Entienne P/L & Or v Festival City Broadcasters P/L No. DCCIV-99-277
[2000] SADC 67
•16 June 2000
ENTIENNE PTY LTD & DOMINIC CONSENZA v FESTIVAL CITY BROADCASTERS PTY LIMITED
[2000] SADC 67
Judge Taylor
Civil
Flash Gelataria was established in Hindley in about 1956 and has become very well known to South Australia and Hindley Street: over the years it has gained a reputation for its coffee and for its gelati - it makes its own.
In about 1992 Mr Domenic Consenza purchased the business then at Number 87 Hindley Street. Prior to that date members of his family had owned the business for a year or so.
In or about 1995 Mr Consenza transferred the business across the street in Hindley Street to Number 67, where it still operates.
In the early stages the business was profitable but it gradually became less so after Hindley Street began to get ‘bad publicity’.
When Mr Consenza refers to ‘bad publicity’ it is because what he and a number of other witnesses said ‘that although there was some bad behaviour in Hindley Street it was no worse than other surrounding streets, but the journalists always seem to exaggerate the position of bad behaviour in Hindley Street.’
Mr Consenza usually works in the business seven days a week and he had, over the years, built up a good relationship with many of his regular customers. There is evidence that a number of these customers visit Flash Gelataria every morning for a coffee or sometimes three mornings a week. The regulars sit together on those mornings. They have got to know Mr Consenza very well and they refer to him as Dom or Con. Because the name of the establishment is Flash Gelataria he is known very often as Mr Flash or rarely the Flash Man and other variations of that term. He would refer to himself on occasions as ‘Mr Flash/The Gelati Man’.
I accept the evidence that he has been known by that name by many of his customers and by other businesses close to him in Hindley Street.
Mr Consenza is 52 years of age and was born in Adelaide and has always lived in Adelaide.
Mr Consenza’s wife was also involved in the business but in about August of 1998 his wife suffered a stroke. It is understandable that Mr Consenza was not in a very happy state as at 25 November 1998.
Mr Blake commenced as a radio announcer in about 1967 and worked in various parts of Australia.
Very early in his career he, on occasions, impersonated real people and invented fictional characters.
In about 1987 he came to Adelaide and worked initially as a breakfast announcer at 5KA and later at KAFM for about 4 years. Then for about a year for 102FM.
He described what he understood to be the purpose of different radio stations:-
“So, for example, what one might hear on 5AN might be different from what one might hear on Triple J.
A...... Yes.
Q.For example, does the format of radio split, at least in a reasonably general sense, between stations which broadcast music and stations which broadcast what is known as talk and news.
A...... Yes.
Q.Talk and news involves taking calls from members of the general public and debating issues of the day varying interest and importance.
A...... It can be, yes.
Q.Accepting that therefore no two radio stations are the same, the radio stations on which you worked 5KA, KAFM and 102FM, what sort of radio stations were they.
A...... They were music stations.
Q.On music stations such as those, did the breakfast time slot have any particular flavour about it compared with other time slots during the day.
A...... Yes, we had a mixture of talk and music and usually it was humorous talks.
Q.Leaving aside those radio stations which perhaps might wish to project a more serious profile to the listening audience, but amongst, for example, commercial radio stations, is breakfast radio particularly like that.
A...... Yes, it’s designed to make people feel a bit better about getting up and going to work, basically, so lighthearted.
Q.Since leaving radio station 102FM what has been your main source of work.
A...... I freelance myself, my voice for commercials for radio and television, for different advertising agencies and recording studios, that’s how I make most of my income, and I now, of course, work for 5KA for just the breakfast show.
Q.When you do that voice-over work for TV and radio for commercials, does that involve you using the talent that you’ve identified as having of putting on different voices.
A...... Yes, sometimes I use a straight voice but sometimes it’s a character voice.
Q.Most of the voice-overs you might do for TV and radio commercials where it’s only your voice which is forming part of the particular commercial would not be in the voice you’re speaking to us today, your normal speaking voice.
A...... No.
Q.You’ve told us about joining 5AA and working on the breakfast program.
A...... Yes.
Q.I think you commenced having an involvement with 5AA’s breakfast program in about 1996.
A...... Yes.
