Chapman v Australian Broadcasting Corporation

CHAPMAN AND CHAPMAN v AUSTRALIAN BROADCASTING CORPORATION

[2000] SASC 146

Full Court: Doyle CJ, Nyland and Lander JJ

DOYLE CJ. In my opinion the appeal should be allowed, and the orders proposed by Lander J should be made. I agree with his reasons for so concluding. There is nothing that I wish to add to those reasons.
NYLAND J: I agree that the appeal should be allowed for the reasons expressed by Lander J. I agree with the orders proposed by him.
LANDER J. The plaintiffs issued their proceedings on 10 March 1998 seeking damages for libel arising out of 22 separate publications over the period March 1992 to December 1997.
The defendant filed and served a r 46.20 notice.
That notice asserted that the Statement of Claim was defective on the following grounds:
“1.In relation to each of the 22 alleged publications pleaded in the statement of claim, the plaintiffs have pleaded only a small portion of the broadcast in which the statements complained of were published. In doing so, the plaintiffs have failed to include all matters containing the true context in which the references to them are understood. The authorities require that the whole of the broadcast be pleaded in the circumstances.”

On 21 April 1998 the plaintiffs filed an amended, more explicit Statement of Claim which responded to the complaint in the r46.20 notice by attaching by way of schedules a transcription of the various broadcasts relied upon for the plaintiffs’ causes of action.
On 16 July 1998 the defendant issued an application seeking orders:
That the whole of the More Explicit Statement of Claim dated 21 April 1998 filed herein be struck out on the grounds appearing in the affidavit in support sworn by George Gretsas on 16 July 1998.
In the alternative, in relation to paragraphs 108 to 113 of the More Explicit Statement of Claim, that summary judgment be entered against the plaintiffs in favour of the defendant.

The affidavit which accompanied the application claimed that the whole of the Statement of Claim should be struck out. In the alternative the defendant sought orders that various paragraphs of the Statement of Claim should be struck out for a variety of reasons. First it was claimed that some paragraphs lacked particularity. Next it was claimed that some aspects of the pleading were vexatious. Some others embarrassing. In some cases it was argued that the imputations pleaded did not arise from the words published. In those cases the defendant sought not only the striking out of the pleaded imputations but also the words relied upon for the imputation; i.e. the cause of action. In some cases it was pleaded that the publication did not identify the plaintiffs so as to allow the plaintiffs to maintain their proceedings.
The order sought in the first paragraph of the application was very wide. However it is clear from the affidavit, which supported the application, that the defendant was raising a variety of matters, some which would only give rise to the striking out of individual paragraphs (e.g. where the words could not bear the imputations pleaded) and some which would give rise to the dismissal of the whole cause of action (e.g. where the words could not bear any defamatory imputation), and some where a paragraph ought to be struck out but the pleading otherwise be allowed to stand (e.g. when the claim was that the paragraph was vexatious or embarrassing or that the pleading lacked particularity).
The deponent to the affidavit, however, did not discriminate in the relief which the defendant sought. The affidavit caused the confusion which followed.
The matter came before a Master who struck out paragraphs 28 to 32, 83 to 87 and 108 to 113 all inclusive.
The Master’s reasons disclose that paragraphs 28 to 32 were struck out because, although the words were published of and concerning the plaintiffs, the words could not give rise to any defamatory imputations. Paragraphs 83 to 87 were struck because that publication was not proved to be of and concerning the plaintiffs, in that it did not identify the plaintiffs. Paragraphs 108 to 113 were struck out because the words published were a fair and accurate report of the proceedings of Parliament.
Mr Gretsas’ affidavit claimed that words pleaded in paragraph 29 could not give rise to any defamatory imputation “of any person at all”. Defendant’s counsel argued that the imputations alleged to arise in paragraph 32 could not be sustained and the plaintiffs could not be identified. Counsel, I think, argued that the imputations pleaded could not arise and that the words did not identify the plaintiffs. They are two separate concepts. The first concept is also different to Mr Gretsas’ claim in the affidavit.
The Master simply said:
“In my view, the contentions of the defendant are well made in relation to this pleading and I consider therefore that paragraphs 28 to 32 inclusive should be struck out.”
He did not identify the contentions upon which he relied. If it was his opinion that the imputations pleaded could not arise then he should have struck out those imputations and allowed the plaintiffs to re-plead. If he was of the opinion that it was plain that the words could not bear any defamatory imputation at all then it would have been appropriate to strike out all paragraphs.
Whether words published sufficiently identify a person so that it might be said that the words are published of and concerning that person is a matter of fact. A Statement of Claim must contain an averment that the words were published of an concerning the plaintiff. If the words do not identify the plaintiff the pleading must identify the material particulars which are relied upon to establish that the words can be reasonably understood to be referring to the plaintiff. Thus whether the words are published of and concerning the plaintiff is a matter of fact. If an application is made to strike out a Statement of Claim upon the ground that the words do not identify the plaintiff and insufficient material particulars have been supplied to allow it to be said that the words could be reasonably understood to refer to the plaintiff, the application falls to be decided on the adequacy of the pleading. If the pleading is not adequate it may be struck out. If it is struck out the plaintiff would usually be given leave to re-plead to address the deficiency.
The Master’s order seems to suggest that the two separate causes of action in paragraphs 28 to 32 and 83 to 87 were struck out. I am not sure they were the appropriate orders. However the plaintiffs have not complained about those orders.
Mr Gretsas’ affidavit also sought the striking out of paragraphs 108 to 113 on the grounds that the meanings and imputations pleaded did not arise from the broadcast pleaded in paragraph 109. In the alternative judgment was sought in respect of those paragraphs on the basis that the statement relied upon for the cause of action had been tabled in the South Australia Legislative Council. Whilst the statement was apparently tabled on the same day as the words were published it is not clear whether the words were published before or after the statement was tabled.
I think the Master found for the defendant on the alternative argument. He said the “pleading does not in any way seek to impugn the reporting as being malicious or not a fair and accurate report....” He was then referring to the tabling of the statement in the Council. Indeed I think he otherwise concluded that the words alleged in that cause of action could bear the imputations pleaded.
It is also not clear to me that the defendant was entitled to seek summary judgment in respect of paragraphs 108 to 113 but again the plaintiffs have not complained about that part of the order.
The effect of the Master’s order, which was not drawn up but should have been, was to dismiss the plaintiff’s causes of action in respect of the publications pleaded in paragraphs 29, 84 and 109. The reasons contemplate that the plaintiff’s claim in respect of those three causes of action has been dismissed for all time.
The application of 16 July 1998 and the affidavit in support indicate, in my respectful opinion, confusion.
Rule 46.18 provides:
“46.18      Where a pleading:
a)     discloses no reasonable cause of action or defence;
b)     does not comply with Rules as to pleadings;
c)has the tendency to cause prejudice, embarrassment or delay in the proceeding;
d)is scandalous, frivolous, or vexatious or contains scandalous matter; or
e)is otherwise an abuse of the process to the Court,
the Court may at any stage of the proceedings, order that the whole or any part of the pleadings be struck out, on such terms as it thinks just or may direct that the scandalous matter be expunged.”
A party therefore is entitled to seek to strike out an opponent’s pleading for any of the reasons disclosed in r46.18.
There is, however, a distinction between an application to strike out a pleading for any of the reasons given in r46.18 and an application to dismiss a claim for any of those same reasons or any other reasons.
On receipt of a summons and Statement of Claim, apart from ignoring the process, a defendant can do a number of things. A defendant may, after entering an appearance, file and serve a r46.20 notice requiring the plaintiff to file and serve a more explicit Statement of Claim. Such notice shall clearly indicate the point in which the pleading which has been served is considered defective. That was the procedure adopted here.
A defendant can simply enter an appearance and defence and allow the matter to proceed through the interlocutory processes to trial. In the further alternative a defendant could, after filing an appearance and defence, adopt the procedure under r25.04. Where a defendant wishes to obtain summary judgment in an action, a defendant shall file his or her defence and make such an application supported by an affidavit showing why the plaintiff’s case cannot succeed on any possible view of the facts or law: r25.04. However the procedure in r25.04 is not appropriate, either before or after a r46.20 notice has been filed and delivered, where it is claimed that the Statement of Claim is defective for any of the reasons given in r46.18.
The procedure in r25.04 will only ever be exercised sparingly and where there is no serious question to be tried. In Rogers v Legal Services Commission of SA (1995) 64 SASR 572 I said (in a judgment with which Cox and Prior JJ agreed) at 588:
“The principles which apply to applications pursuant to r25.04 are similar to, but not identical with the principles on applications by a plaintiff for immediate relief under r25.02. The jurisdiction will only be exercised sparingly and where there is no serious question to be tried. The jurisdiction must be exercised with great care and only used where it is clear that the action is devoid of merit: Harrison v STA (1988) 4 BCL 338. I agree with Olsson J that in an application under r25.04 the defendant must show that the plaintiff’s claim cannot succeed on any possible view of the facts or law, that is, there is no real question to be tried: Royal Australia Finance Ltd v Xenophone Corporation Pty Ltd (unreported Olsson J, No. S3526, 22 July 1992).”
In my opinion the procedure under r25.04 is not appropriate where it is claimed that the pleadings are defective for any of the reasons given in r46.18.
Where it is claimed that the pleadings are defective for any of those reasons an application should be made under r46.18.
Whilst r46.18 does not in its terms provide for an order dismissing the plaintiffs’ proceedings or causes of action I think such an order could be made.
The 1947 Rules provided for separate procedures. Order 19 r25 provided:
“The Court or a Judge may at any stage of the proceedings order to be struck out or amended any matter in any indorsement or pleading which may be unnecessary or scandalous or which may tend to prejudice, embarrass or delay the fair trial of the action; and may in any such case if it or he shall think fit, order the costs of the application to be paid as between solicitor and client.”
Order 25 r4 provided in an order entitled “Proceedings In Lieu Of Demurrer”:
“The Court or a Judge may order any pleading to be struck out on the ground that it discloses no reasonable cause of action or answer, and in any such case or in the case of the action, defence, counterclaim, or reply being shown by the pleadings to be frivolous or vexatious, the Court or a Judge may order the action to be stayed or dismissed or judgment to be entered accordingly, as may be just.”
No action could be struck out under Order 25 r4 unless the claim was so obviously untenable that it could not succeed no matter what amendments were made: Egan v Commonwealth Minister for Transport (1976) 14 SASR 445.
Rule 46.18 combines the procedures in Order 19 r25 and Order 25 r4. That, however, does not allow a defendant to disguise an application to dismiss a plaintiff’s proceedings or cause of action in a strike out application. If a defendant wishes to strike out a plaintiff’s Statement of Claim or any paragraph of that Statement Of Claim the application should say so unambiguously. The application should be precise and should state whether the defendant seeks the striking out of the whole or any part of the pleading and if part precisely which part of the pleading. If, on the other hand or alternatively, a defendant seeks an order dismissing the plaintiff’s claim in whole or in part then again the application should say so unambiguously.
Whilst the defendant in this case sought the striking out of the plaintiffs’ Statement of Claim the affidavit in support shows that the defendant was in some respects seeking the dismissal of the plaintiffs’ causes of action.
There must be no misunderstanding as to what the defendant is seeking on any application, under r46.18. The plaintiffs are entitled to know whether the defendant is seeking dismissal of the action or the striking out of some or all of the plaintiff’s Statement of Claim. Moreover, the court must also know exactly what relief the defendant seeks because the test which is to be applied will vary according to the relief which is sought. If the defendant is seeking the dismissal of the proceedings then the court will apply the principles in General Steel Inc. v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125.
It would be rarely the case that the proceedings themselves would be struck out if an application was made out under r46.18(b) (c) or (d). Usually if the pleading does not comply with the rules of pleading or if the pleading had a tendency to cause prejudice, embarrassment or delay or it was scandalous, frivolous or vexatious the pleading or that part of the pleading would be struck out, but the plaintiff would be given leave to either re-plead his or her case in whole or in part. An order might be made to strike out the proceedings themselves if there was a continuing failure to comply with the rules as to pleadings or the plaintiffs insisted on maintaining a pleading which had a tendency to cause prejudice, embarrassment or delay or which was scandalous, frivolous or vexatious, but that would be a rare occurrence. It is more likely to be the case that a court might reach the conclusion that the parties’ proceedings ought to be dismissed in addition to striking out the pleadings for either of the reasons in 46.18(a) or (e). If the Court was satisfied that a pleading disclosed no reasonable cause of action and none was maintainable it would, in those circumstances, strike out the Statement of Claim, and the proceedings. So also if the Court believed its processes were being abused it might strike out the proceedings themselves.
The striking out of any cause of action or proceedings on an application before the filing of defence is, as was said in Egan v Commonwealth Minister For Transport (supra), to be a jurisdiction to be exercised sparingly, much like the jurisdiction which is exercised under r25.04 (see also General Steels Inc v Commissioner for Railways (NSW) & Ors (supra).
The defendant appealed from the Master’s order to a Judge of this Court complaining of that part of the Master’s order which failed to strike out “the whole of the More Explicit Statement of Claim, with the exception of paras 28 to 32 inclusive, 83 to 87 inclusive and 108 to 113 inclusive.” The orders sought in that Notice of Appeal were:
1. That the appeal be allowed.

