Brisbane TV Ltd, Adams and Butler v Wells

[1996] QCA 295

IN THE COURT OF APPEAL	[1996] QCA 295
SUPREME COURT OF QUEENSLAND

Appeal No. 52 of 1995

Brisbane

[Brisbane T.V. Ltd. & Ors. v. Wells ]

BETWEEN:

BRISBANE T.V. LTD. ACN 009 684 020 and
CHRISTOPHER ADAMS and

ROBERT BUTLER

(Defendants) Appellants

AND:

DEAN MacMILLAN WELLS

(Plaintiff) Respondent

Davies J.A.
McPherson J.A.

Fryberg J.

Judgment delivered 27 August 1996

Judgment of the Court

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	CIVIL - actions for defamation - application to strike out paragraphs of statement of claim defamation - statements amounting to defamation - defamation of a class of persons - identification of respondent - mode of publication.
Counsel:	Mr. J. Sheahan for the appellants Mr. R. Mulholland Q.C., with him Mr. D. Boddice for the respondent
Solicitors:	Freehill Hollingdale & Page for the appellants Goss Downey Carne for the respondent
Hearing Date:	7 August 1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 52 of 1995

Brisbane

Before Davies J.A.
McPherson J.A.
Fryberg J.

[Brisbane T.V. Ltd. & Ors. v. Wells ]

BETWEEN:

BRISBANE T.V. LTD. ACN 009 684 020 and
CHRISTOPHER ADAMS and

ROBERT BUTLER

(Defendants) Appellants

AND:

DEAN MacMILLAN WELLS

(Plaintiff) Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered the 27th day of August 1996

This is an appeal from a decision of a Judge of the Supreme Court declining to strike out three

paragraphs of the respondent's statement of claim in a defamation action. The defamatory material of

which the respondent complains falls into two broad categories. Both concern allegations that the

respondent claims were made of him in a Channel Seven current affairs programme in late 1994.

The first concerns allegations that the respondent was involved in an improper cover-up of an

allegedly corrupt former police officer, John Huey. This matter, which formed about 90% of the

programme, and in which the respondent features prominently, is not the subject of this appeal. The second, which is the subject of this appeal, concerns allegations that a former CJC investigator had been

instructed to report on and write-off paedophile activity in this State, allegedly on the basis that certain

people in positions of power were involved in paedophile activity and in corrupt protection of

paedophiles. This matter formed about 10% of the programme and was the final segment of it. The

appellants, in their application to strike out these paragraphs, submit that the material in them is not

reasonably capable of bearing an implication defamatory of the respondent in that the respondent was

not capable of being identified as one of the persons referred to in it.

The jurisdiction to strike out paragraphs of a statement of claim is to be exercised sparingly and

only when it is clearly demonstrated that the material in question is incapable of sustaining the inference

for which the plaintiff contends: General Steel Industries Inc. v. Commissioner for Railways (N.S.W.)

& Ors. (1964) 112 C.L.R. 125. Thus, the appellants must establish that the defamatory material

complained of in those paragraphs of the statement of claim clearly could not, as a matter of law, be

capable of referring to the respondent.

At the outset, it must be noted that the material the subject of this appeal, did not refer expressly

to the respondent. Indeed, it did not expressly refer to anyone. The respondent's complaint is that he

is impliedly identified. In determining whether a person is identifiable as the subject of defamatory

comment, regard can be had to all the circumstances, which, in this context, includes the broad

impression conveyed by the programme, the visual and subsidiary aural effects and its general structure

or layout: Lewis v. Daily Telegraph Ltd. [1964] A.C. 234 at 285.

The appellants concede that the material complained of is defamatory of the "people in positions

of power within the State" to whom reference is made. The questions are whether the persons so

defamed constitute an identifiable class and, if so, whether the respondent is capable of identification
as a member of that class.

The appellants submitted that the class of persons to which the final segment of the programme

referred, was all of the people mentioned in the Huey segment who also occupied positions of power

in Queensland. The appellants then referred to the fact that whether any particular member of a class

of defamed persons can take action in respect of it depends on whether that member is either especially

identifiable or whether each member of the class is identified as being the subject of the allegations:

David Syme v. Canavan (1918) 25 C.L.R. 234; Bjelke-Petersen v. Warburton [1987] 2 Qd.R. 465;

Knupffer v. London Express [1944] A.C. 116. As the respondent is not especially identifiable in this

part of the programme, the question is whether an ordinary viewer would be able to infer that each

member of the class is the subject of the allegations. Of course, the smaller the class, the more

particular the imputation and the less extravagant the accusation involved, the more likely it is that an

ordinary viewer would be capable of inferring that each member was intended to be referred to:

Knupffer v. London Express Newspapers. It was submitted that with such a large class, an ordinary

viewer would be unable to infer that all of these people were intended to be referred to as being

involved in paedophile activity and in protecting paedophiles.

