they make their finding as to whether the words in their normal and natural meaning are defamatory of the plaintiff in taking into account the meaning suggested to them by the plaintiff. It may doubtless be of advantage to an appellate court to know the steps and the reasoning behind a jury's verdict, but this, in our view, does not justify leaving the question such as question 2 to the jury."
The question 2 which was left to the jury, asked them whether the meanings pleaded by the plaintiffs or any of them were defamatory of the plaintiff.
In contrast, in New South Wales, the pleaded imputation is a cause of action and hence, careful drafting is essential. As a result, the practice has grown up in New South Wales of interlocutory applications to determine whether the words, as pleaded by the plaintiff, were arguably open to the jury.
In my opinion, the courts in Victoria should be slow to strike out any imputation relied upon, unless it is so fanciful that no reasonable jury could possibly find that meaning. But the Court must be very careful in considering that question, because the question of what the words mean is for the jury, and whether the words are defamatory in the meaning found by the jury, is also a question solely for the jury.
As has been said often, the ordinary man does not live in an ivory tower and is not inhibited by rules of construction, and tends to read between the lines in light of his general knowledge and experience of worldly affairs. See Lord Reid in Rubber Improvement Ltd v Daily Telegraph Ltd (1964) AC 234 at 258. In my opinion, it is only in the clearest cases that an application to strike out a false imputation should succeed and as a general proposition, defendants should be discouraged, in this State, from making such applications. There is always a concern in defamation cases that rich defendants, especially media proprietors, use the interlocutory process to exhaust the plaintiff's resources. That admittedly is not the case here, because it can be inferred that the three plaintiffs have the necessary wherewithall to withstand a drawn out interlocutory battle, but as a general rule, the Court should be on its guard not to allow defendants to financially harass plaintiffs.
After writing those observations, I noted that Kirby J made observations in Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at 578 et seq, expressing concern about interlocutory skirmishes.
The Plaintiffs' Summons
The plaintiffs apply to strike out paragraph 9A of the amended defence on the ground that it does not disclose a defence.
An order striking out a defence would not be made unless the Court was satisfied that the defence was not known to the law or, alternatively, as pleaded, was untenable.
The principle was stated by O'Connor J in Burton v Shire of Bairnsdale (1908) 7 CLR 76 at 92, where His Honour said –
"Prima facie every litigant has a right to have matters of law as well of as fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed."
Quoted with approval by Dixon J in Dey v Victorian Railways Commissioners (1948) 78 CLR 62 at 91.
Although this is an application to strike out a defence as being untenable, the principles stated by O'Connor J are apposite. This is especially so bearing in mind that the defendants have the burden of establishing their plea of justification.
See also General Steel Industries Inc v Commissioners for Railways (NSW) (1964) 112 CLR 125 at 129.
There is no doubt that a court must proceed with great care on an application such as the present and, in my view, the plaintiffs should not succeed unless they establish that the defence is hopeless. That is not established, if it appears that there is a real question to be determined, whether of fact or law, and that the rights of the parties depend upon it. See Dixon J, op cit, at p.91.
Ms G.L. Schoff of Counsel for the plaintiffs, submitted that the defence indeed was hopeless. In support of the general proposition, it was submitted that the defence should be struck out because -
(a)the pleaded imputation is not defamatory of the plaintiffs or any of them; alternatively,
(b)the paragraph raises a false issue.
The pleaded imputation by the defendants is –
"That Mr Bell or alternatively Southern Cross applied financial pressure to the former owners of 3AK in order to induce them to agree not to compete in the talk format market."
It is submitted by Mr Dreyfus QC, who appeared with Mr Gilbertson for the defendants, that the words were capable of that defamatory imputation and the defendants were entitled to prove the truth of that imputation.
Ms Schoff accepted that the words did convey that imputation. Her point is that the imputation is not defamatory. This involves the Court in applying another test.
Neither counsel submitted that it was not open to a defendant in this State to plead, what is known as, a Polly Peck defence.
