Bolkus v Australian Broadcasting Corporation - [2010] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
BOLKUS v AUSTRALIAN BROADCASTING CORPORATION
[2010] SASC 150
Judgment of The Honourable Justice David
28 May 2010
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPROPER CONDUCT
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - INNUENDO - IMPUTATION
Action for defamation by lobbyist (plaintiff) against broadcaster (defendant) - defendant broadcast three radio segments and published two news articles on the internet regarding plaintiff's role as a lobbyist for the South Australian Jockey Club - plaintiff alleged various imputations arose from those publications, including that the plaintiff acted inappropriately or improperly, did not have a valid contract with the South Australian Jockey Club, collected money to which he was not entitled, dealt in a non-transparent way, or was involved in something corrupt - whether imputations as pleaded were conveyed - whether those imputations, if conveyed, were defamatory.
Held: Imputations as pleaded were not conveyed.
Australian Broadcasting Corporation Act 1983 (Cth); Supreme Court Civil Rules 2006 (SA), referred to.
Amalgamated Television Services v Marsden (1998) 43 NSWLR 158; Lane and Hurley v Channel Seven Adelaide Pty Ltd (2008) 101 SASR 141; Lewis v Daily Telegraph Ltd [1964] AC 234; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Reader's Digest Services Proprietary Limited and Another v Lamb (1982) 150 CLR 500, applied.

BOLKUS v AUSTRALIAN BROADCASTING CORPORATION
[2010] SASC 150
Civil:

DAVID J. The plaintiff, Nick Bolkus, alleges that he was defamed by the defendant, the Australian Broadcasting Commission (“the ABC”), in five separate publications.
At the relevant time, Mr Bolkus was a political lobbyist and a former Labor Party Senator. The ABC was a corporation established pursuant to the Australian Broadcasting Corporation Act 1983 (Cth), and a radio broadcaster and publisher of news over the internet. Mr Steven Ploubidis was the Chief Executive Officer of the South Australian Jockey Club (“the SAJC”). It was agreed that Mr Ploubidis was suspended on full pay on 5 December 2008. There is no dispute that his employment was terminated on 20 March 2009.
The five publications Mr Bolkus alleged defamed him are as follows:
·a broadcast on 891 Adelaide local radio morning program at about 8.30 am on 25 March 2009 in which the participants were Matthew Abraham, David Bevan and Bill Spear (“the first publication”);
·a news story broadcast on 891 on 26 March 2009 summarising the first publication (“the second publication”);
·a broadcast on 891 Adelaide local radio morning program at or about 9.30 am on 27 March 2009 in which the participants were Matthew Abraham, David Bevan, Megan Lloyd and Greg Kelton (“the third publication”);
·an ABC News online story entitled, “SAJC Lobbyist Payment Questioned” on 26 March 2009 at 1.14 pm (“the fourth publication”); and
·an ABC News online story entitled, “SAJC ‘not told’ about Bolkus payment” on 26 March 2009 at 8.26 pm (“the fifth publication”).
All of these publications concerned the sale of the Cheltenham Racecourse by the SAJC, Mr Bolkus’ role as a lobbyist in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bolkus v Australian Broadcasting Corporation

Details

AGLC: Bolkus v Australian Broadcasting Corporation [2010] SASC 150
Case: [2010] SASC 150
Decision Date: 28 May 2010

CaseChat Overview and Summary

The case of Bolkus v Australian Broadcasting Corporation involved a defamation claim brought by the plaintiff, a lobbyist, against the defendant, a broadcaster. The plaintiff alleged that the defendant's broadcast of three radio segments and publication of two news articles on the internet defamed him by implying improper conduct in his role as a lobbyist for the South Australian Jockey Club. The plaintiff asserted various imputations from these publications, including allegations of inappropriate actions, lack of a valid contract, collection of unentitled money, non-transparent dealings, and corruption. The central legal issues the court had to address were whether the imputations as pleaded were actually conveyed by the publications and, if so, whether those imputations were defamatory.

