Dent v Burke
[2020] ACTCA 22
•5 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Dent v Burke |
Citation: | [2020] ACTCA 22 |
Hearing Date: | 6 February 2020 |
DecisionDate: | 5 May 2020 |
Before: | Burns, Loukas-Karlsson and Charlesworth JJ |
Decision: | See [38] |
Catchwords: | TORT – DEFAMATION – Television broadcast of an interview with the respondent – respondent referring to allegations of misconduct against him by appellant – whether primary judge erred in concluding imputations defamatory of the appellant were not conveyed by the publication – meaning to be derived from publication as a whole and not only from words spoken by the respondent – no appealable error |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 1521 Civil Law (Wrongs) Act 2002 (ACT) s 116 |
Cases Cited: | Dent v Burke [2019] ACTSC 166 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77 Webb v Bloch (1928) 41 CLR 331 |
Parties: | Wendy Dent (Appellant) Donald Burke (Respondent) |
Representation: | Counsel Mr Stretton SC with Mr Crispin (Appellant) Ms Chrysanthou with Mr Dean (Respondent) |
| Solicitors Capital Lawyers (Appellant) Kalantzis Lawyers (Respondent) | |
File Number: | ACTCA 32 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 28 June 2019 Case Title: Dent v Burke Citation: [2019] ACTSC 166 |
THE COURT
On 27 November 2017 the respondent, Donald Burke, participated in a half hour television interview broadcast on A Current Affair. In that interview, Mr Burke responded to a series of allegations to the effect that he had engaged in bullying and sexual misconduct in his former role as the host of the long-running gardening program
Burke’s Backyard. The interview was televised nationally on stations affiliated with the National Nine Network (Channel 9) and subsequently published in the same form in the Australian Capital Territory and elsewhere on websites associated with Channel 9.
The appellant, Ms Wendy Dent, was among those who had made allegations of misconduct against Mr Burke. The gravamen of her complaint was summarised in the interview and Mr Burke responded to it.
In June 2018, Ms Dent commenced an action for damages against Mr Burke. She pleaded that the interview conveyed the following imputations that were defamatory of her:
(a)That the plaintiff lied when she alleged that Burke asked her to audition naked to the waist when she sought to be engaged on the program ‘Burke’s Backyard’; and
(b)That the plaintiff made a false accusation against Burke of sexual harassment, motivated by her wish to join a witch hunt against Burke.
Pursuant to r 1521 of the Court Procedures Rules 2006 (ACT), the question of whether the imputations were conveyed was decided separately and in advance of all other issues. The primary judge determined the question against Ms Dent and so entered judgment for Mr Burke: Dent v Burke [2019] ACTSC 166. This is an appeal from that judgment.
Judgment at first instance
The principles to be applied in determining the question were summarised by the primary judge in the following terms:
The principles to be applied
8.The principles to apply were not really in dispute. It was the application of those principles to the particular circumstances of this case that was controversial.
9.The plaintiff must satisfy the court, on the balance of probabilities, that the hypothetical ordinary reasonable viewer would understand the publication to have the meaning alleged. The plaintiff bears the onus of proof.
10.The distinction needs to be drawn between a viewer’s understanding of what the publication says and the conclusions which the reader may reach as a result of his or her own beliefs and prejudices. An imputation may arise if the ordinary reasonable reader would understand it in that sense drawing on his or her own knowledge and experience of human affairs. However, a publication will not be defamatory if it is only capable of bearing such an imputation because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301.
11.The characteristics of the ordinary reasonable viewer are well-known. The ordinary reasonable viewer: is of fair average intelligence; is a fair-minded person; is not overly suspicious; may engage in a certain amount of loose thinking but is not avid for scandal; is not naïve; does not search for strained or forced meanings; views the entire matter complained of; and considers the context as well as the words alleged to have been defamatory: Lewis v Daily Telegraph [1964] AC 234 at 260; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646; John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 77 ALJR 1657 at [26].
12.Two principles are of particular significance in the present case.