It has been the practice and procedure in this State, since at least the mid 1960s, for a plaintiff to plead the defamatory imputations based upon the natural and ordinary meaning of the words. This is known as the false or popular innuendo, and is to be contrasted with the true or legal innuendo, which always had to be pleaded in the past, together with the facts relied upon.
The form of the defamatory imputations was invariably the product of the pleader, and different minds would understand the words differently, and the defamatory imputations found therein. Hence, there was always some room for debate.
It was recognised by the authorities going back over many years, that because different minds would construe words differently, the question of the meaning of the words and whether they were defamatory, were questions of fact for the tribunal of fact and in the absence of a true innuendo, the parties could not call any evidence on those two questions.
At trial, counsel for the opposing parties would submit to the tribunal of fact, what the words meant and whether they were defamatory in that meaning. The tribunal of fact then had to make its decision as to the meaning of the words and whether they were defamatory. Because they were questions of fact and, more importantly, because different minds may construe the words differently and determine a different defamatory sting, it was not open, in a jury trial, to require a jury to determine whether the words were defamatory in the meanings attributed to the words by the plaintiff's pleaded imputations. See Barclay v Cox, supra, at p.666.
In addition, it has always been recognised that the ordinary person in the street does not consider what he has seen or heard in the same way as a lawyer may, and is more prone to read between the lines and infer some wrongdoing.
As Lord Reid said in Rubber Improvement Ltd v Daily Telegraph Ltd (1964) AC 234 at 259 –
"Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question."
His Lordship said at p.258 –
"The ordinary man does not live in an ivory tower and is not inhibited by a 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 worldly affairs … What the ordinary man would infer without special knowledge has generally been called a natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as whether the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning." See also Jones v Skelton (1963) 63 SR(NSW) 644 at 650.
The tribunal of fact is left to make the decisions as to what the words mean and whether they are defamatory. Although in a trial, the tribunal of fact would be directed to consider the imputations relied upon by the plaintiff, practice shows that during a trial, various submissions are put as to the true meanings of the words and whether they do convey the defamatory imputations relied upon by the plaintiff, or some variation thereof. Ultimately, all those matters are for the tribunal of fact.
A defendant never pleads justification without careful consideration. He should not do so, unless he believes that he will have sufficient evidence at trial to prove the defence. One factor which ensures careful consideration is that if the plea of justification fails, the plaintiff is entitled to rely upon that fact in aggravation of damages. See Herald v McGregor (1929) 41 CLR 254 and Broome v Castle [1972] AC 1027 at 1125.
Often, when a defendant is confronted with the pleaded defamatory imputations, he is placed in a dilemma. He and his advisers disagree with the alleged defamatory imputations. Sometimes the defendant, in such circumstances, wishes to put his imputations, and having performed that exercise, wishes to justify the words.
The right of the defendant to plead, in effect, his own version and justify it was established in the English Court of Appeal decision of Polly Peck (Holdings) PLC v Trelford [1986] QB 1000.
The case established two bases for the plea of justification. The first concerned the situation where it was the contention of the defendant that there was a common sting in the defamatory meanings, and the defendant was permitted to plead the common sting and justify it. This Polly Peck form of defence was recognised in Khashoggi v I.P.C. Magazines (1986) 1 WLR 1412 at 1417.
The other form of the defence is where the plaintiff alleges a number of defamatory meanings, and the defendant asserts that the words convey a different defamatory meaning and pleads justification in respect of that meaning. See the Polly Peck decision, supra, at p.1032.
The Polly Peck defences are now well established law in England.
Doubt has been raised as to whether the Polly Peck-type defences are part of the common law of Australia. I refer to the joint judgment of Brennan CJ and McHugh J in Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519.
However, the Court of Appeal in David Syme and Co Ltd v Hore-Lacey (2000) 1 VR 667, held that in certain circumstances, such a defence was appropriate. I do not propose to add to the considerable discussions as to the Polly Peck defences. I respectfully agree with the Court of Appeal decision, although I query whether the defence should be limited to an imputation that is less injurious than those relied upon by the plaintiff.
I have some difficulty accepting the reasoning of Brennan CJ and McHugh J, because the Polly Peck defences ensure that the defendant is given an opportunity to justify a meaning which may be found by the tribunal of fact, consistent with the way the plaintiff has pleaded and sought to prove his case.