Q.What activity did you do when you first became involved.
A...... I was just doing small bits, as they call them, comedy bits for Bazz and Pilko. They were doing the breakfast show at the time and I would usually do them from home on the telephone, and do a humorous interview.”
They had been a well known breakfast session of comedy. In 1997 he commenced a more regular part of the 5AA breakfast session. He said:-
‘A..... They were looking for something, we didn’t know what. Someone suggested a weather segment, and I jumped on that because Keith Martyn in Adelaide had a very high profile. I could already do a voice that sounded like Keith Martyn and I said yes, let’s do it, I can do a kind of Keith Martyn send-up, and we did Keefy, and we’re still doing it.
Q.The weather itself, in terms of the details of a serious weather bulletin, was that something as far as you were concerned that had comedic potential.
A...... The way Keith Martyn did it, yes. For me that’s what I could do things with, was parody his performance.’
Mr Blake eventually became known as Keefy, the weather man of 5AA, based principally on an impersonation of Keith Martyn. In addition he wrote incidents which would involve crazy or madcap events. He explained that a lot of his comedy is situation comedy. It is just him in the studio doing the weather report and referring to a surface chart which Keith Martyn does. He said he does it in a stupid way, and that his job was essentially to be silly.
Apart from his imitation of Keith Martyn, and consequently using the name Keefy, he also did regular voices of made up characters and spoke in the voice of his various characters.
His comedy was principally based on ridiculous tales and of ridiculous voices and characters.
His whole breakfast session was a comedy situation which he wrote and performed himself. The only real part of the breakfast program was giving the temperature for the day.
He made up many events as if they were popular events to be performed in Adelaide, such as ‘flood-lit penguin spinning, kitten varnishing or Cooking with Nancy’ a make up female character, and he would make up sound effects. But again, the whole thing was purporting to present a segment that was just completely absurd.
On 25 November 1998, sometime after 7 am, he presented his usual morning breakfast comedy session.
He had written a comedy segment the night before. During that part of the program where he makes up fictional characters, as if he is in a conversation with them, he records those early in the morning at the studio just prior to his broadcast.
His broadcast was as follows:-
“Announcer
Now, it’s time for the weather in a word, by George, here’s Keefy.
Presenter - Barry Ion
Yes. Now for the official weather, the one you really wait for, good morning, Keefy.
Keefy
Hello there. Well, today, mostly sunny and a top of twenty-nine degrees. Yours was longer (laugh).
Ion
That’s enough.
Keefy
That’s about eighty-four degrees Fahrenheit for our international visitors. Now, the rainfall mostly in Queensland over the last twenty-four hours, around twenty millimetres; that’s just under an inch for our international visitors. Now, the surface chart showing a lot of arrows going in a clockwise direction, which is why people think water goes down the plug hole the same way and they then use that as a ploy to get children to wash their hands after going to the toilet, which is why we grew up thinking water goes down the plug hole in a clockwise or is it anti-clockwise...
Ion
Anti-clockwise.
Keefy
Anyway, toilet, for our international visitors, the can, the john, the crapper, or the convenience.
Co-Presenter - Peter Plus
And the ...... the bathroom.
Keefy:
Now, yesterday, I went down to Hindley Street to conduct a survey to find out how many people have, indeed, completed their Christmas shopping:
Just wondering if you’ve done any Christmas shopping?
Unnamed Man No. 1:
No. I almost scored yesterday...
Keefy:
No, no. I mean your Chris..., oh, it doesn’t matter. If you’ve done any Christmas shopping as yet?
Unnamed Man No. 2:
Mate, just over in the lane and ask for the flash man and he’ll fix you right up.
Unnamed Man No. 3:
Nah, mate, I don’t do Christmas shoppin’. Nice microphone. Hi, mum.
Keefy:
Don’t touch that, a very expensive piece of equipment, you shouldn’t ...
Unnamed Man No. 3:
Really? Hey, I’ll have that...
Keefy:
Wait a minute, give that back. Stop thief, stop thief. Somebody stop that man, he’s got my microphone.
Keefy
So there we are. Christmas shopping not high on the priority list in Hindley Street yesterday, and if anyone tries to sell you a Neumann (ph sp) MD/42AX microphone, please contact your nearest police station.
