Burke v Shiells (Ruling No 1)
[2018] VCC 1095
•23 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-16-02440
| GAVIN PATRICK BURKE | Plaintiff |
| v | |
| GRAEME FRANCIS SHIELLS | First Defendant |
| and | |
| SANDRA JOY SHIELLS | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 and 19 July 2018 | |
DATE OF RULING: | 23 July 2018 | |
CASE MAY BE CITED AS: | Burke v Shiells & Anor (Ruling No 1) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1095 | |
RULING
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Subject: DEFAMATION
Catchwords: Damages – aggravated damages – plaintiff seeks permanent injunction against defendants in respect of three publications which he alleges are defamatory of him – whether alleged imputation were capable of arising out of the published material.
Cases Cited:Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 165; Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Farquhar v Bottom & Anor [1980] 2 NSWLR 380; Gant v The Age Co Ltd & Ors [2011] VSC 169; David Syme & Co Ltd & Anor v Hore-Lacy [2000] VSCA 24; Trkulja v Google LLC [2018] HCA 25
Ruling: The plaintiff’s Statement of Claim should be amended.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Garrett | Gleeson & Co Lawyers |
| For the Defendants | Mr G Mukherji | Cosgriff Lawyers |
HIS HONOUR:
1 In this matter, the plaintiff seeks damages, including aggravated damages, and a permanent injunction against the defendants in respect of three publications which he alleges are defamatory of him. In his Amended Statement of Claim, the plaintiff sets out particulars of those three publications:
·Firstly, an email to the editor of The Riverine Herald (“TRH”) allegedly sent by the defendants under the name “Susan Williams” (“the Susan Williams email”);
·Secondly, an email to the editor of TRH allegedly sent by the defendants under the name “Samuel West” (“the Samuel West email”); and
·Thirdly, an email sent to the editor of TRH allegedly sent by the defendants under the name “Shaun Williams” (“the Shaun Williams email”).
2 The Susan Williams email and the Samuel West email contained a proposed letter to the editor which were published as letters to the editor in TRH on 23 March 2012 and republished to the New South Wales Department of Planning in about March 2015.
3 The Shaun Williams email contained a proposed letter to the editor which was published in TRH on 1 August 2012.
4 In paragraphs 11, 12 and 13 of the Statement of Claim, the plaintiff pleads imputations arising, respectively, from the Susan Williams email, the Samuel West email and the Shaun Williams email.
5 The defendants submit that each of the imputations alleged in those paragraphs are not capable of arising from the subject email.
6 Having heard some evidence from the plaintiff, I determined that issues relating to whether the imputations alleged could arise out of the emails in question should be heard as a preliminary issue and before further evidence was led.
7 I heard submissions by counsel for the parties on 18 and 19 July 2018.
8 The three email messages in question are annexed to this Ruling as Annexures A, B, and C respectively.
9 It is alleged that fifteen imputations arise from the three emails. Each imputation is said to arise from the natural and ordinary meaning of the text of the emails.
10 The relevant principles of law are:
(a) The ordinary meaning of the matter complained of may either be the literal meaning of the published matter, or what is inferred from it;
(b) In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable, and any strained or forced or utterly unreasonable interpretation must be rejected;
(c) The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal;
(d) 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.[1]
(e) The ordinary person is a layman, not a lawyer. He or she approaches perception of the matter complained of in an undisciplined way and with a greater willingness to draw inferences and to read between the lines than a lawyer might do.
[1]Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 165 at 165-167
11 In Hockey v Fairfax Media Publications Pty Ltd,[2] White J said:
“The ordinary reasonable reader does not look at the matter complained of in isolation but rather in the whole context in which it is published … The context includes all the surrounding circumstances.
The ordinary reasonable person is taken to have read the whole of a newspaper article and not just the headline or the particular portions of which complaint is made. … .”[3]
[2](2015) 237 FCR 33
[3]Hockey v Fairfax Media Publications Pty Ltd (supra) at paragraph [66]
12 The task for the trial judge is one of deciding whether the ordinary reasonable reader (or listener or viewer) would have understood the matter complained of in the defamatory sense pleaded.[4]
[4]Amalgamated Television Services Pty Ltd v Marsden (supra) at 164
13 If the situation is one where reasonable persons may differ as to the conclusion to be drawn, the issue must be left to the finder of fact and, in the absence of a jury, to the Court.[5]
[5](Supra) at 164
14 The recipient of such publication has been variously described as a “reasonable reader”, a “right-thinking member of society”, or an “ordinary man, not avid for scandal” and a “reader of average intelligence”. Special knowledge is excluded. So are extremes of suspicion and cynicism or naïvety or disbelief. The basic question which is posed is whether the matter complained of, understood in its natural and ordinary meaning, would tend to lower the subject in the estimate of such an evocation of the ordinary, reasonable, member of society.[6]
[6]Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at paragraph [134]
15 Where 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. That is the price which publishers must pay for the use of loose language.[7]
[7](Supra) at paragraph [134]
16 It would not be necessary for a reader to look at the whole article before drawing inferences adverse to the reputation of another. Many people do not look beyond headlines and photographs.