2.That the More Explicit Statement of Claim dated 21 April 1998 be struck out.

The Notice of Appeal contains a plethora of complaints.

It complained that the pleading lacked particularity; was ambiguous, vexatious and embarrassing; that various paragraphs of the Statement of Claim should be struck out because the meanings pleaded could not possibly arise. It repeated Mr Gretsas’s complaint that in some respects the words were not published of and concerning the plaintiffs.
The learned Judge allowed the appeal and struck out paragraphs 50 to 55 and 123 to 128 all inclusive of the More Explicit Statement of Claim. Again it seems to me that the effect of the order was to strike out the causes of actions pleaded in paragraphs 51 and 124. His Honour did not give reasons for striking out those paragraphs but the plaintiffs do not complain about that. Otherwise he dismissed the appeal.
The defendant sought leave to appeal from that decision dismissing the appeal but leave to appeal was refused by the same Judge. The defendant then sought leave of this Court to appeal against the judgment. Leave was granted on 30 April 1999.
This is therefore an appeal from a decision of a Judge of this Court in so far as the Judge refused to strike out the Statement of Claim except for those paragraphs referred to in his order. The plaintiff has not complained about the striking out of the various paragraphs to which I have referred.
This Notice of Appeal seeks the striking out of the whole of the Statement of Claim on the single ground appearing in the Notice of Appeal that the pleaded words are not capable of bearing the meanings alleged in the Statement of Claim. The Notice of Appeal complains that the learned Judge should have found that the imputations pleaded in the various paragraphs did not arise from the published words set out in the Statement of Claim. There is therefore no suggestion that the action should be struck out on the ground that the words are not capable of bearing any defamatory meaning.
The order sought in the Notice of Appeal is therefore inappropriate. If the defendant’s contentions are right and the pleaded imputations do not arise from the published words it would only be appropriate to strike out the imputations. It would not be appropriate to strike out the Statement of Claim.
I think there has been a good deal of confusion whilst this matter has travelled through the various levels of this Court which has been generated in a large part by the procedure adopted by the defendant.
The defendant seems to have adopted a combination of procedures and perhaps obtained results to which it was not entitled.
The appropriate procedure in this case, if the defendant believed that the Statement of Claim lacked particularity, was to file and deliver a r46.20 notice complaining that the Statement of Claim lacked particularity and indicating how.
If after receiving a “More Explicit Statement of Claim” in response to the r46.20 notice the defendant believed that the Statement of Claim had any of the failings mentioned in r46.18 the defendant should have made an application to strike out that part of the Statement of Claim which did not comply with the rules as to pleadings or had a tendency to cause prejudice, embarrassment or delay or was scandalous, frivolous or vexatious. If, for example, the defendant then claimed that a part of the pleading should be dismissed because it lacked particularity, i.e. did not comply with the rules as to pleadings, it could have pointed to the r46.20 notice and the response in the “More Explicit Statement of Claim”.

