Cornes v The Ten Group Pty Ltd
[2011] SASC 104
•5 July 2011
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 [1995] 2 AC 65; Readers Digest Pty Ltd v Lamb (1982) 150 CLR 500; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202; Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19; Mackenzie v The Queen (1996) 190 CLR 348; R v Kirkman (1987) 44 SASR 591; Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen (2003) 219 CLR 1; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; Farquhar v Bottom [1980] 2 NSWLR 380; Cobham v Frett [2000] 1 WLR 1775; Associated Newspapers Ltd v Dingle [1964] AC 371; Broome v Cassell & Co Ltd [1972] AC 1027; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118; Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474; Dow Jones & Co v Gutnick (2002) 210 CLR 575, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"bane and antidote"
CORNES v THE TEN GROUP PTY LTD AND ORS
[2011] SASC 104Civil
PEEK J. This is an action for damages for defamation.
Background and overview of the case
The name Graham Cornes has long been very well known in South Australia and interstate as an AFL footballer, AFL coach and active football commentator. In October 1993 he and the plaintiff married. A large amount of continuing publicity surrounded their relationship, marriage and subsequent married life including the successive births of their three children. From about July 2004, the plaintiff was writing a prominent regular weekly column under the name Nicole Cornes for the newspaper, Sunday Mail, which is widely read in South Australia and the only Sunday paper published in this State. In about April 2007 she ceased writing the column and stood as a candidate for the Labor Party for the South Australian seat of Boothby in the Federal election in May 2007. Her campaign, although unsuccessful, drew a great amount of further publicity to the plaintiff and her marriage to Graham Cornes.
In the edition of the Sunday Mail of 5 November 2006, the plaintiff included in her column a piece[1] entitled “Thank you Stuart, you’re a love” praising a footballer, one Stuart Dew, for his decision to give up his football career to be with the woman he loved, a Hollywood actress. After commencing with the observations that Dew was a good catch and that Teresa Palmer was a lucky girl, the plaintiff observed “I fell for Mr Dew when he told me how he tended his rose garden…”. She proceeded to refer to him in effusive terms, praising what may be summarised as his sensitivity, chivalry and masculinity, not omitting to state that he had “always pulled the good-looking chicks”. She described his new relationship as the pair “being absolutely smitten with each other”. The piece concluded: “Thanks for the memories, Mr Darcy”. The relationship with the actress later failed.
[1] The piece became exhibit P2 at trial.
On 28 June 2008 a programme entitled Before the Game was shown on television in South Australia and various other locations interstate, highlights being also available for a time on the Channel Ten website. During a live interview with Stuart Dew, talk turned to Dew’s sex life and his (by then) previous relationship with the actress, Teresa Palmer. A panel member then recounted that the plaintiff had written an article stating that she loved Dew because he had a rose garden which he had tended. Another panel member, the now defendant Molloy, then stated in a very clear voice: “And apparently you slept with her, too.” The plaintiff sued.
The case for the plaintiff
The matter[2] complained of was the portion of the interview reproduced in the schedule to the plaintiff’s second amended statement of claim thus:
[2] The term “matter” is here and from time to time used in the sense defined and used in Defamation Act 2005 (SA), in effect as the thing forming the subject matter of a defamation action.
First Voice:You went out with an actress, though, didn’t you?
Second Voice: Yeah, yeah.
First Voice:There was a story that she fell in love with you after you talked about having tended your rose garden. Is that true?
Third Voice: No, not. That was an article that Nicole Cornes wrote – someone needs to help Hughesy with his research.
First Voice:But did you ever have a rose garden?
Fourth Voice: Apparently he knows what he is talking about… is that Nicole Cornes wrote an article… saying that she loves you because you have a rose garden, and that you talked about tending your roses.
Fifth Defendant: And apparently you slept with her, too.
Fifth Voice: That’s not true. That did not happen.
The case for the plaintiff on liability is, relatively speaking, quite simple.[3] It is that the words complained of were clearly heard, directly referred to the plaintiff and had a plain meaning which was that the plaintiff intentionally and willingly had sexual intercourse with Dew. The plaintiff’s case continues that a substantial number of the persons who heard the broadcast would have known that the plaintiff was married to a different man, Graham Cornes, at the time to which they would have understood the assertion of sexual intercourse to relate and accordingly those viewers would have taken Molloy’s words as an allegation of adultery.
[3] Of course, defamation cases are indeed multi-layered. Evidence, or aspects of evidence, may be admissible on one aspect of liability but inadmissible on another, with still different results in relation to the different questions arising in relation to assessment of damages.
Some important principles underlying the case
Although perhaps trite, it is worth making two observations at the very outset about the position of a plaintiff in a case such as the present. The first observation is that a defamatory statement need not be proven to be untrue by the plaintiff. If the defendant wishes to maintain that it is true, it is up to the defendant to prove that that is so. In the present case, the defendants all positively agree that any statement made that the plaintiff slept with Mr Dew is most certainly not a true statement of fact in any way, shape or form.
The second observation is that a plaintiff does not have to explore the question as to whether persons to whom defamatory material is published do, or do not, believe it. As is stated in Gatley on Libel and Slander (“Gatley”):[4]
To be defamatory an imputation need have no actual effect on a person’s reputation; the law looks only to its tendency, so there is a cause of action even if the words were not believed by the audience.
[4] Clement Gatley, Gatley on Libel and Slander (Sweet & Maxwell, 11th ed, 2008) [2.1].
Thus, even if a defamatory statement were to be published to quite a small group, the statement does not cease to be defamatory just because each member asserts disbelief. In Morgan v Odhams Press,[5] Lord Morris stated:[6]
Here I must refer to a contention which was raised in argument. It was submitted that if defamatory words concerning A are published to B who refuses to believe that the words are true then A would have no cause of action. I consider that such a contention is completely fallacious. Apart from any question affecting the measure of damages A’s rights would be unaffected by the circumstance that B in fact disbelieved the words. I agree with what Goddard LJ said in Hough v London Express Newspaper Ltd:
If words which impute discreditable conduct to my friend are used, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue.
(Citation omitted)
[5] [1971] 1 WLR 1239; [1971] 2 All ER 1156.
[6] [1971] 1 WLR 1239, 1252; [1971] 2 All ER 1156, 1168-1169.
The hurt and anxiety caused to a person in such circumstances will obviously not be eliminated by such statements of disbelief; the person may still suffer very considerable anger and upset. Further, it is usually impossible to ever know just what was really thought, consciously or subconsciously, about the defamatory statement, irrespective of disclaimers of belief being made. And, of course, it is also impossible to ever be sure that the statement will not leak and spread beyond the original group. As Lord Reid observed in Morgan v Odhams Press:[7]
One of the witnesses thought that the article referred to the plaintiff but completely disbelieved it; he thought it was rubbish. It was argued that he must be left out of account because no tort is committed by making a defamatory statement about X to a person who utterly disbelieves it. That is plainly wrong. It is true that X’s reputation is not diminished but the person defamed suffers annoyance or worse when he learns that a defamatory statement has been published about him.
[7] [1971] 1 WLR 1239, 1246; [1971] 2 All ER 1156, 1163.
In the present case, of course, the publication is massive and the identities of all the viewers can never to be known to the plaintiff (or to anyone else). It should therefore be obvious that the fact that some persons here have asserted that they did not believe that the matter complained of was true can neither determine what the rest of the viewers may have thought nor determine whether the matter complained of is, or is not, defamatory.
The plaintiff’s position on the “jest” issue
It is the plaintiff’s case that, in so far as it might be asserted that the words were meant in jest, such subjective intention was irrelevant; the uttered words would only fail to be defamatory if all of the members of the audience would clearly perceive that the words were intended in jest and therefore could not convey the above meaning. The plaintiff relied upon formulations of principle such as that found in Gatley:[8]
The fact that words are intended by way of jest does not of itself prevent them being actionable for it is not the intention of the publisher that matters but the interpretation that would be put upon the words by the reasonable listener (and the same clearly applies to written words and other forms of publication such as cartoons). If he would understand them as made in jest they are not actionable, but “if a man in jest conveys a serious imputation, he jests at his peril”. So where the defendant said, as a joke, that the plaintiff had been detected taking dead bodies out of a churchyard and fined, and the judge directed the jury that if they believed the words to have been spoken jocularly they should find for the defendant, a verdict for the defendant was set aside, for there was no evidence that the persons who heard the words understood them in a jocular sense, and the jury might have inferred from the judge’s direction that they had to decide the meaning in which the defendant intended the words to be understood, and not the meaning in which the words would in fact be understood by those who heard them.
“The principle is clear, that a person shall not be allowed to murder another’s reputation in jest. But if words be so spoken that it is obvious to every bystander that only a jest is meant, no injury is done, and consequently no action would lie.”
The same applies to written words which the reasonable reader would regard as nothing more than an absurd joke. So, in a modern Australian case a story about a football coach’s lack of success being attributable to his lack of “adequate communication and intimacy skills” arising from a deprived child-hood was dismissed as, taken as whole, no sensible person would have taken it seriously. Even an obvious attempt at humour may, however, be actionable if it rests upon a clear factual assumption of the truth of a defamatory imputation.
(Footnotes omitted; emphasis added)
[8] Gatley, above n 4, [3.34].
The passage referring to every bystander (from Donoghue v Hayes[9]) is qualified slightly by the accompanying footnote in Gatley noting that:[10] “‘Every bystander’ should not be taken literally, the audience might contain a humourless, literal-minded person. Jokes cannot be judged by the standards of Malvolio.”
[9] (1831) Hayes (Ir Ex) R 265.
[10] Gatley, above n 4, [3.34] footnote 366.