17 The ordinary reader is likely to draw conclusions from general impressions. He or she will not re-read or review the matter complained of.Such a reader will tend to be specially influenced by headlines, bylines, graphics and the other techniques by which the mass media seek to communicate their principal messages to a mass audience.
18 The issue as to whether the matter complained of is capable of conveying the imputations alleged to the ordinary, reasonable reader, is a question of law.[8] The defamatory capacity of the imputations must be determined as a separate question.
[8]Farquhar v Bottom & Anor [1980] 2 NSWLR 380 at 385
19 In Farquhar,[9] Hunt J said:
[9]Farquhar v Bottom & Anor (supra)
“In deciding whether the matter complained of is capable of
conveying to the ordinary reasonable reader the imputations relied upon
by the plaintiff, I must be guided and directed by the test of
reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation. … I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average
intelligence … who is neither perverse: ibid; nor morbid or suspicious of mind … nor avid for scandal. … .[He] does not live in an ivory tower; and that he can, and does, read between the lines … .”[10]
(My emphases.)
[10]Farquhar v Bottom & Anor (supra) at 385-386 (citations omitted); Gant v The Age Co Ltd & Ors [2011] VSC 169 at paragraphs [37]-[39]
20 In Gant,[11] Beach J said that the issue of whether an imputation has been properly pleaded is to be determined as a matter of practical justice, and the following propositions emerged from the authorities:
[11]ibid
(a) Distinct meanings should be pleaded – and the test for distinctiveness is whether the evidence required to justify each meaning would be substantially different;
(b) Secondly, distinct meanings should be distinctly pleaded – because of the potential for a rolled-up plea to cause confusion;
(c) Thirdly, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or of which the plaintiff is charged;
(d) Fourthly, an imputation should represent the final distillation of the alleged defamatory meaning.[12]
[12]Gant v The Age Co Ltd & Ors (supra) at paragraph [40]
21 While the imputations alleged by the plaintiff are, no doubt, important, neither the judge nor the jury (if that be the case), are confined to the meanings asserted by either the plaintiff or the defendant. The plaintiff may still succeed on a meaning or imputation of the publication which has not been put forward by either of the parties.[13]
[13]David Syme & Co Ltd & Anor v Hore-Lacy [2000] VSCA 24 at paragraphs [2], [21-24], [46], [63]
22 A plaintiff in a defamation action may take advantage of any meaning of a publication which is fairly open. That is the case even if the finder of fact were inclined to disagree with that meaning. The English language has never been precise, in that there are so many synonyms and variants for every word and phrase, and looseness of expression, to the extent of permissiveness, has been recently encouraged by both educators and lexicographers. The plaintiff ought to be kept within the broad confines of his present pleadings, although the finder of fact/jury should be able to work out the precise imputations for themselves, while the defendants will be able to say that the articles have a not more serious and not substantially different meaning which they are able to justify on the facts, if they wish to do so.
23 As recently described in Trkulja v Google LLC,[14] the High Court said:
“… 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; 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. He or she may be taken to ‘read between the lines in the light of his general knowledge and experience of worldly affairs’, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, ‘[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’.”[15]
[14][2018] HCA 25
[15]Trkulja v Google LLC (supra) at paragraph [32]
The imputations pleaded
24 The Susan Williams email and the Samuel West email appear at page 11F of the Court Book. The Shaun Williams email appears at page 11G of the Court Book.
The Susan Williams email
Paragraph 11(c)
25 The pleaded imputation is that the plaintiff has repeatedly made unjustified complaints in the press and other public forums regarding issues affecting residents and local government in the Echuca-Moama region and/or in the Shire of Murray.
26 The email plainly refers to the plaintiff being a “serial pest and constant complainer” with “one sided and selective points of view”.
