Eustice v Channel Seven Adelaide Pty Ltd
[2020] SASC 4
•17 January 2020
Supreme Court of South Australia
(Civil)
EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2020] SASC 4
Judgment of The Honourable Justice Nicholson
17 January 2020
DEFAMATION - ACTIONS FOR DEFAMATION - TRIAL - EVIDENCE - PLAINTIFF'S REPUTATION AND CREDIT
DEFAMATION - PUBLICATION - GENERALLY - INTERNET PUBLICATIONS
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - CRIMINAL
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - INJURY TO REPUTATION IN BUSINESS, PROFESSION, TRADE OR CALLING
DEFAMATION - JUSTIFICATION - TRUTH - SUBSTANTIAL TRUTH AND CONTEXTUAL TRUTH
DEFAMATION - OTHER DEFENCES
Action for defamation.
In November 2012, a video segment was aired on Channel Seven’s "Today Tonight" television program about the plaintiff. A truncated version of the same video segment was uploaded online and aired on television interstate. The two video segments concerned the plaintiff’s business and his dealings with a customer, the third defendant.
The plaintiff’s business included the buying and selling of second-hand motor vehicles. Prior to the first and second defendants becoming involved, the third defendant had purchased two second-hand motor vehicles from the plaintiff. The third defendant returned the first vehicle and received credit to use in the purchase of the second vehicle. The second vehicle also proved unsatisfactory and the third defendant returned the second vehicle to the car yard within 24 hours of purchasing it. The plaintiff soon sold the second vehicle to a third party but failed to refund the purchase price or otherwise reimburse the third defendant. The plaintiff, with the assistance of his father who worked in the business, rebuffed the third defendant’s repeated demands for a refund.
A few weeks later, the third defendant sought help from the second defendant, a television reporter and the first defendant, Channel Seven Adelaide Pty Ltd. The second defendant, the third defendant and her mother, and a camera crew, attended the plaintiff’s business and tried to interview the plaintiff. Aspects of the interview together with footage of other dealings with the plaintiff’s father and grandfather were composed into a video segment for broadcast.
The plaintiff contends that the broadcast conveyed a number of imputations defamatory of the plaintiff. The plaintiff contends that the truncated version (uploaded online and aired on television interstate) conveyed most, but not all, of those same defamatory imputations. The plaintiff seeks general damages and damages for economic loss.
The defendants admit some aspects of the publication alleged by the plaintiff. However, they put the plaintiff to proof of the fact and extent of internet publication. The defendants also put in issue the question of whether the various imputations asserted by the plaintiff were in fact conveyed. However, to the extent that they were, the defendants raise the defences of justification, contextual truth, qualified privilege, fair comment, honest opinion and triviality.
After judgment was reserved in this matter, the defendants brought an interlocutory application seeking leave to reopen their case and adduce new evidence said to be relevant to their defence to the plaintiff’s case on damages. The application was refused.
Held, dismissing the plaintiff’s claim:
1. The primary television segment was broadcast by the first defendant under the authority of the first defendant’s licence. The secondary television segment was uploaded onto the internet with the ultimate authority of the first defendant.
2. The impugned material for which the first defendant is responsible was published widely to potentially large audiences, not just in Adelaide, but also to provincial South Australia and interstate.
3. Most, but not all, of the imputations relied on by the plaintiff were conveyed by both publications.
4. Each of the imputations conveyed is defamatory of the plaintiff.
5. The defence of justification is established both at common law and under section 23 of the Defamation Act 2005 (SA) for each of the imputations conveyed by the publications.
6. The defence of qualified privilege either at common law or under section 28 of the Defamation Act 2005 (SA) is not made out.
7. The defences of fair comment at common law and honest opinion under section 29 of the Defamation Act 2005 (SA) are not made out.
8. The defence of triviality is not made out.
Defamation Act 2005 (SA) s 23, s 24, s 28, s 29, s 31, s 32, s 33, s 34; Second-hand Vehicle Dealers Act 1995 (SA) s 7, s 9, s 13, s 13A, s 42; Broadcasting Services Act 1992 (Cth); Evidence Act 1929 (SA) s 30, s 34A, s 42, s 43, s 43A, s 53; Evidence Act 1995 (Cth) s 179; Spent Convictions Act 2009 (SA); Defamation Act 1974 (NSW) (now repealed) s 22, referred to.
Fleming v Advertiser-News Weekend Publishing Company & Anor [2016] SASCFC 109; Duffy v Google Inc [2015] SASC 170, applied.
Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452; Re London & Globe Finance Corporation Ltd [1903] 1 Ch 728; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Herald & Weekly Times Ltd & Anor v Popovic (2003) 9 VR 1; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211; Barbaro v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Cassell & Co Ltd v Broome & Anor [1972] AC 1027; Channel Seven Sydney Pty Ltd v Mohammed (2010) 278 ALR 232; Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419; Madden v Madden [2014] NSWSC 1098; Spotlight Pty Ltd v NCON Australia (2012) 46 VR 1; Andrews & Anor v John Fairfax & Sons Ltd & Ors [1980] 2 NSWLR 225, discussed.
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; Sims v Jooste (No 2) [2016] WASCA 83; Restifa v Pallotta [2009] NSWSC 958; Sands v South Australia (2015) 122 SASR 195; Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202; Fleming v Advertiser-News Weekend Publishing Company Pty Ltd & Anor [2016] SASCFC 109; Joliffe v Baker (1883) 11 QBD 255; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Parmiter v Coupland & Anor (1840) 151 ER 340; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581; Jones v Dunkel (1959) 101 CLR 298; Briginshaw v Briginshaw (1938) 60 CLR 336; L’Estrange v F Graucob Ltd [1934] 2 KB 394; R v P, NJ (No 2) (2007) 99 SASR 1; Hollington v F Hawthorn & Co Ltd [1943] KB 587; ASIC v Macks (No 2) [2019] SASC 17; The Queen v Perry (No 4) (1981) 28 SASR 119; Watson v AMP Insurance [2002] SASC 38; R v Burgess [2019] SASCFC 109; Howden v “Truth” and “Sportsman” Ltd & Anor (1937) 58 CLR 416; Potts v Moran (1976) 16 SASR 284; Sanders v Percy & Anor [2009] EWHC 1870 (QB); Howe & McColough v Lees (1910) 11 CLR 361; Echo Publications Pty Ltd v Tucker & Ors [2007] NSWCA 320; Griffiths v Australian Broadcasting Corporation [2010] NSWCA 257; South Hetton Coal Ltd v North-Eastern News Association Ltd [1894] 1 QB 133; Cole v The Operative Plasterers’ Federation of Australia (NSW Branch) & Anor (1927) 28 SR (NSW) 62; Ali v Nationwide News Pty Ltd [2008] NSWCA 183; Greig v WIN Television NSW Pty Ltd [2009] NSWSC 877; Coyne v Citizen Finance Ltd (1991) 172 CLR 211; John Fairfax & Sons v Kelly (1987) 8 NSWLR 131; Palmer Bruyn & Parker v Parsons (2001) 208 CLR 388; Bristow v Adams [2012] NSWCA 166, considered.
EUSTICE v CHANNEL SEVEN ADELAIDE PTY LTD & ORS
[2020] SASC 4Civil
NICHOLSON J.
Introduction
On or around 18 November 2011, Benjamin Eustice (the plaintiff)[1] started a business under the company name of ADEL Finance Corporation Pty Ltd (ACN 154 345 267) which company he incorporated on that date. Initially, the business was conducted from premises at Mooringe Avenue, North Plympton.[2] It involved the buying and selling of second-hand motor vehicles and pawn broking. A business of selling second-hand motor vehicles is required to be licenced.[3] The business was conducted purportedly pursuant to a Motor Vehicle Dealer’s Licence issued under Part 2 of the Second-hand Vehicle Dealers Act 1995 (SA) to the plaintiff’s grandfather, Kenneth Eustice (Ken Eustice). The business was conducted, insofar as the public was concerned, under various business and trading names including Eustice MotorCity and Mr Kenny’s Cars.
[1] Referred to throughout the trial as Ben or Ben Eustice.
[2] The business later moved to Watson Ave, Netley.
[3] Part 2 of the Second-hand Vehicle Dealers Act 1995 (SA).
During the middle and second half of 2012, the plaintiff had a number of dealings with Faith Okoegwale (the third defendant) who during that period purchased from the business two motor vehicles: a Holden Commodore; and a Nissan Skyline. For reasons that will be explained, neither transaction was satisfactory to the third defendant. She returned the first vehicle (the Holden Commodore) and received a credit which was then used in the purchase of the Nissan Skyline. This vehicle proved to be unsatisfactory to the third defendant and she returned it to the car yard within 24 hours of having purchased it.
Notwithstanding that the Skyline was retained by the plaintiff and soon after sold to another party, the plaintiff failed to refund the purchase price or otherwise compensate the third defendant. From 24 October 2012 (the date the vehicle was returned) until 22 November 2012 the third defendant repeatedly sought a refund of the purchase price but to no avail. The plaintiff, with the assistance of his father who also worked in the business, rebuffed the third defendant’s demands at every turn and, essentially, fobbed her off with baseless excuses and unjustifiable delays. As at the time of trial, many years after these events took place, the third defendant still had not received a refund or compensation from the plaintiff.
In the days prior to 22 November 2012, the third defendant sought the assistance of the Channel Seven Today Tonight television program. She approached Frank Pangallo (the second defendant) whom she understood to be, and who by all appearances was, at the time, a television reporter routinely working on that program.[4] He provided assistance to the third defendant with alacrity.
[4] The second defendant was elected as a member of Parliament in the Upper House in the 2018 South Australian general election.
On 22 November 2012, the second defendant, the third defendant, her mother and a camera crew, attended at the premises of the plaintiff’s business and conducted what can be described, colloquially, as a “foot in the door” attempt to interview the plaintiff. The conduct of the second defendant and his posse was quite egregious. The plaintiff was harried, hounded and hollered at by both the second and third defendants. He was “escorted” by the second defendant at pace and in very close proximity through the car yard premises while being badgered with questions, as he tried to escape. He was chased through the car yard and outside by the third defendant and her mother. The incident concluded when the third defendant caught up with the plaintiff, physically brought him to the ground and tore the shirt off his back after which he ran off down the street bare chested. Subsequently, the third defendant and her mother were charged with and pleaded guilty to the offence of assault. During the visit, the second and third defendants shouted demands of the plaintiff generally along the lines of “Where’s her money” or “Where’s my money” but gave him little opportunity to answer. The conduct of the second and third defendants was aggressive, intimidatory and plainly very distressing to the plaintiff.
Aspects of the vision and the words expressed during the visit, as recorded by the camera crew, together with footage of other dealings with the plaintiff’s father, Andrew Eustice, and the plaintiff’s grandfather, Ken Eustice, were composed into a video which was broadcast by Channel Seven during its Today Tonight program aired in Adelaide on 27 November 2012. Shortened versions of that Today Tonight segment were broadcast at other times and in other places and also uploaded on to the internet.
The plaintiff has brought proceedings in defamation against the first defendant, one of a group of companies that form the Seven Network and being the company that holds the licence for Channel Seven to broadcast television across a broadcast area centred on Adelaide,[5] and against the second and third defendants. To establish his cause of action, the plaintiff must prove that: a defendant was involved in the publication of material to a third party; the plaintiff is the subject of the material; the material conveys an imputation; and the imputation is defamatory. An action for proved defamation will nevertheless fail if the defendant can establish an available defence.