What the words mean and whether they are defamatory are questions of fact for the tribunal of fact. Whether or not the words are capable of being defamatory of the plaintiff is a question of law. See Jones v Skelton, supra, at p.650. In other words, whether or not there was a case to go to the jury.
The test has been described by Hunt CJ at C.L. Amalgamated Television v Marsden (1998) 43 NSWLR 158 at 164 as follows –
"In both cases, however, their Lordships have described the task itself as one of deciding whether it is or was open to the jury in the particular case to find that ordinary reasonable readers (or listeners or viewers) would have understood the matter complained of in the defamatory sense pleaded."
His Honour's comments are to be understood in the New South Wales context, but can be adapted to a common law situation by adding the words "or in a similar sense". In Jones v Skelton [1963] 1 WLR 1362 at 1370‑1, the Privy Council said –
" … whether words which are complained of are capable of conveying a defamatory meaning is a question of law. It is the ordinary and natural meaning of the words."
As I have already stated, Ms Schoff does not deny that the words convey the imputation pleaded by the defendants. The question is whether it would be open to the jury to find that the words were defamatory in that meaning.
What is meant by defamatory?
Various tests have been applied in the authorities. There is a convenient summary of them in the decision of Neill LJ in Berkoff v Burchill (1996) 4 All ER 1008 at 1011.
The test more often used in this State is what was stated by Lord Atkin in Sim v Stretch (1936) 2 All ER 1237 at 1240, namely –
"Would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?"
In answering that question, one must place oneself in the shoes of the reasonable listener, who is intelligent, and endowed with common sense and the usual general knowledge of the reasonable person, and ask whether he, after hearing was what said, taking into account the context and all reasonable facts known to him, would think less of the plaintiff.
In Berkoff's case, Neill LJ at p.1013, after referring to a number of definitions, said this –
"It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society. On the other hand, insults which do not diminish a man's standing among other people do not found an action for libel or slander. The exact borderline may often be difficult to define."
Ms Schoff submits that to assert of a businessman or a trading corporation that it applied financial pressure to a competitor to, in effect, stifle competition, hardly defames the party applying the pressure. She submitted that it would be necessary to show that the financial pressure was unlawful or, in some way, wrongful.
What is important is to consider the reasonable listener, his understanding and general knowledge, the fact that the words were spoken and not in permanent form, which requires some degree of latitude, and the fact that the reasonable listener is likely to indulge some loose thinking.
In considering whether the words are defamatory in the sense put forward by the defendants, it is necessary to consider the context. A summary of the law as to whether the pleaded imputation is capable of being conveyed by the broadcast, was compiled by Hunt CJ at C.L. in Amalgamated Television Services Pty Ltd v Marsdon, supra, at pp.165-66. His Honour said –
"The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter ,or what is implied by that matter, or what is inferred from it: Jones v Skelton (at 650; 1065). In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable (Defamation Act, s.7A, reflecting the common law: Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 745; Lewis v Daily Telegraph Ltd [1964] AC 234 at 259, 266; Jones v Skelton (at 650; 1065); Farquhar v Bottom (at 385); Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 302), and any strained or forced or utterly unreasonable interpretation must be rejected: Jones v Skelton (at 650; 1065). The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence (Slatyer v Faily Telegraph Newspaper Co Ltd (19807) 6 CLR 1 at 7), who is neither perverse (ibid at 7), nor morbid or suspicious of mind (Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577 at 586), nor avid for scandal: Lewis v Daily Telegraph Ltd (at 260). That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; Lang v Australian Consolidated Press LTd [1970] 2 NSWR 408 at 412; Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 340.
The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed: Capital and Counties Bank Ltd v George Henty & Sons (at 744, 771); English and Scottish Co‑operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440 at 452‑453. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book Morgan v Odhams Press Ltd (at 1254, 1269)), and the less the degree of accuracy which would be expected by the reader: ibid at 1270; Steele v Mirror Newspapers Ltd (at 373). The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd (at 1245); Steele v Mirror Newspapers Ltd (at 373); Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641; Parker v John Fairfax & Sons Ltd (at 8). There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374. The principles stated in these last two paragraphs – as encapsulated in Farquhar v Bottom (at 385-386) – have been adopted in this Court: see, eg, John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 719; Crampton v Nugawela (1996) 41 NSWLR 176.