27 The point in issue here is whether the imputation that his complaints have been unjustified arises from the email.
28 I consider that the ordinary reader could conclude from the email that the plaintiff’s complaints were unjustified.
29 Plainly, the author does not support or agree with the plaintiff’s complaints and considers them to be unreasonable and unjustifiable. If the author considered the plaintiff’s complaints to be justified, the email would hardly have been worded this way.
30 A person who is critical about complaints made by another person is hardly likely to consider those complaints to be justified. The very fact that the complaints are the subject of criticism would, in my view, lead the ordinary reader to conclude that the complaints were unjustified.
31 I consider that the ordinary man, without any strained, forced or unreasonable interpretation, would understand the email as referring to unjustified complaints in public forums regarding Shire issues.
32 I consider that this imputation is capable of arising from the email.
Paragraph 11(d)
33 On the same basis, I consider that the ordinary man would understand the email as conveying that the complaints made by the plaintiff were uninformed and mistaken about the complaints he raises.
34 Again, I consider that the ordinary reader would hardly conclude that the author would be critical of the plaintiff’s complaints if those complaints were justifiable.
35 I consider that this imputation is capable of arising from the email.
The Samuel West Email
Paragraph 12(a)
36 The imputation here is that the plaintiff had repeatedly made “unjustified complaints” regarding Shire issues.
37 For essentially the same reasons relating to Paragraphs 11(c) and (d) I consider that the ordinary reader would conclude from the email that the plaintiff’s complaints were unjustified as opposed to justified.
38 The subject matter of the complaints is not specified expressly. But the reference earlier to the beautiful area and township, and the suggestion that the plaintiff leave the Shire would, I consider, lead the ordinary reader to conclude that the complaints related in some way to that area and/or township.
39 I consider that this imputation is capable of arising from the email.
Paragraphs 12(b) and (c)
40 The imputation is that the plaintiff is motivated:
·by hostility – 12(b); and
·by hatred – 12(c)
in making such complaints.
41 The words “such complaints” is, I consider, a clear reference to the words set out earlier in the email – referring to the plaintiff “doing nothing but criticising and complaining”.
42 The email does not expressly refer to the subject matter of the criticism or complaints. However, an ordinary reader would, I consider, infer that the complaints concern the “area” and “township of Moama” referred to earlier in the email.
43 Even assuming that the ordinary reader would infer that the complaints referred to were alleged to be unjustified, I consider that it is a strain to go further and infer that the complaints are motivated by hostility or hatred of some thing or someone.
44 A complaint about the Shire, the area or the township is more likely, in my view, to be motivated by a desire for improvement rather than hostility towards any person, the Shire, area or town. I consider that there is nothing in the email that would give rise to such imputation.
45 It follows that paragraphs 12(b) and (c) of the Statement of Claim (as amended) should be struck out.
Paragraph 12(e)
46 The email plainly states that the plaintiff has “hostility for all things good”.
47 Counsel for the defendants submits that the statement is nonsensical. I do not agree. I consider that the ordinary man would draw from the statement that the plaintiff was opposed to or was against “good things”. I do not consider that it is straining to suggest that in our society there are many matters or things that are good and others that are bad or undesirable.
48 Here, the author is stating that the plaintiff is hostile to all good things. Whilst at first glance that may appear to be an extraordinary allegation and that the ordinary man would be unlikely to accept, that is not a matter to be determined at this point.
49 I consider that this imputation is capable of arising from the email.
The Shaun Williams Email
Paragraph 13(a)
50 The imputation pleaded is that the plaintiff has made unjustified complaints in public forums in relation to Shire issues.
51 In the email the plaintiff is expressly described as “uninformed” and as a person who “constantly writes to the paper to voice his misguided opinions”.
52 An ordinary reader would, I consider, conclude from the email that the plaintiff, being uninformed and/or misguided, has made unjustified complaints in the paper. The local newspaper is a public forum.
53 I consider that this imputation is capable of arising from the email.
Paragraphs 13(b) and (c)
54 These imputations are that the plaintiff is:
·uninformed about his complaints – 13(b); and
·mistaken about his complaints – 13(c).
55 I consider that the ordinary reader would take from the email that the opinions voiced by the plaintiff in were uninformed and mistaken as the imputations allege.
56 I consider that these imputations are capable of arising from the email.
Paragraph 13(d)
57 The pleaded imputation is that the plaintiff “causes divisions between persons living in the Echuca-Moama region and/or in the Shire of Murray”.
58 I consider that the email plainly alleges that the plaintiff has caused divisions in the community and his neighbourhood.
59 I do not regard the difference between the “plaintiff’s community and neighbourhood” on the one hand and the “Echuca-Moama region and the Shire of Murray” on the other hand, as being substantial or a stronger imputation than that pleaded.