[5] Issued pursuant to the Broadcasting Services Act 1992 (Cth).
The plaintiff contends that the Today Tonight program, aired in Adelaide on 27 November 2012, in its natural and ordinary meaning conveyed a number of imputations defamatory of the plaintiff. The plaintiff further contends that a subsequent broadcast aired interstate and uploaded to a website, YouTube, in its natural and ordinary meaning also conveyed most (but not all) of those same defamatory imputations. The plaintiff seeks general damages and damages for economic loss.[6]
[6] The plaintiff’s business ceased trading on 22 November 2012, that is, prior to the television broadcast on 27 November 2012. The plaintiff’s economic loss claim (to be dealt with later in these reasons) arose, according to the plaintiff, in large part because the defamatory publications rendered the resurrection of his business not possible.
The defendants admit some aspects of publication alleged by the plaintiff. However, they put the plaintiff to proof of the fact and extent of internet publication. The defendants also put in issue the question of whether the various imputations asserted by the plaintiff were in fact conveyed. However, to the extent that they were, the defendants raise the defences of justification,[7] contextual truth,[8] qualified privilege,[9] fair comment,[10] honest opinion[11] and triviality,[12] although the last was not developed during closing submissions.
[7] Both at common law and pursuant to section 23 of the Defamation Act 2005 (SA). The defendants do not seek to justify one of the alleged imputations – that the plaintiff is a career criminal.
[8] Pursuant to section 24 of the Defamation Act 2005 (SA).
[9] Both at common law and pursuant to section 28 of the Defamation Act 2005 (SA).
[10] At common law.
[11] Pursuant to section 29 of the Defamation Act 1995 (SA).
[12] Pursuant to section 31 of the Defamation Act 1995 (SA).
Publication
The imputations complained of by the plaintiff as defamatory were alleged to have been published in a number of ways.
(i)Exhibit P2 is a video of a segment of the television program Today Tonight (of approximately 9 minutes and 19 seconds duration) said to have been broadcast on the Channel Seven television station in Adelaide on 27 November 2012 (the primary television publication). It is also alleged that this video was posted on the Today Tonight Adelaide website very soon after. Publication to this extent is admitted by the defendants.
A transcript, marked for identification as MFI P4, provided to the Court as an aide memoire and hand marked “Attachment A”, is annexed to these reasons for judgment as Appendix A. The transcript is not entirely faithful to the recording in one or two very minor respects but to no material significance.
(ii)Exhibit P6 is an abridged version of exhibit P2 (approximately 4 minutes in duration) said to have been broadcast on the Channel Seven television stations in Perth on 19 December 2012 and in Sydney, Melbourne and Brisbane on 15 February 2013 (the secondary television publication).
A transcript, marked for identification as MFI P7, provided to the Court as an aide memoire and hand marked “Attachment C” is annexed to these reasons as Appendix B. It is also marked “the YouTube version”. Again, the transcript is not entirely faithful to the recording in one or two very minor respects but to no material significance. Counsel for the defendants conceded during the plaintiff’s opening, that the secondary television publication had been broadcast in Perth, Sydney, Melbourne and Brisbane but did not concede (on the basis that the defendants did not know) that it featured on the YouTube website (see (iii) below).
(iii)Exhibit P6 (the secondary television publication) is also said to have been uploaded onto the internet by various means (the secondary internet publication). There is authority to the effect that mere uploading, ordinarily, will be insufficient to demonstrate publication.[13] In Sands v Channel Seven Adelaide Pty Ltd,[14] Bleby J stated what I understand to be the law in this State.
[13] See for example, Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575 at [26], [44], Sands v Channel Seven Adelaide Pty Ltd [2009] SASC 215; (2009) 104 SASR 452 at [388]-[390], Sims v Jooste (No 2) [2016] WASCA 83 at [13]-[14] and Restifa v Pallotta [2009] NSWSC 958 at [26]-[29].
[14] [2009] SASC 215; (2009) 104 SASR 452 at [388]-[390]
In relation to the ABC publications, there was no evidence led of the listening audience of the ABC at the time of the radio broadcasts. There was no evidence that anyone other than the solicitors for Channel 7 actually downloaded the website article, and the reason for their doing so was in support of the argument that their counsel was putting that afternoon before Judge Bishop in the District Court.
I take judicial notice of the fact that the ABC is a national and respected news broadcaster. I can infer that a substantial number of people might constitute the listening audience of an hourly ABC news broadcast. However, the same cannot be said of the posting of an article on the ABC website.
Publication is a bilateral act. The publisher makes it available and a third party has it available for his or her comprehension. In Dow Jones & Co Inc v Gutnick it was held that as material on the internet is not available in comprehensible form until downloaded by someone else, the damage to reputation is only then done, and that ordinarily, the place where the material is downloaded will be the place where the tort of defamation is committed. However, that decision does not assist in determining the extent of the publication.
(Footnotes omitted)
However, the plaintiff contends that there is evidence of downloading and viewing, or from which such can be inferred, which would establish publication.
In addition, the plaintiff relied on the following in support of its damages claim.
(iv)Exhibit P32 is a third much truncated video said to have been broadcast on Channel Seven in Adelaide on 31 December 2012.
(v)Exhibit P33 is a fourth video being a pastiche of snippets from various Today Tonight programs including a snippet from exhibit P2, titled “500 weeks at number 1” said to have been broadcast on Channel Seven in Adelaide in September 2013.
The full extent of any publication of the asserted defamatory imputations by each of the first, second and third defendants is an issue in contention.
The evidence adduced by the plaintiff as to the extent of publication was in a number of respects unsatisfactory. However, this is to a degree understandable. Strict proof of such matters by a plaintiff can be difficult to achieve particularly where, as here, no witness able to give such evidence is presented on behalf of the media outlet.[15] Nevertheless, the evidence such as it is together with the defendants’ concessions, allows the finding that the primary television publication was broadcast to the Channel Seven broadcast area in South Australia and that the secondary television publication was broadcast to the Channel Seven broadcast areas in Sydney, Melbourne, Perth and Brisbane, on the respective dates earlier identified. I am satisfied that each of these broadcast areas was substantial with large potential viewer populations. Exhibit P3 is an OzTAM “Ratings Information for Today Tonight” document admitted without objection. It records the following “audience estimates of the average number of viewers”:
27 November 2012, Adelaide Today Tonight – 117,000
19 December 2012, Perth Today Tonight – 143,000
15 February 2013, Sydney Today Tonight – 252,000
15 February 2013, Melbourne Today Tonight – 207,000
15 February 2013, Brisbane Today Tonight – 175,000
In having regard to these numbers, one must also have regard to the significant potential for the “grapevine” effect to operate.
[15] Having said that, I am in no position to draw a Jones v Dunkel (1959) 101 CLR 298 type inference and, in the circumstances, such would not advance the plaintiff’s case beyond the findings I am prepared to make in any event.
The defendants submit to the effect that the first defendant as the company that holds the licence for Channel Seven to broadcast in the Adelaide broadcast area, should only be responsible for publication within its own broadcast area. The first defendant does not control and should not be responsible for publications by other companies in the group interstate.
I agree with the plaintiff’s submission that whether or not the first defendant was involved in the creation and production of the primary television publication or any of its subsequent iterations, it was broadcast in the Adelaide broadcast area under the authority of the first defendant’s licence. I also take the view that it should be seen as a natural and probable consequence of the first defendant’s publication in Adelaide that other company licence holders interstate would republish in their areas.
I am also satisfied, on the limited evidence available, that the secondary television publication was uploaded, with the ultimate authority of the first defendant as broadcast licensee, onto the Today Tonight Adelaide website on or about 28 November 2012 (as admitted by the defendants). I am further satisfied that it was the natural and probable consequence of the first defendant’s conduct in broadcasting the primary television publication in Adelaide that a version of it would be uploaded on various internet platforms.
The evidence as to the uploading on and downloading from the internet is scant.[16] Nevertheless, in all the circumstances and given that there is some direct evidence of downloading, I infer that some people viewed the impugned material by this means. It is not possible to form an assessment of the extent of the internet publication. However, the plaintiff’s evidence was to the effect that the internet version of the video remained available online for one to two years.[17]
[16] T63-78, 91-96.
[17] T67.
Ultimately, I am satisfied that the impugned material for which the first defendant is responsible was published widely to potentially large audiences, not just in Adelaide, South Australia but also provincial South Australia and interstate. Nevertheless, on the evidence available, any damage caused to the plaintiff would have arisen primarily as a result of publication in Adelaide.
Imputations relied on by the plaintiff
The plaintiff contends that the primary television publication in its natural and ordinary meaning meant and was understood to mean of and concerning the plaintiff:[18]
(i)that the plaintiff serially rips off customers (panel numbers 1, 2, 6, 7, 9, 12, 14, 15, 17 and 48);
(ii)that the plaintiff is a crook (panel numbers 1, 2, 6, 7, 12, 14, 15 and 48);
(iii)that the plaintiff is a snake (panel numbers 1, 6, 7, 8, 9, 12, 14, 15, 17, 32 and 48);
(iv)that the plaintiff is a snake by reason of the fact that he engaged in misleading and deceptive conduct by telling a “whopper of a lie” (panel numbers 1, 6, 7, 8, 9, 12, 14, 15, 16, 25, 26, 27, 28, 29, 32, 34 and 48);[19]
(v)that the plaintiff is a fraudster (panel numbers 2, 7, 12, 15, 17 and 48);
(vi)that the plaintiff is a fraudster by reason of the fact that he engaged in misleading and deceptive conduct by telling a “whopper of a lie” (panel numbers 1, 6, 7, 8, 9, 12, 14, 15, 16, 25, 26, 27, 28, 29, 32, 34 and 48);
(vii)that the plaintiff is a convicted criminal (panel numbers 2, 12, 15, 17 and 48);
(viii)that the plaintiff is a career criminal (panel numbers 2, 12, 15, 17 and 48).
[18] Paragraph 29 of the Ninth Statement of Claim. Paragraph 29.7 pleads an imputation that the plaintiff is a member of a family the whole of which can be characterised as deceitful, dishonest and criminal. However, reliance on this imputation has been abandoned by the plaintiff. For each imputation the plaintiff relies on the whole of the publication but, in particular, on certain statements in the aide memoire attachment identified by panel number.
[19] This alleged imputation and the one in (vi) together with the one in paragraph [19](iv) were included by way of an amendment to the plaintiff’s statement of claim allowed late in the trial. Their inclusion provoked a successful application by the defendants to amend their defence to include, with respect to these two pleaded imputations, a defence of contextual truth pursuant to section 24 of the Defamation Act 2005 (SA).
The imputations contended for by the plaintiff as deriving from the secondary television publication and the secondary internet publication are as follows.[20]
(i)that the plaintiff serially rips off customers (panel numbers 1, 2, 6, 7, 10, 12, 13, 15 and 27);
(ii)that the plaintiff is a crook (panel numbers 1, 2, 6, 10, 12, 13 and 27);
(iii)that the plaintiff is a fraudster (panel numbers 2, 6, 7, 10, 13, 15 and 27);
(iv)that the plaintiff is a fraudster by reason of the fact that he engaged in misleading and deceptive conduct by telling a “whopper of a lie” (panel numbers 2, 6, 7, 10, 12, 13, 14, 20, 21, 22, 24, 25 and 27);[21]
(v)that the plaintiff is a convicted criminal (panel numbers 2, 10, 13, 15 and 27);
(vi)that the plaintiff is a career criminal (panel numbers 2, 10, 13, 15 and 27).