All of these considerations, and more, apply to matter published in a transient form – and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to re‑read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity: Gorton v Australian Boradcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article (Morosi v Boradcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420), and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material: Gordon v Amalgamated television Services Pty Ltd [1980] 2 NSWLR 410 at 413.
The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case: Brown v Australian Broadcasting Corporation (at 12-13.)"
If there is any doubt as to whether or not the words were capable of being defamatory of the plaintiff, then the doubt must be resolved by leaving the matter for the jury. It is only in a clear case that the Court would conclude that the defamatory meaning was not open – see Jones v Skelton, supra, at p.1370.
In determining the issue, as I have stated, the context is important.
It is pertinent to observe that some of the plaintiffs' imputations are similar to the defendants' imputations, save and except that the plaintiffs have pleaded that the words, in their ordinary and natural meaning, impute unlawful conduct on the part of the plaintiffs. Ms Schoff submits that it is the failure to allege some impropriety, which means that the words are not capable of being defamatory.
In my opinion, the pleaded imputation is not capable of being defamatory. To suggest of a businessman or a company that it has used financial muscle to gain an advantage in business circumstances where there is no suggestion of dishonesty, unlawfulness, wrongdoing or lack of ethics, would not lower the perpetrator in the eyes of right thinking people generally.
There is no suggestion of any form of impropriety by any of the plaintiffs. The imputation, as pleaded, is not capable of defaming any of the plaintiffs. The pleading raises a false issue and should be struck out.
Defendants' Summons
The defendants contend that the imputations pleaded by the plaintiffs are not open and accordingly, should be struck out. The test stated above that a pleading will only be struck out when it is clear, beyond doubt, that the claim is untenable, applies. Are the imputations open on the first words and are they, or any of them, capable of defaming any of the plaintiffs?
The first submission is that the pleaded imputations refer to the "plaintiffs" without distinguishing between them and it is submitted, in particular, that the words could not possibly defame the first plaintiff, Mr Bell.
In considering this submission, it is important to take into account that the plaintiffs propose to call evidence on the question of identification. It is pleaded, and, one assumes, will be proven, that Mr Bell, at all relevant times, was managing director of the company which owned radio station 3AW.
Mr Bell is referred to in the words complained of. On the assumption that some of the listeners would know that he was managing director of the company, the assertion being that the owners were responsible for the alleged wrongful acts, in my opinion, it is reasonably open to a jury to conclude that the defamatory sting involves conduct by the managing director. In this regard, one cannot overlook the context and secondly, that the reasonable listener would be more prepared to read between the lines than a lawyer.
I reject this submission.
It is convenient to consider imputations 7(a) and (b) together. It is submitted that there is nothing in the words complained of to suggest that the plaintiffs, or any of them, were acting unlawfully. It was submitted that it would not be unlawful under the Broadcasting Services Act, which gave jurisdiction to the Australian Broadcasting Tribunal or Authority, to suggest that bringing financial pressure on a competitor would be unlawful conduct.
But in considering this issue again, it must be tested by considering what the reasonable listener might reasonably conclude, as a result of hearing the words. The words refer to ruthless and manipulative conduct by the owners of 3AW, that they were using bully‑boy tactics in respect of 3AK, that they were using their financial position to stop competition in the talk format market, and that the Australian broadcasting authorities would love to see some of the correspondence.
In my view, it would be open to the reasonable listener to infer that what the plaintiffs were doing was unlawful. It is not a question whether the conduct is unlawful, but whether the reasonable listener would think it was.
For the same reasons, in my view, particulars 7(c) and 7(e) are reasonably capable of being inferred by the reasonable listener.
That brings me to paragraph 7(d) and, in my opinion, the words are not reasonably capable of inferring that some breach of the Broadcasting Services Act had occurred, because 3AW had not obtained the approval of the Australian Broadcasting Authority. In my opinion, paragraph 7(d) should be struck out.