The court's approach involved determining if the pleaded imputations were indeed conveyed by the publications, considering the transient nature of the broadcasts and the likely reading habits of the audience. It was established that the imputations in question would need to be perceived by ordinary readers or listeners as defamatory. The court applied the test from Lewis v Daily Telegraph Ltd, which requires considering the most damaging meaning that ordinary people would attribute to the words in question, avoiding the extremes of suspicion or naivety. The court also took into account the transient nature of the media, noting that readers of such publications might engage in looser thinking and expect less accuracy compared to more deliberate forms of reading.

The court concluded that the imputations alleged by the plaintiff were not conveyed by the publications. Specifically, the publications focused on the lack of communication between the CEO and the board, without suggesting that the plaintiff was aware of or involved in the lack of transparency. There was no implication that the plaintiff engaged in questionable business dealings. As such, the imputations as pleaded did not arise from the publications. The court's findings led to the dismissal of the defamation claim.

Orders

Orders of the court

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Background

Background to the litigation

It is to be noted that there is an assertion that an imputation arises by way of true innuendo. I set out para 4 of the statement of claim:4.The Plaintiff asserts that a further imputation arises by way of a true innuendo to the following effect:4.1 the Plaintiff has dealt in a non-transparent way (in the sense of there being no accountability) with the CEO (rather than obtaining authority from the proper organs of the SAJC), which CEO was at the time suspended and has since been dismissed for improper conduct.PARTICULARS OF FACTS AND MATTERS RELIED UPON4.2 The CEO (Ploubidis) was sacked on 20 March 2009.4.3 Prior to his sacking Ploubidis had been suspended from his position as CEO.4.4 The sacking or dismissal of Ploubidis was for alleged improper conduct. I heard argument as to whether I should receive further evidence as to that knowledge set out in para 4 of the statement of claim. I ruled that the fact that Mr Ploubidis was suspended on 5 December 2008 on full pay, and sacked on 20 March 2009, and that the dismissal was for alleged improper conduct, are matters that can be assumed to have been within the knowledge of the listeners and readers of the publications. Accordingly, no evidence was given before me on these matters. CDs of the first three publications were tendered in evidence. Agreed transcripts of the five publications were also tendered in evidence and were referred to in argument.The Law My first task is to decide whether the pleaded imputations arise from each of the broadcasts. If I find that all, or any of them do arise, then I must decide whether those which arise have a defamatory nature. In deciding the first question I adopt the test set out in by Lord Reid in Lewis v Daily Telegraph Ltd:[3]In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. 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 …I am mindful of the fact that three of the publications in the present case are of a transient nature. As stated by Hunt CJ in Amalgamated Television Services v Marsden:[4]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; English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd. 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), and the less the degree of accuracy which would be expected by the reader: Morgan v Odhams Press Ltd; Steele v Mirror Newspapers Ltd. 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; Morgan v Odhams Press Ltd; Steele v Mirror Newspapers Ltd; Mirror Newspapers Ltd v World Hosts Pty Ltd; Parker v John Fairfax & Sons Ltd. 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. The principles stated in these last two paragraphs – as encapsulated in Farquhar v Bottom – have been adopted in this Court: see, eg, John Fairfax & Sons Ltd v Foord; Crampton v Nugawela.All of these considerations, and more, apply to matter published in a transient form – and particularly in the electronic media.[Footnotes omitted.][3] Lewis v Daily Telegraph Ltd [1964] AC 234 at 259.[4] Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165-6.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

DAVID J

Both publications are ABC News online stories of 26 March 2009. In his pleadings Mr Bolkus contends the following:12.The natural and ordinary meaning of each of the two Internet publications pleaded in paragraphs 10 and 11 hereof is:12.1 the Plaintiff is a party to a transaction lacking in transparency and resulting in payment of a substantial sum of money to himself;12.2 the Plaintiff is involved in questionable business dealings.Both publications are concerned about the lack of communication between Mr Ploubidis and the board. There is no suggestion in either publication that Mr Bolkus knew about that lack of transparency and was therefore involved in a transaction lacking in transparency. There is no suggestion that he was involved in questionable business dealings. Similar to the other publications, the concern is with the processes of the SAJC. I find that in relation to those two publications the imputations as pleaded do not arise.Conclusion I find that in each of the publications the imputations alleged in the statement of claim were not conveyed.

Ratio Decidendi

Legal Principle Established

Established by: DAVID J

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