[20] Paragraph 30 of the Ninth Statement of Claim. Paragraph 30.6 pleads an imputation in the same terms as in paragraph 29.7 (fn 18) and also has been abandoned. Again, the plaintiff relies on the whole of the publication but with particular reliance on the nominated panel numbers. There is not always complete congruence between the panel numbers as pleaded for each publication with respect to cognate imputations. For example, there are statements in the primary publication relied on with respect to a particular imputation that also appear in the secondary publication but which have not been identified in the pleading as a panel number relied on for that same imputation.
[21] See fn 19.
As can be seen, there are differences between the first set of imputations relied on and the second set of imputations relied on. In the second set (the secondary television publication) there is no reliance on the more general snake imputation ((iii) in the primary television publication) or the more limited or confined snake imputation ((iv) of the primary television publication). Further, there are some differences in the panel number references respectively relied on for each set of cognate imputations. This has been caused, at least in part, by the editing process resulting in the secondary television publication being a truncated version of the primary television publication.
The question before the Court, ultimately, is what is the meaning of the words used in the publications as conveyed to a fair-minded ordinary reasonable person in the general community? It should be emphasised that the meanings to be discerned are those which the relevant passage or passages bear in fact. It is not a search, as at one point was submitted by the plaintiff, for the most damaging meaning capable of being put on the words in question. This approach may be of assistance when the question before a trial Judge, being one of law, is whether identified words are capable of bearing a particular pleaded defamatory meaning such that a particular pleaded defamatory meaning might be left to the jury for its consideration. However, it is not apposite to the task of a jury, or a judge sitting alone, when endeavouring to determine what, as a matter of fact, is the single meaning to be ascribed to pleaded words.[22]
[22] See, generally, the discussion of this distinction in Sands v South Australia [2015] SASCFC 36; (2015) 122 SASR 195 at [176]-[177], Sands v Channel Seven Adelaide Pty Ltd & Anor [2010] SASC 202 at [99]-[106] and Fleming v Advertiser-News Weekend Publishing Company Pty Ltd & Anor [2016] SASCFC 109 at [41]-[43].
The general approach to the task at hand has been summarised with reference to the standard authorities in the following terms.[23]
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 not 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 interpretation does not extend to the conclusion which the ordinary reasonable person reaches by taking into account his or her own belief which has been excited by what the matter complained of says.
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.
(Citations omitted)
[23] Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 3rd ed, 2017) at [9.4].
The form of a publication will be relevant to this enquiry. The fair-minded, ordinary, reasonable person in the general community with the attributes just identified (the “ordinary, reasonable person”) may interpret a publication differently depending on its form. In this respect, a distinction is to be drawn between a transient form as compared with a more permanent form of publication. The author of Defamation Law in Australia[24] has summarised the position, again with reference to accepted authorities, thus.
The ordinary reasonable listener or viewer of publications in ‘transient’ form such as television or radio has no opportunity to reconsider the whole publication at leisure or to check back and change first impressions. Although such a listener or viewer is assumed to have heard and/or seen the whole of the program, they may not have devoted the same degree of concentration (particularly in the case of radio) to each part of the program as would otherwise have been given to a written article and may have missed the significance of the existence earlier in the program of a qualification of a statement made later.
The trial judge in a case involving a publication in transient form will more readily leave it to the jury to decide whether an imputation affected by these circumstances was in fact conveyed, than they would in relation to a written document case. Publications when broadcast or telecast by the electronic media are necessarily transient or ephemeral in nature notwithstanding the provisions of s 206 of the Broadcasting Services Act 1992 (Cth) which deem them to be publications in permanent form. For this reason objections have been made to the admission of transcripts of the television or radio broadcast, leaving the jury to consider the actual form of the publication to determine meaning, and objections made to the number of times the jury may view the broadcast for the purpose of considering meaning.
(Citations omitted)
[24] Patrick George, Defamation Law in Australia (LexisNexis Butterworths, 3rd ed, 2017) at [9.5].
I make the following further observations pertinent to a televised form of publication. The transcripts are before the Court with the consent of the parties. However, the evidence is each publication itself. A transcript is no more than an aide memoire to assist in understanding what is said and done during, and as recorded by, each publication. It is therefore important not to focus on the words of a transcript without paying due regard to the tone of voice used and the vision accompanying each statement under consideration, including the visible actions of persons involved and any accompanying captions or images displayed. I have taken such matters into account. It is essential that the factors relevant to the consideration of a publication in transient form be accorded proper weight notwithstanding the presence of transcript.
Further, reliance on individual statements including, in particular, reliance on an assemblage of individual statements, the utterances of which are separated in time and space in a transient, fast moving video production, can introduce a level of artificiality to the process. The task before the trier of fact in such a case is to listen to and watch the publication as a whole in the way that the ordinary, reasonable person would do, so as to arrive at an understanding of what the publication in fact means.[25]
[25] In these reasons I will, from time to time, refer to individual statements by reference to panel numbers, as have the parties. This will not be by way of direct or sole support for any proposition put but in order to assist the reader of this judgment to understand what aspects of the publication are relied on for the proposition put and to assist any reader with access to the video exhibits themselves to be able to locate where in that exhibit attention is being directed.
In this case, the vision showing the actions of the protagonists is fast moving, very energetic and confrontational; the vision has a tendency to distract a viewer from the detail of the language used so as to leave a viewer with largely general impressions. Nevertheless, there are both general and specific allegations that would be readily apparent to the ordinary reasonable person at the conclusion of viewing the broadcasts.
Only the primary television publication and the secondary television publication are relied on by the plaintiff in his pleading as conveying defamatory imputations. I agree with the submission put on behalf of the defendants that, in essence, there are two aspects to each of the publications.
The first aspect, by way of introduction, is essentially designed to emphasise that the Eustice family has a notorious history of improper conduct. The publication identifies the family as being the patriarch, Ken Eustice, an Adelaide identity largely because of his success as an SANFL footballer who has been in the used car business for a very long time, together with his “criminal son”, Andrew Eustice, and recently (“now”) his son, the plaintiff, Ben Eustice. Using colourful language, assertions of dishonest conduct are made against the family or “the three generations” generally.
The second aspect is much lengthier. An attempt is made to encapsulate the third defendant’s interactions with the business and, in particular, with the plaintiff and his father, Andrew Eustice, concerning her purchase of the Nissan Skyline and her inability to obtain a refund of the purchase price.
During the course of each publication there is a considerable amount of footage of the man identified as Ken Eustice, of the man identified as Andrew Eustice and of the man identified as the plaintiff, Ben Eustice. The overarching impression obtained from the program as a whole is that these three constitute the Eustice family of “dodgy” Adelaide car dealers which has a history of engaging in misleading and deceptive, and dishonest conduct.
I make the following general observation by way of background to my consideration of the imputations conveyed. An overarching impression from viewing the publications is that, whilst various assertions of improper conduct are levelled at the family or three generations, it is made clear that the plaintiff has only recently joined the business. The criticisms of the plaintiff and assertions of improper conduct by the plaintiff are made and would be understood as deriving only from his dealings with the third defendant.
I turn now to consider each of the specific imputations relied upon by the plaintiff.
Serially rips off customers
I start with the issue of whether either publication when viewed as a whole and, after having regard to the panel numbers relied on by the plaintiff, conveys the meaning that the plaintiff “serially rips off customers”. To “rip off” someone means, in the vernacular, to cheat or swindle a person out of their property or by overcharging.
The primary television publication does contain various references asserting continuing or repetitive behaviour of or similar to this nature including: “the three generations … still at it ripping off customers”[26]; “the Eustice family has a notorious history …”[27]; “the Eustices … have a dubious history of business dealings”[28]; “they have a family history of lies, deceit and fraud”;[29] and (directed to the plaintiff) “deceit and dishonesty runs in your family doesn’t it”.[30] There are other references that can be viewed in this light.[31] The secondary publication also contains similar (although less in number) references including: “[the Eustice family] have a questionable reputation”[32]; “the Eustice family have a dubious history of business dealings”[33]; and “deceit and dishonesty runs in your family doesn’t it”.[34]
[26] Primary, panel 1.
[27] Primary, panel 1.
[28] Primary, panel 9.
[29] Primary, panel 17.
[30] Primary, panel 48.
[31] Such as, for example, “three generations of snakes” and “the dodgy family car business”.
[32] Secondary, panel 1.
[33] Secondary, panel 7.
[34] Secondary, panel 27.
The primary publication, considered as a whole, conveys the imputation that the family business has a history of improper dealing in the sense of repetitively dealing with customers in a deceiving and dishonest manner. To use the vernacular employed at the outset by the presenter – a history of “ripping off customers”. However, an imputation of this nature is not so readily conveyed by the secondary publication. The language is less clear or direct in this respect and virtually the whole of the broadcast is focussed on the single dealing between the plaintiff and the third defendant.
I will assume for present purposes that an imputation that the family or family business serially rips off customers would be made good. However, the imputation asserted and relied on by the plaintiff is that “the plaintiff serially rips off customers”. Serial or repetitive conduct, to the extent it is identified, is attributed to the family or the three generations in which respect only the collective is identified without any attempt to apply the asserted improper conduct distributively. At no time is the plaintiff said to have serially ripped off customers nor would the ordinary reasonable person infer this.
A theme of both publications is that the Eustice family car business has been exposed in the past as dodgy, dishonest and having ripped off customers. This time, another instance has arisen at the hands of a new family member, the plaintiff and grandson of Ken Eustice. It is apparent that the plaintiff has only newly arrived on the scene – “[Ken Eustice] has now been joined [in his used car business] by … Andrew’s eldest son Ben”[35]; and “now like grandson Ben who has taken to the dodgy family car business like a duck to water”.[36] In this context of having recently joined the family business, the only complaint directed to the plaintiff is that in connection with his dealing with the third defendant. By far the major portion of each publication is devoted to addressing only this dealing.
[35] Primary, panel 1.
[36] Primary, panel 15; secondary, panel 13.
It is in this overarching context that the general statements concerning the family and the three generations are to be viewed. The complaint by the third defendant is the latest example of a customer being “ripped off” and this time it is by the new member of the family business who has demonstrated, by his conduct with the third defendant, that he is carrying on the family history.
On my assessment, the ordinary reasonable person would understand the publications in this way and not that the plaintiff (whatever Ken Eustice and Andrew Eustice may have done in the past) was himself being accused of serially ripping off customers. This imputation is not made out.
Crook and snake (as to the latter, not asserted with respect to the secondary publication)
The word “crook” has a number of meanings.[37] Plainly, the second defendant was using the word to convey something about the character of the plaintiff. In this sense, various dictionary definitions define the word as “a person who is dishonest or a criminal” with the latter being used in the sense of “petty criminal”. The word is typically used in this way not so much to convey the fact that the person referred to has criminal convictions but rather that the person is dishonest and not to be trusted.
[37] Including, being angry, feeling ill and something a shepherd or an impresario disappointed with a stage performer might use.