So there it is, George, mostly sunny today, twenty-nine degrees the expected high. And now it’s back to the desk, or for our international visitors, so long, take a hike, good-bye, screw you and the horse you rode in on.
Ion (Laugh)
Yes, it’s not quite self-explanatory, is it?”
Mr Consenza complains that the Defendant, when he published the following words, defamed him:-
‘Keefy ... now, yesterday, I went down to Hindley Street to conduct a survey to find out how many people have, indeed, completed their Christmas shopping. Just wondering if you’ve done any Christmas shopping?
Unnamed Man No 1... No. I almost scored yesterday.
Keefy ... No, no, I mean your Chris ... oh, it doesn’t matter. If you’ve done any Christmas shopping as yet?
Unnamed Man No 2... Mate, just over in the lane and ask for the flash man and he’ll fix you right up.’
Mr Consenza who is known as The Flash Man said that, the words by reason of the facts and matters set out refer to, and were understood to refer to, him.
Mr Blake in his evidence said that the whole conversation was an imaginary one. It was his voices recorded in the studio that morning. He had no knowledge of the Flash Gelataria in Hindley Street. It was an imaginary conversation, as if somebody in Hindley Street, when asked about their Christmas shopping, spoke about buying drugs.
He set the segment in Hindley Street as he had understood from publicity he had concerning Hindley Street that it was common knowledge of its drug scene. He thought to use an imaginary character, generic in nature and not referring to any particular person and hence ‘the flashman’.
I find that in this trial each witness is a witness of truth and not one of them has tried to mislead the Court. They have all been as helpful as they can, although some may have inadvertently exaggerated the situation.
Evidence was given that some 40,000 people listen to Mr Blake’s breakfast comedy session daily.
Mr Consenza did not hear the program of 25 November 1988 and had never heard of the program at all.
Mr Consenza heard of the radio that morning broadcast from some of his customers and relied on them. He got very upset when he heard of the radio broadcast and what it contained, and he took it very seriously indeed.
Some of the people who had related the incident to Mr Consenza gave evidence, and I accept them again as truthful witnesses.
Mario Lombardi, an ex-school teacher, who attended regularly at the Gelataria for morning coffee was on his way to get petrol for his motor car that morning. His usual radio program was not tuned in so he pressed a button for a moment and it came on 5AA. He had not heard that program before and knew nothing about it. He heard the incidents concerning Hindley Street and the sale of drugs. As soon as he heard the name Hindley Street and Flash Man he immediately related that to Flash Gelataria and assumed, and thought, that it was a proper program and that they were making comments about the sale of drugs being available from the Flash Man, being Mr Consenza, in that area. He also knew of the lane.
Mr Lombardi eventually went to see Mr Consenza either that morning or the next morning and told him of the incident. It seemed that Mr Consenza had already heard of the broadcast.
Mr Valenti had not heard the broadcast, but when he went to have his morning coffee at the Flash Gelataria he heard it being discussed and he noticed the adverse affect it had on Mr Consenza who was very upset and stunned about the incident.
Mr Verdicchio, a brother-in-law of Mr Consenza, was a regular listener to 5AA. On that morning, as soon as he heard the name Hindley Street mentioned, he paid particular attention. When he heard the mention of the Flash Man he immediately thought that it referred to his brother-in-law, Mr Consenza, who he knew was known as Mr Flash or the Flash man. Although he realised the broadcast was only based on make believe characters it still gave him some concern that it might have something to do with his brother-in-law, although he really did not think it did because he knew that his brother-in-law would not be involved in drugs. Notwithstanding that, he knew that it was not a real situation.
A waitress from a hotel, Rita Comitale, gave evidence of having heard the radio broadcast mentioned amongst customers who took it seriously and believed that it was referring to Mr Consenza selling and being involved in drugs at his Gelataria.
There was a great deal of evidence to the effect that at some subsequent time to the broadcast, the clientele on the seats outside the Gelataria on the footpath changed. The witnesses were impressed that these people were unsavoury persons involved in drug dealing that had not been there before this broadcast. It seems that some of them were, from time to time, on the opposite side of the road at Tilt, an amusement park, but had never been in the vicinity of Flash Gelataria. I do not accept that the change in character of the Gelataria changed as instantly as is suggested and may have changed not because of the sentence used in the whole context.