If the defendant believed that the whole of the Statement of Claim was defective then an application could have been made to strike out the whole of the Statement of Claim. If the defendant believed that the Statement of Claim did not disclose any cause of action or was otherwise an abuse of process then the defendant could have applied to the Court to have the whole of the Statement of Claim dismissed. That was the procedure adopted in this case. However, if it was the defendant’s contention that the plaintiffs’ proceedings or causes of action should be dismissed then the defendant was under an obligation to make that clear in the application.
Despite the form of the original application and the Notice of Appeal in this Court Mr Whitington QC, who did not appear for the defendant in either of the Courts below, acknowledged that on this appeal the defendant was only entitled to an order striking out those paragraphs where it could be established that the imputations pleaded could not arise on the words published. He acknowledged that it would be inappropriate to strike out the whole of the Statement of Claim or that part of the Statement of Claim which pleads the plaintiffs’ causes of action.
The single question then for this Court in relation to each of the publications, which have so far survived, is whether the words published on each separate occasion is capable of bearing the meanings pleaded in the Statement of Claim.
The argument assumes that in this State it would be proper pleading practice to plead the imputations, which are said to arise out of each of the publications, when those imputations arise only upon the natural and ordinary meaning of those words and do not depend on any extrinsic facts for their defamatory meaning. In other words the assumption is that it now can be considered proper pleading practice in this State to plead a false innuendo as well as a true one: Grubb v Bristol United Press Ltd [1963] 1 QB 309.
The cause of action, in this State, in libel arises out of the words published. In New South Wales each imputation which arises out of the published words creates a separate cause of action; Defamation Act, 1974 s 9(2). It is therefore necessary in New South Wales to plead imputations. There is no rule in this State which requires a plaintiff to plead imputations where only the natural and ordinary meaning of the words are relied upon; Chakravati v Adveriser Newspaper Ltd (1998) 193 CLR 519 per Brennan CJ and McHugh J at 530. Of course where the plaintiffs plead a true innuendo i.e. when the words are not ex facie defamatory, but depend upon extrinsic facts and circumstances, then the plaintiffs must give particulars of the imputation or imputations said to arise and the extrinsic facts and circumstances known to the persons to whom the publication was made: r46.19; Lewis v Daily Telegraph Ltd (1964) AC 234. There are two reasons for that. First, the defendant could not know the plaintiffs’ case when the words on the face of them are not defamatory. Secondly, the true innuendo is a separate cause of action to an imputation which arises from the natural and ordinary meaning of the words: Lewis v Daily Telegraph Ltd (supra) per Lord Hodson at 272. However, it is good pleading practice to plead imputations even when the imputations arise solely from the natural and ordinary meaning of the words. It is rarely that the words clearly convey the specific charge or the particular sting. The purpose of pleading imputations is to narrow the issues between the parties. A defendant has to know the precise imputation alleged by the plaintiff in order to determine whether to apologise or to defend the matter and if to defend upon what ground. The practice in this State more recently has been to plead the false innuendo; i.e. imputations arising from the natural and ordinary meaning of the words; Pritchard v Krantz (1984) 37 SASR 379.
More importantly, I think following the High Court decision in Chakravarti v Advertiser Newspapers Limited (supra) a plaintiff does have an obligation to plead the imputations which the plaintiff says arises from any publication which the plaintiff says is defamatory of and concerning the plaintiff, whether the imputations arise out of the natural and ordinary meaning of the words or whether they arise by reason of extrinsic facts and circumstances known by the person to whom the publication was made: per Brennan CJ and McHugh J at 552 and Gaudron and Gummow J at 542-543. In the latter case, of course, the Statement of Claim must also particularise those extrinsic facts and circumstances: r46.19.
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 particular 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 515. In Capital & Counties Bank Ltd v Henty & Sons (1882) 7 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.
In Farqhar v Bottom (1980) 2 NSWLR 380 at 386 Hunt J said:
“The ordinary reasonable reader is a person of fair, average intelligence: Slayter v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577; nor avid for scandal; Lewis v Daily Telegraph (1963) 1 QB 340.”
That ordinary reasonable person 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.
The words should not be given any strained, forced or unreasonable interpretation. The imputation should be pleaded unambiguously otherwise it will be liable to be struck out as embarrassing; Singleton & Another v Ffrench and Others (1986) 5 NSWLR 425; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.
In seeking to extract imputations from the words the pleader should avoid exaggeration. A pleader should use adverbs and adjectives carefully. Whilst that use of an adverb may give a certain flourish to the pleaded imputation the pleader must be careful to ensure that the use of such language does not make the imputation such that it could not arise from the natural and ordinary meaning of the words. Pleader’s flourishes must be avoided. An imputation should be capable of being supported by more than the pleaders ingenuity; Grubb v Bristol United Press Ltd (supra) at 326. The rhetorical imputation should not be pleaded; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260. The use of the word “improperly” which is an imprecise word should be avoided: Morris v Newcastle Newspapers Pty Ltd (supra). The words “unlawfully” and “wrongfully” should be used carefully: Felix v General Dental Council [1960] AC 704 at 717; McCormick v John Fairfax & Sons (1989) 16 NSWLR 485.
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 for the trier of fact to determine which meaning they did convey in the particular case.
In due course, it will be necessary to determine whether the imputations which can arise are defamatory of and concerning the plaintiffs. That is a separate exercise; Capital & Counties Bank Ltd v George Henty & Sons (supra); Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663.
The plaintiffs have pleaded in their Statement of Claim the particular words which they say support the imputations pleaded. At the same time the plaintiffs have annexed to their Statement of Claim the full text of the publication out of which they claim those particular words give rise to the defamatory imputations. That seems to me to be an appropriate way to plead these matters. That allows the defendant and the Court to consider the words in their context, but at the same time brings to the attention of both the defendant and the Court the particular words which are said to give rise to the imputations which are pleaded in the Statement of Claim.
In considering whether the published words do give rise to the pleaded imputations it is appropriate to have regard to the whole of the article. I have done that in respect of each publication.
The first cause of action is said to arise out of a broadcast on Channel 2, the television channel operated by the defendant, on a program known as ‘The 7:30 Report’ on 11 March 1992.
In that program the presenter introduced the subject: “The future of the Goolwa/Hindmarsh Island Bridge in the light of moves to have the Developer placed into Receivership.” She introduced a person who claimed to be “already the big losers in the deal”.
After some further words the male plaintiff was introduced and spoke. A number of other persons offered comments in relation to the development.
The presenter then said:
The Presenter:.. “Now the couple behind the threatened collapse of one of the Chapman companies say they are not bitter - even though Alan and Molly Banister claim to be owed nearly Half a Million dollars.”
The Reporter:    “Alan and Molly Banister say they still like the man whose Company they say has virtually ruined the past 3 years of their lives - prominent Adelaide developer Tom Chapman.”
Mr Banister:..... “I admire the man - I’m not angry with Mr Chapman. Personally I think he has had a raw deal with the way he handles things - I don’t know what his Company’s affairs are.”
The Presenter:   “These are just some of the papers the Banisters has (sic) kept since they sold a stretch of land in the South East to Tom Chapman’s company - Wesdoman. The rest are with their lawyers. The Banisters have applied to the Federal Court to wind up the Wesdoman. They claim the company owes them about half a million dollars.
Alan tries to be philosophical about it, but sometimes it’s hard.”
Mr Banister:     “I’ll get my land back - the money’s not everything, and this is part of life and part of living and part of learning.”
The Reporter:    “You seem to be taking it pretty well.”
Mr Banister:     “Outside - inside no.”
The Reporter:    “How do you feel inside?”
Mr Banister:     “Sad.”
The Reporter:... “The 6 kilometres stretch of coastal land at Kingston was the Banister’s retirement nest egg, but since the first payment fell due Alan says Tom Chapman’s excuses began.”
Mr Banister:     “This developed into a weekly or fortnightly phone call to Adelaide to say: “Tom - when, when, when, when?
Each time I got different excuses - it got to the stage where I was so worried that I even went to the Social Security to get my pension back because we needed something to live on.”
The Reporter:    “Then Wesdoman, which is one in a group of Chapman companies, sold the land to the State Government. This is when Alan Banister claims he was finally paid - $125,000 but he was still owed more. He also claims that this is when Tom Chapman turned around and hit him for a personal loan - $30,000. Even more astounding, Alan Banister agreed.”
Mr Banister:..... “If I had have said “no” - he couldn’t have sent me the money he owed me anyway, because I don’t think he had it. So I have to put it in perspective that I lent him money because he had said he was (sic) to prevent him being embarrassed.”
The Reporter:    “Have you been “conned”?
Banister:........... “If being kind and generous to a person to try and help him is being conned - I am guilty.”
The plaintiffs claim that the words uttered by Mr Banister “If I had have etc.” to the end of the article are defamatory of the male plaintiff.
The imputations which are pleaded in paragraph 11 are that the male plaintiff:
“a) Was a confidence trickster.