When the use of the term “crook” in the present case is viewed in the context of the publications as a whole and of the more specific allegations levelled against the plaintiff, the ordinary reasonable person would understand it in that latter sense – dishonest and not to be trusted.
The tenor of the publications, insofar as the plaintiff is concerned, is that he has recently[38] joined the family business and, as demonstrated by his dealings with the third defendant, is to be seen, like father and grandfather, as dishonest and not to be trusted. The term “crook”, as deployed, would be viewed by the ordinary reasonable person in this sense. This is particularly so given (as explained further below) that the publications make clear to the viewer that it is Andrew Eustice, not Ken Eustice or the plaintiff, who is a convicted criminal.
[38] Primary, panel 1 (“now been joined by …”) and primary, panel 15; secondary, panel 13 (“now like grandson Ben”).
I add though, that if the word crook is to be understood as meaning or including the notion of “criminal”, it would not expand the meaning of crook, for present purposes, beyond that embraced by the imputation that the plaintiff is a convicted criminal (see below).
Typically, the term “snake” will be used about another person and understood in a metaphorical sense as a slippery, slithering person who is not to be trusted. It harks back to the deceit of the serpent in the biblical story of the garden of Eden. The terms “snake” and “serpent” are used with direct reference to the plaintiff in the primary publication[39] but not in the secondary. Whilst not conceding the point, the defendants in their submissions did not vigorously challenge a finding that the primary publication conveyed that the plaintiff is a snake in the sense I have described.
[39] “They were like serpents” uttered by the third defendant with reference to her dealings with the plaintiff (primary, panel 6) and “three generations of snakes” uttered by the second defendant (primary, panel 7). This exchange occurred while the third defendant was being interviewed away from the car yard but with the vision showing the third defendant and her mother pulling off the plaintiff’s shirt.
The term “crook” is used with direct reference to the plaintiff on only the one occasion in each of the primary and secondary publications.[40] The defendants submit that this single use of the word “crook” would have been understood in the context of both publications focussing, insofar as the plaintiff is concerned, only on the one criticised transaction by the plaintiff with the third defendant. They submit that the limited basis for the attribution of this description is clearly set out in the publications and there is no basis which would suggest to the ordinary reasonable person that the attribution of “crook” is based on any wider course of conduct.
[40] Primary, panel 2; secondary, panel 2 (“You’re a crook. You’re a crook hiding behind a door”).
However, there are other more general assertions in the publications concerning the plaintiff which convey the notion of the plaintiff being dishonest and not to be trusted.[41]
[41] Such as: primary, panels 9 and 15 (together), 17 (to be understood in the context of the third defendant’s complaint against the plaintiff) and 48 (again to be understood in the same context); secondary, panels 7 and 13 (together) and 27.
The words “crook” and “snake” as used in the present context are not so commonly used these days. Their use in the broadcasts would have been readily apparent to viewers. I am satisfied that the meaning or imputation that the plaintiff is a crook was conveyed by both publications and that the meaning or imputation that the plaintiff is a snake was conveyed by the primary publication. Each would have been understood by the ordinary reasonable person in the context of each publication as a whole and against the background that the only disreputable conduct directly attributed to the plaintiff was the third defendant’s account of her dealings with him. Nevertheless, the ordinary reasonable person would understand the term “crook” to have been used colloquially in the way earlier explained to imply that the plaintiff is capable of acting in a dishonest and untrustworthy manner. They also would have understood “snake” to have been used colloquially, indeed metaphorically, to mean that the person is deceitful and duplicitous. These notions also invoke the idea that the plaintiff is a person who is not to be trusted to tell the truth or to act in an honest manner.[42]
[42] See also in this respect: primary, panel 1, 6, 16, 25, 27 and 32; secondary, panel 6, 14, 20, 22 and 25.
Convicted criminal; career criminal
There is a distinction between the fact or understanding that a person is “dodgy”, acts in a false and misleading manner and is dishonest and untrustworthy and the fact or understanding that a person has been convicted of a criminal offence or offences. Further, the fact that a person might be understood by others to be of the former character would not, without more, lead an ordinary, reasonable person to conclude that the person is a convicted criminal.
In each of the primary television and secondary television publications the assertions of anyone being a criminal are directed only with reference to Andrew Eustice. Reference is made to Ken Eustice’s “criminal son Andrew” in the studio presenter’s introduction.[43] At this time, the vision shows the presenter at her studio desk with headshots of the three men and of the third defendant confronting the plaintiff who is raising his hands. However, the statement, “criminal son Andrew”, and the accompanying vision, must be understood in context – “[Ken Eustice] has now been joined by criminal son Andrew, and Andrew’s eldest son Ben [the plaintiff]”. Plainly, there is an assertion of criminal conduct as against Andrew Eustice but no such assertion as against either Ken Eustice or the plaintiff. Viewed in context, the inference is to the contrary.
[43] Primary, panel 1 but not in the secondary.
Later during the first aspect of each of the publications[44] and whilst the video displays vision of the second defendant directly addressing Andrew Eustice sitting at a table (not in the car yard) the second defendant says “Just like son Andrew, a convicted fraudster and jail bird. Career crim” and “you just can’t go straight can you?”. These assertions are made in the context of an earlier reference[45] to the “Eustices” having “a dubious history of business dealings”. In this context, Ken Eustice is mentioned – “like father Ken … now a used car salesman”,[46] Andrew Eustice is mentioned (as above) and then the plaintiff is mentioned[47] - “and now like grandson Ben who has taken to the dodgy family car business like a duck to water”. Again, there is an assertion of criminal conduct as against Andrew Eustice but no such assertion as against Ken Eustice or the plaintiff. Viewed in context, the inference is to the contrary.
[44] Primary, panels 12 and 14; secondary, panels 10 and 12.
[45] Primary, panel 9; secondary, panel 7.
[46] Primary, panel 9, secondary panel 7.
[47] Primary, panel 15; secondary, panel 13.
The third and final express reference to criminality[48] occurs when the second defendant describes conduct by the plaintiff towards the third defendant as “totally false and misleading conduct all backed up by Ben’s crooked crim of a father …”. At this time, the video shows the second defendant walking with Andrew Eustice near a Eustice MotorCity sign. Again, the reference is directly aimed at Andrew Eustice and whilst the plaintiff’s conduct is described as “false and misleading” there is no allegation that the plaintiff, like Andrew Eustice, is a convicted criminal.
[48] Primary, panel 32 but not in the secondary.
The plaintiff also relies on other statements in support of an imputation that the plaintiff is a convicted criminal. At one point, with the vision showing the third defendant being interviewed away from the car yard, she said:[49]
They have a family history of lies, deceit and fraud. They are very fraudulent. They just take every opportunity to get things from people that does not belong to them which is not good.
A little later,[50] the second defendant, shown directly addressing the plaintiff, says:
Deceit and dishonesty runs in your family doesn’t it? Where is her money? …
At the beginning of the broadcasts[51] the second defendant describes the plaintiff as “a crook”.
[49] Primary, panel 17 but not in the secondary.
[50] Primary, panel 48; secondary, panel 27.
[51] Primary, panel 2; secondary, panel 2.
Whilst these other quite discreditable allegations are made in these instances, when considered in the context of the publications as a whole, they fall short of asserting that the plaintiff is a convicted criminal. Further, the allegations (apart from that of “crook”) are directed at the “family” or “family history” and leave open whether or not all members share all of the attributes asserted. The third defendant, as is apparent from the full context of her utterance, used the word “fraud” in its general or colloquial sense and not in any strict sense of denoting or connoting a conviction for criminal fraud.
In my view, an ordinary reasonable person, having viewed the publications, would be left with the clear understanding that Andrew Eustice was alleged to be a convicted criminal. However, the viewer would not be of the same view with respect to the plaintiff. Notwithstanding the other discreditable appellations used, a clear contrast is conveyed by the publications between convicted criminal Andrew and Ken Eustice and the plaintiff, neither of whom are so described. An imputation that the plaintiff is a “convicted criminal” does not arise. A fortiori, the imputation that he is a “career criminal” also has not been established.
It follows that the submissions by the plaintiff to the effect that the imputation “convicted criminal” as conveyed by the publications must be understood as excluding, that is, implying something more than, minor criminal convictions such as for traffic offences or more serious criminal convictions that are old or “spent” pursuant to applicable spent convictions legislation, need not be addressed at this stage.
The plaintiff is a fraudster
The plaintiff further contends that the publications convey the meaning or imputation “that the plaintiff is a fraudster” and rely in particular on panels 2, 7, 12, 15, 17 and 48 of the primary publication and 2, 6, 7, 10, 13, 15 and 27 of the secondary publication.
In each publication the second defendant refers to Andrew Eustice as a “convicted fraudster”.[52] In neither publication is the plaintiff directly referred to by anyone as a fraudster. However, in the primary publication the third defendant does assert: “a family history of lies, deceit and fraud. They are very fraudulent”.[53] The full context in which this utterance by the third defendant occurs serves to explain what she is conveying by the use of the term “fraud” and “fraudulent”. She continued:[54]
They just take every opportunity to get things from people that does not belong to them which is not good.
[52] Primary, panel 12 (the transcript annexure A incorrectly records “fraudster”); secondary, panel 10.
[53] Primary, panel 17.
[54] Primary, panel 17.
In the primary publication, the plaintiff is directly targeted with related notions including the following. He is described as a “crook”; as having “taken to the dodgy family car business like a duck to water”; as having “taken [the third defendant’s] money” and as having “lied”; as having sealed the Nissan Skyline deal with “a whopper of a lie”; as engaging in a “deception” which “begins to unravel”; as engaging in “totally false and misleading conduct”; and as promising to repay the third defendant’s money but having no answer as to why this has not occurred.
Leaving aside specific definitions of fraud in the legal or more technical sense, there is a notion of fraud as understood by the public in its ordinary or general sense. According to the Macquarie Dictionary (Revised 3rd ed), it can mean, inter alia,
Deceit, trickery, sharp practice, or breach of confidence by which it is sought to grain some unfair or dishonest advantage.
In Re London & Globe Finance Corporation Ltd,[55] Buckley J explained the concept in these terms.
To deceive is, I apprehend, to induce a man to believe that a thing is true which is false, and which the person practising the deceit knows or believes to be false. To defraud is to deprive by deceit: it is by deceit to induce a man to act to his injury. More tersely it may be put, that to deceive is by falsehood to induce a state of mind; to defraud is by deceit to induce a course of action.
Fraud invokes the notion of “base conduct and moral turpitude”.[56]
[55] [1903] 1 Ch 728 at 732-733.
[56] Joliffe v Baker (1883) 11 QBD 255 at 270.
In my view, both publications conveyed to the ordinary reasonably person the imputation that the plaintiff had been fraudulent in his dealings with the third defendant in this general sense, that is, in the sense of being deceitful and dishonest in his dealings with the third defendant “in order to get things that do not belong to him” (that is, to extract a sale by falsehood and to keep her money).
I am not satisfied that either publication conveyed an imputation in the sense that the plaintiff had been convicted of a criminal offence or criminal offences involving fraud.