Evidence was given of conversations to Mr Consenza, the inference being that they were asking for drugs and he telling them to go away. In another incident where that happened and he took the person to the neighbouring shop so that he could have a witness to it and order that person off the premises as well.
Evidence was given by a police officer who is in charge of problems in Hindley Street. He said that sometime after that they managed to get rid of the worst elements that were involved in that sort of behaviour.
There is no doubt that Mr Consenza was extremely upset concerning the broadcasts. Mr Consenza in his evidence said:-
‘Q.... I want to take you now to 25 November 1998 when the radio station 5AA broadcast the segment that you heard this morning. What time did you start work on that day.
A.Top of my head it was probably around about 9, 10 o’clock.
Q...... Had you heard the radio broadcast that morning.
A.No, I didn’t.
Q...... When were you first acquainted with the fact that there had been a broadcast.
A.I actually got a phone call just after I came in that morning from Chris Hannaford who works at the council.
Q...... That’s the city council.
A.Yes. He mentioned to me “Did you hear what was on the radio station this morning”. I said “No, I didn’t”. He said “Well, something to the effect of from what I heard, you have got a defamation case on your hands”. He said that he had heard something to the effect that I had been involved in - Flash had been involved in selling drugs or something to that effect.
Q...... When he said you had a defamation case on your hands, what did you understand him to mean.
A.Quite honestly, I was pretty perturbed about it. I thought ‘God, someone is suing me for some reason’. I couldn’t imagine that something like that was even said on the radio.
Q...... During that conversation did he tell you any detail of what had been broadcast in the segment.
A.He mentioned something about that he heard that the media or the radio people had gone down the street, interviewed some people, that if they wanted some stuff or something, that they should go and see the Flash Man.
Q...... When you heard those words, what did that make you think.
A.Can I be expressive?
HIS HONOUR
Q.Yes.
A...... I thought shit, I’m fucked. If they’re saying this on the radio, and I’m going to get some sort of reputation that I’m involved in some sort of drug dealing, I thought that’s all I need now. All the hard work that may family put in this business, then all of a sudden these idiots come up with something like that; I didn’t know what to think.’
On occasions people had said to him, “Are you involved in drugs” and such other terms or “I heard you’re involved in drugs”. How did you respond to those persons. He said, ‘I was pretty hurt, pretty upset’:-
‘Q.... Did you say anything to them in response.
A.No, not me mate. Do I look like the sort of person involved in stuff like that, and here I am sort of trying to defend myself as if I have to now convince people that I’m not involved with stuff like that, you know.’
He was asked whether he thought any of the comments were made in a jocular tone as if they were clearly joking about the matter and he said:-
‘No, not at all. If anything, some of the customers who mentioned it to me were a bit upset about it as well; they had actually heard it themselves.’
Mr Consenza remembers it being mentioned, and particularly by Milan Dimovich, Frank Verdicchio, Mario Lombardi and Alex. He then said:-
‘After they mentioned it to me it went through my mind as how bad is this going to affect me, you know. This is going to ruin me, you know, and I became so concerned about it, that I then got in touch with Peter Hannon who is a solicitor to ask for advice as to where I stand on this, and it was from there that he got a copy from the broadcasting place, whatever.’
He also said that before this broadcast his business:-
‘Was slowly declining, there’s no question about that. The thing that went through my mind is that’s all I need, instead of us trying - I put a lot of hard work and hours into my business, and I thought well, the council had been trying to do a lot of things to try and improve the status of the street to get it back up to normal again, and I thought something like this, all our dreams and hopes have just gone down the drain, any hope we might reverse whatever has happened, and something like this has only become more detrimental to us, it’s going to ruin us even more. I mean there’s been something like 182 shops that have vacated in the street in the last three or four years, whatever. There’s not very many businesses left in Hindley Street because of bad media publicity over a period of time.’
Entienne Pty Ltd, had claimed a loss of income because of the effect of the broadcast. I had understood that that claim had been discontinued at the commencement of the trial.
The plaintiff in his filed submission argued that the claim of Entienne Pty Ltd continued.