b) Swindled the said Bannister.

c) Took a loan without intending to repay it.”

I do not believe any of the pleaded imputations are capable of arising out of the words complained of in the context in which they were published.
The article makes it clear that Mr Banister still likes Mr Tom Chapman, even though Mr Banister believes that Mr Chapman has virtually ruined the past three years of his life. Moreover not only does he like Mr Chapman he admires him. Mr Banister said that he lent Mr Chapman $30,000 because Mr Chapman was in no position to pay Mr Banister the amount that he already owed.
He was asked if he was conned. He did not say he had been conned by Mr Chapman. His retort was that he himself was kind and generous to a person to try and help. In that respect he redefined the question asked of him.
In my opinion it cannot be said that the natural and ordinary meaning of the words give rise to the imputation that Mr Chapman is a confidence trickster. In my opinion, the words do not suggest that he was a confidence trickster at all. Mr Chapman merely sought money because he was embarrassed. It follows further, in my opinion, that the natural and ordinary meaning of the words do not support the second pleaded imputation i.e. that Mr Tom Chapman swindled Mr Banister.
It is also my opinion that the words do not suggest Mr Tom Chapman took a loan without intending to repay it. The words suggest that he sought a loan at a time when he was not able to pay an existing loan but there was no suggestion that he took the loan without then intending to repay it.
In my opinion none of the imputations arise and paragraph 11 should be struck out.
I have spent some little time in relation to the first cause of action because it is an example where, in my opinion, the imputations cannot be examined merely upon the words pleaded in the Statement of Claim itself. This is an example where regard has to be had to the whole of the article.
The second cause of action is said to arise out of a further broadcast of the 7:30 Report on Channel 2, this time on 26 May 1993.
The words published are pleaded in the Statement of Claim:
“Roscrow:......... Due diligence is a word that we use in the industry a lot and I sometimes wonder how much due diligence there is paid to er, agreements such as the one that is between the developer, the Council and the State Government.
Gout:This is about as exclusive a street as one can find in Adelaide - golf course on that side of the road and Adelaide establishment on this side. In fact so much power do these people have that they were able to convince the Adelaide City Council to close this street off to through traffic from what they saw as the western suburbs riff raff. And the fact that Wendy Chapman, late of Barton Terrace West, is a former Adelaide City Council Lord Mayor probably didn’t hurt. But does Tom Chapman have too much influence over the present Labour Government? The Opposition suggests that the Chapmans may have a hold over the Government - would you reject that absolutely?
.................. The Legislative Council, the Upper House where Barbara Wiese sits as Minister, has a powerful committee system. One of those committees is investigating this mysterious deal. What hold does the Government have over Mr Chapman or vice versa?
Laidlaw:Well I don’t know - those questions have been asked many many times - there have been many suggestions - there have been allegations made.”
It is claimed that the words spoken by Mr Roscrow give rise to the two imputations pleaded in paragraph 16 of the Statement of Claim that the Plaintiffs:
“a)Were party to a bargain which would not be entered into by persons acting properly and carefully.

b)Caused Binalong to act in the matter referred to in paragraph (a).”

Whilst the plaintiff relies upon the statement made by Mr Roscrow for these meanings, the defendant contends that the words uttered by Mr Roscrow could not give rise to the pleaded imputations.
The thrust of the item complains about the Government entering into the bargain which it did. The criticism in the article is of the Government failing to carry out appropriate due diligence inquires. It is not suggested that there has been a failure on the part of the Developer to carry out a due diligence inquiry or that the Developer has failed to act properly and carefully before entering into this bargain.
In my opinion the imputations in paragraph 16 could not arise and so also paragraph 16 should be struck out.
The plaintiffs also pleaded that two further imputations arise out of the words spoken by Gout.
In paragraph 19 of the Statement of Claim it is pleaded:
“19.. Such words, in their natural and ordinary meaning, carried the imputation that the second Plaintiff had improperly used her standing as a former Lord Mayor to achieve a personal benefit, and also carried the imputation that the Plaintiffs:
a)Were blackmailing the Government.
......... b) Exerted improper pressure on the Government.”
In support of its application to strike out paragraph 19 the defendant asserts that the two imputations pleaded could not arise because the imputations assert that the plaintiffs did something whereas the words could only support an imputation that there was a suspicion that they had done something. Such an imputation, it is claimed, could not be defamatory: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 per Mason J at 300; Lewis v Daily Telegraph (supra); Whelan v John Fairfax & Sons (1988) 12 NSWLR 148. In my opinion the cases relied upon are not relevant in determining whether the pleaded imputations could arise on this article. The article does not claim that someone believes or someone suspects that the plaintiffs have committed some criminal act or some act of a like nature. The reasoning in Mirror Newspapers Ltd v Harrison (supra) is not relevant in a consideration of these imputations. These imputations either stand or fall on an assessment of whether or not they could arise on the natural and ordinary meaning of the words.
In fact there are three imputations. The first imputation is in the introduction to paragraph 19 and that is that the second plaintiff had improperly used her standing as a former Lord Mayor. That imputation is not under attack. The two imputations which are under attack are those in paragraphs 19(a) and 19(b).
In my opinion the natural and ordinary meaning of the words do not allow it to be said that either of these imputations do arise. It cannot be said that an ordinary reasonable listener would understand the words uttered by Mr Gout to mean that the plaintiffs were blackmailing the Government. Nor, in my opinion, could the words be understood to mean that the plaintiffs had exerted improper pressure on the Government. In my opinion the imputations do not arise and paragraphs (a) and (b) of 19 should be struck out.
Further imputations said to arise out of this article are pleaded in paragraph 22. The defendant did not press its claim to strike out this paragraph.
The third publication was on 11 August 1993 on a radio programme entitled “The Phillip Satchel Show”.
The words pleaded are as follows:
“Laidlaw:More information that was given to the Environment Resources and Development Committee today and I think it’s absolutely critical to this whole issue and certainly puts the Minister’s remarks in context today because the person giving evidence today was Barry Lindner who is with Premier and Cabinet and he was responsible for drawing up the Deed between the Council, Binalong and the Government and he made it quite clear in evidence and under questioning that the reason why the Government is pursuing this is fear of litigation with the Westpac, and that goes right back to the issue of Westpac paying... taking over Binalong’s debt from Beneficial Finance. And I would say to you and your, um, everybody who is listening, that this is where this whole business smells...
Laidlaw:I just find it interesting that you would suggest that a project that smells, a project that is also before the Environment Resources and Development Committee for investigation at the present time should go ahead whatever the cost and whatever the repercussions [inaudible] can’t accept that when there are other alternatives Phillip which can and must be explored.
Satchel:.... But that’s a very strong word. You said that the project smells.
Laidlaw:I believe there are things that smell and I believe that the evidence that was given today before the Environment Resources and Development Committee would support that contention.”