13.First, whether or not a publication gives rise to a defamatory imputation will be influenced by the form of the publication. There is clearly a distinction between a written publication and one that is published in transient form such as a television broadcast. The viewer of a transient communication has none of the opportunities of the reader of a written document to consider, reread at leisure or check back on something that went before to see whether his or her recollection of it is correct and in doing so to change the first impression conveyed: Gorton v Australian Broadcasting Commission and Walsh (1973) 1 ACTR 6 at 11; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165-166.
14.Second, each imputation relied upon must be considered in the context of the entire publication: Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 79 ALJR 1716 at [17]; Rivkin at [26]. That means that the plaintiff is not entitled to isolate a few passages to make a case, nor is the defendant entitled to ignore the context in order to defend it. Where there is both ‘bane’ and ‘antidote’ within the single publication, both must be considered when determining whether the imputation arises. When considering bane and antidote, a viewer in a particular case may not give equal weight to every part of the publication. The emphasis given to separate parts may vary according to the manner and form of the publication: Malcolm v Nationwide News [2007] NSWCA 254 at [18]; Rivkin at [26]. Once conveyed, a defamatory imputation remains unless, by reason of other things written or said, it is entirely eradicated. In Morosi v Broadcasting Station 2GB [1980] 2 NSWLR 418 at 419-420, Samuels JA (with whom Moffitt P and Hutley JA agreed) said:
But in a case such as this the material already contains a defamatory imputation; and the inquiry is whether that effect is overcome by contextual matter of an emollient kind so as to eradicate the hurt and render the whole publication harmless.
It follows that, in a case such as the present, what is involved is essentially the weighing up and comparison of bane and antidote, to repeat Baron Alderson’s evocative formula, [Chalmers v Payne (1835) 2 Cr M & R 156; 150 ER 67]. It is a question of degree and of competing emphasis. … It may be easier to arrive at an answer where the publication contains an express disclaimer, as in Stubbs Ltd v Russell [1913] AC 386], or where the antidote consists in a statement of fact destructive of the ingredients from which the bane has been brewed.
15.In Morosi itself, the commentary in the radio broadcast upon Ms Morosi and her previous interview with Mike Willesee contained both bane and antidote and was not so clearly favourable to Ms Morosi as to remove the defamatory imputation. Samuels JA said ‘I do not think that it can be said that the antidote so manifestly achieved its purpose that the issue should have been withdrawn from the jury’ (at 420).
16.Bik v Mirror Newspapers [1979] 2 NSWLR 679 is an example of a case in which the antidote was sufficient. The reporting of a ministerial statement clearing an engineer of any responsibility for a fatality arising from the collapse of a crane was found to be a sufficient antidote to any imputation carried in that publication that he had been guilty of discreditable conduct. Herron CJ (with whom Manning JA agreed) rejected the proposition (at page 682) that ‘where it is intended to clear a person of a defamatory stigma by a published statement, defamatory matter is necessarily published because the statement of his innocence supports an implication that it has previously been said or believed that the person has been guilty of discreditable conduct’.
A video recording of the interview was in evidence before the primary judge, together with a written transcript. The transcript was not, of course, in the hands of the viewers of A Current Affair.
The primary judge said that the interview gave the overall impression of Mr Burke being confronted with a series of allegations and providing a “less than compelling response” to them. His Honour observed that Ms Dent’s allegations against Mr Burke “tend to get lost” amongst the other allegations made against him. His Honour said that the program was “largely influenced by the collective force of numerous allegations” and the “rather general level” at which Mr Burke had responded to them. His Honour continued (at [21(d)]):
Even at an impressionistic level, the responses to the allegations provided by the defendant are unremarkable insofar as they involve a variety of changing responses which reflect poorly on his credibility. The allegations are met by a confusing combination of admissions of similar but less serious behaviour, outright denials, lack of recollection, the suggestion of possible exaggeration by complainants, suggestions of a ‘witch-hunt’ and a suggestion that he suffered from Asperger’s syndrome and that this might explain his conduct. The manner in which the interviewer conducts the interview and responds to the defendant’s answers makes it very clear that the interviewer accepts the allegations made against the defendant as being credible allegations and finds his positive denial of them implausible.