The case for the defendants
The case for the defendants is rather more sophisticated and will take a good deal longer to encapsulate, and then to consider. At the risk of failing to do complete justice to senior counsel’s argument, I consider that a reasonable overview of the defendants’ case is as follows:
·the Judge, through the medium of the ordinary reasonable viewer, must discern the “single meaning” of the words of which complaint is made;
·in order to accurately discern that single meaning, the context of the words must be borne in mind;
·here, the appropriate context goes beyond the bounds of the programme shown on 28 June 2008 and extends to previous editions of the program;
·the appropriate context also extends to the comedic reputations and previous comedic activities of certain members of the panel who conducted the interview in which the words complained of appear;
·when proper regard is had to the above extended context, the proper conclusion to which the ordinary reasonable viewer would come as to the meaning of the words complained of is that they have no meaning at all because it would appear to the ordinary reasonable viewer that no meaning is intended to be conveyed by them;
·it follows that if there is no meaning, there can be no defamatory meaning and therefore no liability to the plaintiff;
·further, the plaintiff’s case as pleaded was that Molloy had defamed her by stating that she had sexual intercourse with Dew, while married to Graham Cornes and by reason of that pleaded conduct the plaintiff had suffered the harm (including ridicule) particularised at paragraph 10 of her statement of claim; the plaintiff should not be permitted to proceed not only with that pleaded case but with a quite different alternative case asserting that the statement would be considered as a “joke” at the plaintiff’s expense (rather than as a statement of fact) and that, as a result of the making of that joke, the plaintiff had been ridiculed;
·further, the plaintiff’s evidence and/or the language used by her solicitors during negotiations for an apology, indicated that the plaintiff herself viewed the words used by Molloy as a “bad joke” which meant that she was wholly outside of her pleaded case. In other words, she was asserting only a joke and not a statement of fact;
·in the alternative, if there be liability, some or all of the above (as well as other matters) will be relevant to the assessment of damages.
I will consider those propositions in that order.
The meaning of the words complained of – a two stage process
Traditionally it has been necessary to separate very carefully the two questions “Are the words capable of conveying the meaning complained of?” on the one hand and “Do the words actually convey the meaning complained of?” on the other hand. The original reason for such separation was that the first question was a matter of law for the Judge and it was only if it was answered in the affirmative that the second question, which was a question of fact to be answered by a jury, would arise. It is, of course, a long time since civil cases have been tried by juries in South Australia but many of the authoritative cases have been decided under such a regime and must be understood against that background. Further, some aspects of the legal matters discussed in such cases remain partially or wholly unresolved; unfortunately some of these will need to be referred to below. Therefore, although I am required to undertake the task of answering both questions, I consider it best for the sake of clarity that I explicitly undertake the traditional two stage process of evaluation of the meaning of the words of which complaint is made.
Are the words capable of conveying the meaning complained of?
The plaintiff pleads in the amended statement of claim that there are three possible defamatory meanings of the words complained of, namely:
8.1 That she, a married woman, committed adultery;
8.2 That she was unfaithful to her husband;
8.3 That she is a promiscuous woman.
The first point to note in relation to all three meanings is that the words spoken by Molloy “slept with” are in current argot practically synonymous with “have sexual intercourse with” and, certainly in the present context, the words “slept with him” could convey the meaning that the plaintiff had sexual intercourse with Dew.
As to the third meaning, I consider that, as a matter of law, the words complained of are not capable of conveying this meaning. “Promiscuous” is a somewhat vague word but does, in my view, at least require an element of multiplicity of partners[11] whereas the suggestion here is only of sexual intercourse with Mr Dew.
[11] Random House v Abbott (1999) 167 ALR 224, 236-237 [48]-[54].
As to the first two of the three meanings, I can see no relevant difference between the two and none was suggested during the case. Both equate to an assertion that the plaintiff, intentionally and willingly, had sexual intercourse with a man, Dew, while married to a different man, Graham Cornes. The words could convey each of the first two meanings as pleaded by the plaintiff, but only to a person who knew (or believed) that the plaintiff was in fact married at the time that it was suggested that sexual intercourse had occurred. This qualification is a not unimportant matter in the present case because it will usually not be defamatory (although often in very bad taste) simply to suggest that two persons, each of the age of consent, had sexual intercourse together. I will return to this matter of knowledge of the marriage below but, for the moment, I will pursue the central issue of the meaning of the spoken words to the ordinary reasonable viewer.
Do the words actually convey the meaning complained of?
This question, previously a matter of fact to be pronounced upon by a jury, now falls to be considered by me. However, it is important to note that the task of a Judge sitting without a jury is not to assess what he or she personally thinks is the meaning of the particular words complained. Rather, the task is to assess what meaning would be conveyed to “the ordinary reasonable person” to whom the matter is published, hereafter to be referred to as the “ordinary reasonable viewer” because of the circumstances of primary television transmission in the present case.[12]
[12] The distinction can be justified on the basis that if the test were simply what the Judge allocated to a particular case thought was the meaning, results in defamation cases brought over the same or similar forms of words might fluctuate quite widely according to the views or idiosyncrasies of particular judges; if, however, judges are to focus on the one identifiable concept of (here) the ordinary reasonable viewer, such differences are considerably smoothed out and a much higher degree of uniformity is produced.
The “ordinary reasonable viewer” is, of course, a fictitious person and is suggested to be something of an “average person” in Australian society today. We know many of this fictitious person’s attributes since they have been progressively delineated by the decided cases. A useful summary of such attributes (with citations to authorities omitted) is as follows:[13]
The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the published words.
The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words. In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.
The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse nor suspicious nor ‘avid for scandal’. There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publication in a strained or forced or utterly unreasonable way.
The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of worldly affairs.
The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used. As a result, the ordinary reasonable person may imply meanings quite freely and will be prone to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable.
[13] Patrick George, Defamation Law in Australia (Lexis Nexis Butterworths, 2006) 131.
“The single meaning rule”
The first proposition advanced by the defendants is that the Judge, through the medium of the ordinary reasonable viewer, must discern the “single meaning” of the words of which complaint is made. The defendants submit:[14]
The issue is thus not whether some ordinary reasonable viewers would have understood the words in the defamatory sense complained of, but rather whether the ordinary reasonable viewer would have done so. (The use of the definite article is significant. The test does not admit of the indefinite article, as implied in the plaintiffs opening. The significance is that the law posits one standard.)
(Emphasis in original)
[14] Defendants’ Written Submissions, [22].
This is indeed the traditional approach to be taken at this second stage and the “single meaning rule” is referred to in numerous authorities.[15] The following passage from Gatley is often cited in this regard:[16]
For the purposes of the law of defamation the words have only a single, “right” meaning. This does not mean that more than one meaning cannot be left to the jury, for that happens every day; but it does mean that the jury or other fact-finder must ignore the undoubted fact that in many cases it is likely (or even obvious) that different readers will have understood the publication in different ways, some defamatory, others not.
[15] Slim v Daily Telegraph Ltd [1968] 2 QB 157, Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65, Readers Digest Pty Ltd v Lamb (1982) 150 CLR 500, 506, George, above n 13, 130, Gatley, above n 4, [3.15].
[16] Gatley, above n 4, [3.15].
In Readers Digest Pty Ltd v Lamb,[17] Brennan J (with whom Gibbs CJ, Stephen and Wilson JJ concurred) stated:[18]
[T]he 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 (1882) LR 7 App Cas 741, at p 745) or Lord Atkin’s right-thinking members of society generally (Sim v Stretch (1936) 52 TLR 669, at p 671 or Lord Reid’s ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd (1964) AC, at p 260) — 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. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Deane (1937) 1 KB 818, at p 833, being a standard common to society generally (Miller v David (1874) LR 9 CP 118; Myroft v Sleight (1921) 90 LJKB 883; Tolley v J S Fry & Sons Ltd [1931] UKHL 1; (1930) 1 KB 467, at p 479).
[17] (1982) 150 CLR 500.
[18] Ibid 505-506.
I also note that in the recent decision of the South Australian Full Court Sands v Channel Seven Adelaide Pty Ltd[19] the distinction between the test at the “capacity” and “fact finding” stages was closely considered, the Court concluding:[20]
The issue for the trier of fact at trial is the actual meaning of the words, not the question of what those words are capable of meaning. The meaning of the words is not determined by reference to the most damaging meaning that a reasonable ordinary listener might ascribe to the words.
[19] [2010] SASC 202, [99]-[106].
[20] Ibid [106].
I therefore generally proceed in accordance with the defendants’ above submission. However, I should mention something akin to a caveat. I have referred above to the following passage in Gatley:[21]
… the words have only a single, “right” meaning. This does not mean that more than one meaning cannot be left to the jury, for that happens every day; but it does mean that the jury or other fact-finder must ignore the undoubted fact that in many cases it is likely (or even obvious) that different readers will have understood the publication in different ways, some defamatory, others not.
[21] Gatley, above n 4, [3.15].
However, that passage does have the following footnote:[22]
Of course, as juries do not reveal their reasoning it may well be that some of them in fact find for the claimant on the basis that some people might rationally have understood the words in defamatory sense A while others might have rationally interpreted it in sense B. As adjudications by judge alone become more common it may be necessary that further consideration be given to the test to be adopted in these cases. See the view of Jacob J in Vodafone Group v Orange Personal Communications [1997] FSR 34 (a malicious falsehood case) and Entienne v Festival City Broadcasters [2001] SASC 60; 79 SASR 19.
[22] Ibid, footnote 173.
The point made here is both interesting and multi-faceted. One aspect is that, since juries are not required to give reasons, one cannot be at all confident that they do in practice adhere to the “single meaning rule”. The diplomatic example given by Gatley is of two possible meanings, each defamatory, some jury members choosing one, others another. However, an even more likely scenario is that jurors may consider that there are a number of meanings, some defamatory and some not, and since some viewers (though not all) would have adopted the defamatory meaning, there should be a verdict for the plaintiff (with an adjustment down in the amount of damages to reflect the fact that not all viewers would have adopted that meaning[23]).
[23] The High Court in recent years has evinced a preparedness to accept that juries do not necessarily adhere completely to the directions that they are given by trial judges. See for example Mackenzie v The Queen (1996) 190 CLR 348 and their Honour’s adoption of the doctrine in R v Kirkman (1987) 44 SASR 591. See also Gilbert v The Queen (2000) 201 CLR 414 and Gillard v The Queen (2003) 219 CLR 1 as to likely jury reasoning in the context of the crimes of murder and manslaughter.
