Chapman v Australian Broadcasting Commission
[2005] SADC 50
•19 May 2005
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CHAPMAN v AUSTRALIAN BROADCASTING COMMISSION
Judgment of His Honour Judge Boylan
19 May 2005
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
Appeal from Master's refusal to strike out particulars - whether published words capable of being defamatory
District Court Act Section 43(2); District Court Rules 97.01, referred to.
Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 @ 189, applied.
CHAPMAN v AUSTRALIAN BROADCASTING COMMISSION
[2005] SADC 50
This is an appeal pursuant to Section 43(2) of the District Court Act and Rule 97.01 of the District Court Rules from an order of Master Norman dated the 10th of January 2005. Master Norman’s order was:
“That the defendant’s application to strike out paragraph 9.2 of the plaintiffs’ amended Statement of Claim filed on the 20th of December 2004 be refused.
The only ground of appeal is that the Master erred in law in refusing to strike out paragraph 9.2.
The plaintiffs’ action is for defamation. The defendant is the operator of a radio station, National One. On the 18th of September 2004, National One broadcast an interview between one of its servants or agents, Mr Terry Lane, and Ms Margaret Simons, the author of a book about what has become known as the Hindmarsh Island Bridge Affair. Very soon after it was broadcast, a transcript of the interview was published on the defendant’s website.
Towards the end of the interview Mr Lane said this:
“And in fact how have the Chapmans finished up? They’ve been at one stage at least, bankrupted by this whole affair. What’s their position now?”
The plaintiffs claim that these words, which are set out in subparagraph 6.2 of the amended Statement of Claim are defamatory. In particular, they claim that the words carry the imputation that each of the plaintiffs may have been bankrupted two times or more. That complaint is set out in paragraph 9 of the amended Statement of Claim which reads:
“Such words particularised in subparagraph 6.2 above in the natural and ordinary meaning, carried each of the following imputations:
9.1 That each plaintiff had been made bankrupt
9.2 That each plaintiff may have been bankrupted two times or more.”
The defendant applied to the Master for that paragraph to be struck out on the basis that the words complained of are not capable of bearing a defamatory meaning.
During the course of argument before the Master, Mr Meyer for the plaintiffs conceded that the word “may” in paragraph 9.2 was bad as it pleaded a contingent imputation and itshould have read:
“9.2 That each plaintiff had been bankrupted two times or more”.
Master Norman dealt with the matter on that basis. Before me, Mr Howard for the plaintiffs, accepted that the concession had been made but submitted that there may not have been discussion before the Master whether “has” or “had” should have been substituted for “may have” in paragraph 9.2, and that “has” should now be preferred. Mr Whitington QC, for the defendant, did not quibble about which of the two words were used. The point of Mr Howard’s submission was that “had” could refer to bankruptcies prior to the Bridge events whereas “has” could refer to subsequent events. In my view, it does not matter which of the two words is used.
Master Norman refused the application to strike out paragraph 9.2. He said:
“26. The defendant’s argument is somewhat persuasive because in the context of the words they can mean no more than at one point in time the plaintiffs were bankrupted.
27. However, a literal meaning of the words is that they may have been bankrupted two times or more.”
Master Norman was of the view that it was inappropriate for him to strike out the words at the interlocutory stage and that the preferable course was that the trial Judge, as the trier of fact, determine which meaning the words conveyed in the circumstances of the case.
On appeal, the defendant argues that Master Norman was correct in his application of the relevant law and the relevant test up until the stage at which he tested the words by reference to their literal meaning. So to test them, the defendant submits, is wrong.
There is no dispute between the parties about what the correct test is. It is set out by Lander J. in Chapman & Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189:
“Whether words complained of are capable of bearing a defamatory meaning is a matter of law for the court: Stubbs Ltd v Russell [1913] AC 386 at 393.
The imputation which any words might bear is to be determined as an objective test. The intention of the publisher is irrelevant and so also is the meaning those to whom the words were published might give the words.
The test is whether reasonable people might understand the words in a defamatory sense: Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 575. In Capital & Counties Bank Ltd v Henty & Sons AppCas 741 at 745 Lord Selbourne said:
“The test, according to the authorities, is whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.”
The words will be construed in their natural and ordinary meaning which is a meaning which reasonable men of ordinary intelligence with the ordinary man’s general knowledge and experience of worldly affairs would be likely to understand them.”