I allowed the parties to make further submissions of this discrete matter and they did so in writing.
Having regard to those written submissions and the conduct of the trial and the evidence adduced I am satisfied and so find that the claim against Entienne was in fact discontinued and if it had not been so discontinued is fact there to be no orders of Entienne Pty Ltd in any event.
Mr Consenza claims:
‘9..... By reason of the publication of the said words the second plaintiff has been injured in his character and reputation, and has been brought into public scandal, odium and contempt.
10. The plaintiffs claim aggravated damages by reason of the facts that:
10.1. The said words were recorded before the broadcast of the “Keefy Segment” at 7-20 am on 25 November 1998;
10.2The defendant knew or should have known that the said words were defamatory of the plaintiff before they were broadcast;
10.3. In the alternative to 10.2, the defendant acted recklessly in publishing the said words.’
That matter was discontinued at the commencement of the trial and there is no claim for loss of income.
If the publication of that part of the comedy programme complained of is in fact a defamation then, in practical as well as the theoretical sense, the plaintiff in a defamation action is entitled on publication to damages. In particular he is entitled to damages to vindicate him. The plaintiff in such an action sustained loss for each day that the defendant failed to pay the appropriate damages to him. However, it does not follow that the plaintiff is entitled to interest. See John Fairfax & Sons Ltd v Kelly [1987] NSWLR 131 at 143 where McHugh JA said:
‘In a practical as well as a theoretical sense, the plaintiff in a defamation action is entitled on publication to damages. In particular, he is entitled to damages to vindicate him. A plaintiff in such an action sustained loss for each day that the defendant fails to pay the appropriate damages to him. However, it does not follow that the plaintiff is entitled to interest on the whole award. In many cases the award will reflect an amount for continuing injury to feelings and reputation to the date of verdict. Hence the amount awarded may, and usually will be higher than the amount which would have been awarded as at the date of publication or even as at the date of the writ. Paradoxically, the amount awarded as vindication per se will inevitably reduce as the damages increase for continuing injury. This is because the award of damages for actual injury will also partly serve the purpose of vindicating the plaintiff’s reputation. However, there is no strict correlation between the damages for vindication and the damages for injury to feelings and reputation. If damages were awarded at the date of the writ in a particular case, the proper damages might be $3x. By the time of trial the actual injury might be equivalent to $2x. Yet a proper award for all elements might be only $4x. In some cases damages for vindication will constitute the greater part of the verdict: in other cases those damages per se will play a lesser role.’
In determining these matters it is important to have regard to what the ordinary man would infer without special knowledge, and what has generally been called an actual and ordinary meaning of the words. In Lewis v Daily Telegraph Ltd [1964] AC 234 at 258.5 Lord Reid said:
‘What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is also regarded as part of their natural and ordinary meaning. Here there would be nothing libellous in saying that an inquiry into the appellants’ affairs was proceeding: the inquiry might be by a statistician or other expert. The sting is in inferences drawn from the fact that it is the fraud squad which is making the inquiry. What those inferences should be is ultimately a question for the jury, but the trial judge has an important duty to perform.’
In discussing the attributes of the person elected to be defamed he said:
‘In this case it is, I think, sufficient to put the test in this way. Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naive. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question. So let me suppose a number of ordinary people discussing one of these paragraphs which they had read in the newspaper. No doubt one of them might say - “Oh, if the fraud squad are after these people you can take it they are guilty.” But I would expect the others to turn on him, if he did say that, with such remarks as - “Be fair. This is not a police state. No doubt their affairs are in a mess or the police would not be interested. But that could be because Lewis or the cashier has been very stupid or careless. We really must not jump to conclusions. The police are fair and know their job and we shall know soon enough if there is anything in it. Wait till we see if they charge him. I wouldn’t trust him until this is cleared up, but it is another thing to condemn him unheard.”’
In World Hosts PL v Mirror Newspapers Ltd [1978] 1 NSWLR 189 at 206.5 and 207.3 Huntley JA said:
‘It was sought to rely upon the judgment of Samuels JA in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, at p.372 and to show that knowledge of special facts was needed only to enable defamatory imputations to be connected with the plaintiff. If there are defamatory imputations, but the person is not named, but is described in a way which enables him to be identified only by those with special knowledge, no innuendo is required. If this were the case here, there would be no substance in the objection. .........