A related aspect is that since judges, unlike juries, are required to give reasons, and progressively more trials are being decided by judges sitting alone, it becomes ever more difficult to ignore the possibility in some cases that some persons in the community might interpret certain words as having a defamatory meaning while others might interpret the same words in the same context as having no such meaning.[24] The question may therefore arise in such cases as to whether it should be permissible to award damages in relation to the publication to the former group of persons rather than to require that it be found that there was a single meaning that was defamatory. It is in this context that Gatley[25] refers to the judgment of Olsson J (with whom Williams J concurred) in Entienne Pty Ltd v Festival City Broadcasters Pty Ltd,[26] clearly indicating an opinion that his Honour’s approach was outside the mainstream. With the greatest respect to Olsson J, I think that the passage in Gatley is correct and that in some parts of his judgment, his Honour was suggesting[27] a test more favourable to a plaintiff than is presently supported by the law.
[24] I am putting aside here any consideration of extrinsic knowledge that might be shown to be possessed by certain classes in the community.
[25] Gatley, above n 4, footnote 173.
[26] (2001) 79 SASR 19.
[27] See Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19, particularly at 26-28 [39]-[46].
However, I do not have to grapple with that matter further in the present case because I consider that his Honour’s remarks were obiter and that, at the end of the day, Olsson J in fact found for the plaintiff/appellant in accordance with the traditional “single meaning rule”.[28] Duggan J clearly took that traditional approach.[29] However, I mention the matter largely because it is linked to yet a further relevant aspect relating to the correct approach that one should take to the relevance of humour in cases such as the present. I will revert to that matter in more detail below.
[28] Ibid, particularly at 25-26 [30]-[34]; 29-30 [54]-[60].
[29] Ibid 31 [68]. An application for special leave to appeal to the High Court was refused by a majority of two to one: see Transcript of Proceedings, Festival City Broadcasters Pty Ltd v Entienne Pty Ltd [2002] HCA Trans 182 (19 April 2002). With respect, it makes interesting reading.
It is well to make a final observation in relation to Entienne Pty Ltd v Festival City Broadcasters Pty Ltd[30] where, in my view, the plaintiff had a decidedly weaker case than the present plaintiff. In Entienne, the matter was cartoon like, its entire context being comedic. The contention by the defendant that no meaningful statement could be deciphered had force; it was only because the matter referred to the plaintiff by virtue of part of his business name, in a skit set in a particular known location, with a known reputation, that the words uttered in relation to drug dealing could take on a defamatory meaning by reference to those objective facts. By contrast, in the present case, the words uttered by Molloy are concise and of clear meaning and the task of the defendants to assert that such apparent meaning is taken away by “contextual” matters is, in my view, here a much more difficult one. I now turn to consider the defendants’ submissions as to context.
[30] (2001) 79 SASR 19.
The defendants’ contention that the words “must be taken in context”
The defendants contend that in order to discern accurately the “single meaning”, the relevant words are not to be considered in isolation but are to be considered “in the context” in which the words were spoken.
The defendants specifically eschew any suggestion that there is a “defence of jest”. Rather, they contend that, when taken in context, “the ordinary reasonable viewer would not have taken Molloy’s remark as conveying any statement of fact. They would have understood, from the words themselves, as well as the general and immediate context – including raucous laughter – that the remark was intended as humorous, and not as literal or otherwise conveying any statement of fact.”[31]
[31] Defendants’ Written Submissions, [9]-[10].
The defendants argue for a very broad meaning of “context”, in alternative diminishing order as follows:
·various facts existing prior to 28 June 2008 including previous editions of the programme Before the Game and knowledge of the reputations and prior activities of members of the panel who took part in the subject interview;
·the whole of the programme Before the Game of 28 June 2008; and
·the whole of the interview with Dew of 28 June 2008.
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
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.
I do not think that the above questioning was unfair. For whatever reason, Whyte had given evidence which was far from a balanced account of the composition of the programme, emphasising what comedic aspects it has and minimising, or omitting altogether, the informative parts.
Later in his cross-examination the following passage appears:[37]
[37] T145.
Q: This program in fact is a football program, right?
A:I would dispute that. I would say this is an entertainment program that focuses on football.
Q: What does the name of the program suggest?
A:It’s called Before the Game, but the name of the program, to be honest, is about getting the audience to know where the time slot is, because the time slot varies from week-to-week.
Q: But it is saying ‘This is a preliminary to the real thing’, the game of football?
A: It could have that inference.
Q:Then what happens is that the program goes on, you get two serious people, Mr Maher and Ms Lane, discussing football. They’re the straight men, aren’t they?
A: Yes.
Q: And Ms Lane is a writer for The Age on the subject of football, isn’t she?
A: Yes, she is, and broadly sports.
Q: And then each of the comedians, the three comedians, has his own spot?
A: They have segments that they regularly present themselves.
Whyte’s evidence as to comedic reputations and prior comedic activities
Whyte’s evidence as to the aspect of the comedic reputations and prior comedic activities of the persons Hughes, Lehman and Molloy who regularly appeared on that program, may be fairly summarised thus:
·Hughes had a reputation as a stand up comedian and had sold hundreds of thousands of tickets to live performances around the country. He had also featured in film and had appeared on television programmes in the capacity of a comedian;
·Lehman had a reputation as a comedian and had appeared at the Adelaide Fringe Festival and the Melbourne Comedy Festival as a feature performer and had had a breakfast program broadcast in Adelaide only for four years and a national program on the Triple M network; and
·Molloy had a reputation as a comedian as well as a writer and actor. He had appeared in two comedy films entitled Crackerjack and Boy Town. He had had three major radio programs (which were described), comedy being the core of all three. He had appeared in various television programs (which were described), all primarily comedy programs.
Although the point was an obvious one, it was rightly emphasised in cross-examination that there was simply no evidence that the members of the audience of Before the Game (let alone the particular audience of the edition of 28 June 2008) were in any way familiar with the work or reputations of the persons Hughes, Lehman or Molloy. Representative passages in the cross-examination of Whyte appear thus:[38]
[38] T142; T143.
Q:But you’re not aware of any research or audience research that shows a commonality of audience between Mr Lehmann’s past radio work and the Channel Ten audience for Before the Game?
A: No, I don’t have any specific research.
…
Q:Is there any basis on which you can say, with any authority, that the audience for Before the Game on 26 June 2008 was a common audience with any of those comedians in anything else they’d done.
A:If the question is ‘Is there a piece of specific research that I can point to’, then no, there’s not a piece of specific research that I can point to.
…
Q: You referred to the film Cracker Jack and – is it Boy Town?
A: Boy Town, yes.
Q:You have no idea of any commonality between the audiences for those films, whatever they were, and the audience for 28 June 2008 of Before the Game, do you?
A: If we’re referring to research again, no, I don’t.
Discussion of the submissions as to matters prior to 28 June 2008 and the evidence of Mr Whyte
Part of my difficulty with accepting the defendants’ submissions in this area is to some extent crystallised in the following passage of argument:[39]
HIS HONOUR: Yes, I understand the general concept that you refer to but, for example, just to take the obvious thing: you have a newspaper and you have two related portions of an article. Obviously you can look at both and then you extend that. If it is a serialised thing that has come out over a previous day, you can go back to the previous day, or week. I understand all of that but, here, you are not talking about something of relevance to this particular matter that happened in the previous week that we need to know about to put it in precise context. You are simply talking about the fact that this program had extended over a period of time.
MR WHITINGTON: That is the starting point, yes. And then if it is extended over a particular time, it has attracted a particular audience with a particular kind of comedic format. Then the audience in question, as Isaacs J says, comes to it with a particular knowledge and perception; and that is the test. The test is not the ordinary, reasonable man looking at a snapshot of this DVD in court. It is not even the ordinary, reasonable man looking at the entire program. It is the ordinary, reasonable viewer, man and woman, formed into a composite hypothetical referee who constitutes the audience of this program. That is not an audience of the program, so-called, confined to one program.
[39] T136.
The only authority cited by the defendants said to directly support their position is the judgment of Isaacs J in David Syme & Co v Canavan.[40] The Court was there concerned with a statement published in The Age newspaper of 12 December 1917. His Honour observed that only readers of that newspaper could be affected by that statement (i.e. would have read it) and that such readers, when coming to a conclusion as to the meaning of that statement would take into account a prior statement made on the same matter that had appeared in an earlier edition of The Age on 4 December 1917. Senior counsel said of Canavan:[41]
Now that is an illustration of the proposition that not only does one look at the entire context of the publication, one looks at the general nature of the publication by reference to its history, and one way of doing that here is to ask the witness some questions about the general nature of the program, which I propose to do, including by reference to the identity and profile of the performers.
[40] (1918) 25 CLR 234. All of the three Justices hearing the case were in favour of allowing the appeal. Barton J, who delivered the first judgment, did not allude in his reasons to the approach taken by Isaacs J. Rich J, who delivered the third judgment, in a somewhat delphic way, simply stated “I agree”, not indicating as to whether his Honour agreed with the reasons of Barton J or those of Isaacs J who had given the second judgment.
[41] T130.
However, it seems to me, with respect, that much has changed since 1917 and particularly in the world of mass communications. In 1917, really the only regular source of news for the general population was the newspaper and it could no doubt then be said that most persons who did read newspapers regularly would habitually read the same newspaper(s). Particularly in a case where one predicates the readers of a “quality” paper such as The Age, there is logic in assuming that most of such readers on 12 December 1917 who chose to read an article on a particular topic would likely also to have chosen to read the article on the same topic about one week previously. And this, I consider, is all that Isaacs J decided.
The present situation is entirely different. With the progressive availability of radio, television, massive usage of mobile telephones and the internet with its vast possibilities including various social networking facilities, the factual basis upon which Isaacs J erected his proposition of logic has fundamentally changed. To focus on the medium under consideration here, one simply can not predicate loyalty to a particular channel, or to a particular programme, since constant change is no further than the remote control is distant from the fingers. A decision to view a particular programme will depend upon not only what is available on ever increasing numbers of competing channels of “free to air” or “pay TV” but also upon the attractions of some of the other many alternatives to television now available.