The plaintiff is a snake by reason of the fact that he engaged in misleading and deceptive conduct by telling “a whopper of a lie” (primary only)
The plaintiff is a fraudster by reason of the fact that he engaged in misleading and deceptive conduct by telling “a whopper of a lie”
I will deal with these two alleged imputations together. The critical statement underlying the “limited snake” and “limited fraudster” imputations is that by the second defendant:[57]
Ben Eustice sealed the deal with an absolute whopper of a lie that it’s a wonder that he was stupid enough to think he could get away with it.
The asserted lie (as explained in the broadcast) was to the effect that the plaintiff told the third defendant that the Nissan Skyline motor vehicle she was interested in was a 2010 model, whereas it was in fact a 1998 model, in the context where the third defendant had told the plaintiff that she did not want any car “less than 2002”. The critical statement (“Ben Eustice sealed the deal …”) occurs as part of the general recounting by the second and third defendants of the plaintiff’s dealings with the third defendant concerning the Nissan Skyline. It is in this context that the plaintiff is also referred to as, for example, one of three generations of snakes; as being part of a family history of deceit and fraud; as taking to the dodgy family business like a duck to water; as engaging in a deception which begins to unravel; and as engaging in “totally false and misleading conduct”.
[57] Primary, panel 25; secondary, panel 20 (in the secondary publication the assertion was edited to conclude after the word “lie”).
I am satisfied that the ordinary reasonable person, on viewing each publication as a whole, would reason as indicated in the alleged limited fraudster imputation; that is, that the plaintiff told a whopper of a lie and thereby, given the broader context, engaged in misleading and deceptive conduct by reason of which he is to be regarded as a fraudster in the sense of that term as I have earlier explained. This imputation is made out. By parity of reasoning, I am satisfied that the limited snake imputation is also made out with respect to the primary publication. Having made these findings, I am not satisfied that either of these limited imputations serves to advance the plaintiff’s case beyond that which arises on my findings that the more general fraudster and snake imputations are also made out.
I take the view that if the limited imputations were to be justified, so would the more general. The limited imputations do not so much give rise to a narrower or more limited notion of fraudster or snake but rather an example of the general allegations. If the example is justified, the plaintiff can rightly be characterised as a fraudster or a snake. Further, the sting of the imputations of fraudster and snake (whether in the limited or general form) is that the plaintiff’s character is marked by a capacity for deceit, dishonesty and untrustworthiness. It is this sting that needs to be justified.
Conclusion – imputations established by the plaintiff
I am satisfied that the primary publication conveyed the following imputations:
(i)that the plaintiff is a crook;
(ii)that the plaintiff is a snake;
(iii)that the plaintiff is a snake by reason of the fact that he engaged in misleading and deceptive conduct by telling “a whopper of a lie”;
(iv)that the plaintiff is a fraudster;
(v)that the plaintiff is a fraudster by reason of the fact that he engaged in misleading and deceptive conduct by telling “a whopper of a lie”.
I am satisfied that the secondary publication conveyed the imputations in (i), (iv) and (v) above but not (ii) and (iii) (snake and limited snake). I reject the plaintiff’s contentions that the imputations that the plaintiff serially rips off customers, is a convicted criminal and a career criminal were also conveyed.
The notions conveyed by the imputations in (i), (ii), (iii), (iv) and (v) above largely overlap if one is to be faithful to the requirement to discern the meaning the ordinary reasonable person would take from a publication of this nature considered upon viewing as a whole. The sting of each of these imputations singly and taken together is that the plaintiff has behaved towards the third defendant and is capable of behaving towards others in a deliberately misleading, deceitful and dishonest way. It is this that the defendants need to establish as substantially true if they are to succeed with justifying the imputations in (i) to (v).
Defamatory
Published matter is defamatory if it is likely to lead an ordinary reasonable person to think less of the plaintiff.[58] The question is whether the effect of the published matter has a tendency to injure the reputation of the plaintiff, that is, diminish in some respect the esteem in which that person is held by the community.[59] Published matter will be defamatory if “it is calculated to injure the reputation of another by exposing [that person] to hatred, contempt or ridicule”;[60] or if “it tends to make the plaintiff be shunned and avoided …”.[61]
[58] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 at [5] (French CJ, Gummow, Kiefel and Bell JJ) and cases there cited.
[59] Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 at [3].
[60] Parmiter v Coupland& Anor (1840) 6 M&W 105; 151 ER 340 at 342.
[61] Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587.
Each of the imputations conveyed was defamatory; this has not seriously been disputed by the defendants. Before turning to the defences, in particular that of justification, I need to take some time to deal with the evidence relied on by the parties concerning the plaintiff’s dealings with the third defendant and the plaintiff’s conduct and character in other respects, relevant to the defences.
General observations concerning the witnesses
The plaintiff gave evidence and also called in support of his case: an accountant, Barrie Lloyd, who had some involvement in the financial management of the plaintiff’s business and the financial affairs of the family generally; the plaintiff’s grandmother (the wife of Ken Eustice), Lesley Eustice; the plaintiff’s sister, Emma Eustice; and a senior investigator at Consumer and Business Services (a South Australian State government department), Jeffrey Betts. A number of other persons, including various members of the plaintiff’s family, are said by the defendants to have played a significant role in relevant events. They are: the plaintiff’s father, Andrew Eustice; the domestic partner of Andrew Eustice, Sue Sharland; the plaintiff’s grandfather, Kenneth Eustice; the plaintiff’s brother, Thomas Eustice; and an employee of the second-hand motor vehicle business conducted by the plaintiff, Derek Sheldon. The defendants have raised a number of criticisms of the plaintiff’s case resulting from the plaintiff’s failure to call these witnesses.
The only witness called by the defendants was the third defendant, Faith Okoegwale. The defendants did not call the third defendant’s mother, Lil Okoegwale nor the second defendant, Frank Pangallo. The plaintiff has criticised the defendants’ case with respect to their failure to call these two witnesses.
Given my findings on the evidence that is before me, I am not persuaded that any Jones v Dunkel[62] type inference (if available – about which I make no finding) drawn in favour of the defence case would advance that case significantly. Similarly, the failure of the defendants to call either the second defendant or the third defendant’s mother does not warrant any inference that would advance the plaintiff’s case bearing in mind the issues that have governed its determination.
[62] (1959) 101 CLR 298.
The plaintiff, Ben Eustice
The plaintiff gave evidence in chief and in cross-examination in his own case although, as the result of a forensic decision by counsel for the plaintiff not to call evidence on matters of defence with respect to which the defendants bore the onus of proof, the plaintiff returned to the witness box at the conclusion of the defence case when he was again examined in chief and cross-examined. In addition, the trial was adjourned part heard during the plaintiff’s first cross-examination when the plaintiff fell ill and was admitted to hospital. He was unable to proceed with his evidence for what was then understood to be an indefinite period of time. As a consequence, and in order to meet the rescheduling difficulties faced by the plaintiff, counsel on both sides and the Court, the matter was adjourned part heard for a period of approximately three months.
Overall, the plaintiff was in the witness box, mainly undergoing cross-examination, over approximately seven separate days.[63] As a consequence, I had ample opportunity to observe and reflect upon the plaintiff’s demeanour and general approach and responsiveness to questions being asked. For the reasons that follow, I found the plaintiff to be a very unimpressive witness. Nevertheless, in reaching this conclusion, I have placed less weight on demeanour[64] than I might have otherwise.
[63] On some of the days other short witnesses were interposed.
[64] By which I mean the plaintiff’s outward behavior or bearing or outward manifestation of personality while in the witness box.
Two considerations, to be borne in mind when assessing the plaintiff’s evidence and his manner of giving evidence, stand out. First, the events the subject of the defamatory publications about which the plaintiff was being cross-examined took place in the middle of and in the second half of 2012 and the events concerning the plaintiff’s convictions for two criminal offences (dealt with at length later in these reasons) took place some years before then. However, the plaintiff did not give his evidence until 2018. An inability to recall detail with respect to some topics would not necessarily be surprising.
Second, the plaintiff suffers from Addison’s disease. Addison’s disease results from a failure of part of the adrenal glands which affects the production of glucocorticoid and mineralocorticoid hormones. The Court received a report dated 7 November 2018 from Dr Wilton Braund, a consultant physician and endocrinologist.[65] That report provides a general understanding of Addison’s disease and addresses a number of specific questions concerning the plaintiff, although Dr Braund is not the plaintiff’s treating doctor and did not examine the plaintiff.
[65] Exhibit P86.
The severity of symptoms suffered will depend upon the rate at which these hormonal deficiencies have developed and how advanced the deterioration in the adrenal glands may have become. It also will depend upon the extent to which relevant lifestyle factors are addressed and prescribed medical treatment, including drug therapy, is complied with. According to the medical records reviewed by Dr Braund, the plaintiff has been on long term treatment with cortisone or hydrocortisone and his adrenal destruction has continued to the point of complete destruction. As such, he is at risk of suffering a severe manifestation of a sudden or complete lack of relevant hormones described as an Addisonian crisis which is a very severe illness and which, on occasion, can result in death. Symptoms such as fatigue, loss of appetite, darkening of the skin, mood swings and depression can be characteristic manifestations of a chronic deficiency of cortisol.
The medical records available following the plaintiff’s hospital admission on 29 August 2018 (that is, at the time during his cross-examination when the trial was adjourned part heard) indicated to Dr Braund that the plaintiff had been suffering an Addisonian crisis and that because of vomiting and nausea he could not treat himself with oral medications which ordinarily would control his condition.
According to Dr Braund, there is an association between Addison’s disease and altered mental function. Some of this is the direct pathological effect of cortisol deficiency. In other patients, the “grief and loss” or “perceiving themselves to have an imperfect body and being found to be quite deficient” may lead to chronic mental health disorders such as depression. Dr Braund postulated other considerations, arising from his understanding of the plaintiff’s medical history, that might have had an effect on the plaintiff’s memory function. However, Dr Braund could only speculate on these matters given that the materials available to him were not sufficient to disclose whether or not the concerns he had identified as potentially arising from treatment or lack of treatment, were in fact realistic in the case of the plaintiff. In short, there was simply insufficient evidence available to Dr Braund bearing on whether or not these possible concerns might apply with respect to the plaintiff.
Dr Braund’s report is helpful as an overview but he was unable to provide any specific opinions of direct relevance with respect to the plaintiff. It would appear that the plaintiff’s condition can be adequately managed with appropriate medical treatment, particularly, regular medication and lifestyle behaviours. Nevertheless, from time to time the plaintiff’s symptomology will increase in severity whether that be on account of his failure to observe his appropriate medical treatment regime or as a consequence of the condition itself even if properly treated. There is no doubt that the plaintiff has suffered significantly from this disease over many years and has gone into Addisonian crisis on more than one occasion.
With the benefit of Dr Braund’s report by way of background and on my observation of the plaintiff in the witness box over a number of days, I am quite satisfied that there were occasions when he was suffering significant physical discomfort and stress. He found the cross-examination process, as rigorous as it was, more stressful than ordinarily would be the case. I have had regard to these matters when assessing the plaintiff’s overall performance as a witness and his evidence generally.