Over objection by the defendant, witnesses for the plaintiff gave evidence of statements made to them by persons who were not called to give evidence about what such persons believed had happened to the restaurant in consequence of the publication of the article. For example, Miss Henderson, who was at the time of publication a receptionist-cashier at the Sebel Town House, said that, while she was there, ‘people who knew I had worked at Caprice said: “I see your old restaurant has gone broke.’” Somewhat similar evidence was given, over objection, by other witnesses. The reception of this kind of evidence is, in my opinion, justified on the authority of the majority of the Court in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, at p.369 et seq which, in my opinion, should not be reviewed in this Court.’
And in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 369.8 where he deals with the exceptions to the hearsay rule Huntley JA said:
‘In the cases which establish the validity of this exception, what I feel to be the principal difficulty occasioned by it does not appear to be adverted to. The admission of such declarations means that the defendant is deprived of the capacity to test the knowledge of the circumstances which enable the identification of the plaintiff as the person defamed to be tested in cross-examination. One of the fundamental rationales of the hearsay rule is that it enables evidence to be tested by bringing the original source before the Court for testing. This exception defeats this purpose. Whether such evidence would be sufficient, if it stood alone, to prove identification does not arise in this case, because there is both direct and testable evidence of identification and indirect evidence of identification, and, for reasons set out above, I am satisfied that the direct evidence is of sufficient substance to make the question an issue for the jury. I am therefore of the opinion that the dictum of Wallace P (1969) 90 WN (Pt 1) (NSW) 180, at p 181 is to be preferred to the dictum of Walsh JA (1969) 90 WN (Pt 1) (NSW) 180, at p 185. If the long-standing exception to the hearsay rule is to be done away with, this can only be done in a final court of appeal.’
At 371 Samuels J said:
‘Accordingly, in order to succeed, the plaintiff had to prove that it was reasonable for persons with such knowledge, who had read the article, to conclude that it referred to her; that is, that it designated the plaintiff as having been involved in the thefts. The proposition so stated raises an issue of fact; and the plaintiff called a number of witnesses who swore that, having read the article, they believed, for different reasons, that it did refer to the plaintiff. It must be assumed that the jury accepted this evidence. But before the issue of identification in fact could go to the jury, there was an antecedent question of law which the judge had to answer in the plaintiff’s favour. As Viscount Simon LC observed in Knupffer’s case [1944] AC 116, at p 121: “There are two questions involved in the attempt to identify the appellant as the person defamed. The first question is a question of law - can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question of fact - does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him?”’
And in Kruse v Lindner (1978) 19 ALR 85 at 87 line 25 Smithers J said:
‘It is of the essence of the tort of defamation that the person defamed be able to show that his reputation has suffered by reason of the publication complained of. Unless the publication points to some person as the person against whose reputation the aspersion in the publication is made with such particularity that a reader without additional knowledge, or with additional knowledge, can and does identify some particular person as the person whose reputation is the subject of the aspersion, then nobody is defamed.’
It is said in Gatley on Libel and Slander (7th ed, 1974) pars 281-2:
‘To succeed in an action of defamation the plaintiff must not only prove that the defendant published the words and that they are defamatory: he must also identify himself as the person defamed ....’ The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? ...... It is not necessary that all the world should understand the libel; it is sufficient if those who knew the plaintiff can make out that he is the person meant’, ie “meant by the words employed.”’
See also Andrews v John Fairfax & Sons v Queensland Newspapers Ltd [1980] 2 NSWLR 225 at 234 Huntley JA said:
‘(17) The plaintiffs called a number of persons to establish that, though not named in the article, the plaintiffs were identified with it by readers; and four of them, Messrs William Arthur, Norman Kingswell Day, John Davidson and Professor Johnson, gave evidence not only that they personally identified the plaintiffs as the persons reflected on in the article, but that other persons had spontaneously identified them in the course of conversation. It was submitted that, in so far as they were allowed to give evidence about their conversation with others, the evidence was inadmissible as hearsay. John Andrews himself also gave evidence of conversation with persons at Palm Beach and Eugowra relating to himself and his professional pursuits. This evidence was admitted on the authority of the decisions of this Court in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348. (a) 369 et seq and World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189. (a) 207, and the Court declined to permit the authority of these decisions to be challenged before it.