I note that in Channel Seven Adelaide Pty Ltd v Manock[42] Gleeson CJ (admittedly in the slightly different context of a “promotional item”) made the following comment which may have some value as an analogy:[43]
It is important to bear in mind the nature of the published matter. It was a short, promotional item. Some people who saw it would also watch the later programme which was being promoted. Many would not. The reasons why they would not might be various. For some, it may have been inconvenient. For some, it may have been impossible. Others might simply have had better things to do.
[42] (2007) 232 CLR 245.
[43] Ibid, 255.
Interaction between the defendants’ submission and the single meaning test
On a broader basis, addressing both the issue of previous editions of Before the Game and the issue of reputations and activities of persons regularly appearing on the program, there is a further difficulty in accepting the defendants’ submissions, namely an inconsistency between the effect of those submissions and the single meaning test.
As appears above, the defendants strongly eschew any suggestion that one can take the approach advocated by Olsson J in Entienne Pty Ltd v Festival City Broadcasters Pty Ltd,[44] that the meaning relied on by the plaintiff may be one of a number of possible meanings, some defamatory and others not: it is crucial, say the defendants, that the single meaning test be adopted. However, in my view, the defendants’ present argument is inconsistent with that very test.
[44] (2001) 79 SASR 19.
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
I consider it appropriate to view the matter complained of in the context of the whole of the interview 28 June 2008.
The interview is immediately preceded by Dew being introduced by Andrew Maher (Maher) and starts with general discussion of Dew’s match fitness, training and exercise regimes, hamstring problems and “general soreness”. Since he is introduced as an accomplished player at the Hawthorn Football Club, it can be accepted that such matters are of factual interest to football followers since they bear upon player availability and likely levels of performance and so on. While there is a gentle comedic dig as to whether “general soreness” might encompass a hangover, this does not derogate from the flow of information as to Dew’s general state of health.
The interview progresses to discuss the performance of various other players from various clubs. This discussion is clearly serious and factual, progressing through various matters of interest to football followers, citing numerous players by name in connection with precise scores in particular games, numbers of games played, other players’ injury problems and such like and then coming back to Dew’s treatment regime and his precise prognosis as to his ability to play for the rest of the year. It is to be stressed that there is no question that all of this purports to be factual as distinct from fictitious.
The interview then recounts an entirely factual account of a player suffering an injury during an encounter with a stingray from which he had fully recovered. This is again factual, but is accompanied by smiles from the panel. However, that is hardly unusual, the general attitude of the ordinary reasonable viewer being well expressed by Maher who says at this point: “No, well you can’t help laughing (but) when you know the guy’s OK”.
The interview then goes to a commercial break after which Maher again introduces Dew as the special guest from the Hawthorn Football Club.[48] The interview recommences initially with factual discussion as to Dew having previously been in a premiership side and as to the benefit he had gained from taking some time off football and returning refreshed.
[48] It seems to me that this reintroduction is not made because it is thought that viewers who have been watching the whole programme, or the whole interview, may have forgotten who Dew is since the introduction at the start of the interview. Rather, it may be in recognition of the fact that new viewers may have tuned in since the start of the interview. In this age of every television being equipped with a remote control unit and rife “channel surfing”, one wonders how safe is the assumption, upon which the defendants rely, that the ordinary reasonable viewer has in fact seen the context provided by either the whole of the programme or the whole of the interview. However, I will proceed in this judgment on the basis favourable to the defendants that one can and should make that assumption.
The discussion of Dew’s “social status” or sex life
The interview then moves to the entirely new topic of Dew’s social status or sex life which is introduced quite deliberately by David Hughes (Hughes) saying: “But now you’re single again, now aren’t you? Because you were in a high profile relationship over there in Adelaide.” The full discussion is as follows:
David Hughes: But now you’re single again, now aren’t you? Because you were in a high profile relationship over there in Adelaide?
Samantha Lane: Good segue.
Stuart Dew:In Adelaide every relationship is high profile.
David Hughes: You went out with a McLeod’s Daughter, didn’t you?
Stuart Dew:No, no that was Chad.
David Hughes: Oh, sorry…You went out with an actress, didn’t you?
Stuart Dew:Yeah, yeah, yeah.
Anthony Lehman: Hughesy, he didn’t want Chad to find out about that. No, it was Teresa Palmer, who is a very successful actress who Stewy was with and she wasn’t on McLeod’s Daughters…
Andrew Maher: You seem to know all about it.
Anthony Lehman: Well I was living in Adelaide as well, you know. It is hard to miss these things.
David Hughes: Well I did read, there was a story that she fell in love with you after you talked about having tended your rose garden. Is that true?
Anthony Lehman: Oh no, that was an article that Nicole Cornes wrote. Okay, someone needs to help Hughesy with his research. Okay.
David Hughes: Did you ever have a rose garden?
Mick Molloy: Let it go Hughesy, let it go.
Stuart Dew:Yeah I had a garden with roses.
David Hughes: Well you had a rose garden then.
Samantha Lane: Apparently, no, what he’s talking about, Nicole Cornes wrote an article…
David Hughes: Sam[49] told me this story.
[49] Reproduced in the transcript of the interview P16 as “[Brown?]” but clearly “Sam”. The defendants agree that this is so – see T123. It would seem that this is a reference to a prior conversation between Ms Samantha Lane and (at least) Hughes.
Anthony Lehman: Can someone dial 000 because we need to help this segment out.
Samantha Lane: No, Nicole Cornes wrote an article saying that she loved you because you had a rose garden and that you talked about tending your roses.
Mick Molloy: And apparently you slept with her too.
Andrew Maher: No, that’s not true. That didn’t happen, no, no.
Stuart Dew:That’s definitely No.
David Hughes: Now let’s get back to footy alright.
Andrew Maher: No one here has got any idea what the hell we are talking about.
David Hughes: No look alright you joined Hawthorn at the end of last year and the first thing you did and I believe you Stewy – you went over to Kokoda and did the Kokoda trail and you carried a log up the Kokoda trail which is amazing and you know what your commitment to that log is extraordinary, so extraordinary have a look at the audience tonight.
Andrew Maher: What’s going on?
David Hughes: Have a look,…the log.
Samantha Lane: After that Kokoda trek you must think – did you think I am not going to be able to do this?
Stuart Dew:No, I loved that trip but the hardest part for me is flying on this little Plummet airways into Kokoda. I don’t like flying, I am a really bad flyer and that was, I actually wanted to walk 9 days to get to the start of it but for the boys, I didn’t like the plane at all.
Mick Molloy: I say Kokoda, it’s a bit of a change from a rose garden.
Stuart Dew:I took my clippers along and was just doing a little pruning along the way.
Mick Molloy: That was Stuart just doing a bit of pruning in the back garden. …
(Emphasis added)
Pausing here to take stock, up to the beginning of this portion of the interview, the discussion had been obviously factual, involving various items of information, no doubt of interest to football followers. The discussion then turns to a more personal aspect, the social life of Dew the person. This is a no less factual discussion, again no doubt of interest to football followers, but this time, perhaps of more general interest. One sees Hughes very deliberately ask Dew about a past sexual relationship. Initially, there purports to be some confusion as to the name of the woman but the facts are diligently pursued and she is specifically identified by her name, Teresa Palmer, and the fact that she is a very successful actress. There can be no doubt that what is being spoken of is a past sexual relationship between Dew and Ms Palmer. In that immediate context, the matter of the person who wrote the article about Dew and a rose garden is raised. That writer is clearly identified as the plaintiff by the female member of the panel, Ms Lane, who states: “Nicole Cornes wrote an article saying that she loved you because you had a rose garden and that you talked about tending your roses.” This is immediately followed by Molloy stating: “And apparently you slept with her too.”
It is to be noted that Dew’s social life was discussed as a separate topic within the interview and the discussion commenced with matters which were factual, namely the affair with the actress Ms Palmer and the fact that the plaintiff had written a story enthusing over Dew. It is obvious that the discussion of Dew’s private life is quite pointed: the actress, Ms Palmer, with whom Dew previously had a sexual relationship, is specifically named and there is no suggestion that that information might be wrong or open to any doubt. When Molloy states that Dew had sexual intercourse with the plaintiff by saying “And apparently you slept with her too”, I consider that the ordinary reasonable viewer would understand the “too” to refer back to Ms Palmer. I find that the ordinary reasonable viewer would understand this as a factual assertion by Molloy of two past sexual relationships involving Dew, namely one with Ms Palmer, which did occur as a matter of confirmed fact, and another with the plaintiff which is presented as fact by Molloy.
The denials by Maher and Dew
The defendants point to the denials by Maher and Dew and submit that they provide important context in showing that the assertion by Molloy could not be taken seriously and, further, that they constitute an immediately delivered “antidote” to the “bane” (or poison) which is complained of. I have given close consideration to these submissions, as I have to all of the defendants’ submissions. I do not think that the ordinary reasonable viewer’s understanding would have been materially affected by the denials by Dew and Maher and nor do I think that the ordinary reasonable viewer would consider that the denials deprived Molloy’s apparently clear statement of any meaning.
Further, I do not consider that the denials serve as an immediate antidote to the poisonous statement since the viewer is simply left with conflicting assertions on the matter. In my view the matter of “bane and antidote” is correctly analysed thus by Gillooly:[50]
The defendant may set out to prove that, whilst the passages complained of, looked at in isolation, may convey damaging imputations, the surrounding material completely nullifies their effect. In Alderson B’s famous phrase, “the bane and the antidote must be taken together”. Such a tactic only rarely succeeds since the surrounding material must be such as to completely overwhelm the objectionable material and to leave no vestige of defamatory meaning. The mere fact that denials accompany the damaging accusations will not normally have this effect, since the ordinary reader may reasonably believe either set of conflicting assertions.