The imputations which are said to arise are pleaded in paragraph 27:
......... “Such words, in their natural and ordinary meaning, carried the imputations of the Plaintiffs:
(a)Acted corruptly or improperly in the course of their dealings in relation to the bridge and/or the development.
(b)Caused Binalong to act in the manner referred to in paragraph (a).”
Again the defendant relies upon the reasoning in Mirror Newspapers Ltd v Harrison (supra).
This article also ought to be understood in its context. The words pleaded omit a further statement made by The Hon Ms Laidlaw who went on to say after the words “business smells..”:
“... because the Government has come up now with figures that it would have us believe would make this whole project a financial benefit to the State and yet when the project was first put by Government officers, not by Binalong that the Environmental Impact Statement that I have before me umm that the Minister referred to makes it quite clear that Binalong never considered that this bridge was necessary or there was demand for a bridge during the commencing stages of the proposed development and that umm it also makes it clear in the EIS and it states quite specifically that umm a replacement of the Hindmarsh umm Island ferry by a bridge cannot be justified when viewed from the whole of river perspective.”
A further question was asked by Mr Satchel and answered by the Hon Ms Laidlaw:
“Satchel: So, you’re saying this is being driven by Westpac?
Laidlaw:.. I have no question about that, that is (sic) certainly been suggested for many, many many months now and evidence today to the Committee umm confirm that.”
In my opinion there is no question that the thrust of this interview was to the effect that the Government had agreed to finance the erection of this bridge because of the fear of litigation brought by Westpac. The whole project smells because the Government has come up with figures inconsistent with facts and figures put to the Government when it first considered the proposal.
The pleaded imputations are that the plaintiffs acted corruptly or improperly in the course of their dealings in relation to the bridge and/or the development. Those imputations, in my opinion, do not arise out of the natural and ordinary meaning of the words.
The defendant relies upon the reasoning in Mirror Newspapers Ltd v Harrison (supra) but again I do not think that case to be relevant. I think these imputations simply cannot arise on the natural and ordinary meaning of the words.
I would strike out paragraph 27.
The fifth publication was on Radio 5AN in a programme known as “Drive Time” on 15 March 1994.
The words complained of are pleaded:
“Nicoll:.... See, it looks from the outside as though a private development and a bank and a council have all held a State Government to ransom over a deal that should never have been done...
Nicoll:Is this a case of a Government deal ... doing a deal with a private developer for the benefit of that developer?
Laidlaw:.. That’s right...
Laidlaw:Westpac is not the only ... er well, I was going to say villain, in inverted commas, is not the only problem ...
Nicoll:...... It’s a great pity that the proponents of this damn thing can’t be brought to justice. I mean, it’s not as though they’ve done anything criminal, but ...
Laidlaw:It’s the former Government that should be brought to justice, and ... and in fact in some ways it was with the outcome of the last election, because this is just one example of so many business deals that stink, and the Premier in addressing the Institute of Directors today indicated that it’s his belief that the decision making in relation to this bridge was worse than that experienced in relation to the State Bank. That’s how damning we believe this decision is, and it’s a decision that unfortunately we’ve inherited.
Nicoll:...... The conservationists are... they will say environmental banditry, nothing more than that...
Nicoll:I’ve generally stayed out of this... er this argument because I’ve got a shack down in that area, and it’s had absolutely nothing to do with this decision and that decision has absolutely no impact on me whatsoever, other than the fact that I think the Coorong is a fantastic piece of country. And I think the decision to put... to put that marina development on that Island was disgusting, and nothing more than... nothing more than expediency and piraty... piracy, if you like.”
The imputations are pleaded in paragraph 37:
......... “The words a “private development and a bank and a council have all held a State Government to ransom”, in their natural and ordinary meaning, carried the imputations that the Plaintiffs:
a) Engaged in illegal activities.
b) Engaged in blackmail or extortion.
c)..... Caused Binalong to act in the manner referred to in paragraphs (a) and (b).”
I think the article in its terms precludes the drawing of the first imputation pleaded.
The presenter made it clear that he was not asserting that anything criminal had been done. In the face of that clear statement it would not be possible to understand the words to mean that the plaintiffs had engaged in illegal activities. In those circumstances I do not believe that the imputation that the plaintiffs had engaged in illegal activities could arise.
Ransom and blackmail and extortion are different concepts. A person who holds someone to ransom restricts the liberty of that person in order to obtain a benefit. Blackmail on the other hand is seeking to obtain money or some other benefit by threatening to reveal a secret usually to the discredit of the person from whom the money or benefit is sought.
To extort usually means to obtain money from another person by some threat of force or importunity.
I do not think that the use of the words complained about could give rise to a suggestion that the plaintiffs had engaged in blackmail. I do, however, on the other hand believe that the words, and it will be a jury question in due course whether they do, are capable of giving rise to the imputation that the plaintiffs have engaged in extortion.
I would therefore strike out paragraph 37(a) and strike out the words “in blackmail or” in paragraph 37(b) and as a consequence strike out the words “paragraphs (a) and” in paragraph 37(c) but give leave to the plaintiffs to substitute the word “paragraph” in sub-paragraph (c) of paragraph 37.
The plaintiffs claim that other imputations arise out of the same article.
It is pleaded in paragraphs 39 to 43:
“39.. The words “Westpac is not the only... well, I was going to say villain, in inverted commas”, in their natural and ordinary meaning, carried the imputation that the Plaintiffs were criminals and/or wicked and malevolent persons.
40.The words “it’s a great pity that the proponents of this damn thing can’t be brought to justice”, in their natural and ordinary meaning, carried the imputations that the Plaintiffs:
(a)    Had committed a criminal act.
(b)    Had acted so that they ought to be prosecuted.
(c)... Caused Binalong to act in the manner referred to in paragraphs (a) and (b).
41.... The words “just one example of so many business deals that stink”, in their natural and ordinary meaning, carried the imputations that the Plaintiffs:
(a)    Acted corruptly.
(b)    Entered a corrupt, improper or dishonest arrangement.
(c)... Caused Binalong to act in the manner referred to in paragraphs (a) and (b).
42.... The words “environmental banditry, nothing more than that”, in their natural and ordinary meaning, carried the imputations that the Plaintiffs:
(a)Had committed an act of banditry.
......... (b)    Engaged in illegal activities.
(c)Deliberately desecrated the environment.
(d)Caused Binalong to act in the manner referred to in paragraphs (a) to (c).
43.... The words “to put that marina development on that Island was disgusting, and nothing more than... nothing more than expediency and piraty... piracy if you like”, in their natural and ordinary meaning, carried the imputations that the Plaintiffs:
(a)Had acted disgustingly.
......... (b)    Had committed an act of piracy.
(c)Engaged in illegal activities.
(d)Caused Binalong to act in the manner referred to in paragraphs (a) to (c).”
The plaintiffs rely, in particular, upon the particular words pleaded in paragraph 39 for the imputation pleaded in that paragraph. I am not satisfied that the imputation pleaded in paragraph 39 that the plaintiffs were criminals can arise for the reasons I have given in respect of the plea in paragraph 37(a), but I am of the opinion that the words pleaded in paragraph 39 are capable of giving rise to that part of the imputation pleaded that the plaintiffs were wicked and malevolent persons. The expression villain means a person is guilty or capable of great wickedness and unprincipled and depraved. I am satisfied that the natural and ordinary meaning of the words could give rise to the imputation pleaded. However, I would strike out the words “criminals and/or” from paragraph 39.
For the reasons already given, in my opinion, the imputation pleaded in paragraph 40 cannot arise.
I do not believe the imputations pleaded in paragraph 41 can arise. The words in their natural and ordinary meaning are directed, in my opinion, to the conduct of the Government rather than the conduct of the plaintiffs or Binalong Pty Ltd. In those circumstances the imputations pleaded could not, in their natural and ordinary meanings, arise.
Banditry involves the practices of bandits. A bandit is a person who is an outlaw, a lawless robber or a marauder. I think the imputation in paragraph 42 (a) could arise. I think the words are capable of giving rise to the imputation that the plaintiffs acted lawlessly or acted as marauders in relation to the environment.
I do not believe that the imputation contended for in paragraph 42 (b) could arise. I would be prepared to accept a lesser imputation but not one which complained of illegal activities.
