Ewins v State of Victoria
[2019] VSC 129
•7 March 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S ECI 2018 00241
| DALE EWINS | Plaintiff |
| v | |
| STATE OF VICTORIA | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 28 February 2019 |
DATE OF JUDGMENT: | 7 March 2019 |
CASE MAY BE CITED AS: | Ewins v State of Victoria |
MEDIUM NEUTRAL CITATION: | [2019] VSC 129 |
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PRACTICE AND PROCEDURE – Pleadings – Application under Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Defamation – Words spoken at a press conference did not name the plaintiff – Were the words spoken ‘of and concerning the plaintiff’ – Fairfax Media Publications Pty Ltd v Pedavoli (2015) 91 NSWLR 485, referred to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Ryan | Arnold Thomas & Becker |
| For the Defendant | Mr S Mukerjea | Russell Kennedy |
HER HONOUR:
The plaintiff in this proceeding brings claims for defamation against the State of Victoria in relation to words spoken by a superintendent of Victoria Police (‘police officer’) at a press conference held outside ‘Inflation’ nightclub on the morning of 8 July 2017. Earlier that morning, the plaintiff and his partner had been injured after being shot by members of Victoria Police’s Critical Response Team. During the press conference, the police officer provided a description of what was said to have occurred at the venue. According to the plaintiff, the words said by the police officer:
meant and were understood to mean that the Plaintiff deliberately pointed a real or imitation firearm at members of Victoria Police in such a manner as to arouse in such member or members a real and immediate fear or (sic) death or serious injury and had refused to drop the firearm after being told to do so.
The trial of the proceeding, along with the trial of proceedings brought by the plaintiff and his partner claiming damages against the defendant for personal injury, is scheduled to be held before a judge and jury later in 2019.
The defendant’s summons filed 22 February 2019 seeks to strike out paragraphs 5, 6, 7 and 11 of the Statement of Claim filed 3 August 2018. The defendant’s concerns concerning paragraph 5 of the statement of claim were addressed by the plaintiff prior to the hearing. Following clarification by the plaintiff of the purpose for which paragraph 7 is relied upon, and the concession by counsel for the plaintiff that there needs to be some re‑working of and further particulars provided of paragraph 11 of the statement of claim, the main outstanding issue is whether, on the basis of the words spoken during the press conference and current particulars provided to paragraph 6 of the statement of claim, the statements made by the police officer at a media conference are capable of identifying the plaintiff. The transcript of the press conference shows that the police officer provided no identifying details of the plaintiff save for his gender, his age, his presence at the nightclub, and the fact that he had been injured and hospitalised as a result of the incident concerned.
Paragraph 6 of the statement of claim, along with the particulars proffered by the plaintiff prior to the hearing of this application, provides as follows:
At the time when Hardeman spoke and published the said words or shortly thereafter the identity of the Plaintiff was disclosed to a member or members of the media by a member of Victoria Police.
Particulars
The Plaintiff may provide particulars after discovery and interrogatories. In the event that particulars are unable to be provided, the disclosure is to be inferred from the following circumstances:
(a)the plaintiff was identified by members of the media within a very short time after the incident;
(b)neither the plaintiff nor Ms Sukys identified themselves to members of the media;
(c)the identity of the plaintiff was known to members of Victoria Police prior to his identification by members of the media;
(d)apart from members of Victoria Police, the identity of the plaintiff was known to Royal Melbourne Hospital employees who were precluded by hospital privacy protocols from disclosing the plaintiff’s identity without his consent.
Counsel for the defendant submitted that the words spoken by the police officer at the press conference were not, of themselves, capable of identifying the plaintiff. Further, the matters relied upon in the particulars to paragraph 6 could not, without more, be capable of leading a properly instructed jury to reach the conclusion that a police officer disclosed the plaintiff’s name or other identifying details to the representatives of the media present at the press conference. Counsel for the defendant relied upon the statements of Dixon CJ in Jones v Dunkel[1] to the effect that a plaintiff must do more than adduce evidence which gives rise to conflicting inferences of an equal degree of probability, so that the choice between them is mere conjecture. Here, not only could the media representatives present at the press conference have been informed of the name of the plaintiff by a police officer, but they could have also been informed by other witnesses at the scene, or by staff at the hospital to which the plaintiff had been taken following the incident.
[1](1959) 101 CLR 298, 304.
Further, counsel for the defendant submitted this is not a case where the words spoken by the police officer could direct the attention of the recipients of the publication to another publication containing identifying details, such as was the case in the circumstances described in Fairfax Media Publications Pty Ltd v Pedavoli.[2]
[2](2015) 91 NSWLR 485 (‘Pedavoli’).