[50] Michael Gillooly The Law of Defamation in Australia and New Zealand (Federation Press, 1998) 39.
I note that in Farquhar v Bottom[51] the defendants submitted that because the plaintiff was reported as denying an allegation complained of there was antidote for the bane. This was roundly rejected by Hunt J who stated:
[33]I was urged on behalf of the defendants to construe the matter complained of as a whole, and to conclude that the bane created by the author’s assertion had been outweighed by the antidote of the defendants’ denial: Chalmers v Payne. The mere presence of a denial of a defamatory charge does not make the matter complained of as a whole incapable, nevertheless, of conveying the defamatory imputation so denied for, in such a situation, the reader is presented with two conflicting assertions, with the choice of accepting either: Savige v News Ltd; Hopman v Mirror Newspapers Ltd.
[34]There are cases, of course, in which the refutation is of such a nature that, taken as a whole, the matter complained of is incapable of conveying the imputation refuted, for example, where the imputation arises by way of inference only, and the matter complained of itself contains an express disclaimer of any intention to convey such an imputation: Stubbs Ltd v Russell; or where the refutation consists of a statement of fact destructive of the entire basis upon which the imputation relies: Bik v Mirror Newspapers Ltd.
[35]But such cases are comparatively rare: Morosi v Broadcasting Station 2GB Pty Ltd. The present is certainly not such a case.
(Citations omitted)
[51] [1980] 2 NSWLR 380, 387-388
I find that the ordinary reasonable viewer would consider that, if Dew had indeed had an affair with the plaintiff which affair had hitherto not been public knowledge, he would be highly likely to deny it to protect the woman in question.[52] In relation to those viewers who had knowledge that the plaintiff was in fact a married woman, this would have been seen as even more reason to deny the allegation. (The fact that he had not earlier denied his relationship with Ms Palmer is quite irrelevant because that relationship had clearly been public knowledge.)
[52] I make it clear that such a denial is simply neutral; it could not provide any positive reason or evidence to believe that the affair had occurred.
As for the denial by Maher, I find that the ordinary reasonable viewer would consider that the part he played in the interview was to make the introductions and farewells, to keep the show and the interview running smoothly and to attend to any problem that might arise in any way that he could. In my view, the ordinary reasonable viewer would pay little attention to Maher’s denials and would not consider that he had such definitive knowledge of the private life of either Dew or of the plaintiff for his denials to either deprive Molloy’s statement of all serious meaning or to constitute an antidote to the bane.
Finally, in my view the ordinary reasonable viewer would not have failed to detect the distinct change of mood that swept in when Molloy uttered the fateful words. For example, the tone and content of Maher’s obviously self serving statement “No one here has got any idea what the hell we are talking about”, far from portraying a view that Molloy’s words were of such a jocular nature that no one could take them seriously, are in fact redolent of an immediate appreciation that Molloy had gone too far and a desire, almost desperate in nature, to get away from that area as soon as possible. Such matters are not lost on the ordinary reasonable viewer.
“The dog that did not bark in the night”
I also consider that the ordinary reasonable viewer would pay some attention to “the dog that did not bark in the night”.[53] It is fair to say that Mr Molloy was noticeably silent in terms of a contemporaneous denial or retraction as the interview proceeded.[54] Indeed, although Hughes moved on to a visit that Dew had made to Kokoda in Papua New Guinea, Molloy appears to have been somewhat reluctant to leave the scene of the rose garden:
Mick Molloy: I say Kokoda, it’s a bit of a change from a rose garden.
Stuart Dew:I took my clippers along and was just doing a little pruning along the way.
Mick Molloy: That was Stuart just doing a bit of pruning in the back garden. …
[53] Alluded to by Lord Scott of Foscote in delivering the judgment of the Privy Council in Cobham v Frett [2000] 1 WLR 1775, 1782.
[54] I consider his “apology” given some months later below.
Conclusion as to the meaning of the words complained of
For all of the above reasons, I find that the ordinary reasonable viewer would have understood Molloy’s words to mean that Dew had had sexual intercourse with the plaintiff just as he had had sexual intercourse with the actress Ms Palmer. I find this to be 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. I find that the ordinary reasonable viewer’s understanding would not have been materially altered by the fact that there were elements of jocularity at various points in the programme and including during the interview. It follows that, in relation to those who were aware that the plaintiff was married at the relevant time, the meaning of adultery complained of would be made out.[55]
[55] This aspect is considered in further detail below at paragraphs 93 to 112 of the judgment.
I should add that if, contrary to my earlier expressed view, the ordinary reasonable viewer is to be taken as having some knowledge of the reputations and/or the previous activities of persons appearing on the program of 28 June 2008, my conclusion as to the understanding of the words that would be reached by the ordinary reasonable viewer possessed of that advantage would still be the same.
In my view, the ordinary reasonable viewer is neither gullible nor naïve. Although designers of radio and television programmes may believe that the assembling of a group of persons, preferably with jaunty nicknames, each laughing at the others’ comments with great gusto, is somehow a formula for changing the otherwise defamatory nature of material broadcast in that context, I consider that the ordinary reasonable viewer would not agree. I find that such a viewer would have come to the same understanding of Molloy’s words as expressed immediately above, irrespective of their knowledge of the reputations and/or previous activities of persons appearing on the program.
“Ridicule” – the pleading point taken by the defendants
It is now necessary to address some further points taken by the defendants, perhaps to be characterised as procedural in nature.
As I understood it, senior counsel for the defendants submitted that the case as pleaded by the plaintiff was that the defendant Molloy had defamed her by stating that she had sexual intercourse with Dew, while married to Graham Cornes and by reason of that pleaded conduct the plaintiff had suffered the harm particularised at paragraph 10 of the second amended statement of claim which sets out the familiar pleading of “brought into public scandal, odium, ridicule and contempt”. The defendants’ submission continued that the plaintiff was attempting to proceed not only with that case but also postulating a quite different alternative case which asserts that Molloy’s statement would be considered by the ordinary reasonable viewer as a “joke” at the plaintiff’s expense (rather than as a statement of fact) and that, as a result of the making of that joke, the plaintiff had been ridiculed. The defendants took a prompt and consistent stance about this. Immediately after the opening occurs this passage:
MR WHITINGTON: [M]y learned friend in various ways, in various formulations, repeatedly suggested the plaintiff’s case was that she had been subjected to a cheap dirty joke and therefore ridiculed. Now, … that is not the pleaded case. All I want to say about that is that we intend to hold the plaintiff to the pleaded case, that is the imputations pleaded in para. 8. So to the extent my learned friend might be seeking to raise some case of defamation by a cheap dirty joke and consequential ridicule independent of, or not mediated by, the three pleaded meanings, we will be objecting. We put the plaintiff on notice of that. …
MR LITTLEMORE: I won’t reply in detail to my friend’s point about ridicule. I just indicate to him that he should read para. 10 of the second amended statement of claim.
MR WHITINGTON: I have done that.
MR LITTLEMORE: That is where the ridicule case is to be.
In due course, the defendants were as good as their word and later asserted in their written submissions:[56]
In her opening, the plaintiff appeared to shift ground and move outside the pleaded case so as to claim that her complaint was that the loutish, crude and disrespectful fifth defendant made a dirty joke at her expense (“all rollicking good fun, if it’s in the pub”), and “that’s what defamation is”. There is no principled basis in authority for that assertion. To the contrary, the authorities make it clear that the touchstone of defamation is injury to reputation, not hurt to feelings. Further, it is not defamatory merely to ridicule or mock a person, as opposed to damage their reputation by holding them up in a ridiculous light so as to lower their estimation in the eyes of others. Finally, any defamatory publication must have a meaning which results in the damage to reputation. It is not enough to say that a plaintiff has been the butt of a dirty joke without identifying the defamatory meaning or sting. If, as appears to have emerged from the plaintiff’s case, she now accepts that she was the butt of a dirty joke, it could not have had the meanings pleaded, or indeed any relevant meaning.
[56] Defendants’ Written Submissions, [41].
In his final address, senior counsel for the defendants emphasised that his submission was that it was insufficient for the plaintiff to assert that she had been the butt of a dirty joke and had therefore been held up to ridicule. Rather, it was necessary on the case as pleaded to prove that the words have the meaning pleaded and that it was as a result of the publication of those words that she suffered ridicule amongst the various sorts of harm of which she generally complained.
I consider that the defendants may well be correct here, but I do not find it necessary to pursue this matter further since I have come to the conclusion that the plaintiff has in fact been defamed by a statement made by Molloy which does purport to be a statement of fact and which is within the plaintiff’s pleaded case. The plaintiff therefore has no need to attempt to resort to a purported alternative case as warned against by the defendants since such a case would have asserted a less serious form of defamation than I have found to be made out. Accordingly, the point is moot.
“Just a joke, Joyce”[57]
[57] With acknowledgement to Gaudron J: see Transcript of Proceedings, Festival City Broadcasters Pty Ltd v Entienne Pty Ltd [2002] HCA Trans 182 (19 April 2002), [540].
In a separate but related contention, the defendants also submitted that the evidence given by the plaintiff at trial and/or the language used by the plaintiff’s solicitors during negotiations for an apology, was such as to indicate that the plaintiff herself viewed the words used by Molloy as a “bad joke”. The submission continued that the consequence was that she was wholly outside of her pleaded case since, it was said, she was thereby asserting only a joke and not a statement of fact. This argument was put in the defendants’ written submissions as follows:[58]
47.…The plaintiff sought an apology from the defendant (to be read by Molloy) stating that his remark was “an offensive and tasteless joke at her expense”. This characterisation, coming as soon as it did after the publication, is powerful evidence of not only the plaintiff’s real complaint and appreciation of the impugned statement, but also its proper construction by the relevant hypothetical referee.
48.This concession by the plaintiff reveals the difficulty for her in this case. Essentially there are only three available characterisations of the remark:
48.1 the statement was seriously intended in every respect (ie as a statement of fact, or alleged fact, and no more);
48.2. the statement was a joke about a true fact (or which carried an implied statement of fact);
48.3. the statement was a joke involving reference to a nonsensical fact or statement.
