Eustice v Channel Seven Adelaide Pty Ltd

Case [2020] SASC 4

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…

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AGLC
Eustice v Channel Seven Adelaide Pty Ltd [2020] SASC 4
Case
[2020] SASC 4
Decision Date

CaseChat Overview and Summary

In the case of Eustice v Channel Seven Adelaide Pty Ltd, the plaintiff sought damages for defamation caused by a television broadcast. The plaintiff, who had previously been convicted of various offences, alleged that a program aired by the defendant contained false and defamatory statements about him. The case involved several imputations, including that the plaintiff was a crook, a snake, a fraudster, and had engaged in misleading and deceptive conduct. The plaintiff claimed that these statements had damaged his reputation and diminished his creditworthiness in business dealings.

The central legal issues in the case were whether the statements made in the broadcast were defamatory, and if so, whether the defendants could justify them as being substantially true. The court examined the nature of the imputations and whether they tended to injure the plaintiff's reputation by exposing him to hatred, contempt, or ridicule, or by making him be shunned and avoided. The plaintiff also claimed damages for loss of business opportunities and income due to the defamatory statements.

The court concluded that the primary publication conveyed several defamatory imputations about the plaintiff, including that he was a crook, a snake, and a fraudster. The secondary publication conveyed similar imputations, excluding the specific reference to misleading and deceptive conduct. The court found that the sting of these imputations was that the plaintiff had behaved, and was capable of behaving, in a deliberately misleading, deceitful, and dishonest way. The court further determined that the imputations had a tendency to injure the plaintiff's reputation. Regarding the justification defence, the court held that the defendants failed to establish the substantial truth of the defamatory imputations.

Finally, the court addressed the plaintiff's claims for general economic loss, including loss of business opportunities and income. The court found that the plaintiff's prospects of conducting a financially successful used car business were already modest before the defamatory publications, and that the loss of the business was not caused by the defendants' conduct. However, the court allowed a limited claim for loss of the opportunity to resurrect the used car business, as the possibility of doing so was remote and could have been precluded by the defendants' defamatory conduct.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J
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.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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.