(18) It was further submitted that though, on the authority of these decisions, this evidence was admissible to prove the range of publication, it was not admissible on the question of damages. His Honour had drawn no such distinction in his directions to the jury, and it was said he was in error in not having done so.’
I find that the hearsay evidence, objected to, is admissible.
‘(19) I am of the opinion there is no substance in the distinction proposed to be drawn. If the evidence is properly admissible on the question of range of identification of the plaintiffs as the persons defamed, it is impossible to segregate the question of what is the appropriate measure of damages, so that the range of defamation is determined differently from the way in which compensation for the damage done by this defamation is fixed. Once the evidence was admitted, it was admitted for all purposes: Walker v Walker (1937) 57 CLR 630.’
And at p 248 when Glass JA said:
‘(68) Mr Hughes QC first submitted that his Honour, in breach of the hearsay rule, had received evidence from four witnesses who were allowed to say, not only that, because of their special knowledge, they had identified the plaintiffs as the subject of the article, but that third parties had informed them, out of court, that they had also made the same identification. The Court intimated that the right to tender evidence of this kind on the issue of liability had been the subject of recent rulings in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348. (a) 369 et seq and World Hosts Pty Ltd v Mirror Newspapers Ltd [1978] 1 NSWLR 189. (a) 207. In the circumstances, the original submission descended to the level of formality only, but it was then contended that there was no ruling of the Court with respect to the availability of this evidence on the issue of damage and it was objected to on that ground. In my opinion, the views expressed by this Court apply to the evidence in question, notwithstanding that it could affect the issue of damage as well. The proposition affirmed is merely that publication to persons with the requisite knowledge to perceive a reference to the plaintiff may be established by hearsay evidence. The issue of publication straddles the issues of liability and damage, and it is to this issue only that the evidence was directed. It touched in no way the damage done to the reputation of the plaintiffs in the minds of persons not called to give evidence. Accordingly, it is within the previous rulings given by this Court and properly admitted. In any event, his Honour, without objection, authorised the jury to find that publication extended beyond the ranks of those who gave evidence and those who, according to hearsay, made the necessary connection. He said the jury might treat the publication as having reached all those persons unnamed in the evidence who were in possession of the special knowledge. That there were many persons who knew that Andrews and his company were the architects for this project was established by a great deal of oral testimony and written material. The right of the jury to infer publication to persons not identified in evidence was sanctioned by Lord Reid in Morgan v Odhams Press Ltd [1971] 1 WLR 1239; [1971] 2 All ER 1156. (a) 1247; 1164. It follows from this that, even if the hearsay evidence had been wrongly admitted, no substantial miscarriage appeared which would justify a new trial.’
In Mirror Newspapers Ltd v Harrison (1982) 149 CLR at 293 see at p 302.8:
‘.......... It is necessary to repeat the remarks of Holroyd Pearce LJ in Lewis which preceded the sentence which I have already quoted from his judgment [1963] 1 QB at p 374:
......... “Where persons publish words that are imprecise, ambiguous. loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean. But when words with a precise and well-known meaning are used without the addition of any expressions which could impart some other flavour to them, it is not fair to twist them from their normal sense.’
As Lord Devlin observed in Lewis v Daily Telegraph Ltd (supra) at p 285:-
‘....... it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary many: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt: but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.’”
The question still remains as was said in Kruse v Lindner (supra):
‘It is of the essence of the tort of defamation that the person defamed be able to show that his reputation has suffered by reason of the publication complained of. Unless the publication points to some person as the person against whose reputation the aspersion in the publication is made with such particularity that a reader without additional knowledge, or with additional knowledge, can and does identify some particular person as the person whose reputation is the subject of the aspersion, then nobody is defamed.’
Both parties agree that Exhibit P1 is a true transcript of the radio program. Exhibit P2 is a taped recording of the program.