49.The plaintiff has conceded that Molloy’s remark was a joke, ie would be interpreted as a joke. Therefore (1) can be eliminated. If the plaintiff contends for (2), the difficulty is to identify wherein lies the joke if the statement is a statement about a true fact. One cannot avoid the conclusion that the ordinary reasonable viewer would consider this case to fall within (3).
[58] Defendants’ Written Submissions, 11.
In the present case, if one does go back and carefully consider the whole of the interview, the position of the defendants does not improve. I find that the appearance of Dew on the interview on 28 June 2008 is clearly that of a young man in his late twenties, and that is consistent with the facts as stated during the interview concerning his football career. On that basis, Dew would have been about 14 years old at the time of the plaintiff’s marriage in the early 1990’s and, on the defendants’ hypothesis, the tending of a rose garden and sexual intercourse subsequent to that would all have had to have occurred at a time when Dew would have been about 14 years old or less.
Of course, if that is what the defendants really want to say, it would be tantamount to an allegation that the plaintiff had in fact committed a criminal offence of having unlawful sexual intercourse with Dew, being a person of under the legal age of consent of 17 contrary to Criminal Law Consolidation Act 1935 s 49(3). However, I do not consider that the ordinary reasonable viewer would have considered that Molloy was making such a serious allegation as that (but this does not derogate from my view that the ordinary reasonable viewer would be of the view that Molloy was making the simple suggestion of sexual intercourse between two consenting adults).
The defence of triviality
It seems to me to be quite obvious that this defence cannot be made out in this case.[67] If the defendants were correct in their position as to the lack of any meaning, there would be no liability; if, on the other hand, the plaintiff establishes that the meaning for which she contends is made out, then the matter here is serious. I can understand that what might appear on its face to be a relatively serious defamatory comment might possibly qualify for this defence in quite different circumstances, say, of a very limited publication to a few persons in a room in circumstances where each of such persons believed that the statement was not true. Such a statement would still be defamatory but might be rendered trivial by the fact that it could be positively established that it had very little deleterious effect. But the present is not such a case for any number of obvious reasons.
[67] I have had regard to the discussion in Tobin & Sexton, Butterworths, Australian Defamation Law and Practice, vol 1 (at Service 61) [16,010] – [16,015] and the authorities there referred to.
Findings on liability
For all of the above reasons, I make the following findings.
First, that the ordinary reasonable viewer of the interview would have understood the meaning of Molloy’s words to be that the plaintiff willingly had consensual sexual intercourse with Dew.
Second, that of the persons who viewed the interview, a substantial proportion, being in excess of 120,000 viewers, knew or believed that the plaintiff had been married to Mr Graham Cornes since the early 1990s.
Third, that the ordinary reasonable viewer who also had knowledge of the marriage of the plaintiff to Cornes since the early 1990’s would have understood the meaning of Molloy’s words to be that the plaintiff willingly had consensual sexual intercourse with Dew at a time when she was married to Graham Cornes and thereby was unfaithful to her husband and committed adultery.
ASSESSMENT OF DAMAGES
The plaintiff’s witnesses who gave evidence
I record that I find that the plaintiffs’ witnesses, namely the plaintiff herself, Mr Graham Cornes and Mr Wayne Cornes, were each honest witnesses. They were not, of course, independent or non-partisan witnesses but I did not believe that any of them consciously exaggerated or attempted to deceive the Court.
As to the plaintiff, I accept her evidence, including that she had been badly affected by the publications and that vindication was important to her. I thought her exasperation with the mode of the “apology” was entirely genuine. I noted that in a number of areas of her evidence, in response to counsel’s questions in examination-in-chief (which she must have known were of relevance to an assessment of damages), she ascribed a relatively limited ambit to matters where a more expansive claim would have been perceived by her as both plausible and likely immune from successful challenge on cross-examination. As an example, I have in mind here her evidence of a relatively small number of people speaking to her about relevant matters (she preferring to actively avoid such conversations).
As to Mr Graham Cornes, if there is one thing that is clear in the case, it is that he did not ever think that the remark was a joke; he took it very seriously indeed. He was obviously angry about it but has appropriately restrained himself. I accept his evidence, confirmatory of the plaintiff, that she had suffered from the ordeal, had not got over it and had not accepted the apology as genuine. I do not overlook the fact that Mr Cornes is a person of high intelligence and not unsophisticated. I considered him to be much more worldly wise than the plaintiff and that he had given more thought to various aspects of the case than she. Thus, when he gave his answer in re-examination commencing: “Look, when somebody says something, even if you know it’s not true, there’s that shadow of doubt that sort of crosses your mind. …”, I have no doubt that he had thought about that answer a good deal in advance, knowing that he was likely to be asked about it by one side or the other. I am also confident that he would have appreciated that it was an advantageous thing to say from the plaintiff’s point of view since it does illustrate the concrete deleterious effect that such statements may have. But, fully bearing such matters in mind, I am also convinced that what he said in this area, and in the rest of his evidence, was an accurate and truthful assessment of how he saw the situation.
As to Mr Wayne Cornes, I considered that he was the most transparent witness of the three, not defensive in any way and entirely believable. He, and some of the people he knows (to whom he refers in evidence), may well be rather close relatives of “the ordinary reasonable viewer”.
Vindication of reputation
As Lord Radcliffe said in Associated Newspapers Ltd v Dingle:[68]
A libel action is fundamentally an action to vindicate a man’s reputation on some point as to which he has been falsely defamed, and the damages awarded have to be regarded as the demonstrative mark of that vindication.
[68] [1964] AC 371, 396.
The plaintiff was asked as to what she hoped this case would achieve. Her answer was: “That it finishes it off, that it puts it to death. That it just makes it very clear that this is not a joke. That I never had sex with Stuart Dew. That it puts it beyond doubt.”
I accept this as a genuine cry for vindication. She is entitled to be vindicated. She is entitled to be awarded a monetary sum such that, if persons inquire as to what happened about the defamatory comment that they have heard about in whatever way, the result of this case will admit of no doubt that she was the winner, the publishers were the losers and that the Court clearly recognised that she had been wrongly defamed.
The sufficiency of the amount awarded is not to be determined by reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff’s reputation in the relevant respect in the future. Thus Lord Hailsham in Broome v Cassell & Co Ltd said:[69]
Not merely can [the plaintiff] recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.
(Words in parenthesis inserted)
[69] [1972] AC 1027, 1071.
This largely explains why awards in defamation cases are often found to be made in round figures – they are easy to remember and convey a clear message. The award is, of course, made for other purposes as well, but as Brennan J expressed in Carson v John Fairfax & Sons Ltd:[70]
[T]he dual operation of an award does not require cumulative components of damages. The same sum can operate as vindication, compensation and solatium, for “the amount of a verdict is the product of a mixture of inextricable considerations”.
(Footnote omitted)
[70] (1993) 178 CLR 44, 72.
The purposes of awarding damages for defamation
In Carson v John Fairfax & Sons Ltd[71] Mason CJ, Deane, Dawson and Gaudron JJ stated that, in a defamation of the present type, there are three purposes to be served by the awarding of damages:[72]
The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of damages necessary to vindicate the appellant.
(Footnotes omitted)
[71] Ibid.
[72] Ibid 60-61.
I am required to ensure that the ultimate award bears an appropriate and rational relationship to the harm suffered.[73] Nevertheless, the matter remains one of a broad discretionary assessment.
[73] Defamation Act 2005 (SA), s 5.
One advantage of jury assessments of damages for defamation is that the opaque nature of such awards generally makes it both unnecessary and impossible to attempt to analyse them by reference to component portions to be attributed to particular considerations. Indeed, it has been rightly said that “The variety of the matters which…may be considered in assessing damages for defamation must in many cases mean that the amount of a verdict is the product of a mixture of inextricable considerations.”[74] Against that background, I consider that it is unnecessary to do more than to advert to some of the salient considerations affecting my approach to the assessment of quantum; I do not intend to attempt to disentangle all the overlapping considerations or ascribe precise amounts to each of such considerations.
[74] Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 150 (Windeyer J).
The plaintiff’s high moral standards and reputation
Impressive and uncontested evidence of the plaintiff’s high moral standards and reputation came from the plaintiff herself, Mr Graham Cornes, Mr Wayne Cornes (who was the stepbrother of the plaintiff and lived in Victoria) and a number of deponents of affidavits (not required by the defendants for cross-examination): Ms Anne McAvaney, Ms Taryn Thompson, Mr Leith Forrest and Ms Kathleen Waddell.[75]
[75] Paragraphs 1 to 4 only admitted.
It is to be noted that it was unnecessary for a plaintiff to give such evidence since, in the absence of any evidence on the topic, the Court will proceed on the basis that the reputation is damaged by defamatory comment. The plaintiff, is, however, free to lead such evidence[76] and leave herself open to challenge on that evidence. Here there was no challenge and the evidence stands uncontested and uncontradicted. This evidence must be afforded considerable weight in the assessment of damages.
[76] See Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474.
The impact of the statement upon the plaintiff
As to what I might call in a compendious form the impact of the statement upon the plaintiff, Brennan J in Carson v John Fairfax & Sons Ltd[77] emphasised that this comprises a multitude of features. His Honour stated:[78]
The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be “shunned or avoided” is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff’s injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.
(Emphasis in original)
[77] (1993) 178 CLR 44.
[78] Ibid 71.
The plaintiff testified that she did not see the original live broadcast but when she later viewed it she was really hurt, really upset, became emotional, wept, and felt humiliated. For a time she shunned the world because “I just didn’t want to go out there and have to deal with people raising it, or talking about it, or whispering about it, or about you; questioning whether it’s true.” She stated that the upset effect and the humiliation of the publication had lasted and had not been diminished by the apology which she considered to be insincere.
The initial reaction of the plaintiff is confirmed by the evidence of Wayne Cornes who saw the broadcast and first spoke to the plaintiff about it a few days later. He stated:[79]
[79] T96.