The primary judge then turned to summarise the transcript of the interview. It is not necessary to repeat his Honour’s summary here. His Honour said if that the statements made by Mr Burke in relation to Ms Dent’s allegations were to be examined out of their context, then the pleaded imputations would have been made out because (at [47]):
[T]he defendant himself does say expressly or impliedly that the allegation that she makes is false and that she makes it as part of a ‘witch-hunt’. Although the position taken by the defendant in the interview is changeable, at its core is a denial of the allegations made, inter alia, by the plaintiff. …
The position was different, his Honour said, when Mr Burke’s comments were considered in the context of the interview as a whole. He concluded:
47[T]he proposition that the events alleged actually occurred is put strongly and persistently by the interviewer. She puts to him the weight of the number of allegations, the corroborative evidence in relation to some of the allegations, her own opinion about how difficult it is for complainants to come forward and, impliedly, their likely credibility in those circumstances. At times, the expression on her face and the manner in which she responds to the defendant’s statements indicates a lack of acceptance of what he has said. It is a case in which the weight and authority of the interviewer and program is put behind the credibility of the allegations in contrast to the denials made by the defendant.
48The end result is one in which the publication, taken as a whole, does not indicate that the allegations made by the plaintiff are false or motivated by a desire to join a ‘witch-hunt’. Rather, a fair-minded observer of the program would understand that there were credible allegations made by a number of people including the plaintiff and that the defendant denied the allegations but did so in a manner which gave rise to real doubts about the credibility of his denials.
Submissions
The principal ground of appeal alleges that the conclusion that the imputations were not conveyed by the interview was not supported by the weight of the evidence: Amended Notice of Appeal, [3(a)]. More particularly, it is said that the primary judge fell into error by finding that the words spoken by the interviewer could “undo the defamatory imputations in the publication by the Defendant”: Amended Notice of Appeal, [3(d)].
An additional ground of appeal alleged that the primary judge had fallen into error by conflating the publication made by Mr Burke during the interview with the
“later publication” of the whole of the interview on the National Nine Network: Amended Notice of Appeal, [3(c)]. Although that ground was not pressed, it is necessary to say something about the publication forming the subject matter of the appeal and the legal basis of Mr Burke’s alleged liability for it.
The only publication sued upon was the entire interview in the form broadcast on
A Current Affairon 27 November 2017 and subsequently republished (in the same form) on various pleaded websites. That is the only “matter” complained of and so formed the only cause of action upon which Ms Dent’s suit was based: Civil Law (Wrongs) Act 2002 (ACT), s 116. As mentioned, Ms Dent did not sue Mr Burke for statements that he made to the interviewer, Ms Tracy Grimshaw, and other persons who might have been within earshot when the interview was pre-recorded. The pleaded case was that Mr Burke was the publisher of the interview as broadcast on A Current Affair and that he was also liable for the republication of the interview on the internet, “they being the natural and probable consequence of his original publication”: Statement of Claim, [1] and [2]). That approach, the primary judge said, relied on the broad scope of liability of co-tortfeasors in an action founded in defamation, as explained in Webb v Bloch (1928) 41 CLR 331 at 363 – 364.
Counsel for Ms Dent acknowledged that, subject to any defence available to him, Mr Burke would be liable in defamation in respect of imputations conveyed by the whole of the interview, which necessarily included the words and conduct of the interviewer. Counsel also acknowledged that if the interview (considered as a whole) conveyed the pleaded defamatory meanings, a cause of action in defamation would also lie against the relevant broadcasting entity as co-publisher and re-publisher of the same “matter”, both on television and online. Whilst it is appears that Mr Burke defended the claim on the basis that his liability was restricted to the words he had uttered and not the additional words broadcast by Channel 9 (Defence, [1(b)]) that feature of the dispute was not the subject of any submissions on the appeal. Accordingly, the appeal falls to be determined on the assumed premise that Mr Burke’s liability for the impugned publication would be co-extensive with that of Channel 9 (subject to defences), notwithstanding that the broadcasting entity was not joined as a defendant.
