SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
CORNES v THE TEN GROUP PTY LTD AND ORS
[2011] SASC 104
Judgment of The Honourable Justice Peek
5 July 2011
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - INNUENDO
DEFAMATION - PUBLICATION - GENERALLY
Action for defamation – plaintiff sued defendants for defamation for material broadcast on the programme Before the Game in South Australia and other locations on 28 June 2008 – comment made by fifth defendant during live interview with Stuart Dew alleged that the plaintiff had intentionally and willingly had sexual intercourse with Dew.
Whether the words were capable of conveying the meaning complained of – whether the ordinary reasonable viewer would have viewed the interview against the background of views formed prior to 28 June 2008 – whether the denials by Maher and Dew were sufficient “antidote” to the “bane” – whether the plaintiff viewed the words merely as a “bad joke” and was therefore outside of her pleaded case – whether there was sufficient evidence of publication to persons who knew or believed that the plaintiff was married at the relevant time – whether the defence of triviality could be made out – assessment of damages.
Held: judgment for the plaintiff – words spoken in the interview were capable of conveying and did actually convey the meaning that the plaintiff had had sexual intercourse with Dew – this is so whether the matter is considered in the broader context of the whole of the program of 28 June 2008 or in the narrower context of the whole of the subject interview – the ordinary reasonable viewer is not to be imbued with knowledge of the reputations or of the previous activities of persons appearing on Before the Game – the denials by Maher and Dew did not serve as an immediate antidote to the statement since the viewer is left with conflicting assertions on the matter – use of the word “joke” in negotiations and evidence was not an admission or concession by the plaintiff – the defence of triviality cannot be made out – the plaintiff established that there was very widespread public knowledge that she was married to Graham Cornes –the ambit of publication to viewers with the required extrinsic knowledge that the plaintiff was married would have been not less than 120,000 persons – the republication of the interview on the internet and in the Sunday Mail has some but limited impact on the overall award of damages – apology in this case could not found an award of aggravated damages – damages awarded in the amount of $85,000.00
Defamation Act 2005 (SA) s 5, referred to.
David Syme & Co v Canavan (1918) 25 CLR 234, distinguished.
Morgan v Odhams Press [1971] 1 WLR 1239; [1971] 2 All ER 1156; Donoghue v Hayes (1831) Hayes (Ir Ex) R 265; Random House v Abbott (1999) 167 ALR 224; Slim v Daily Telegraph Ltd [1968] 2 QB 157; Charleston v Newsgroup Newspapers Ltd
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Details
- AGLC
- Cornes v The Ten Group Pty Ltd [2011] SASC 104
- Case
- [2011] SASC 104
- Decision Date
CaseChat Overview and Summary
Cornes v The Ten Group Pty Ltd involved a defamation claim by the plaintiff, who alleged that the defendants defamed her by broadcasting comments on the television program "Before the Game." Specifically, the plaintiff claimed that a comment made by one of the defendants during a live interview implied she had engaged in sexual intercourse with Stuart Dew. The defendants denied the allegations, arguing that the comment was intended as a joke and that the plaintiff had treated it as such. The court had to decide several legal issues, including whether the words were capable of conveying the defamatory meaning, whether the ordinary reasonable viewer would have understood the comment in the context of the program, and whether the defendants' denials served as an adequate antidote to the alleged defamation.
The court found that the words spoken during the interview were indeed capable of conveying and did convey the defamatory meaning that the plaintiff had had sexual intercourse with Dew. The court held that the ordinary reasonable viewer should not be assumed to have knowledge of the reputations or prior activities of the individuals involved. The denials by the defendants did not sufficiently counteract the defamatory nature of the comment as they left the viewer with conflicting assertions. The court also noted that the use of the word "joke" during negotiations and in evidence was not an admission or concession by the plaintiff. The defence of triviality was also rejected, as the plaintiff demonstrated widespread public knowledge of her marriage. The court concluded that there was sufficient evidence of publication to persons who knew or believed the plaintiff was married at the relevant time.
The court awarded damages in the amount of $85,000.00 to the plaintiff. The court will hear the parties on the form of orders, consequential orders, interest, costs, and related matters.
The court found that the words spoken during the interview were indeed capable of conveying and did convey the defamatory meaning that the plaintiff had had sexual intercourse with Dew. The court held that the ordinary reasonable viewer should not be assumed to have knowledge of the reputations or prior activities of the individuals involved. The denials by the defendants did not sufficiently counteract the defamatory nature of the comment as they left the viewer with conflicting assertions. The court also noted that the use of the word "joke" during negotiations and in evidence was not an admission or concession by the plaintiff. The defence of triviality was also rejected, as the plaintiff demonstrated widespread public knowledge of her marriage. The court concluded that there was sufficient evidence of publication to persons who knew or believed the plaintiff was married at the relevant time.