Nevertheless, the plaintiff’s evidence was marked by persistent expressions of an inability to recall matters and by frequent apparent dissembling and the giving of inconsistent evidence. I cannot assume that all of this was borne of a deliberate strategy to avoid giving answers to the questions asked, although I am quite satisfied that some of it was. I do not doubt that there were times when the plaintiff genuinely could not recall matters and genuinely was confused. However, whilst, as I have said, the cross-examination was rigorous, it was also painstaking. On many occasions, the plaintiff was taken in detail to other evidence in the trial including his own earlier evidence in an effort to provide him with a fulsome opportunity to either recall events or explain inconsistencies in his evidence. Furthermore, I am satisfied that there were occasions (some of which are discussed further below) when the plaintiff was deliberately evasive and, at times, dishonest. The story of the plaintiff’s interactions with the third defendant concerning the purchase and the return of the Nissan Skyline is, in large part, told by contemporaneous and voluminous telephone (text message) records. These records of themselves demonstrate that the plaintiff behaved very discreditably in ways that will be explained.
On any analysis, the number of topics and occasions with respect to which and when the plaintiff retreated to a default position of having no recollection of events was excessive.[66] When the plaintiff did purport to give evidence according to a genuine recollection, it was very often not possible to know whether his purported recollection was a reliable recollection, whether it was a product of unreliable reconstruction or whether, particularly where the evidence was in his own interest, it was deliberately untruthful. Nevertheless, I am satisfied that there were occasions when he genuinely had no recollection; there were occasions when he appeared to dissemble at best; there were occasions when he gave evidence that was quite inconsistent with evidence previously given; and there were occasions when he was deliberately untruthful.
[66] The defendants have identified 12 such topics in schedule B to their written submissions but there were many others.
I provide at this stage just the following four examples where the plaintiff’s evidence lacked credibility (there were numerous others, some of which are canvassed later in these reasons): the plaintiff’s evidence explaining his failure to produce the discoverable records of the used car business;[67] the plaintiff’s evidence concerning the extent of the involvement of Andrew Eustice in the business;[68] the plaintiff’s evidence when he attempted to challenge the date of the sale of the Nissan Skyline to Seth Nixon;[69] and the plaintiff’s evasiveness, until compelled by the logic of the cross-examination to admit the true position, concerning whether a payment had been arranged by his father, as recorded in a false receipt.[70]
[67] See generally, T154-173 and exhibit D50. Such documents were potentially relevant in a number of respects including: as potentially containing handwriting and signatures of the plaintiff and Andrew Eustice relevant to the comparison exercises referred to later in these reasons, as potentially indicative of Andrew Eustice’s level of involvement in the business, and as bearing on damages.
[68] T173-185, 281, 373-374, 385-386 and discussed further later in these reasons.
[69] T167-168, 203-208, 216-217, 266, 335-337, exhibit P86A, dealt with further below.
[70] T216-217.
At best, and making all allowances fairly available to the plaintiff, his evidence can only be considered as quite unreliable. As such, I am only prepared to accept his evidence in circumstances where it is supported by or at least consistent with other documentary or oral evidence in the case which I do find to be acceptable. In particular, where the plaintiff’s evidence conflicted with that given by the third defendant, I have a clear preference for that given by the third defendant. For reasons to be explained below, she was a very satisfactory witness. I have no doubt that she was endeavouring to tell the truth and had a reliable recollection, more often than not supported by the contemporaneous documentary record of what took place between her and the plaintiff.
Barrie Lloyd
Barrie Lloyd has qualifications in accountancy and experience in advising “start-up businesses”. He was, at all material times, a director of the plaintiff’s company, ADEL Finance Corporation Pty Ltd. Mr Lloyd purported to provide expert evidence in relation to the likely future success of the plaintiff’s car business had it been allowed to continue and also with respect to a proposed commercial real estate development (the woolstores development). According to the plaintiff, his participation in both was brought to a halt as a consequence of the defamatory publications. However, I am satisfied that Mr Lloyd did not have the evidentiary foundation available to him sufficient to support the opinions he initially expressed as to the plaintiff’s future economic loss. I agree with the submission of the defendants that the fact that Mr Lloyd was prepared to provide expert evidence in these circumstances should cause me to doubt his reliability with respect to his expert evidence and also generally. Mr Lloyd also provided evidence purportedly of fact based on his experience with the plaintiff and the family generally and as a director of ADEL Finance Corporation Pty Ltd. That evidence canvassed a number of topics including:
(i)the role played by Andrew Eustice at the car yard;
(ii)the financial performance of the plaintiff’s used car business prior to its closure; and
(iii)the whereabouts of the documentary records of the business.
In a number of respects, Mr Lloyd’s evidence was shown, during cross-examination, to have been inaccurate or otherwise unreliable. Ultimately, I did not find the evidence of Mr Lloyd to be of much assistance with respect to the relevant issues as they became more crystallised during the trial.
Lesley Eustice
Lesley Eustice did her best to assist the Court within the confines of the limited nature of her evidence. However, her evidence was largely confined to giving her impressions of her grandson’s experience with Addison’s disease. She also gave evidence of observing the plaintiff sometime after one of the defamatory publications went to air. For reasons later explained, her evidence was of little assistance.
Emma Eustice
The plaintiff’s sister, Emma Eustice, also attempted to assist the Court as best she could. Her evidence concerned events said to have taken place in 2005 including assistance she may have given the plaintiff in arranging for fines to be paid. She had such minimal recollection of the events about which she was questioned as to render her evidence of no assistance.
Jeffrey Betts
Both parties submitted that Jeffrey Betts was an impartial and honest witness and I accept as much. Mr Betts was asked to give evidence concerning an investigation by his Department into the plaintiff’s business in 2012 and, in particular, to the extent, if at all, it might have been non-compliant with relevant statutory obligations. Given the approach I have taken with respect to the defendants’ case on justification, I have not found it necessary to refer in any detail to the evidence of Mr Betts.
The third defendant, Faith Okoegwale
The third defendant was born in Nigeria in 1987 and moved to Australia in January 2010. Her English is excellent. I agree with the defendants’ submission that she presented as an intelligent and honest person. The events about which she gave evidence, that is, her dealings with the plaintiff and his father, Andrew Eustice, concerning the Commodore motor vehicle sale and the Nissan Skyline sale were plainly very important to her. The amount of money involved was significant to her. She gave her evidence in measured terms. I did not detect embellishment or exaggeration in her evidence. By and large, where contemporaneous documentary evidence existed, Ms Okoegwale’s evidence was consistent with it.
I also accept the defendants’ submission that she presented as a somewhat naïve person who was trusting of the plaintiff and his father during the early part of her dealings with them and that she was “generally uninformed … about the intricacies of matters of registration, contractual and cooling off rights and the way in which [traffic offence] expiation notices were administered”. The third defendant was cross-examined over approximately one and a half days; she demonstrated throughout her evidence a good recollection of events and was not shifted from the essentials of her account. Her evidence was consistent, cogent and in the main had an intrinsic likelihood about it.
I was impressed with the third defendant as a witness at the time she gave her evidence and following my review of the transcript and exhibits relevant to her evidence, my acceptance of her truthfulness and reliability at the time has been confirmed. As I earlier indicated, on topics where her evidence differs from that of the plaintiff I, unhesitatingly, have accepted the third defendant’s evidence.
The conclusions I have reached concerning the lack of reliability and, at times, the untruthfulness of the plaintiff when giving his evidence and my clear preference for the third defendant’s evidence where their evidence intersects, means that many of the plaintiff’s submissions concerning the defendants’ case on justification and the plaintiff’s case on damages, to the extent they are dependent on an acceptance of the plaintiff’s evidence, fall away.
The defendants’ essential allegations in support of the defence of justification
The defendants rely on the defence of justification both at common law and under section 23 of the Defamation Act 2005 (SA). At common law, it is a defence if the imputations complained of are true in substance and in fact. The defence under section 23 is in these terms.
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.
The defendants’ defence of justification is particularised in quite some detail at paragraphs 29 (concerning the primary television publication) and 33 (concerning the secondary television publication) of the fifth defence. With the exception of the alleged “career criminal” imputation, the defendants seek to justify all imputations pleaded by the plaintiff as having been conveyed by the primary television publication, including the later added “limited snake” and “limited fraudster” imputations. As far as the secondary television publication is concerned, the defendants seek to justify all pleaded imputations including the later added “limited fraudster” imputation but again with the exception of the “career criminal” imputation. Whilst maintaining that the “convicted criminal” and the “serially rips off customers” imputations were not conveyed (as I have found) the defendants submit that they have been justified in any event. Further, in the event that the “convicted criminal” imputation were to be justified, this would have the effect of justifying the “crook” imputation, if the former were to be understood in its wider sense as including the notion of “criminal” as earlier discussed.
In or about 1999, the plaintiff moved to Sydney and lived with his father. He worked with his father in an “internet company” which provided an online advertising service for car sales. He worked there for about two years before this business “dissolved”.
In or about 2003, the plaintiff and his father moved to Adelaide for about six months during which period the plaintiff was unemployed. It was in 2003 that the plaintiff entered bankruptcy on his own petition.[335] At the end of that six months, in or about 2004, the plaintiff went back to Sydney to live with his mother. He continued to suffer ill health and gave this evidence.[336]
[335] T100.
[336] T25-26.
Q.At or about that time, 2004, what was the state of your health.
A.It was pretty bad. I was in and out of hospital, really couldn't do a whole lot.
Q.When you say you were in and out of hospital, do you remember the name of the hospital.
A.It's Westmead, Westmead Hospital.
Q.That's in Sydney I take it.
A.Yes.
Q.Do you recall roughly how many times you were admitted.
A.Not exactly but there was a number of them. Sometimes I was not aware of where I was; there was times I was in the intensive care unit, in a coma; there was times that I suffered, you know, heart attacks as a result of these things, and I have no recollection of them, I've just been told afterwards.
The plaintiff gave the following evidence concerning his admission to the Westmead Hospital in western Sydney on 21 July 2004.[337]
A.I remember being told about it, I don't remember going to the hospital, I remember waking up in the hospital.
Q.You have referred a moment ago to heart attacks, was this an indication of heart attacks.
A.Yes.
Q.What was involved in your recovery on that occasion.
A.Lots of things: I had to learn how to breathe properly, I had to learn how to walk stably again as I'd been off my feet for some time and the soles were grounded, it was an odd feeling; I also required a lot of medication and fine-tuning into that and a lot of rest and recuperation.
[337] T27.
When the plaintiff was in Sydney on this occasion, he was on a disability pension “for quite some time”. Later, in or about mid-2005, he went back to Adelaide where he tried to gain employment. Ultimately, he was able to work for 12 months or so at a city restaurant. He gave the following evidence as to why he ceased working at the restaurant.[338]
I left there as I struggled to complete my duties as a waiter, becoming increasingly lethargic and tired, I couldn't always carry the plates and I decided to leave before I was asked to leave.
[338] T29.
The plaintiff thinks that he went back on the disability support pension at that time. At some time after stopping work at the restaurant, he returned to work for his grandfather, on a casual basis, doing much the same type of work as before “in keeping with what I could and couldn’t do”. At this time, he started to become involved in the sale of vehicles – “talking to customers, perhaps answering telephones, arranging appointments” and filling in forms such as an order or a contract or registration forms.
The plaintiff’s work for his grandfather, following his return in or about 2009, continued for a “bit more than a year” until that business ceased to operate. The plaintiff then took up employment with a business called “Bell Car” and provided a valet type service, cleaning cars after servicing and moving vehicles about. This employment lasted for approximately one year. At the same time the plaintiff secured employment at another café as a waiter, also for a period of about one year.