Paragraph 42(c) uses the word desecrate. That word is used frequently by the pleader in this Statement of Claim. Desecrate means to remove or violate the sacred nature of, profane; spoil or treat with contempt (something venerated or admired). The New Shorter Oxford English Dictionary, Clarendon Press Oxford 1993 Edition.
In my opinion desecrate has been used inappropriately by the pleader almost throughout this pleading. The pleader seems to have used the word desecrate when the word damaged would often do. I do not think the word desecrate is appropriate in relation to a claim which effectively is environmental damage. I do not think that even in modern English the environment could be raised to such a height.
I would therefore strike out the imputation pleaded in paragraph 42 (c).
It follows that I would strike out the imputations in paragraphs 42 (b) and (c) and strike out so much of paragraph (d) which relies on paragraphs (b) and (c) of paragraph 42. I would give leave to the plaintiffs to amend paragraph 42(d) to rely upon paragraph 42(a).
I think the imputation pleaded in paragraph 43(a) could arise in the natural and ordinary meaning of the words pleaded in the paragraph.
Piracy has two quite distinct meanings. It means either robbery, kidnapping or violence at sea or alternatively the unlawful reproduction of some intellectual property.
I do not think that, in their natural and ordinary meaning these words meant that the plaintiffs had committed an act of piracy of either kind. For reasons already given I do not think that the words could mean that they engaged in illegal activities.
I would strike out paragraphs 43(b) and 43(c) and strike out the references to paragraphs 43(b) and 43(c) in paragraph 43(d). I would give leave to the plaintiffs to substitute a reference to paragraph (a) for the words struck out in paragraph 43(d).
The eighth publication was a publication in a radio programme on 5AN known as the “Keith Conlon Show” on 15 March 1994.
During that programme a Mr Tomason said:
“And then you’ve got Binalong, who are probably deep in debt, and they’ve got to try and get out of it, so basically the environment, Aboriginal Ngarrindjeri rights, the people’s demand down there for ... for protection of the beautiful environment is just being swept aside because of demand of ... of capital.”
The plaintiffs have pleaded in paragraph 60 that the following imputations arise:
“(a)   Ignored the potential effects of the development on the environment.
(b)    Ignored the concerns of interested parties.
(c)     Acted reprehensibly for their own financial gain.
(d)... Caused Binalong to act in the manner referred to in paragraphs (a) to (c).”
I am of the opinion that the imputations pleaded in paragraphs 60 (a) and 60 (b) are capable of arising on the words pleaded.
With respect to paragraph 60(c), whilst I believe that the published words could give rise to an imputation that the plaintiffs acted for their own financial gain, I do not believe that the qualifying adverb arises from the words. I think this is an instance of the pleader’s flourish. I would strike out the word “reprehensibly” in paragraph 60(c).
Therefore in respect of that part of the defendant’s application I would allow the application only for the purpose of striking out the word “reprehensibly” in paragraph 60(c).
The next publication is the ninth publication which occurred on 20 April 1994 again in the 5AN programme known as “Drive Time”.
In that programme the following words were spoken and published
“Nicoll:.... Writs and threats of legal action are flying thick and fast, as they have been from the Chapmans’ Binalong company for months now, and that includes a ruling from the Federal Court that puts a stopper on people campaigning against the building of the bridge. Specific people, not people in general. But that raises an interesting question. Is this, the forces of law and order, putting a judicial gag on lawful protest? Is the Federal Court using its weight to back business against the right of freedom to protest?...
Nicoll:As a general principle the courts can be used quite lawfully to put an absolute gag on ... on lawful protest.
Heath:...... That seems to be the result of this decision, yes.
Nicoll:What does it say about freedom in our society?
Heath:...... I think it says that freedom in our society is limited. It depends on who you are and how much money you’ve got exactly what sorts of freedom you’ve got.
Nicoll:And you could excuse people for thinking that there’s a law for the rich and a law for the ordinary.
Heath:...... Certainly you could forgive people for thinking that and you could also forgive people for wondering whether freedom of speech is something that’s open to everyone in our society or only open to some people...
Heath:If people don’t have the freedom of speech to even discuss things amongst themselves at a public meeting held in the city or in a private home it seems to me there’s something really wrong.”
The imputations said to arise from the words are pleaded in paragraph 65:
......... “Such words, in their natural and ordinary meaning, carried the imputations that the Plaintiffs:
“(a)Issued proceedings for the other than the exercise of proper legal rights.
(b)Abused the processes of a court.
(c)Received and/or took the benefit of improper favourable treatment from the Courts.
(d)Acted wrongfully.
(e)Caused Binalong to act in the manner referred to in paragraphs (a) to (d).”
In my opinion none of the imputations are capable of arising on the published words.
It is not possible, in my opinion, to say that these words are capable of meaning that the plaintiffs have issued proceedings for other than the exercise of proper legal rights. The words indicate, in my opinion, that it is quite within a person’s legal rights to seek an order from the Federal Court in the terms mentioned by Mr Nicoll in the opening words. The words cannot give rise to the imputations pleaded in paragraphs 65 (b), (c) or (d).
There is no suggestion in the words that the plaintiffs abused the processes of the Court or that they received or took the benefit of improper favourable treatment from the Courts. Lastly the words cannot mean that the plaintiffs acted wrongfully.
None of the imputations, in my opinion, arise and I would strike out paragraph 65.
The tenth publication pleaded is a further edition of the “Drive Time” programme on 27 April 1994.
The words which are said to give rise to the defamatory imputations are:
“Nicoll:.... One person is quite accustomed to heavy tactics on green issues is former Tasmanian MP Bob Brown...
Brown:I am greatly alarmed. We have seen the growth of what is called slap writs in the United States whereby the corporate sector is hitting community groups with writs aimed at stifling their ability to take part in the vigorous public debate.
Nicoll:...... Just before we go any further, let me take you further... let me take you back on that word, slap writs, S-L-A-P, a slap writ. That is legal terminology, what does it mean?
Brown:Generally it’s... it’s legal terminology which means a writ has been placed on a community group which threatens the community groups if it continues with the activity, with legal and/or financial penalties which will put them out of business.
Nicoll:...... It stands for strategic litigation against protesters, S-L-A-P.”
The imputations are pleaded in paragraph 68 which I set out:
......... “Such words, in their natural and ordinary meaning, carried the imputations that the Plaintiffs:
(a)Issued proceedings for other than the exercise of proper legal rights.
......... (b) Abused the processes of a court.
(c)Acted with the purpose of harming other people’s businesses.
(d)Caused Binalong to act in the manner referred to in paragraphs (a) to (c).”
In my opinion none of the imputations arise from the published words.
The imputation which might arise on the published words is that the proceedings were issued for the purpose of stifling debate but that is not what is pleaded. The words do not give rise to the imputation that the plaintiffs issued proceedings other than to protect or enforce their legal rights. They do not give rise to the imputation that they abused the processes of the Court. They could not, in any circumstances, give rise to the imputation pleaded in paragraph 68(c).
In my opinion, on the natural and ordinary meaning of the words, the imputations pleaded in paragraph 68 do not arise and that paragraph should be struck out.
If the plaintiffs wish to maintain this cause of action they face a further problem. The words pleaded do not apparently identify the plaintiffs. The pleadings would have to address that matter.
The twelfth publication was the 3 May 1994 edition of the 5AN programme “Drive Time”.
The words published on that occasion were:
“Nicoll:.... But you are aware, of course, that the company involved, or rather a legal firm operating, as it says in its letters, for directors of the company, the Binalong Company, are handing out legal threats to anybody who opposes the building of the bridge.
Milera:Well, that’s very hard to take too when Binalong’s sitting on a sacred ground, who did break the Act in the first instance.
Nicoll:...... You mean the marina development on the island is on sacred ground?
Milera:Yes, most definitely and they broke it in the first... and there’s no... I want somebody to respond to that.
Nicoll:...... It sounds as though the interests of your people have been ignored all the way through.
Milera:All right through, right through, nothing has ever been done right, right from the word go.”
The imputations which are said to arise are pleaded in paragraph 78 and are that the plaintiffs:
“(a) Wilfully breached Aboriginal heritage legislation.
(b)... Ignored the interests of Ngarrindjeri people in planning processes for the bridge.
(c)Failed to act properly in carrying out planning processes.
(d)... Desecrated sacred ground.
(e)Caused Binalong to act in the manner referred to in paragraphs (a) to (d).”