Even if the class of persons properly to be included in the allegations was as wide as contended

by the appellants, we would not necessarily be prepared to hold that a jury would be incapable of

finding that each member was intended to be included in it; though not small, it is a restricted and finite

group of persons, the allegation is reasonably specific and, though serious, is not particularly extravagant

if one considers that the prevalence of child abuse in our society is public knowledge.

However, in our opinion, the class of persons included in the paedophilia allegations is much more limited. The words used to describe the people involved in the paedophilia segment of the programme were as follows: "extremely influential people", "people in positions of power within the

State" and, arguably, "Government Ministers".

The appellants submitted that the reference to "Government Ministers" was not referable to this

part of the programme. The circumstances in which Government Ministers were referred to are as

follows. At the close of the programme, and just after the segment dealing with the paedophilia

allegations, the presenter referred to the fact that "Government Ministers are amongst senior people who

should give evidence" regarding "the Channel Seven allegations". In our opinion, and contrary to the

appellants' submissions, the phrase "the Channel Seven allegations" is capable of being considered by

the ordinary viewer as referring to that part of the programme which concerns the paedophilia

allegations as well as the Huey allegations. To say that an ordinary viewer would be able to conclude

that this phrase referred to the Huey allegations only, simply because the first reference to "the Channel

Seven allegations" occurred in the Huey segment and therefore was only referable to it, requires an

artificial analysis of the programme which cannot be warranted in a case such as this where an

understanding of the programme depends only on initial impressions.

The class which we have thus far identified, was narrowed further, in our opinion, by the display

of photos of "extremely influential people", "people in positions of power in the State" and "Government

Ministers". A photoboard of the main personalities in the programme appeared as a background in an

introductory segment which referred to both the Huey allegations and the paedophilia allegations. The

appellants submitted that this photoboard was intended to refer to the Huey segment of the programme

only. However, in our view, it is not made clear at this point, nor at any other point of the programme,

that this is so. There was no attempt at any stage to dissociate the photoboard from the paedophilia

segment of the programme. The respondent's photo, as well as that of other influential people, appears on this board. Throughout the Huey segment, individual photos from the board, including the

respondent's, are shown, though the board itself is not shown. At the end of the programme, which was

very shortly after the paedophilia segment, certain of the photos which appeared on the photoboard at

the beginning of the programme, are shown individually again. The respondent's photo is one of them.

In our opinion, the photos were deliberately used as a connecting mechanism throughout the

programme. Indeed, the presenter invited the viewers to refer to them in order to "help keep track of

the events and the players". It seems to us that these factors were intended to and would colour an

ordinary viewer's impression such that he or she might think that the persons shown in the photos, who

also occupied positions of power, were somehow connected with that part of the programme dealing

with paedophile activity.

Thus, the class of persons to whom the paedophilia allegations are capable of referring are those

extremely influential people in positions of power in the State identified by photograph in the

programme, and arguably only those who are Government Ministers. On either view they include the

respondent. In our opinion, "reasonable persons of ordinary intelligence, drawing on their own

knowledge and experience of human affairs and perhaps reading between the lines in light of their

general knowledge and experience could conclude that the defamatory material" was intended to refer

to each of these persons: Copley v. Queensland Newspapers (C.A. No.179 of 1992, judgment

delivered 22 February 1993, unreported).

The appellants submitted that, even if this were the class, the paragraphs of the statement of

claim in question should nevertheless be struck out. He urged the Court to accept the test as stated by

Lord Bridge of Harwich in Charleston v. News Group Newspapers Ltd. [1995] 2 A.C. 65 at 71 that,

in deciding whether words are defamatory, one must determine "the single meaning which the publication

conveys to the notional reasonable" viewer. This passage, the appellants submitted, means that the jury

must be able rationally to conclude that the true meaning of the broadcast is the meaning which the

plaintiff asserts. In our opinion, this test is concerned with whether material is actually defamatory; not

with determining the present question, namely, whether material which is undeniably defamatory in

nature, is capable of referring to the respondent. This Court decided the test to apply in answering that

question in Copley.

For that reason it is unnecessary to consider whether Lord Bridge's analysis should be accepted

it its entirety: in particular whether a jury may be invited to infer that there is more than one meaning,

only one or some of which is or are defamatory, which reasonable readers may give to a publication and

to find the publication to be defamatory on the basis of one such defamatory meaning.

In our opinion, for the reasons stated above, the material in question was capable of referring

to the respondent. The appeal should be dismissed with costs.