60 In the circumstances, I am satisfied that an ordinary reader could take from the email the imputation as pleaded and the proposed variant to which I have referred.
Paragraph 13(e)
61 The imputation pleaded is that the plaintiff, “if elected as councillor in the Shire of Murray, will not be accountable or transparent in his activities as councillor.”
62 This imputation does not arise from any words in the email. I do not consider that the ordinary reader would take such meaning from the email or that such meaning could be inferred.
63 The email does state that:
·The plaintiff’s letters are not “refreshing”, as is the letter written by John Kenley
·The plaintiff is uninformed and misguided
·The plaintiff writes letters that refer to incorrect facts
·The plaintiff is a constant whinger; and
·The plaintiff has caused divisions in the community and his neighbourhood.
64 In the email the author does pose the question “What about you Mr Burke? Are you going to be transparent about yourself and the divisions you have caused in the community and your neighborhood?”
65 There is, in my view, a substantial difference between asking a person who has indicated an intention to stand for the Shire council in the near future if he intends to be transparent and suggesting that he will not be transparent.
66 I do not accept the submission made by counsel for the plaintiff that the email could be read as suggesting that the plaintiff has not been, or would not be transparent.
67 I consider that the reference to being not accountable and not transparent involves an element of improper or dishonest conduct. These are very different to merely being uninformed, misguided or even negligent or reckless.
68 I do not consider that the ordinary reader would take from the email that the plaintiff, if elected to council, would not be accountable or transparent.
69 It follows that paragraph 13(e) should struck out.
Paragraph 13(f)
70 The imputation pleaded is that the plaintiff, “if elected as councillor in the Shire of Murray, will use that position to cause divisions in relation to council matters”.
71 I do not consider that the ordinary reader could draw such a meaning from the email.
72 Whilst the email does alleged that the plaintiff had caused divisions in the community and neighbourhood, I do not consider it could be understood by an ordinary reader that he would use his position as a councillor to cause such divisions.
73 It follows that paragraph 13(f) should be struck out.
Paragraph 13(g)
74 The imputation pleaded is that the plaintiff is “prepared to make statements in respect of which he is reckless as to whether they are true”.
75 Here, counsel for the plaintiff has referred to the statement in the email that the author is “yet to read one of [the plaintiff’s] letters that actually has the facts correct”. This, I consider, is a reference to incorrect facts in a number of the plaintiff’s statements – and certainly more than one.
76 I consider that the average reader would appreciate that there are many reasons why a person might be mistaken about facts. One would be that he has recklessly or otherwise not researched the facts properly; that he has been negligent in making enquiries; and that he has been provided with inaccurate facts by another. Where it is alleged that incorrect facts were contained in a number of his letters (as opposed to merely one), the ordinary reader is likely to conclude that it reflects at least a degree of recklessness.
77 I consider that the pleaded imputation is one the ordinary reader could take from the email.
Paragraph 13(h)
78 The pleaded imputation is that the plaintiff “is a person unfit to hold public office”.
79 I consider that this means far more than an allegation that the plaintiff may be untalented, stupid, or careless or that there might be better candidates to choose from. Unfitness for public office, in my view, would involve some moral or criminal issue involving the plaintiff. For instance, that he was dishonest, fraudulent or similar.
80 I do not consider that the email could be understood by an ordinary reader that the plaintiff was unfit for public office. Similarly, I do not consider that the email could be understood by an ordinary reader that the plaintiff was not competent to hold public office or that, if elected to office, he would not withstand scrutiny – such being proposed as variants to paragraph 13(h).
81 It follows that paragraph 13(h) should be struck out.
Paragraph 13(i)
82 The pleaded imputation is that the plaintiff “has never made a complaint in public forums which is factually correct”.
83 The author of the email wrote that “I have yet to read one of [the plaintiff’s] letters that actually has the facts correct”.
84 Counsel for the plaintiff submits that the sting to this aspect of the email is that the plaintiff “never gets his facts right”.
85 I consider that the email falls somewhat short of the imputation pleaded but not by a long way. I consider that a permissible variation of the pleaded imputation would be:
“The plaintiff often gets his facts wrong.”
86 This would be a permissible variant - a somewhat lesser allegation but not substantially different.
Conclusion
87 I intend to order that paragraphs 12(b), 12(c), 13(e), 13(f), 13(h) and 13(i) be struck out.
88 With regard to paragraph 13(i), as presently pleaded this paragraph should be struck out but I will permit the variant to which I have referred.
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