In respect of this paragraph the defendant only complains of the imputations pleaded in paragraphs (a) and (d).
In my opinion both of those imputations are capable of arising in the natural and ordinary meaning of the words. Ms Milera made reference to “break the Act” which, in my opinion, could give rise to the imputation that there was a wilful breach of the Aboriginal Heritage Legislation. Whether the imputation does arise will be a jury question in due course.
On this occasion I think the pleader has appropriately used the word desecrated because of the reference by Mr Milera to sacred ground in that broadcast.
In my opinion the imputations in paragraphs 78(a) and 78(d) could arise.
Mr Milera went on to say in the same programme:
“But we know there’s a corruption going on. We know there’s something really bad going on and we want the Government to either listen to us, because we’ll keep on going, we’ll join forces and we’re going on.”
In paragraph 82 the plaintiffs plead that those words in their natural and ordinary meaning carry the imputations that the plaintiffs:
“(a) Acted corruptly.
(b) Caused Binalong to act in the manner referred to in para (a).”
As I have already said this Court is only concerned with one question on this appeal and that is whether or not the imputations are capable of arising on the published words. Other matters including identification will have to be considered at a later time.
In my opinion the words are capable of carrying the imputations pleaded in paragraph 82.
I would dismiss the defendant’s application in relation to its complaints of the twelfth publication.
The fifteenth publication was on 7 June 1995 on the “Keith Conlon Show” broadcast on 5AN.
On that show the following words were spoken and published:
“Conlon:   Who’s been manipulating you?
Milera:     Who’s been manipulatin’?
Conlon:     Yeah.
Milera:     Well, you try and work it out... that one out for yourself, eh.
Conlon:.... Well, it could be trade unions, it could be environmentalists, it could be the Chapmans, we don’t know who.
Milera:No-one’s manipulatin’ me. I’m just doin’ what I feel has been wrong.”
It is pleaded in paragraph 97 of the More Explicit Statement of Claim that those words carry the imputation that the plaintiffs “wrongfully controlled or influenced Doug Miller and/or procured him to make false statements.”
In my opinion that imputation does not arise on the published words.
All Mr Milera has said in answer to the questions posed to him is that no one is manipulating him. There is no suggestion that he was being controlled or influenced or that someone procured him to make false statements.
I would strike out paragraph 97 of the Statement of Claim.
The next complaint is in respect of paragraph 102 of the Statement of Claim. The imputations pleaded in that paragraph relate to the sixteenth publication by the defendant which was on 7 June 1995 on the “Drive Time” programme on 5AN.
The following words were published:
“Nicoll:.... The Aboriginal people in the area are in the midst of a terrible turmoil over this issue, which you would have to consider would not have arisen if it was not for white folks’ plans to make millions of dollars out of development on what was once Ngarrindjeri homeland.”
The imputations which are said to arise on or concerning the plaintiffs are pleaded in paragraph 102:
“a) Were to blame for division in the Aboriginal community.
b)..... Caused pain and trouble for Aboriginals for the purposes of their own financial gain.
c)Caused Binalong to act in the manner referred to in paragraphs (a) and (b).”
In my opinion the imputation pleaded in paragraph 102(a) could arise on the natural and ordinary meaning of the words pleaded. I think it can be said that the words suggest blameworthiness and there is a division in the Aboriginal Community.
I do not, however, believe that the imputation pleaded in paragraph 102(b) arises. I do not think it can be said that the words mean that pain and trouble for Aboriginals was caused for the purposes of financial gain. It may be that the words give rise to an imputation that pain and trouble was caused to Aboriginals by reason of the pursuit of financial gain but I do not think that the imputation as pleaded does arise.
I would strike out paragraph 102(b) and strike out the reference to paragraph 102(b) in paragraph 102(c). I would give leave to the plaintiffs to substitute a reference to paragraph 102(a) for the words struck out in paragraph 102(c).
The seventeenth publication was on 19 July 1995 on Channel 2 in the programme “The 7:30 Report”.
The words pleaded as giving rise to cause of action are:
“O’Keefe:......... Even so, Rod Lucas did recommend the Chapmans consult directly with local Aboriginal Groups.
O’Keefe:Did the Chapmans consult with those groups?
Lucas:................ I don’t think that’s for me to decide. I think that is to be decided.
O’Keefe:But don’t you know, I mean, er, you would’ve still maintained contact with these people?
Lucas:................ The meetings, the program of consultation that was set out in my report, I don’t believe was fulfilled.
O’Keefe:Why then was an approval given back in 1990 if there is some doubt about that consultation?
Lucas:................ I do not know and I think that it is the... a very pertinent question that needs to be addressed.”
The plaintiffs plead in paragraph 107 the imputations which they say arise:
“(a).. Failed to consult with Aboriginal groups in gaining planning approval for the bridge.
(b)Failed to properly carry out planning approval processes.
(c).... Caused Binalong to act in the manner referred to in paragraphs (a) and (b).”
In my opinion the imputation pleaded in paragraph 107(a) could arise. I think it would be more accurate to claim that there was not proper consultation with Aboriginal Groups but I think it can be said that the words mean there was no consultation with Aboriginal Groups. I am not prepared to make an order striking out paragraph 107(a).
I do not, however, believe that the imputation pleaded in paragraph 107(b) could arise on the published words. There is no mention of planning approval processes and it seems to me that the pleader has assumed something not said.
I would strike out paragraph 107(b) and strike out the reference to paragraph 107(b) in paragraph 107(c). I would give the plaintiffs leave to substitute reference to paragraph 107(a) in paragraph 107(c) in substitution for the words struck out.
The nineteenth publication was on 29 August 1995 in a radio programme on 5AN called the “Matthew Abraham Show”.
In that programme the following words were spoken and published:
“Rex of Waikerie:..... The only thing I can see that the bridge is being built for is the rich people with their million dollar boats down in the Marina...
Brenda of Mt Barker: Destroying a very, very environmentally sensitive area, um, on environmental grounds, heritage grounds and religious freedom and its being built for the personal profit of rich people, particularly the Chapmans...
Des of Seacliff:......... Why the developers never consulted with any of the Aboriginal organisations listed as a requirement of the Environmental Impact Assessment for the development?...
Mary of Mitchell Pk: Mrs Chapman, whom I respect, you know, for what she wants to do, you know with this bridge, she’s ex-Lord Mayor of Adelaide so there’s connections there...
Jenny of Pt Adelaide: I think the political connection between Mrs Wendy Chapman and the Government... (cut off)
Abraham:It’s like walking on eggshells this morning...
Mary of Findon:........ But Chapmans who got money put into their... (cut off)”
The imputations which are said to arise are pleaded in paragraph 116 and for completeness I shall set out the whole of that paragraph.
.................. “Such words, in their natural and ordinary meaning, carried the imputation that the second Plaintiff had improperly used her standing as a former Lord Mayor to achieve a personal benefit and further carried the imputations that the Plaintiffs:
(a)Were greedy people with improper motives.
(b)Were desecrating the environment for the purposes of personal financial gain.
(c)Had improperly received favourable treatment due to political connections.
(d)Failed to consult as required by the Environmental Impact Assessment for the development.
(e)Caused Binalong to act in the manner referred to in paragraphs (a) to (d).”
The defendant seeks only the striking out of paragraphs (a) and (b) of paragraphs 116.
In my opinion neither imputation can arise. It may be that it could be said from what Rex of Waikerie said, that the imputation that rich people were involved would arise, and from what Brenda of Mt Barker said that something was being built for the personal profit of rich people but, in my opinion, the imputation pleaded in paragraph 116 (a) cannot arise. Rich people are not necessarily greedy people or greedy people with improper motives.
The imputation in paragraph 116(b) cannot arise. The words published do not allow for the claim that there has been any desecration of the environment. The use of the word desecration is inappropriate.
It may be that the pleader could successfully claim that an imputation that the plaintiffs were damaging the environment for the purposes mentioned arises but that is not what is pleaded.
I would strike out paragraphs (a) and (b) of paragraph 116 and strike out reference to paragraphs (a) and (b) in paragraph 116(e). I would give the plaintiffs leave to substitute a reference to paragraphs 116(c) and 116(d) in substitution for the words struck out in paragraph 116(e).
The twentieth publication occurred on 17 September 1995 in a broadcast on Radio National in a program known as “Background Briefing”.
The following words were published:
“Morton:. Can you tell in very, very general terms what it would mean if that bridge was built?
Roberts:It’d be a disaster. The... all the people... all the remains of my people would be finished. It’d be all right for Mrs Chapman but... actually they wouldn’t like now if you go into a cemetery and start digging around would they? No! That’s what I tell ‘em, that’s our people there, what’s left of them.”
The imputations are pleaded in paragraph 122:
“(a) Would desecrate graves.
(b)... Was willing to condone wrongful interference with Aboriginal remains in order to secure the bridge.”
On this occasion because of the content of the comment, I think, the word desecrate is used appropriately and I would allow the imputation in paragraph 122 (a).
I think the inclusion of the word ‘wrongful’ makes the imputation in paragraph 122 (b) objectionable because the word ‘wrongful’ is imprecise. I would therefore strike out the word “wrongful” in paragraph 122 (b).
The last publication pleaded is the twenty-second publication on 7 December 1997 in the ABC TV News on Channel 2.
The following words were published:
“Doyle:.... Basically what that writ does to us as an organisation representing 60,000 South Australians, is, is gag us. We feel, er, that er, this writ has gagged us and we feel er, very uncomfortable in commenting further on this issue...
Grady:We don’t believe that they will stand up in Court, and so we believe that they should provide further and better particulars of what they’re alleging.”
The plaintiffs’ plead in paragraph 133 that those words carry imputations of and concerning them being:
“(a) Issued proceedings for other than the exercise of proper legal rights.
(b) Abuse the processes of the Court.
(c).... Issued proceedings for the ulterior purpose of preventing people participating in unlawful protest.”
In my opinion none of the pleaded imputations arise out of the words published on 7 December 1997. Legal proceedings might gag someone but that does not mean the proceedings have been brought for other than the exercise of proper legal rights and certainly does not mean that the proceedings amount to an abuse of the Court’s processes. I do not understand the reference to “they” by Ms O’Grady to be a reference to Mr and Mrs Chapman but rather a reference to the writs which have been issued. In those circumstances I do not believe any of the pleaded imputations can arise. I would strike out paragraph 133.
In my opinion this appeal should be allowed and orders made to reflect these reasons.
I propose the following orders.