The café closed in or about 2010 by which time the plaintiff had already left Bell Car and the plaintiff again returned to work with his grandfather. Again, the work was casual and of a similar nature as before. The plaintiff, at this time, also assisted his father in a courier business. The assistance was essentially to drive with his father in order to assist with parking problems at pick up and delivery locations. Whilst it was not clear, I inferred from his evidence that one would drive and the other would pick up the parcel and deliver the parcel while the driver waited in the car. This work lasted for about 12 months.
In 2011, the plaintiff took steps towards and discussed with his grandfather, starting up his own business. He incorporated ADEL Finance Corporation Pty Ltd for this purpose. The plaintiff gave this evidence.[339]
Q.And was that on your own or in conjunction with somebody else.
A.No, that was with talks with my grandfather. After wanting to get into the car trade in South Australia but struggling, no-one would employ me. We took steps to do so.
That business commenced on 18 November 2011 and ceased some 12 months or so later, effectively on 22 November 2012, the day that the second and third defendants visited the car yard premises with the Today Tonight camera crew.
[339] T35.
The plaintiff’s evidence as to why the business ceased at this time was as follows.[340]
[340] T39-40.
Q.Just moving forward for a moment. I think this business ceased on or about 28 November 2011.
A.It was 22 November 2012.
Q.I think the 22nd was the day when you were visited.
A.That's correct, yes.
Q.And the 27th was the night of the broadcast on television.
A.Yes.
Q.Are you saying that you ceased after the first event.
A.Yes, it was broadcast which even compounded matters.
HIS HONOUR
Q.I will have to ask you to speak up.
A.Sorry I apologise, I said the business since then, the broadcast only compounded matters and made it worse.
Q.We are talking about the ADEL Finance business; so the ADEL Finance buying and selling cars business, you say stopped or ceased on 22 November 2012.
A.Yes.
Counsel for the plaintiff returned to this topic a little later in the examination in chief as follows.[341]
[341] T58-59.
Q.I think that the 22nd November is the day that you've been describing was a Thursday.
A.Yes, I believe.
Q.Did you go to work the following day.
A.Later that same day, on the 22nd, I had the owner of the building come in really tell me off and say how dare I do this and blasted us and told us to get all our things out now. So I went back the next day and loaded up the truck and removed everything.
Q.Where did you remove it to.
A.I couldn't fit it all at home but I had some of the furniture at home and, I don't know, it might have been at my grandfather's house or, but I think most of it was -
HIS HONOUR
Q.When you say removed everything, what do you mean by 'everything'.
A.There was furniture, there was some cars; it was an office, a working office.
Q.Plus a car yard.
A.Yes, it was a warehouse so, yeah. So when I say 'removed everything' that we had, so cars, equipment, there was furniture, there was telephones.
Q.So what you effectively vacated the leased premises.
A.Yes, I was told by the owner to leave immediately, and quite a harsh circumstances.
XN
Q.Did you have some assistance to remove -
A.Yes, I had my father help me and that was it, I think.
The plaintiff did not seek to return to work after the television broadcasts which aired on 27 November 2012.[342] The plaintiff was asked “why not” and gave this answer.[343]
Because it was clear to me that after the filming and the broadcasting and the dressing down and you know instant removal from the owner of the property that it was not really prudent to continue. It was absolutely just shut down, there was nothing, nothing left. I mean phone calls were going berserk and people you know wanting to know if they had been sold a dodgy car or this or the other, people were in a frenzy, there was no need to continue … .
Later in his evidence, the plaintiff repeated that he could see no point to restarting the business.[344]
[342] T63.
[343] T63.
[344] T79.
After the ADEL Finance Corporation Pty Ltd car yard business ceased, the plaintiff did not take up alternative employment but went on Centrelink benefits. He was transferred to Newstart which required him to look for work but he was unsuccessful in obtaining work through the Newstart program. The plaintiff remained living in Adelaide until he moved to the Gold Coast in Queensland in about August 2017.[345]
[345] T84.
Exhibit D70 is a collection of the plaintiff’s income tax returns which disclose the following information concerning the plaintiff’s declared earnings.
Years prior to publication
(i)$6,199 for the FY2007/2008;
(ii)$22,730 for the FY2008/2009;
(iii)$14,495 for the FY2009/2010, comprising income of $6,864 and Disability Support Pension payments in the amount of $7,631;
(iv)$18,385 for the FY2010/2011, comprising income of $533 and Disability Support Pension payments in the amount of $17,852; and
(v)$23,473 for the FY2011/2012, comprising income of $5,000 and Disability Support payments in the amount of $18,473.
Years after the publication
(vi)$24,910 for the FY2012/2013, comprising income of $5,000 and Disability Support Pension payments in the amount of $19,910;
(vii)$20,253 for the FY2013/2014, comprising solely of Disability Support Pension payments;
(viii)$19,825 for the FY2014/2015, comprising solely of Disability Support Pension payments;
(ix)$20,918 for the FY2015/2016, comprising Disability Support Pension payments in the amount of $20,202 and Newstart Allowance payments in the amount of $716; and
(x)$15,751 for the FY2016/2017, comprising Parenting Payment Single payments in the amount of $6,949 and Newstart Allowance payments of $8,802.
About 12 months before the trial commenced, the plaintiff started a boat sale brokering and pawn broker business on the Gold Coast. At the same time, his brother, Thomas Eustice, also operated a boat sale brokering business from the same premises. The plaintiff’s father came to work in the brother’s business.[346] The business that the plaintiff pursued was conducted under the name Chateau Bateau and the business that his brother pursued was conducted under the name Platinum Boat Sales.[347]
[346] Whilst this was the plaintiff’s evidence, I make no finding as to whether or not the father was also involved with the plaintiff’s broking business.
[347] T103.
The plaintiff was asked in examination in chief to give some indication as to the success of the business that he started. The plaintiff gave this evidence.[348]
[348] T86.
It was relatively successful, it had some debt to start with, start-up capital, but as a brokerage it's not like owning all of the boats, you're the person in the middle who gets a listing and then advertises it for sale and then collects a commission. So it's a commission based thing, depending on the amount, percentage of the commission it can be relatively good or not.
The plaintiff acknowledged a document (exhibit P36) as a summary of commission paid to him and then gave this evidence.[349]
Q.Is that indicative of the sort of money that you were earning.
A.It does vary. It's a complex business that depends on the agreement that you have with the owner and the amount of commission they are willing to pay. So it can vary but that's about right, something along those sorts of values I suppose.
Q.About representative.
A.Yes.
Q.It is only indicating an income of something in the order of $18,000 a year. Is that, roughly, the sort of income you had in this business.
A.As I said, it does depend but I would say it is a little bit more than that.
[349] T88.
The plaintiff was cross-examined at some length about the operations of the business over the relatively limited period it was conducted.[350] His evidence was vague and non-committal in the most part but some concessions were made as to sums of money received by way of commissions. The business itself was only in operation for approximately 12 months before the trial commenced. Nevertheless, and whilst the evidence does not permit any findings to be made as to how much broking work was done or how remunerative the broking work for that period might have been, I am satisfied that the business enjoyed some success and it can be inferred that remuneration of some substance was received during that period.
[350] T520-538.
The plaintiff gave brief evidence concerning his plans in partnership with another person to purchase and redevelop a derelict woolstore property in Port Adelaide.[351] The plaintiff said that he assigned his interest in the proposal[352] to his co-venturer. A document signed by the plaintiff and dated 27 November 2012 entitled “Deed of assignment of portion of an interest in a contract” was admitted into evidence.[353] The plaintiff said that he had never possessed a copy of the contract referred to in the deed and could not provide details of its terms. According to the plaintiff, the plan was to purchase and redevelop the property; a deposit had been paid and he and his co-venturer were in the process of securing funding and drafting plans and applications to go to the local council.
[351] T79-82.
[352] The lack of original documentation available to the Court means that it is not possible to reliably identify the precise nature of the proposal and the nature of the plaintiff’s interest in it.
[353] Exhibit P34.
The deed of assignment pursuant to which the plaintiff purported to assign his share or interest in the venture to his co-venturer records the following recitals.
WHEREAS
A.A contract dated 17th of September 2012 is made and continues to subsist between … (“the Vendor”) and [co-venturer and ADEL Finance Corporation Pty Ltd] …
B.The said contract provides for the payment of [$1,000,000] to complete settlement.
C.[ADEL] paid a deposit of $18,000 on the said contract.
D.[ADEL] is desirous of assigning to [co-venturer] half interest [sic] of their estate and interest in the said contract being the whole of the land comprised in [sic] …
According to the deed of assignment, the plaintiff received $18,000 being the total of the deposit paid and the co-venturer agreed to indemnify the plaintiff with respect to the underlying contractual obligations.
No evidence was adduced by the plaintiff concerning what, if anything, transpired with respect to this proposed woolstore development in the six years or so between the execution of the deed of assignment and the trial. The proposal was at such a nascent stage, that for all the Court knows it may never have proceeded or proceeded at a loss. The value to the plaintiff of any such lost opportunity can only be described as entirely speculative.
The plaintiff initially blamed the loss of the woolstore opportunity on the publications. When asked why he assigned his share or interest he said this:[354]
[354] T81.
Because after the broadcast it was very clear that there was no way I was going to be able to continue, and the amount of phone calls and pressure I was under from [the co- venturer] to do so was obviously bound to.
However, the plaintiff’s counsel pointed out that the deed of assignment was in fact dated 27 November 2012. It should be borne in mind, and it is common ground, that the Today Tonight program was aired on that day but in the evening. Counsel asked the plaintiff whether he could recall signing the deed of assignment before or after the broadcast. The plaintiff gave this evidence.[355]
[355] T82.
A.I don't recall, before or after.
Q.Was there any reason why you would have done it before the broadcast.
A.No.
Q.So are you telling his Honour that this project was going to fail regardless.
A.No.
Q.So what is the connection between the broadcast and your executing this document.
A.Sorry, could you repeat the question, please.
Q.You've told us so far that on 23 November the event occurred.
A.Yes.
Q.And you told us that the following day you vacated the premises.
A.Yes.
Q.On the 23rd you said you vacated the premises.
A.Yes.
Q.But at that stage the broadcast hadn't occurred.
A.Yes.
Q.The broadcast didn't occur until the 27th.
A.Yes.
Q.Yet here you are effectively terminating a business arrangement with Mr Schmidt on the 27th.
A.Yes.
Q.Why.
A.Because without the car business I couldn't - this couldn't work with me. So without the car business, the cash flow to make this work (INDICATES), it couldn't happen.
The last answer would appear to accord with the timeline of events. The plaintiff acknowledged that without the car business, the project could not proceed as far as he was concerned. As it happened, the car business had come to an end some days before 27 November 2012. It is unlikely in the extreme that the plaintiff made a decision to withdraw, discussed the matter with his co-venturer, arranged for a deed of assignment to be drawn up and then arranged for its execution on 27 November 2012 but all sometime after the evening presentation of the Today Tonight program on 27 November 2012.
The proper inference to be drawn is that once the car yard business came to an end, following the landlord’s intervention on 22 November, the plaintiff reached the view that he was not in a financial position (if he ever had been) to pursue such a venture and commenced, prior to 27 November, to take steps to be released from any commitment he had with his co-venturer. It was happenstance that the deed of assignment was signed on 27 November 2012.[356]
[356] And, it is likely it was signed before the Today Tonight program went to air.
