Chapman v Australian Broadcasting Corporation No. Scgrg-98-321 Judgment No. S29

[1999] SASC 29

CHAPMAN v AUSTRALIAN BROADCASTING CORPORATION

[1999] SASC 29

Masters Appeal:

1 WILLIAMS J.  The defendant (ABC) has appealed against an order of a Master dated 13 October 1998 insofar as it dismissed the defendant’s application to strike out the statement of claim or passages therein.
2 The plaintiffs allege that the defendant has defamed the plaintiffs (r one of them) in the course of television and radio broadcasts and the plaintiffs claim damages.
3 Attached to the statement of claim are the transcripts of the various broadcasts (22 in all) and these have been given identifying letters (A to V).
4 The Master ordered (in effect) that the allegations concerning attachments D, M and R be struck out; these allegations are set out in pars28-32, 83-87 and 108-113 (inclusive).  Otherwise the Master dismissed the defendant’s application and the appeal from that dismissal is now before me.
5 The plaintiff relies upon the natural and ordinary meaning of the words in each broadcast as giving rise to the imputations pleaded in each instance.  Upon the plaintiff’s case each broadcast stands alone and the contents of each attachment (or rather the material therein of which the plaintiffs’ complain) is to be considered for present purposes separately and apart from other broadcasts.
6 The defendant has filed an affidavit sworn by its solicitor on 16 July 1998 which particularisers its contention with respect to each publication.
7 The broadcasts concern issues connected with moves to build a bridge at near Goolwa to provide access to Hindmarsh Island.
8 The plaintiffs, in pars2-6 of the statement of claim, plead facts which they assert to be in the public domain - including their own associations with the company Binnalong Pty Ltd and their role in relation to the project.  Some of the broadcasts do not mention either plaintiff by name but the assumption of knowledge of background facts as being in the public domain is covered by the material alleged in the paragraphs to which I have referred.
9 In my opinion there is sufficient in each and every of the broadcasts in the light of pars2-6 of the statement of claim to found a basis for identifying the plaintiffs and linking them to the activities or conduct with which the broadcasts are respectively concerned.  In my opinion for the purposes of the present application the appellant Australian Broadcasting Corporation fails insofar as it relies upon lack of identification of the plaintiffs, lack of any alleged association with the bridge building or lack of identification of the project in the individual publications.
10 In my opinion the matters pleaded are sufficient (if the allegations pleaded are established) to satisfy the test as set out by Gatley on Libel and Slander (9th ed) in pars32.15 and 32.16 in circumstances where the plaintiff is not expressly named.  Extrinsic evidence may be called to connect the plaintiff with the libel.  The test is an objective one as to whether on the evidence an ordinary sensible person would draw the inference that the words referred to the plaintiff.
11 The defendant alleges in each case that as a matter of law the pleaded words are not capable of carrying the alleged defamatory meanings of and concerning the plaintiffs.  Upon this topic Gatley (9th ed) at par 34.3 says:
"The jury’s exclusive role in determining meaning is subject to one important restriction, namely that it is for the judge to decide whether the words are capable of bearing a defamatory meaning.  "It is for the Court to say whether the publication is fairly capable of a construction which would make it libellous, and for the jury to say whether in fact that construction ought, under the circumstances, to be attributed to it."  The former question is reserved to the judge as it is, or is treated as, one of law.  In determining whether the words are capable of a defamatory meaning the judge will construe the words according to the fair and natural meaning which would be given to them by reasonable persons of ordinary intelligence, and will not consider what persons setting themselves to work to deduce some unusual meaning might extract from them.  The reasonable reader is not naïve but not unduly suspicious, can read between the lines, can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking.  "The court should be cautious of an over-elaborate analysis of the material in issue."

12 The appellant’s application requires a judge to determine whether the pleaded words "are capable of a defamatory meaning" as quoted above.  However, in his treatment of the subject, the Master has used different language - as to whether the meaning contended for by the plaintiff in respect of the words quoted could "arguably arise" on the publication and applying such test upon the footing that if this test were satisfied then the matter would become a jury matter.  (Gatley discusses this point in par3.11 note 12).  In complaining that the Master has not applied the correct test the appellant relies upon the passage quoted from Gatley which identifies a test as to the fair and natural meaning which would be given to the words by reasonable persons of ordinary intelligence proceeding in the manner above described.  I have reviewed the whole of the material in this light.  In those cases where the plaintiff relies upon more than one defamatory meaning as the natural and ordinary meaning, I have applied the requisite test in relation to each meaning for the purpose of now ruling (within the test abovementioned) whether the words are capable of having the meaning alleged in the statement of claim.
13 Applying the test to which I have referred (as quoted from Gatley) I have concluded that the statements in Attachment G (statement of claim pars50-55) and Attachment U (statement of claim pars123-128) are not capable in law of conveying a defamatory meaning with respect to the plaintiffs.
14 In reaching this conclusion I have had regard to Gatley’s statement of principle in par34.4:
"Where the words complained of are reasonably capable of either an innocent or a defamatory meaning, it is a question of fact for the jury to determine which of the two meanings the words actually bore.  Indeed it is accepted that a passage of text may bear several meanings: ‘Everyone outside a court of law recognises that words are imprecise instruments for communicating the thoughts of one man to another.  The same words may be understood by one man in a different meaning from that which they are understood by another...Different men would not be unreasonable in ascribing different meanings to the same words.  Hence the distinction between defamatory meanings which words are capable of bearing and the particular defamatory meaning which, for the purposes of the tort of libel, they bear."  The task of the jury is to decide which of the possible meanings is the "right" meaning, that is to say the single natural and ordinary meaning of the words.  "Their various views would coalesce in one combined (and perhaps compromise) view of the natural and ordinary meaning, and whether it was defamatory."  Where words are susceptible of a number of innocent interpretations, and only one defamatory meaning, that meaning must be left to the jury, if it is a meaning the words are capable of bearing.  The observation of Brett L.J. that it was unreasonable, when there are a number of good interpretations, to seize upon the only bad one to give a defamatory sense to the document, should not be read as a statement of general application to the contrary.  Whether the context of words, which, when read in isolation, are defamatory, removes the sting or transforms the meaning so as to render the words incapable of being defamatory is as a general rule a matter for the jury.  "Only in the clearest cases would it be proper for a judge to rule that the sting of words, which are ex hypothesi capable of a defamatory meaning in themselves, is drawn by the surrounding context, so that in the result those words cease to be capable of a defamatory meaning.  In my judgment the general though perhaps not universal rule should be that this is a matter for the jury and not for the judge to decide."

15 As the plaintiffs rely upon the natural and ordinary meaning of the words published, I have found the statement of Brennan J in Readers Digest Services Pty Ltd v Lamb (1981-82) 150 CLR 500 at 505-506 to be helpful -
"...The meaning upon which the respondent relied to establish the imputations pleaded was the natural and ordinary meaning of the words published.

Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees - Lord Selborne’s reasonable men (Capital and Counties Bank v Henty (6)) or Lord Atkin’s right-thinking members of society generally (Sim v Stretch (7) or Lord Reid’s ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd (8)) - would understand the published words in a defamatory sense.  That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation...."

16 I would uphold the appeal for the purposes of striking out pars50-55 and pars123-128 of the statement of claim.
17 In other respects I would dismiss the appeal.