Q:When you spoke to her, do you remember the conversation you had, or the gist of the conversation you had?
A:Yes, I definitely brought up the subject early about the comments that Mick Molloy had made.
Q: What did she say?
A: Yes, she was already aware of it.
Q: Did she express any feelings about it?
A:Yes, she was gutted too. She said she was deeply shocked and sort of kept talking and she sort of got a little bit emotional and her voice got a little bit shaky and waivering, so I sort of dropped the subject. Sort of, I didn’t go on with it too long. It was upsetting her.
The plaintiff also recounted later incidents of people approaching her and wishing to discuss the matter. As previously stated, Mr Graham Cornes gave evidence confirmatory of that of the plaintiff as to the adverse effect on her produced by the publication. As an example, he stated:[80]
[80] T83-84.
Q:Have you spoken with your wife about the program, both immediately after she saw it and over the months and years since?
A: Yes, often, we have.
Q: Has, to your observation, the hurt gone on?
A:And it’s increased, I would have to say. It hasn’t gone away. It certainly hasn’t gone away.
Q:Was it of any significance, in the conversations you’ve had with her, that Stuart Dew, of all people, was one of the participants in this thing?
A:Well, it was. It was, because we both know Stuart Dew. He is a friend of, and a team-mate of my son Chad’s, and he had been to our house and it was - well, it was just too close to the bone, really.
Later, Mr Cornes said:[81]
Q:Your wife has been through some negative experiences both in the criminal case in which she was a victim, and in the election campaign in which she was another sort of victim. Is it possible for you to say that you can isolate out this program as something that knocked her confidence or self-esteem?
A:I don’t want to appear to be trite when I say it, but undoubtedly it was – it came out of the blue, it was something that was clearly untrue, unnecessary, and you’re asking about whether it’s taken its toll over the years, the three years since. It has, and the pain seems to have increased, and there is no doubt about it, and that is exacerbated by, dare I say it, Channel Ten’s intransigence and a lack of a sincere and genuine apology, so there is no doubt it’s taken its toll.
[81] T84.
I consider that the plaintiff is entitled to a substantial award of damages for the personal distress and hurt caused to her by the publication and reparation for the harm done to her personal reputation.
The meaning as actually understood by members of the audience
The parties are generally not permitted, on the issue of liability, to call evidence as to what members of the audience did understand as to the meaning of the words complained of since such would be to usurp the function of the Judge to determine the meaning as it would be perceived by the ordinary reasonable viewer. However, the parties may call such evidence on the issue of assessment of damages. Put simply, such evidence is then admissible because, while the meaning that would be discerned by the ordinary reasonable viewer (as found by the Judge) on the issue of liability will tend to be relatively constant, the extent to which such meaning will correspond with the meaning actually discerned by members of the particular audience may vary due to a large number of factors.
Evidence of meaning relied upon by the plaintiff in relation to damages
The plaintiff called evidence, received without objection, that a number of persons had indicated that they did not perceive the words as a joke and that no one had ever indicated that they did so perceive it. As stated above, I consider that such evidence may be taken into account in relation to the assessment of damages in tending to show that the actual understanding of those (or the large majority of those) who saw the matter complained of corresponded to that of the ordinary reasonable viewer to whom I have referred for the purpose of determining liability.
In this regard, the plaintiff made it quite clear that she herself did not understand the words as a joke. She also referred to a number of persons to whom she had spoken at various times, each of whom made it clear that they did not understand the words as a joke; and she stated that no one had ever suggested to her that it was just a joke.
Mr Graham Cornes gave strong evidence to the same effect. He stated:[82]
Q: But your reaction was never that it was amusing?
A: It wasn’t funny at all.
Q:Has anybody ever spoken to you about the program who has expressed the view ‘Look, Graham, it was just a joke, lighten up’?
A:No, not at all. I mean there’s – there’s a group, about three or four of us in the sports program at 5AA and we’re fairly close and we discuss fairly intimate matters, I guess – and this has been a particularly intimate matter – and nobody has tried to say ‘Look, it was just a joke’. No-one has thought it was funny. It wasn’t funny.
[82] T82.
Wayne Cornes, the brother of Graham Cornes, gave evidence which was of assistance in this area. He said that he was offended and did not see it as a joke. I believe him and accept his evidence in full. He stated:[83]
[83] T95; T97-98.
Q:Did you see that part of the program in which reference was made to your sister-in-law, Nicole Cornes?
A: Yes.
Q: When you heard that comment, how did you react?
A: I was pretty taken aback. I was a bit shocked that he actually did say it.
Q: Did you think that it was a joke?
A:No, the fun goes out of anything when it comes to offensive and I thought it was offensive.
Q: You didn’t take it to be literally true, did you?
A: I knew it wasn’t true.
Q: But ‘offensive’ was the word that you used?
A: Definitely.
Q: Why was it offensive?
A:I don’t know about in your household, but if someone said that about my partner, the humour would go out of the room immediately.
…
Q:Did any of the contractors, anybody in the work situation, speak of the program in such a way as would indicate that they saw it as amusing?
A:That never, ever came across as anyone ever added after they had asked me ‘But they were joking, weren’t they?’. No, there was never a follow-up that there was some sort of joke to it.
In cross-examination and re-examination appear the following passages:[84]
[84] T99-103.
A: I found it offensive.
Q:But you knew that in the lead-up to that comment that there had been exchanges between the people on the panel and –
A:No, you are on the wrong tram. I said it stops being fun when things become offensive. I didn’t necessarily say that the show was funny. I said it was an offensive comment and that’s how I found it.
Q:Yes, but let me ask the question; in the lead-up to the comment, did you notice various interchanges between people on the panel on television?
A: Yes, it’s just a run-of-the-mill show, yes, that’s what happens.
Q: Did you hear them making remarks and laughing at each other’s remarks?
A:From what I can recall, it just come - it was a comment that he made and I don’t particularly think that he was part of what was being said previous and he just came in and made a comment out of the blue. That is from what I can recall.
Q:Let me put it again. In the lead-up, as I have called it, to the remark that you have identified, did you hear other exchanges by the panelists accompanied by laughter on the panel?
A: Yes, it’s that sort of show.
Q:Did you take from that, that they thought that they were making funny observations on the panel?
A:I don’t know if you watch the show, but sometimes their comments don’t seem to be so funny to me, in any case.
Q:So it may not have tickled your sense of humour, but my question is this: did they apparently, in the lead-up, appear to be engaging in humorous exchanges?
A:It was more to do with Dewie’s rose garden. That’s where the whole topic of the conversation was.
Q: There was laughter around that, wasn’t there?
A: Basically, yes.
…
Q:Do you remember this exchange - I won’t go through it all. Do you remember there being confusion about who Mr Dew had gone out with?
A:I really can’t. I vaguely remember something about that, but God, don’t put me to the test on that.
Q: But the thing that really stands out here is the reference to your sister-in-law?
A:That sort of overrode everything. You know, everything else went out the window when I heard that particular comment because it was close to home.
Q: You picked up on it because it was your sister-in-law?
A: Yes.
Q:When you say that ‘the fun went out of it’, by that you mean that it’s all very well for people to think they’re making funny remarks, but when they make offensive remarks about your sister-in-law, it is no longer funny?
A: Yeah, I don’t particularly find the show all that funny anyway.
Q: What did you mean when you said ‘The fun went out of it’?
A:When someone says an offensive comment - and that is an offensive comment, and it can’t be anything else - it can’t be funny. When things become offensive - have your fun but then it becomes offensive, there’s no more fun in it, basically.
…
RE-EXAMINATION BY MR LITTLEMORE
…
Q:Would you have found that offensive if it was said about a woman who wasn’t your sister-in-law?
A:Well, of course. I mean, it wouldn’t matter what household you lived in, whoever said that about any particular female, it stands to reason you’d find it offensive.
Q: And the fun would go out of it?
A: Definitely. It wouldn’t be a funny comment.
Evidence of meaning relied upon by the defendants in relation to damages
The defendants clearly recognised that evidence may be called by either party for this purpose. Understandably, the focus of their submission is on the type of evidence that the defendants might call in the present case for that purpose. Thus they state:
Even if the ordinary reasonable viewer is found for the purposes of the single meaning rule to have interpreted the impugned comment in the meanings pleaded, it is nevertheless relevant to the assessment of damages that a significant proportion of the audience would have dismissed the statement as a joke devoid of any literal meaning.
The defendants did not call any of the audience members to give such evidence but rather relied on the same evidence which they sought to adduce in relation to liability. The submission by the defendants is to the effect that, even if the evidence of the comedic reputation and previous comedic exploits of Hughes, Lehman and Molloy is not strong enough to require that they must be taken as influencing the mind of the hypothetical ordinary reasonable viewer, such evidence is strong enough to be taken to have influenced an unidentified proportion of the actual audience.
However, having framed the proposition in the most attractive way that I can from the point of view of the defendants, I still consider that the argument is tenuous and hypothetical. Even if one accepts that one or more of the persons Hughes, Lehman and Molloy would likely have been known as comedians to some of the persons who comprised the relevant audience, I consider that such knowledge would not affect the understanding of the large majority of the audience as to the meaning of the particular words uttered by Molloy in the context closely considered elsewhere in these reasons.
In the alternative, if knowledge of the reputations and/or the previous activities of persons appearing on the program is thought liable to lead some viewers to an understanding that what such persons said on the present occasion is to be dismissed as having no serious meaning, I would hold that such would be the case only in such a small minority of viewers that it should make no material difference to the assessment of damages herein.
The views of others as to the truth or falsity of the statement
As stated at the outset, “an imputation need have no actual effect on a person’s reputation; the law looks only to its tendency, so there is a cause of action even if the words were not believed by the audience”.[85] However, when one comes to an assessment of damages, such matters as likely belief or disbelief are to be taken into account.
[85] Gatley, above n 4, [2.1].