The court awarded damages in the amount of $85,000.00 to the plaintiff. The court will hear the parties on the form of orders, consequential orders, interest, costs, and related matters.
Orders
Orders of the court
I award the plaintiff damages in the total amount of $85,000.00. I will hear the parties on the form of orders, consequential orders, interest, costs and related matters.
Background
Background to the litigation
I will address each of these possibilities sequentially.The context of facts or material existing prior to 28 June 2008 The essence of the defendants’ broadest contention is that the ordinary reasonable viewer of the subject interview in the programme of 28 June 2008 would have viewed it against the background of views formed prior to 28 June 2008 in relation to both the nature of the Before the Game programme and the comedic reputations and prior comedic activities of persons who regularly appeared on that program.[32] Although these two aspects can be distinguished conceptually, submissions and the evidence called by the defendants tended to overlap both aspects.[32] The defendants also sought to rely on the same approach on the separate matter of assessment of damages. The defendants made no effort to tender evidence of previous episodes of Before the Game in the form of discs or some other medium. The only evidence that was sought to be relied upon by the defendants was the oral evidence of Mr Kevin Whyte, their only witness. I received it subject to final submissions as to whether such evidence could go to liability or assessment of damages or neither. I should add that the plaintiff also objected that no expert report had been furnished in relation to this evidence. Senior counsel for the defendants agreed that this was so but maintained that it was not being tendered as “expert evidence” and that the witness was able to give non-expert evidence as to relevant facts and that this remained so even though he might have more than common experience in the relevant area. Senior counsel for the defendants sought to justify reception of evidence of both the reputation of the performers and evidence of their particular comedic activities thus:[33] We’re going to lay a foundation, in this witness’s knowledge, for evidence about the comedians on the show, their reputations, their profiles and how they would be known and received by the audience. That is a relevant matter for your Honour. Your Honour does not focus just on the one line, your Honour does not focus just on the program, your Honour is entitled to have regard to the entire publication, as it were, the history of the program, and that entails some understanding, we say, in the evidence of the identity and profiles of the comedians on the show. … We’re calling him as somebody who has special factual knowledge of the comedy market, and in particular of Mr Hughes, Mr Lehmann and Mr Molloy and their public profiles, and we want to lead from him evidence of his involvement with them and with comedy generally so as to lay a foundation for your Honour to form a view about the state of the public knowledge of the relevant audience of these men. That’s a matter that is of the utmost relevance in this case.(Emphasis added)[33] T125. Later, senior counsel stated:[34]The statement, we say, in its direct context, would have been seen to be and taken to be a jocular and not serious comment. … To establish that proposition, it is relevant to establish the context in which it was made. One can see the context. But it is also relevant and permissible to establish something about the identity of the individuals involved in the exchange because if they are all comedians plying their trade, attempting to be funny, then that’s how the ordinary, reasonable viewer would understand it. … It is of the utmost relevance to establish the ordinary viewer’s understanding of the publisher’s intention of the meaning to be conveyed …(Emphasis added)[34] T128.The evidence of Mr Whyte
Evidence
Evidence Before The Court
Mr Whyte told me that he, or his organisation, “managed” various comedians in Australia by which he appeared to mean, managing their bookings. Amongst these were Hughes and Lehman but not Molloy. He stated that he also managed the business affairs of Roving Enterprises which is the independent production entity which produces the programme Before the Game. He said that that program was filmed in front of a live audience, the producer’s target for the program was an audience aged 16 to 39 years old and audience laughter was directly recorded.Whyte’s evidence as to the usual format of “Before the Game” Whyte’s evidence-in-chief as to the usual format of the program Before the Game was as follows:[35]The routine of the program was that various news stories and items from the week were introduced across the program, generally in the first segment, till there is a debate, comment, but mainly as a launching pad for jokes for the performance. And then they would routinely do things like introduce props, additional videos, reference other pieces of footage to make those jokes. And then there were a number of regular segments. There was a segment called ‘Inside 60’, where questions were asked of football players and coaches, but they were essentially jokes dressed up as questions. A character called ‘Strauchanie’, which was a sketch, a regular serialised comedy series that existed within the program. And another segment called ‘Tool of the Week’, which was a segment that looked at the silliest person from the week. And that was a very popular segment with the commercial sponsor.