Counsel for Ms Dent acknowledged that the role of the primary judge, as trier of fact, was to determine whether each of the pleaded meanings were conveyed by the publication. The single meaning rule (as stated by Diplock LJ in Slim v Daily Telegraph [1968] 2 QB 157 at 173 – 175 (Slim)) required that there be but one answer. The interview either conveyed each meaning, or it did not. See also Ten Group Pty Ltd v Cornes (2012) 114 SASR 46 at [43] – [50] (Kourakis CJ) and the cases cited therein.
The matter complained of comprised an interchange between the interviewer, Ms Grimshaw, and the interviewee, Mr Burke. There is a brief studio introduction, one interruption for a commercial break and a studio back-announcement to the effect that Mr Burke had not been paid to participate in the interview.
As to meaning, submissions for Ms Dent proceeded from the starting point that the words spoken by Mr Burke were defamatory of her. From that premise it was argued that the words and conduct of the interviewer were insufficient to deprive Mr Burke’s words of their defamatory sting. To the extent that the interview contained contradictory assertions as to whether Mr Burke’s denials were false, it was submitted that the ordinary reasonable viewer would not subscribe to the views expressed outwardly or impliedly by the interviewer. There was no evidence upon which the primary judge might conclude that the opinions conveyed by the interviewer would be considered authoritative in any event, Counsel submitted. It was relevant, Counsel submitted, to consider that Mr Burke had been the host of a long running and popular television program who had garnered his own following of viewers. Implicit in that submission is an assertion that viewers of Burke’s Backyard would hold pre-existing views as to Mr Burke’s character and that his familiarity or celebrity may inform the ordinary viewer’s conclusions as to whether his responses to the interviewer were credible.
Counsel for Mr Burke submitted that his words were not defamatory of Ms Dent. There was no room for the application of “bane and antidote” principles, Counsel submitted, because “there was no bane”. In the alternative, Counsel submitted that the interview, considered as a whole, did not convey the pleaded meanings, because the ordinary reasonable viewer would not accept Mr Burke’s denials (if any) of the particular misconduct alleged of him by Ms Dent. The incredulity expressed by the interviewer was, Counsel submitted, a reflection of the attitude the ordinary reasonable viewer would adopt toward Mr Burke by reason of his own responses, or non-responses as the case may be. In submissions hardly complimentary of her lay client, Counsel submitted that the ordinary reasonable viewer would be left with the impression that Mr Burke had admitted saying the words attributed to him and would not think any the less of Ms Dent.
Consideration
The legal principles summarised by the primary judge were not subject to challenge on this appeal. This Court adopts his Honour’s summary as a correct statement of the law. We would add the following.
In Slim, Diplock LJ said (at 171):
In the spring of 1964 two short letters appeared in the correspondence columns of the ‘Daily Telegraph’ … Neither letter can have taken a literate reader … more than 60 seconds to read before passing on to some other, and perhaps more interesting, item. Any unfavourable inference … would have been one of first impression. Yet in this court three lord justices and four counsel have spent the best part of three days upon a minute linguistic analysis of every phrase used in each of the letters.
The primary judge was correct to emphasise the transient nature of the broadcast and to assess its meaning accordingly. Whilst a recording of the interview remains accessible on the internet, neither party suggested that the ordinary reasonable viewer would indulge in repeat viewings of the material or engage in a minute textual analysis of its contents.
The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher: John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; 201 ALR 77 at [27] (McHugh J). But that is not a rule of invariable application: Ronald v Harper (1910) 11 CLR 63 (Griffiths CJ). Where the impugned matter takes the form of an argument or interrogation involving two participants, defamatory words spoken by one of them may be deprived of their sting by other words spoken by either participant. Accordingly, whilst it is relevant to consider what Mr Burke’s words would be understood to mean, that is not the end of the enquiry. The critical question is whether the pleaded meanings are conveyed by the interview, considered as a whole.
A consequence of all that is that Mr Burke was entitled to rely upon the words and expressions of Ms Grimshaw that were critical of him or that otherwise undermined his account of events. It appears to be for that reason that the primary judge observed the irony that Mr Burke had succeeded in the way that he had.