In determining this matter the words complained of must be considered in the context that is the whole of the broadcast see Charleston v Newsgroup Newspapers Ltd [1995] 2 WLR 450 at pages 453.5 and 454:
‘The first formidable obstacle which Mr. Craig’s argument encounters is a long and unbroken line of authority the effect of which is accurately summarised in Duncan & Neill on Defamation, 2nd ed. (1983), p.13, para. 4.11 as follows:
“In order to determine the natural and ordinary meaning of the words of which the plaintiff complains it is necessary to take into account the context in which the words were used and the mode of publication. Thus a plaintiff cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage.”
The locus classicus is a passage from the judgment of Alderson B. in Chalmers v. Payne (1835) 2 C.M. & R. 156, 159, who said:
......... “But the question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff’s character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together.
This passage has been so often quoted that it has become almost conventional jargon among libel lawyers to speak of the bane and the antidote. It is often a debatable question which the jury must resolve whether the antidote is effective to neutralise the bane and in determining this question the jury may certainly consider the mode of publication and the relative prominence given to different parts of it.”
In reviewing the broadcast as a whole the bane and the antidote must be taken together. (See also Berkoff v Burchall and Anor [1996] 4 All ER 1008 per Millet LJ at 1018).
Most of the argument before me has been on the transcript and analysis of the words used.
It is fundamental to this trial that the publication was broadcast - that is there was nothing in writing. Therefore to consider the words claimed to offend they must be regarded in the actual broadcast as whole. Exhibit P2 the taped broadcast is the context to be regarded, not the transcript.
In listening to the whole of the broadcast I must have a robust attitude (see Berkoff v Burchaill (supra)) and not reach an unreasonable interpretation strained and forced (see Jones v Skelton [1963] WLR 1362 at p1370.6).
There are two questions involved in the attempt to identify the plaintiff as the person defamed. The first question is a question of law - can the article, having regard to it’s language, be regarded as capable of referring to the appellant? The second question is a question of fact - does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him. (See Steele v Mirror Newspapers Ltd (supra) at p371).
I must consider the broadcast as an ordinary reasonable man (see particularly Farquar v Bottom [1980] 2 NSWLR 380 at p386 Lewis v Daily Telegraph (supra) and Mirror Newspapers Ltd v Harrison (supra) at 301.3 to 301.8) as follows:-
‘It is one thing to say that a statement is capable of bearing an imputation to the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material it to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader’.
Exhibit P2 was played in court and in reviewing the evidence I have listened to that tape again.
The only witness called for the plaintiff who heard the whole of the broadcast was Mr Verdicchio, a brother-in-law of Mr Consenza who said he was a regular listener to 5AA and gave evidence that he knew that it was not a real situation.
Having listened to the tape and regarding it as the whole of the publication and regarding the matter as a reasonable man as referred to in the above mentioned authorities I am satisfied that a reasonable listener, with no knowledge of the type of program before and hearing it in full on this occasion and with a knowledge of Flash Gelataria of Hindley Street, would be fully aware that the whole program intended to be and was a comic program of complete nonsense. The only part of the program which makes sense is the initial giving of the temperature.
I am sure that the two comedy sequences concerning Hindley Street intended to give the impression of drug use and purchase but, nevertheless, the situation as broadcast in it’s context does not pass the first test referred to above in Mirror Newspapers Ltd v Harrison but only passes the 2nd test.
Mr Consenza never heard the program at all and was only told of the extracts and told that it referred to him.
The only person we knew of who spoke to Mr Consenza and heard the whole program said that he knew that it was not a real situation. I realise that in a comedy program there can be a sting (see Gatley 9th ed, paras 3.31 and also Berkoff v Burchill (supra)).
For all the above reasons I am satisfied, and I so find, that the words complained of in their context do not have the meaning ascribed to them by the plaintiff. The defendant wished to tender tapes of other broadcasts and a video and documents of past litigation between Mr Blake and Mr Martin to show a larger comedy intent of the matter in issue.
I find that these proposed exhibits are not relevant. The issue is to be determined in the context of the whole of the broadcast in which the complained of words were contained.
Having regard to the whole of the evidence and the witnesses called that Mr Contenza did in fact suffer harm, not from the actual publication in the context of the broadcast but, by subsequent publication by others of one or other of the extracts complained of without the matter being considered as it must be considered in its whole context.
For the above reasons the plaintiff’s claim is dismissed.
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