Mr Graham Cornes made it clear that he disbelieved the allegation, but he clearly found it uncomfortable. He said in re-examination:[86]
A:Look, when somebody says something, even if you know it’s not true, there’s that shadow of doubt that sort of crosses your mind. You know, you are forced to consider it, whether it’s rationally factual, or not. So, it places you in an unpleasant place, that shadow of doubt where you are forced to confront and then of course you dismiss it, knowing my wife, you dismiss it, but I can’t sit here and say that there wasn’t a shadow of doubt that sort of, you know, crosses your mind, so - … my wife has worked very hard in the course of our relationship to assure me of her, you know, fidelity and devotion. So I have the utmost confidence in that, but that doesn’t mean it can’t be undermined by people making negative comments where you are forced to consider alternatives and I have to say that there is a shadow of doubt there.
[86] T92.
Mr Cornes was cross-examined by senior counsel for the defendants as to whether he thought that others would actually believe the allegation as follows:[87]
[87] T91-92.
Q: You didn’t believe that it was true in any factual sense, did you?
A: No, the rational answer to that is, ‘No’.
Q:You’ve told his Honour that amongst the people you’ve spoken to, that you say nobody has thought that it was funny?
A: Nobody thought it was funny.
Q: But no-one has said to you, have they, that they thought that it was literally true?
A: No.
Q:This would be fair comment, wouldn’t it; amongst those people who know your wife, you would expect that no-one could think it was literally true?
A: Fair comment, yes.
Q: You agree with that?
A: Yes, people who know my wife.
(Emphasis added)
This last answer is particularly telling. The point being made by Mr Cornes, in a well chosen half dozen words, is that one may concede that people who know his wife would disbelieve the allegation – but what about the thousands of viewers who do not?
Mr Wayne Cornes also gave helpful evidence in this area of speaking on various occasions to friends and acquaintances who clearly did take the “where there’s smoke, there’s fire” approach. Thus he said:[88]
[88] T96-98.
Q:Do you recall a conversation, one of the conversations you had with such persons?
A:I reckon if I heard it once I heard it half-a-dozen times ‘Did you see the program? Did you hear the comments?’, yadda yadda yadda. And ‘Is it true?’. Like ‘Come on’.
Q: What, they said ‘Is it true?’ And you said ‘Oh, come on’?
A: Yes, you know, ‘Are you serious?’. I mean, ‘It’s not true’. I mean, yes.
Q:I am just trying to work out who said what. So people said to you, they obviously had all been on Seinfeld because they all said ‘Yadda yadda yadda’ and after that they said ‘Is it true?’
A: Yes.
Q: And you said ‘Oh, come on’.
A: Yes.
Q: What else was said?
A:They said that they thought the way it was said that there could have been something to the rumour, so I said ‘No way’.
Q: Did anybody say to you ‘Oh, Wayne, lighten up, it’s only a joke’?
A:Not at all. No. That never came across. Everyone was sort of thinking it was along the lines of being there’s a bit of smoke, there’s fire.
Q:You said that that was said to you by friends at the football. What about at work, did anybody raise the subject in the work environment?
A:Yes, a couple of my contractors, they said basically the same thing. You know, I will catch up with them on site for the day-to-day activities. They brought it up as well, the comments that Molloy had made. ‘Was there any truth in it?’ and again I said ‘No, not at all’.
…
In cross-examination appears the following passage:[89]
[89] T102.
Q:You said that some people said things that were along the lines of ‘Where there’s smoke there might be fire’?
A:No, no, it was just a comment I made, but that was the impression I got from people, that they were trying unearth something that I could be a bit close to and give them some sort of inside information. That was the impression I had from the way they were talking.
Q:I didn’t mean to suggest that anybody had used those words to you. They were your description of what you felt people may be conveying to you.
A:Exactly.
…
A:… I got the impression that people were trying to dig a bit further, that they thought there could have been some strength in what Molloy had said.
Q: I take it that you thought there was no literal truth in this?
A: I knew.
The extent of publication
I have found above that the ambit of publication was large and that publication to viewers with the required extrinsic knowledge that the plaintiff was married would likely have been not less than 120,000 persons.
Republication
Senior counsel for the plaintiff amended the statement of claim to further add the following particular of damage:
The republication of the matter complained of on the Channel Ten website from 28 June 2008 until on or about 7 July 2008, during which period it was downloaded and viewed by persons in the States of South Australia, Victoria and Western Australia.
This was said to fall under the heading of aggravated damages but I think it actually alleges a potential republication that sounds in general damages. I am positively satisfied that the defendants will suffer no real prejudice by me treating it as such. I emphasise “potential republication” because actual publication is here only constituted by the downloading of the relevant material by a member of the public.[90]
[90] Dow Jones & Co v Gutnick (2002) 210 CLR 575.
The plaintiff and Mr Cornes told me that they had each downloaded the matter from the website without difficulty and so this was obviously readily done. However, there is no evidence adduced of the number of occasions that this material was downloaded by other members of the public. I am, however, prepared to accept that there would have been at least some such downloading given the extended period in which the matter was left on the website from 28 June to 7 July 2008 until it was belatedly removed.
I accept the plaintiff’s evidence that she was offended and upset that the matter was left on the website for as long as it was and that she was fearful (rightly or wrongly) that there may have been very many instances of the matter being downloaded by members of the public. I take this evidence into account on that basis only and not as any proof that there was a very large number of downloadings. I consider that this matter has some, but limited, impact on the overall award of damages.
I further note that the plaintiff’s solicitor pleaded a later publication on 6 July 2008 of an article in the Sunday Mail headed “Molloy caught offside with Cornes wisecrack” under aggravated damages but, again, I consider that this is merely an aspect of general damages. Again, I am positively satisfied that the defendants will suffer no real prejudice by me treating it as such. The plaintiff said that she had read this article and that it made her feel sick, seeing it written in print, that is to say, in another different media form. She gave similar evidence in relation to seeing another republication much more recently. I consider that republication of this type of article in a local South Australia newspaper was the natural and probable consequence of the original publication and take it into account on that basis. However, I note that the article asserts that, in the purported opinion of the writer, only a joke was involved. I consider that the republication of this article to the substantial readership of the Sunday Mail has some, but relatively limited, impact on the overall award of damages.
The apology
The whole of the apology read by Molloy on the final program of Before the Game for the season on 13 September 2008 was tendered and played at trial. The plaintiff stated in her evidence:[91]
[91] T42-43.
Q: Do you accept that apology?
A: No.
Q: Why not?
A: I don’t believe Mick Molloy was sincere when he gave his apology.
Q: Upon what do you base that view of insincerity?
A:His tone of voice, the way he was looking at the camera. I took it that he was being insincere. He was inconvenienced by having to give the apology and it was a painful thing for him to do. That’s my interpretation of that apology.
Q:That was broadcast on 13 September, which is getting on for three months after the program. Do you have a view about that delay?
A:They waited three months to give an apology. The damage had been done over and over again by newspaper articles and the like and they waited all of that time. It was a long time to wait for an apology.
Mr Graham Cornes gave similar evidence as to his attitude. In cross-examination appears the following passage:[92]
[92] T85.
Q: You said that you believe that the effects on your wife have been exacerbated by Channel Ten’s intransigence. You said that?
A: I did say that, yes.
Q: And also by their lack of sincere and genuine apology?
A: They are my words.
Q:When you refer to the lack of a sincere and genuine apology, are you referring to the fact that you know an apology was made on television?
A Yes, I do know.
Q And you’ve seen it?
A: Yes.
Q: And you considered it lacked sincerity?
A: I did.
Q: And it wasn’t genuine?
A: No.
Q: And when you say no -
A: If it takes three months to make an apology, I don't think it’s genuine.
Q: Sorry?
A: If it takes three months to make an apology, that’s not genuine.
Q: So it’s the time delay that you consider makes it not genuine?
A:No, it’s the delivery, it’s the content of what it is, it’s the supercilious air of Mr Molloy as he is delivering it. That’s my opinion.
I fully accept the evidence of the plaintiff and of Graham Cornes that the making of the apology did little to assuage the hurt felt by the plaintiff by reason of the publication. I do not consider that they have behaved unreasonably in taking that view. However, while I recognise that the apology had little beneficial effect on the aspect of hurt to the plaintiff, it is also an objective fact that the apology made it clear (albeit belatedly) that the statement was not a true statement and this does have a tendency towards public vindication of the plaintiff. I make allowance for this in assessing damages. I do not accept that the apology in this case could found an award of aggravated damages.
The plaintiff’s sexual abuse as a child
The plaintiff gave evidence that she had been sexually assaulted as a child which has had a lasting effect upon her. As I understood senior counsel’s argument, this made her more vulnerable and hence the effect of the defamation on this plaintiff was the greater than would otherwise have been the case.
I note that the plaintiff made a decision to stand for Parliament in circumstances in which she must have known that she was subjecting herself to the likelihood of all sorts of vitriolic attacks. In making that decision, she no doubt would have made an assessment of the likely effect that such attacks would have upon her in all the circumstances including her mental state generally and the matter of the past abuse. She decided that she was mentally fit enough to proceed with that campaign despite that background. No medical evidence seeking to establish a link between the abuse and the likely effect of the present defamation upon the plaintiff was sought to be tendered. The words here complained of do not in any way allude to the past sexual abuse and there is no evidence that the defendants were aware of the abuse.
I do not accept counsel’s submission that I should increase the award by some particular amount because of the fact that the plaintiff is generally more vulnerable due to having suffered the abuse. Rather, I simply proceed on the basis stated above that I accept the plaintiff’s evidence that she was greatly hurt by the publication and I simply take that into account in relation to assessment of damages. In my view, it is unnecessary to speculate as to what extent any particular past experience might, or might not, have contributed to the extent to which that hurt is now felt.
Aggravated damages generally
I have carefully considered the authorities in relation to aggravated damages and have come to the view that no sufficient case for their award in the present case has been established.
Award of general damages
Recognising that the element of vindication is important in this case, that it is impossible to assess damages for defamation with exactitude and that a round total is not, in this area of the law, to be suspiciously viewed as adopting a guess when a more precise total might be available, 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.
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