In our view, the primary judge was correct to conclude that the imputations were not conveyed. Our reasons largely accord with those of the primary judge and it is not necessary to repeat them verbatim here. It is sufficient to emphasise four features of the matter complained of.
The first is the context in which the interview was published. It was broadcast on
A Current Affairon the day that serious allegations had been made against Mr Burke. That context is made plain in the studio introduction:
Don Burke was a fixture on tv and radio for years. Burke’s Backyard was quintessential family viewing, but tonight his reputation is in tatters after a litany of allegations of sexual harassment and bullying. In his only tv interview, Don Burke told me today, he’s made mistakes.
Following that introduction, the ordinary reasonable viewer would likely watch the interview that followed with a mind alert to the question of whether the “litany of allegations” against Mr Burke were well founded. The viewer would understand Mr Burke to have voluntarily participated in the interview and that in doing so he had invited the audience to reach its own views about the subject of the dispute.
The second feature is the evasive, unusual and at times contradictory nature of Mr Burke’s responses throughout the interview. They are typified by his response to the very first question. Opening the interview, the interviewer said:
Don, thanks for your time. You’ve been described today as a psychotic bully, a misogynist and a sexual predator, among other very serious allegations. What do you say?
In the response that followed, Mr Burke did not respond by addressing the specific and serious allegations to which the question was directed. Instead, he disclosed that he had had extramarital affairs and that he regretted that his conduct in that regard had hurt his wife and family. The ordinary reasonable viewer would have understood Mr Burke to have avoided answering the question that had been put to him. The interviewer queried the relevance of Mr Burke’s response. In so doing, the interviewer asked the very question that would arise in the minds of the ordinary reasonable viewer. Throughout the program, the interviewer conveys the view that Mr Burke’s responses are evasive or otherwise unconvincing. The matters pointed out by the interviewer fairly reflect the matters that would arise in the mind of an ordinary reasonable viewer by reason of Mr Burke’s own words. As the interview progresses, the impression is conveyed that Mr Burke is doing his own reputation more and more damage by his own responses.
The third feature to emphasise is the confusing responses Mr Burke gives in relation to the particular allegation that had been made by Ms Dent. This is the only exchange relating specifically to that allegation:
Grimshaw:What about young Wendy Dent who was a fairy, a kid’s fairy character who had aspirations to be an actress, she said that you asked her to audition topless to be a mermaid on the show?
Burke:Just not true, but, what I don’t know – we’ve tried to remember her and don’t. I was talking to my daughter this morning and she said well you know, your sense of humour at times, you know I’ve seen people, well you know roll their eyes a bit and I went … but I don’t know is the answer I – she said it remotely could have said something remotely close that but I don’t remember saying it.
Notwithstanding the words “just not true”, the ordinary reasonable viewer would not understand Mr Burke’s response to constitute an outright denial of Ms Dent’s allegation. Mr Burke’s substantial response is that he does not remember Ms Dent, nor does he remember whether he had said the words attributed to him. Mr Burke then goes on to admit of the possibility (albeit remote) that he may well have suggested that Ms Dent audition topless.
The ordinary reasonable viewer would consider the words attributed to Mr Burke by Ms Dent to be highly unusual and memorable and so entertain some scepticism about his professed inability to recall whether he had said them. These sentiments are reflected in the interviewer’s questions, including at the conclusion of the interview:
Burke: It was thirty years ago, it doesn’t mean it’s accurate.
Grimshaw: It’s not all thirty years ago.
Burke: Ooo, most of it’s towards that.
Grimshaw:Does it, does it make it inaccurate if it’s thirty years ago? Robert Hughes went to jail for, um crimes that he committed twenty-five years ago.
Burke:Yeah, and if that’s the case, he should, but, um, I, you know, I think with time … I can’t remember exact things I did twenty years ago or whatever. I-I-I challenge anybody to get something exactly right with something like that quoting back all that time. And whose memory is that good? I haven’t got that good a memory.