The defendants asserted that the particulars of identification under paragraph 7 were embarrassing and should be struck out.
The particulars of identification were stated as follows –
"The plaintiff refers to and repeats the matters alleged in paragraphs 1, 2 and 3 hereof."
Those paragraphs refer to the first plaintiff, Mr Bell's position, and the ownership of the station 3AW and the licensee. In my view, the particulars could not in any way embarrass the trial. All that the particulars are doing is giving notice to the defendants that those facts will be relied upon to establish identification. Whether or not the facts will, in the end, establish identification, is another matter, but on no view could it be said that the particulars are embarrassing.
The defendants also submitted that particular 9(vii) was incorrect. With the correction, this is no longer so.
Finally, the defendants have submitted that in respect to the second broadcast, the first imputation is not arguably defamatory. The first imputation is, in the normal and natural meanings of the words –
"(a)that the first plaintiff was loathed and feared by his staff;"
In considering this particular, it is necessary to consider the second imputation, which is that "the first plaintiff bullied his employees". There is no doubt that the words did convey the second imputation and arguably, the words are defamatory. The first imputation is the effect of the alleged conduct by the first plaintiff. In my opinion, what is asserted is a conclusion, an expression of opinion. But when stated without any facts being given, it becomes fact. In my view, the words are capable of being defamatory in their context. The reasonable listener does not know the facts, but on hearing the statement, may infer the worst of Mr Bell.
The defendants' counsel relied upon the decision of Hunt J in Boyd v Mirror Newspapers [1980] 2 NSWLR 449. In that case, the plaintiff, who was a well-known rugby league football player, complained that the defendant newspaper published an article in which he was described as – "Boyd is fat, slow and predictable". At p.456, His Honour said –
"On his behalf, the analogy is drawn of a ballerina who is described as being fat and cumbersome. Although perhaps incongruous, the analogy is apt. But I do not see how, in either case, the description is defamatory unless that condition is shown or suggested to have resulted from some cause for which the plaintiff is blameworthy: Henderson v Thompson. There is nothing in the description of being fat and slow, even where the object being described is a first grade rugby league footballer, which would tend to make people shun or avoid him; nor is it, alone, capable of displaying him in a ridiculous light. To amount to defamation at common law, therefore, the imputation must be disparaging of the plaintiff personally, and without some suggestion of blameworthiness on his part I am unable to see how this imputation can be said to be so disparaging."
His Honour struck out the imputation. I must say that I have some difficulty in accepting that conclusion. To attack a person in the way of his profession, and to suggest that he is no longer capable of carrying out that profession in a proper manner, in my view, tends to lower him in the estimation of right thinking people.
The imputation in the present matter is slightly different. It is an assertion that he is shunned and loathed by his staff. Indeed, that is what the words complained of convey.
When read in context, in my view, it is open to a jury that the words do defame Mr Bell, because there is an allegation that he bullied his staff, and given the context, in my view, it is arguably defamatory. It may be that the imputation does not add much to the other imputation, but in my view, when in doubt, the imputation should not be struck out.
Conclusion
Subject to any submissions by counsel, I propose to make the following orders on the plaintiffs' summons filed 2 November 2001 –
(i)That paragraph 9A of the amended defence be struck out pursuant to Rule 23.02;
(ii)that paragraph 1 of the Order made by the Hon. Justice Gillard on 19 October 2001 be varied by deleting the words "and concerning the provision of free news services by 3AW to 3AK";
(iii)that the defendants pay the plaintiffs' costs of the application.
I made the order on 19 October 2001 on the basis that the documents to be discovered were relevant to the issue raised by paragraph 9A. It follows that the order must be vacated.
Subject to submissions by counsel, I propose to make the following orders on the defendants' summons filed 5 November 2001 –
(i)That paragraph 7(d) of the amended statement of claim be struck out pursuant to Rule 23.02 of the Rules of Court;
(ii)that otherwise the summons be dismissed.
I will hear the parties on the question of costs in respect to the defendants' summons.
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