Lander J. went on to say, at page 90, of a reader:
“The ordinary, reasonable reader is not a lawyer but a layman who does not read the article cautiously or carefully but casually and who is prone to a certain amount of loose thinking: Morgan v Odhams Press Ltd [1971] 1 WLR 1239; [1941] 1 All ER 1156.”
Master Norman referred to Chapman’s case (supra) and to a number of the cases to which Lander J referred in Chapman. Master Norman then noted that Lander J. had observed at paragraph 65 in Chapman’s case that, if the words are capable of having a defamatory meaning and they are also capable of having a harmless meaning it is a question of fact and the trier of fact should determine which meaning they did convey in the particular case. On the basis that the words here complained of were capable of having two meanings - one of them a literal meaning – Master Norman ruled that which of those meanings was conveyed in the circumstances of Mr Lane’s interview was a matter of fact for the trial Judge.
There is no doubt that it is for the trier of fact to determine which of two meanings were conveyed by words in a particular case. But words can only be submitted for the trial Judge’s consideration on that issue if they first pass the legal test, namely, that they are capable of bearing a defamatory meaning. Here, the test is whether the words used by Mr Lane might be understood by reasonable people as meaning that the plaintiffs had each been bankrupted two times or more. To answer that question one must hear or read the words in context.
The interview between Mr Lane and Ms Simons, according to a remark of Mr Lane’s during the course of the interview, lasted for twenty minutes. The plaintiffs were mentioned early in the interview in Mr Lane’s opening remarks and not again until very nearly the end of the interview.
In his opening remarks Mr Lane said:
“… and litigation is still before the courts as the original proponents of the bridge, developers Tom and Wendy Chapman, seek compensation for a lost fortune and damages to their reputation, and I should point out that they have sued the ABC …”
The interview then proceeds and many topics associated with the Hindmarsh Island Bridge Affair are discussed. There is no further mention of the Chapmans until nearly the end of the interview when, taking up Ms Simons’ mention of journalists, Mr Lane said:
“Yes. Mr and Mrs Chapman seem to have been pretty even handed in suing media outlets who they felt had damaged their reputation.
Margaret Simons: They’ve been very vigorous in defending their interests, certainly.
Terry Lane: And as we know, their case against the Conservation Council of South Australia I think is now subject to appeal, and if the office bearers of the Conservation Council don’t win, they face very serious financial consequences.
Margaret Simons: That’s right.
Terry Lane: And in fact how have the Chapmans finished up? They have been at one stage at least, bankrupted by this whole affair. What’s their position now?
Margaret Simons: Well the, as I understand it, the children of Tom and Wendy Chapman who are the originators, are now running the marina, which I believe is successful. There’ve been property sales and so on going forth. So they’re still there and still running their marina, which is what they originally wanted to do of course.
Terry Lane: And have you driven across the bridge?”
There is no further mention of the plaintiffs and the interview finishes very shortly thereafter.
In my view, when the words complained of are considered in their context, they are not capable of bearing the meaning for which the plaintiffs contend. Mr Lane has “rounded off” the interview as it nears completion by referring to one of the topics originally mentioned by him which has not been mentioned in the main part of the interview, namely, the Chapmans’ lost fortune. He turns the interview back to that topic by mentioning their having been bankrupt and asking Ms Simons what is their present position. There is no emphasis upon details of the Chapmans’ financial history other than the obvious assertion of their once having been made bankrupt by the Hindmarsh Island Bridge Affair. In my view, neither the reasonable listener nor the reasonable reader would understand those words to mean that each of Mr and Mrs Chapman have been bankrupt two or more times in the past.
If I am wrong and the words “at least” would be given some specific meaning by the reasonable reader or listener, the result would be the same. The expression “at least” confines the allegation of bankruptcy to one occasion only. While it may do so against the suggestion that there have been other bankruptcies, a speaker using the expression “at least” is making it plain that he makes no specific assertion about other wider claims, namely, the possibility of other bankruptcies. I would hold, therefore, that even on the strict or literal view of the words, they are incapable of bearing the defamatory meaning for which the plaintiffs contend. But the test approved in the cases for determining whether or not words are capable of bearing a defamatory meaning is not a dry literal one. It is as I have set out above in the cases referred to by Master Norman and by Lander J. In my view, when that test is applied, the words set out in paragraph 9.2 of the amended Statement of Claim are not capable of bearing the meaning for which they plaintiffs contend. Accordingly, I allow the appeal and order that that paragraph 9.2 be struck out.
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