[35] T137-138. There was a problem with this evidence. Whyte was here purporting to describe a format to which all editions of Before the Game conformed but his evidence constituted a poor description of the particular edition of the programme with which I am familiar, that of 28 June 2008. One would rather draw from his description that it was a comedy show but, on viewing the whole of the programme of 28 June 2008, I consider that while it has comedic elements, it is very much to be distinguished from programmes devoted exclusively to comedy, such as a so-called “situation comedy” or a programme presenting sequentially a number of comedians each presenting a “stand up” comedy routine. Rather, in the program of 28 June 2008 there is a substantial amount of what may be called “informative material” of particular interest to football followers. The interview with Dew which forms a very distinct portion of the programme is a very good example of this in that it is very much concerned with the conveying of informative material. I will return to this aspect below when I consider that interview in detail. It would therefore appear from the above observations that either Whyte was poorly describing the general format of the program or the particular edition with which I am familiar (that of 28 June 2008) was quite different to the usual format. Unsurprisingly, it transpired that it was the former alternative, as appears from the following cross-examination of Whyte:[36][36] T143-144.Q:As to Before the Game, you mentioned a view about the format, the routine format?A: Yes.Q:If that’s right, if your recollection of the format or your evidence of the format is correct, then this particular program of 28 June 2008 was not within that format. Do you agree?A: In what respect?Q: Well, you didn’t mention anything about interviews with footballers, did you?A: Sorry, I forgot to mention interviews with footballers.Q: You didn’t mention anything about serious discussion of football, did you?A: No, I didn’t.Q: You didn’t mention any highlights from that afternoon’s football game, did you?A: I did however reference –Q: Is the answer to my question ‘No, I didn’t’?A: Not specifically, no, I didn’t, but if I could be allowed to expand?Q: Go ahead.A:I did mention – I was trying to be brief, I felt we were under time pressure – I did mention that we looked at and introduced stories from the week.Q:You said the news items of the week which were set up for the basis of jokes; ‘Inside 60’, which was a series of joke questions in an interview format; ‘Strauchanie’ and the ‘Tool of the Week’. That was your analysis of the format.A: And I neglected to mention that there were regular interviews.Q:You didn’t mention interviews of a serious nature. You didn’t mention commentary on the football of a serious nature. You didn’t mention highlights of the game on a serious nature, did you?A: No.Q:Your recollection, the way you gave your evidence, was it was nothing but a comedy; right?A: I was too brief. I felt we were under time pressure, I’m sorry.Q: You weren’t actually truthful, were you?A: I obviously missed out some elements of the program.Q: You missed out everything that wasn’t comedic, didn’t you?A: Yes, I imagine.
Decision
Reasons for decision
PEEK J
In my view, at least in the case of a television program, the “single meaning” must be that understood by “the ordinary reasonable viewer”, who is not to be considered to be imbued with knowledge of the previous activities or reputation of particular individuals.[45] Matters such as knowledge, experience and taste are infinitely variable and it seems to me to be quite impossible to predicate an ordinary reasonable viewer who has knowledge and views about particular television programmes or persons who might appear on such programmes. [45] I find it quite unnecessary to address the entirely different situation that could arise where the publication complained of is limited to a small finite group, say a group of persons gathered in a room, and evidence is adduced as to particular knowledge held by each of those persons against which background they would hear and understand the words complained of.Conclusion about matters prior to 28 June 2008 For the reasons above, I reject the submission that the assumed characteristics of the ordinary reasonable viewer are to be modified in the way contended for by the defendants and, in particular, that the ordinary reasonable viewer of the program of 28 June 2008 is in some way to be imbued with knowledge of the reputations or of the previous activities of persons appearing on that particular program of 28 June 2008. The context of the whole of the programme of 28 June 2008 I move to the defendants’ contention that the interview must be considered in the context of the whole of the programme Before the Game broadcast on 28 June 2008. I will proceed as if this contention by the defendants is correct.[46] [46] There may be a threshold difficulty with this submission. While I would accept that members of the studio audience on 28 June 2008 would take the interview in the context of the whole of the program, there may be a doubt as to whether that can or should be said of the much greater audience who watched the interview on television. However, I find it unnecessary to enter into, let alone resolve, that debate because I am able to decide the case in favour of the plaintiff on the basis of adopting the position contended for by the defendants and considering the interview in the context of the whole of the program. I have viewed the whole of that program.[47] Understandably, senior counsel for the defendants seeks to emphasise the aspect of humour (or perhaps in some cases, attempted humour) throughout the programme. He is indeed able to point to various passages in the programme which clearly do not seek to present information and are merely attempts at humour, be it successful or unsuccessful. However, my view is as expressed above in the context of the submissions by the defendants as to the general nature of the program, namely that I consider that while the program of 28 June 2008 has comedic elements, it is very much to be distinguished from programmes devoted exclusively to comedy. I consider that there is a substantial amount of what may be called “informative material” of particular interest to football followers. Indeed, the interview with Dew is a good example of such a segment. While I am prepared to view the interview in the context of the whole of the program of 28 June 2008, I reject any submission that the comedic nature of the rest of the program is so pronounced that it makes clear that statements contained within informative segments such as the subject interview are to be understood as fantasy or as being devoid of meaning. [47] The defendants tendered a DVD of the whole of the program.The context of the whole of the Stuart Dew interview
Ratio Decidendi
Legal Principle Established
Established by: PEEK J
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