Douglas v Penguin Books Australia
[2002] NSWSC 363
•1 May 2002
CITATION: Douglas v Penguin Books Australia [2002] NSWSC 363 CURRENT JURISDICTION: Common Law FILE NUMBER(S): SC 20828 of 2001 HEARING DATE(S): 19 February 2002 JUDGMENT DATE: 1 May 2002 PARTIES :
MALCOLM DOUGLAS
(Plaintiff)v
PENGUIN BOOKS AUSTRALIA
JANECK GAZECKI
(First Defendant)
(Second Defendant)JUDGMENT OF: Levine J
COUNSEL : T Hale SC
(Paintiff)T Blackburn
D Higgs SC
(First Defendant)
(Second Defendant)SOLICITORS: Michael Frankel & Co
(Plaintiff)Mallesons Stephen Jaques
Jackson Smith
(First Defendant)
(Second Defendant)CATCHWORDS: Imputations - capacity - difference in substance CASES CITED: Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36
Singleton v John Fairfax and Sons Ltd, unreported, 20 February 1980DECISION: See paragraph 17
DJL:1
[2002] NSWSC 363
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION listJUSTICE DAVID LEVINE
WEDNESDAY 1 MAY 2002
20828 OF 2001
MALCOLM DOUGLAS
(Plaintiff)
v
PENGUIN BOOKS AUSTRALIA
(First Defendant)
JANEK GAZECKI
(Second Defendant)
- JUDGMENT (Imputations – capacity – difference in substance)
1 The first defendant is the publisher and the second defendant is the author and thus a publisher of a book entitled “Crocs and barramundi - on the road with Malcolm Douglas”.
2 The plaintiff is the person named in the subtitle to the published work.
3 The book, as I understand it, is a record of what is described on the rear cover blurb as “A journey into Australia’s greatest wilderness, with Australia’s greatest adventure guru”.
4 By reference to the book as a whole and particularised passages in it, the plaintiff complains that the published work carries the following defamatory imputations of him:
- “3(a) That in a filming expedition led by the plaintiff, he was irrational and unbalanced in his dealings with his colleagues.
- (b) That the plaintiff’s behaviour toward others was so unreasonable that most people who had dealings with him on his film expeditions were unable to cope with his conduct.
- (d) That the plaintiff took advantage of employees by securing their continued employment against the employees’ will by means of a guarantee for loans.
- (e) Despite repeated demands from the council to pay unpaid land taxes he was legally required to pay, the plaintiff failed to do so”.
Imputation 3(c) which is not under challenge, is in the following terms:
- “(c) The plaintiff’s treatment of his employees was so bad that several had almost come to blows with him”.
5 Imputation 3(d) in fact was re-worded for the purposes of submissions to read as follows:
- “The plaintiff took unfair advantage of employees by securing their continued employment against the employees’ will by means of the plaintiff acting as guarantor of loans of employees”.
6 The defendants object to imputations 3(a) and (b) on the basis that SCR Pr 67 r 11(3) has been contravened in that the imputations do not differ in substance.
7 In addition to reliance on the book as a whole, as I have said, the plaintiff relies upon 9 passages set out in the Schedule of Particulars handed up during the course of argument, the same passages being relied upon for each imputation. In response to the submission for the defendants as to the lack of difference, the short point made for the plaintiffs, whilst acknowledging an “overlap”, was that imputation 3(a) concentrates on irrational and unbalanced behaviour in the plaintiff whereas imputation 3(b) is said to be concerned with “unreasonable” behaviour vis-à-vis the people with whom he worked. I am not persuaded by this proposition in the light of the terms of the imputations themselves nor by reference to the identical pages relied upon in support of each.
8 Further applying the available test of questioning what the defendants would have to prove by way of justification (Singleton v John Fairfax and Sons Ltd, Hunt J, unreported, 20 February 1980; Jackson v John Fairfax and Sons Ltd [1981] 1 NSWLR 36 at 41F), the objection taken by the defendants is still made good.