I note that the plaintiff did give evidence[357] that, in the days before 27 November 2012, he saw on Channel Seven a “promo” for an upcoming episode of Today Tonight. It “featured me in a dim light; I think … with my hands in the air … but I can’t be sure …”. The plaintiff does not rely on this “promo” as conveying any of the defamatory imputations. In any event, there is no evidence that would support a finding that the plaintiff had decided to withdraw from the woolstores opportunity because of the promo.
[357] T59.
I am satisfied that it was the visit to the car yard by the second and third defendants and the Today Tonight camera crew together with the landlord’s intervention that caused any loss of opportunity for the plaintiff to participate in the woolstores development. Any such loss of opportunity was not caused by the defamatory publications. It might be put that the defamatory publications meant that the woolstores opportunity could not be resurrected but, in my view, any such possibility would have been far too speculative to sound in damages. That ship had sailed and there is no evidence to support findings that the plaintiff would have wanted to and would have been able to deal with his co-venturer again but for the occurrence of the defamatory publication.
The plaintiff acknowledged in cross-examination that he needed a licence in order to be able to conduct a used car business in South Australia[358] but that he had made no attempt to get a licence after his grandfather’s licence came to an end on 17 December 2012.[359] However, there was also evidence which I accept, to the effect that Ken Eustice had his licence restored approximately two to three years before the commencement of the trial and that the plaintiff was aware of this at the time.[360] The plaintiff said that he did give consideration to the possibility of seeking employment with Ken Eustice at that time but did not do so. When asked “why not” he gave as his reason that he moved to Queensland.
[358] T505.
[359] T505.
[360] T549.
The plaintiff only seeks general economic loss as envisaged in Andrews & Anor v John Fairfax & Sons Ltd & Ors[361] rather than specified or identified economic losses. In Andrews, Glass JA said this.
[I]t is established … that a plaintiff suing for damages caused by defamation may elect to prove damages of a general kind, namely, for loss of business. This, as the authorities show, is different in kind from a claim for special damage, and does not need to be pleaded as such. … The distinction, as I understand it, is simply that, if a plaintiff sets out to prove special damage, he undertakes to show that the loss was caused by the defamatory publication. If he elects not to do this, but merely to prove a decline in his overall business situation, leaving it to inference that he has suffered financial loss in some way connected with the defamatory material, he is at liberty to present such a case. He is also permitted to tender financial detail in aid of such a decline in business. Indeed, it is hard to imagine how a claim for general loss of this character could be presented without some supporting information of a financial kind.
(Citations omitted)
[361] [1980] 2 NSWLR 225 at 251-252.
The plaintiff has sought to establish a loss of this nature under three headings.
(i)On the basis that the defamatory publications had the effect of destroying any chance the plaintiff had to resurrect his business (that is the business of ADEL Finance Corporation Pty Ltd). The plaintiff, in his submissions, appears to posit this loss as being one in the nature of the loss of a chance although does not identify precisely the nature of the chance said to have been lost. I have inferred that the loss under this heading relates to a loss of opportunity to resurrect the plaintiff’s used car business, together with the income it would earn for the plaintiff over time, and loss of the prospect of that business becoming more successful over time and providing a greater return to the plaintiff.
(ii)On the basis that some value must be accorded to the loss of opportunity associated with the woolstore development.
(iii)On the basis that the broadcast would necessarily have had a damning impact upon the plaintiff’s income earning potential. In considering this aspect of the claim, it will be necessary to ensure that no double counting with respect to the matters raised in (i) and (ii) occurs.
Consideration and conclusions with respect to general economic loss
The evidence supports the following conclusions as far as the woolstores component of general economic loss damages is concerned.
(i)I am not satisfied that the loss of this opportunity such as it may have been was caused by the defendants’ defamatory conduct.
(ii)In any event, I find it to be quite unlikely that the plaintiff would have had the ability or skill and access to finance[362] necessary to enable him to contribute to the success of such a project, even if the car yard business had continued in operation.
(iii)There is no evidence sufficient to enable a reliable analysis of the financial advantages and disadvantages attendant on the project nor to permit a value to be attributed to the opportunity it presented. In this respect, I have not found any of the evidence given by Barrie Lloyd in relation to this project to be of assistance.
[362] The proposal involved a very substantial multi-story redevelopment that, in addition to the purchase price of the derelict woolstore ($1m), would have cost many millions of dollars. There is no evidence that the co-venturer had any particular relevant expertise or access to or capacity to raise finance of this magnitude.
Even if I were to be wrong on the causation question in (i) above, the matters in (ii) and (iii) would mean that the lost woolstore opportunity would add little, if anything, to the plaintiff’s general economic loss claim.
As far as the plaintiff’s claim for general economic loss based on the failure of the used car business is concerned, I have reached the following further conclusions.
(i)Prior to the defamatory publications, the plaintiff’s prospects of conducting a financially successful used car business into the future were modest at best given: the plaintiff’s chronic ill health; his lack of qualifications and experience in managing a business; his very modest history of employment since leaving school (that is, both before and after the publications); and the poor financial performance of the business in the 12 months or so it operated prior to the visit by Today Tonight on 22 November 2012.
(ii)In addition, the business was operating without a licence, that is, illegally, and the prospect of the plaintiff or any company of which he was a director obtaining a licence at least for the next 18 months to two years after the business closed[363] was slim.[364]
(iii)Again, the loss of the business was not caused by the defamatory publications. If any loss in this connection is to be factored into the plaintiff’s general economic loss it will be on the basis that the defendants’ conduct caused a loss of the opportunity to resurrect the business in Adelaide. Given the fact that the business had been completely dismantled prior to the publications and the fact that it was highly unlikely that the plaintiff would be able to gain a licence[365] in the medium term, the possibility of resurrecting the business must be considered to have been remote to start with. It was only this opportunity that may have been precluded by the defendants’ conduct.
[363] The end of the 10 year preclusion period with respect to the summary offences.
[364] See also, exhibit D49 which is a letter from the CBS to the plaintiff advising of its investigation into possible breaches of the Act and requesting the plaintiff to attend for a formal interview. The plaintiff denied receiving this latter and did not respond to it.
[365] Any loss of opportunity would have to be assessed on the basis that any resurrected business would be lawful.
I accept that, using a broad brush, the plaintiff would be entitled to an award for future general economic loss resulting from the damage to his reputation. However, this would not have prevented him from obtaining all forms of employment, nor, as earlier indicated, would the effects of the defamation subsist indefinitely. The fact of the matter is that the plaintiff had a very poor history of employment or undertaking remunerative work before the publications and the fact that this has continued in the years after, is not surprising in any event. The plaintiff’s extremely poor employment or income earning record in the years after the publications must be attributable, in large part, to other, non-culpable, factors. In addition, for the reasons given, the loss of the ADEL Finance Corporation Pty Ltd business and the woolstores opportunity would justify only a minimal, if any, contribution to the award.
Final conclusion
The plaintiff’s claim is dismissed. I will hear the parties on the question of costs.
APPENDIX A
APPENDIX BAPPENDIX C
Defendant’s submission concerning Briginshaw
In a number of places, the Plaintiff seeks to rely upon what he asserts is a Briginshaw requirement … . But care is required in relation to such a submission.
(1)The Briginshaw principle is at root a principle reflecting the common sense proposition reflecting the conventional perception that members of society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct (see, eg, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170).
(2) In view of its rationale, the rule has to be applied in a way which is sensitive to context.
(a) First, the conduct alleged may be of a kind which is disreputable or even criminal but not so uncommon as to render the objective unlikelihood of it having occurred particularly striking.
(b) Secondly, to take the example of the shoplifting allegations, there are, in this case, only two possible hypotheses. The first is that the Plaintiff committed the acts, which involve criminal and dishonest conduct, but at a relatively low level. The second is that another person committed that conduct, but committed a much more serious crime (or series of crimes), namely, the giving of a false identity in circumstances leading to a conviction where the underlying conduct would have subjected him to a breach of a serious bond condition. Of the two scenarios, the latter is much more unlikely. Then one must consider the unlikelihood of that conduct being carried off so convincingly (with a licence being produced and a near-perfect imitation of the Plaintiff’s handwriting) and not being uncovered by police. All this at a time when as chance would have it, the Plaintiff was in the general area. Once the true context is placed on the competing hypotheses, to invoke Briginshaw really does not aid analysis. That was the same point made in Neat, when it was said by the majority that when an issue falls for determination on the balance of probabilities and the determination depends on a choice between competing and mutually inconsistent allegations of fraudulent conduct, generalisations about the need for clear and cogent proof are likely to be at best unhelpful and at the worst misleading. See also the Full Court’s discussion of this issue in [Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202 at [50] (Full Court)].
(3) Further, where there is other evidence of dishonesty and wrongdoing by the Plaintiff in the case, any foundation for the principle (that is, that one starts from a presumption that the conduct in question is serious and therefore not likely) falls away.
APPENDIX D
The state of the Barrie Lloyd report received as exhibit P88
The copy of the report of Barrie Lloyd that was tendered, subject to any successful objections, was in a complicated form. It comprised four narrative sections marked 1, 3, 5 and 7 together with a series of attachments marked with capital letters. The report as received into evidence (exhibit P88) was in the form of the report tendered but as modified in accordance with a series of rulings I made during the trial.[366] Exhibit P88 is to be read subject to the following excisions which, as a consequence of my rulings, do not form part of the exhibit.
[366] T478-495, 559-583.
Section 1 (also marked by hand “Annexure A”) is headed “1. Letter of instruction and expert qualifications and experience”. This is a single page narrative comprising Mr Lloyd’s statement of qualifications and experience with no attachments. It was admitted without modification.
Section 3 is headed “3. Mr Benjamin Eustice” and is a one page narrative with attachments E, E.1, E.2 and F. The sentences in the narrative commencing “Mr Kenneth Eustice was a principal …” and “I have interviewed Mr Benjamin Eustice” have been deleted.
Section 5 is headed “Adel Finance Corporation Pty Ltd – ACN 154 345 267” and is a two page narrative together with attachments I, J, J.1, J.2, K and L. The following parts of the narrative have been deleted.
(i)In the first paragraph, the balance of that paragraph, commencing with “and nor am I aware of his being involved …” to the end.
(ii)The sentence commencing “An integral part of the venture …”.
(iii)The whole of the paragraph commencing “Trading was interrupted in late November …”.
(iv)Both sentences in the paragraph commencing “I consider that such protection is conservative …”.
Counsel for the plaintiff was given liberty to adduce such admissible oral evidence that Mr Lloyd may be able to give with respect to the topics raised in those deleted parts. A correction to section 5 was made; the reference to “Attachment I” in the fourth paragraph from the bottom of the first page should be a reference to “Attachment K”.
Section 7 is headed “7. Woolstore Development Project Port Adelaide” and is a one page narrative with attachments P, Q, R and S. The following parts of the narrative have been deleted.
(i)The first sentence in the second paragraph commencing “Adel Finance Corporation Pty Ltd signed contracts …”.
(ii)Part of the first sentence in the fourth paragraph such that the emended paragraph is to read “After the closing of Adel Finance Corporation Pty Ltd the contract was cancelled. The company retained no assets”.
In addition, attachments P, R and S were excluded from the tender. Attachment Q was admitted as exhibit P87.
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