Appeal allowed.

2.1Paragraphs 11, 16, 19(a), 19(b), 27, 37(a), 40, 41, 42(b), 42(c), 43(b), 43(c), 65, 68, 97, 102(b), 107(b), 116(a), 116(b) and 133 are struck out.

2.2 The words ‘in blackmail or’ in paragraph 37(b) are struck out.

2.3The words ‘paragraphs (a) and’ in paragraph 37(c) are struck out but leave given to the plaintiffs to substitute the word ‘paragraph’ for the words struck out in that paragraph.
2.4The words ‘criminals and/or’ in paragraph 39 are struck out.
2.5The words “paragraphs (a) to (c)” in paragraph 42(d) are struck out but leave given to the plaintiffs to substitute the word ‘paragraph (a)’ for the words struck out in that paragraph.
2.6The words “paragraphs (a) to (c)” in paragraph 43(d) are struck out but leave given to the plaintiffs to substitute the words “paragraph (a)” for the words struck out in that paragraph.
2.7The word ‘reprehensibly’ in paragraph 60(c) is struck out.
2.8The words “paragraphs (a) and (b)” in paragraph 102(c) are struck out but leave is given to the plaintiffs to substitute the words “paragraph (a)” for the words struck out in that paragraph.
2.9The words “paragraphs (a) and (b)” in paragraph 107(c) are struck out but leave is given to the plaintiffs to substitute the words “paragraph (a)” for the words struck out in that paragraph.
2.10The words “(a) to” in paragraph 116(e) are struck out but leave is given to the plaintiffs to substitute the words “(c) and” for the words struck out in that paragraph.
2.11The word ‘wrongful’ in paragraph 122(b) is struck out.

[2000] SASC 146

29 June 2000