9 Accordingly I strike out imputations 3(a) and (b) with leave to re-plead.
10 As to imputation 3(d) in its reworded form above: it seems to me that proposed rewording could be refined to the following effect: “The plaintiff took unfair advantage of employees by securing their continued employment against their will by acting as guarantor of loans made to them”.
11 The passage in the book principally relied upon is as follows:
- “Malcolm was happening to the world again. He rampaged through the park shed, which was Craig’s workplace, and started throwing everything off the shelves, knocking over boxes, spilling their contents across the floor and kicking stuff all over the place, all the while yelling about how the place was a mess and generally throwing a tantrum. Like a violent, bearded hurricane he swept through the shed - a faultline in a cowboy hat, finally erupting under the pressure of too much tectonic plate movement. A tremendous flood of frustration with a crocodile tooth around its neck, spewing forth all manner of verbal debris.
- Craig looked ready to fight Malcolm, or at the very least quit. But neither was an option, since Malcolm had apparently acted as guarantor for Craig’s car loan when he first started at the park. This ingenious method of securing staff for the long term had also supposedly been employed with Kev, who was also cursing himself every day”.
12 The imputation reworded to the effect above could capture conduct on the part of the plaintiff of a disparaging nature. Clearly such an imputation could be found to be defamatory. The real issue is whether or not the passage is capable of giving rise to it: I am of the view, that on a capacity argument, the matter complained of is capable of carrying such a meaning. Whether in fact it does will be determined by the jury.
13 I strike out the presently pleaded imputation 3(d) with leave to replead.
14 As to imputation3(e), the particularly relevant part of the book (pages194-195) is as follows:
- “Malcolm went on to recount his own debt-related experience. The local council had been hassling him for several thousand dollars of unpaid taxes. One day he received a call informing him that a sheriff was on his way to enter the premises and remove equipment from the shed to the value of the debt. Under the relevant legislation Malcolm believed he was exempt from the tax, since his Crocodile Park was within urban limits and was classified as a tourist venture. If this was not recognised, Malcolm vowed to register his objection by means of an intricate combination of chains, a lamp post, himself and, of course, a 5-metre fibreglass crocodile. Malcolm informed the councillor that he would take his fibreglass crocodile, drive straight down to Perth and chain himself, and the crocodile, to a lamp post. He swore to it. The sheriff never came. I don’t understand this. Surely it would have been easier for the sheriff to remove property when Malcolm was chained to a lamp post somewhere in Perth”.
15 It is contended for the defendants that the imputation as formulated fails to make clear any act or condition attributed to the plaintiff which could on a reasonable basis be held to be defamatory. As is stated there are many reasons why a person might fail to pay land tax ranging from impecuniosity or inability to pay which (depending on the precise formulation of the imputation) could not be defamatory, it is argued, to wilful refusal to pay a debt although having the means to do so. These are entirely different areas of meaning.
16 I agree with these submissions. The imputation, whilst as a matter of structure and language is acceptable, gives rise to no defamatory sting and thus I hold it to be incapable of being defamatory and enter a verdict in favour of the defendants in relation to it. The plaintiff however, in my view, has an insurmountable problem. When one reads the particular passage (and it can be the only passage) applying the test of reasonableness, no fair minded reader of this book could form any view that anything adverse at all is being said about the plaintiff. It could be regarded as an amusing anecdote. It is in my view anodyne.
17 Accordingly the formal orders are:
1. Imputations 3(a) and (b) are struck out by reason of not differing in substance. The plaintiff has leave to replead.
2. Imputation 3(d) is struck out. I grant leave to the plaintiff to replead in accordance with these reasons.
3. Imputation 3(e) is incapable of being defamatory and I enter a verdict in favour of the defendants in respect of that cause of action.
4. The plaintiff has leave to file an Amended Statement of Claim within 21 days.
5. Each party is to pay its own costs.
6. The matter is listed in the Registrar’s Defamation Directions List on 31 May 2002.
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