Grimshaw:So if you can’t remember what you did twenty-five or thirty years ago, maybe you did these things?
Burke:Well I said to you before that, uh, firstly a lot of them I cannot remember at all, but I know what I would say and what I wouldn’t say, uh, and I know the sort of jokes I crack and all the rest of it and I know what I would never do and there’s some of the things that are said I would never do. If you put a gun to my head, I wouldn’t do it. You know, you know who you are, and-and you know, just because somebody says it doesn’t mean that it’s a hundred percent hunky dory. But I don’t want to go in and pick them out one by one and perhaps go over grievances or whatever because I think that is an evil in itself.
The fourth feature to emphasise is Mr Burke’s admission that he had behaved badly toward others (including by bullying them), coupled with his generalised denial that he had done other things alleged against him. It is true that Mr Burke’s words in these parts of the interview convey the meaning that those who had made allegations of sexual misconduct against him were participants in a witch-hunt. That meaning is conveyed in a number of passages including this:
Grimshaw: Why would all these women make this up Don?
Burke:Well I’m guessing it’s – it’s - it’s the social media, the twittersphere thing. I guess they’ve stirred this up and as the Harvey Weinstein thing and we’ve got a witch hunt. I’m prepared to cop the fact that I may have terrified a few people or whatever and so on um, and that I shouldn’t have done that and so on, but these sort of things bear no relationship to who I am and what I’m about. And there are plenty of people from that time at Burke’s Backyard that were there that have come to me and said how can they say this – they’re furious. These things didn’t happen.
And this:
Burke:…. Yeah, you've got to learn from the mistakes you made, and I've got some good mistakes in here and I think people are punishing me for them and not entirely wrongly, not entirely wrongly. But that, that big end of town with the, the sexual stuff I guess is a way of twisting the knife and if I had done it, I would admit to it now. I'm in a frame of mind where I'm just sick of all this, the gossip's been around for - I want it over and done with and it would be far less painful for me to say yeah I did that, I said that, but I didn't.
The ordinary meaning of these words is that the persons who Mr Burke had mistreated in the past had been emboldened by “the Harvey Weinstein thing” and had used the occasion to make false or exaggerated allegations against him. Notwithstanding Mr Burke’s confused responses in relation to Ms Dent’s allegations, the ordinary reasonable viewer would understand Mr Burke’s words in this portion of the interview to be directed at all of his accusers, including Ms Dent.
However, it does not follow that the pleaded imputations are conveyed by the publication.
The interviewer directly asked why so many accusers would “make this up”. The ordinary reasonable viewer would understand that question to convey the opinion that it was unlikely that all of Mr Burke’s accusers were lying. In light of the number and nature of the allegations, that is the same process of reasoning that the ordinary reasonable viewer would likely engage in. Given Mr Burke’s other responses, the ordinary reasonable viewer would be highly sceptical of Mr Burke’s assertion that all of the accusers (including Ms Dent) had conspired in a witch-hunt against him. To so conclude is not to attribute to the ordinary reasonable viewer a peculiar appetite for scandal. Rather, it is to acknowledge that by participating in the interview, Mr Burke had implicitly invited the ordinary reasonable viewer to draw their own conclusion about what had occurred in the past.
Whilst it is true that the interviewer and Mr Burke are for the most part at odds with each other in relation to the allegations, the ordinary reasonable viewer would place great weight on the interviewer’s verbal and non-verbal expressions of incredulity and disbelief. That is because the interviewer’s sentiments would be understood by the ordinary reasonable viewer to be fairly based on Mr Burke’s failure to address the allegations against him in a clear or credible way.
The impression conveyed by the interview does not depend on any assessment of whether or not A Current Affairs is a program characterised by integrity, nor on an assessment of Ms Grimshaw as an authoritative figure. Nor does the question of meaning turn on innuendo arising from Mr Burke’s celebrity as the former host of a popular gardening program.
The pleaded meanings are not conveyed by the words and images forming the “matter” sued upon. The primary judge was correct to so decide.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Burns, Justice Loukas-Karlson and Justice Charlesworth. Associate: Date: |
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