Counsel for the plaintiff submitted that the plaintiff’s identity could be identified from the words used by the police officer alone, and that it could be inferred from the matters pleaded in the particulars to paragraph 6 that a police officer had disclosed the plaintiff’s identity to one or more of the media representatives present at the press conference. Counsel for the plaintiff submitted that the question of whether the words used by the police officer were capable of identifying the plaintiff is a matter for evidence at trial. In what I take to be a reference to the decision of Isaac J in David Syme & Co v Canavan,[3] where his Honour stated:
The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he is the person referred to?
counsel for the plaintiff submitted that there would be a class of people who would know that the plaintiff had been shot and had been hospitalised.
[3](1918) 25 CLR 234, 238.
I agree that the current pleading of how it is said that the words spoken were ‘of and concerning’ the plaintiff is inadequate, but I am cautious to embrace wholeheartedly the defendant’s criticism of the statement of claim. I accept that a properly instructed jury could not, on the basis of the particulars provided, draw an inference that a police officer disclosed the name of the plaintiff to the members of the media who attended the press conference. At this stage at least, the allegation that a police officer told the attendees at the press conference the name of the plaintiff appears to be merely speculative. Of course, if there is a proper basis for making a positive allegation that a particular police officer told members of the media the plaintiff’s name then that should be pleaded.
However, I consider that it is not outside the realms of possibility that a properly instructed jury could reach a conclusion, in all of the circumstances of the case, that the words spoken by the police officer were ‘of and concerning’ the plaintiff.
As observed by Simpson JA in Pedavoli:[4]
[4](2015) 91 NSWLR 485.
…whether a plaintiff has been identified by any recipient of the matter complained of is a question of fact to be determined on the evidence adduced;[5]
And further:
It is not, in my opinion, the law that a publication which does not name the plaintiff conveys defamatory imputations only to those recipients who, at the moment of first receipt of the publication, know the identity of the person referred to. Whether or not the plaintiff has been identified is a matter of fact, and will depend upon the circumstances of each case.[6]
[5]Ibid 494.
[6]Ibid, 503.
In Pedavoli, the New South Wales Court of Appeal found that a news article which (wrongly) identified the plaintiff as a teacher who engaged in sexual relationships with students only by the subjects she taught implicitly invited readers to ascertain the identity of the teacher from the school website. Sackville AJA stated as follows:
A defamatory publication which does not name the plaintiff may cause grave reputational damage, even among readers or viewers who cannot identify the plaintiff at the moment they read or view the publication. For example, a defamatory publication may be expressed in a manner clearly designed to excite the interest of readers in ascertaining the identity of the unnamed person who has been defamed. The publication might also make it abundantly clear that the unnamed person can be identified by going to an easily accessible source. Depending upon the particular circumstances, it might be very difficult to conclude that if a reader or viewer chooses to identify a person by going to the source suggested, the publisher of the defamatory material is being held responsible, not for his or her own acts, but for the acts of a third party.[7]
[7]Ibid, 517.
In the current case, there was no express invitation to the audience to make their own enquiries to ascertain the identity of the plaintiff. Indeed, the police officer in some respects was quite circumspect in her responses to questions from representatives of the media. However, given the nature of the audience, it almost goes without saying that no express invitation was required to excite the interest of the media representatives present to take further steps to ascertain the identity of the plaintiff. After all, that is what they do. A shooting had occurred at a well-known nightclub, in allegedly salacious circumstances. It is apparent from the questions asked of the police officer that the journalists present had already spoken to witnesses and others present at the nightclub, and the media articles published in subsequent days handed up to me by counsel for the defendant showed that the incident generated considerable publicity, and that members of the media were continuing to make inquiries regarding the circumstances in which the incident took place. Even accepting for present purposes the defendant’s submissions that the only relevant audience is the persons actually present at the press conference, rather than the likely audience that any subsequent publications authored by those present would have, it is conceivable that the words spoken by the police officer could be found to be of and concerning the plaintiff. The allegation does, of course, have to be properly pleaded, whether as part of or in addition to paragraph 6 of the statement of claim.
For completeness, while I accept that paragraph 7 of the statement of claim has work to do insofar as it goes to the question of damages, in the interests of clarity, it should be amended or relocated in the pleading. That said, the allegation, perhaps reformulated, could be relevant to the question of whether the words spoken by the police officer impliedly invited members of the audience to make further enquiries about the identity of the plaintiff.
Finally, in relation to paragraph 11 of the statement of claim, I accept that, in order to rely upon the republication of the words spoken by the police officer by various media outlets, the plaintiff would need to plead the context of the republications, the meanings alleged to have been conveyed by the republications, and to provide particulars of the republications.[8]
[8]Bracks v Smith-Kirk (2009) 263 ALR 522, 548-549.
Accordingly, I will strike out paragraphs 6 and 11 of the statement of claim, with the plaintiff having leave to re‑plead and/or provide further and better particulars consistent with these reasons. I shall hear further from counsel on the appropriate form of order, the question of costs, and directions for the further conduct of the proceeding.
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