Frew v John Fairfax Publications Pty Ltd
[2004] VSC 311
•27 August 2004
s
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 8902 of 2003
| GEORGE NELSON FREW | Plaintiff |
| v | |
| JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720) | First Defendant |
| TREVOR SYKES | Second Defendant |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 June 2004 | |
DATE OF JUDGMENT: | 27 August 2004 | |
CASE MAY BE CITED AS: | Frew v John Fairfax Publications | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 311 | |
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Tort – defamation – libel - leave and licence – consent – volenti non fit injuria, scope of application in defamation – autobiography sent to newspaper columnist – allegedly defamatory article – allegedly defamatory article arguably outside publication consented to.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr M. J. Collins | WMB Lawyers |
| For the Defendant | Mr J. Ruskin QC with Mr M. Wheelahan | Freehills |
HIS HONOUR:
Sometime prior to September 2003 a man called George Nelson Frew wrote his autobiography and gave it the title: “Some Day I’ll Have Money”. In the 5 September 2003 issue of the Australian Financial Review a columnist in that newspaper, Trevor Sykes, who writes under the nom-de-plume “Pierpont”, wrote an article about Frew in the form of a review of that autobiography.
On 20 November 2003 Frew filed a writ in this Court alleging that Sykes’ article had defamed him. He claimed damages, including aggravated and exemplary damages for libel. His statement of claim pleads eight imputations which are said to arise out of the article. They concentrate on those parts of the article which describe some of Frew’s activities in Korea and Thailand and allege that the article meant that Frew had been engaged in criminal acts in each of those countries. The defendants to the proceeding are the publishers of the Australian Financial Review and Sykes.
In their original defence the defendants admitted authorship and publication of the article and that one of the imputations alleged by the plaintiff was conveyed by it. This imputation was that he had been arrested and gaoled when attempting to leave Thailand. However they deny that, in the context of the article, that imputation was defamatory of the plaintiff and they deny that any of the other imputations arise from the article. They further plead that in any event the plaintiff gave them “leave and licence” to publish the article.
Having amended their defence once, by a summons filed 9 June 2004 the defendants seek leave to deliver a further amended defence pleading further facts in support of their defence of leave and licence and adding defences of consent and volenti non fit injuria.
The defendants’ proposed further amended defence includes an allegation that since 1995 Sykes has written many book reviews concerning the lives and activities of Australian businessmen. It lists 23 such reviews. It also alleges that the plaintiff sent a copy of his autobiography to Sykes with an endorsement on the fly leaf in the following terms:-
“To Trevor Sykes
Our mutual friend John Gilmour has suggested I send you this book
of mine. I hope you enjoy it.
George Frew”
It goes on to plead that in sending his autobiography to Sykes Frew did so in the expectation that he would publish a review of it and:-
“. . . in the expectation that when writing and publishing a review of the autobiography that it probably would hold out the plaintiff to ridicule and refer to and describe incidents in his life, such as those referred to in (e) and (f) hereof in a colourful, satirical, irreverent and metaphoric style and thus be defamatory of him.”
The proposed amended pleading concludes by pleading “consent” and volenti non fit injuria and adding a plea in mitigation of damage that the defendants offered to publish an apology to Frew.
Dr Collins, counsel for the plaintiff, opposed the defendants being given leave to file their proposed amended defence on the ground that parts of it, at least, do not raise an arguable defence. Whilst acknowledging that, as with other intentional torts, a plaintiff’s claim can be defeated by proof that he consented to the tort, he argued that here the defendants’ proposed pleading goes much further than the law allows. A defence of consent or volenti non fit injuria or leave and licence is only available where the defendant proves that the plaintiff consented, expressly or impliedly, to the publication of the words complained of substantially as they were published. He relies upon a passage in the current edition of Gatley[1] to this effect and a statement by Lord Denning MR in Moore v News of the World.[2] In that case Lord Denning held that for a defence of consent to succeed the plaintiff had to be shown to have consented, expressly, impliedly or by her conduct to the publication of the words complained of substantially as they appeared in the newspaper concerned.
[1]Gatley on Libel and Slander (10th Ed, 2004) paras 18.15 – 18.16.
[2][1972] 1QB 441 at 448.
In Loveday v Sun Newspapers Ltd[3] Latham CJ said that a plaintiff who invites a discussion of his own conduct cannot be held to invite the publication of defamatory statements concerning that conduct. In such a case, said the Chief Justice, a defendant to a defamation suit must either justify or rely upon a defence of fair comment or privilege. Mr Ruskin QC for the defendants points out that Latham CJ’s dictum is not supported in terms by Dixon or Starke JJ in the same case; the former expressing himself in different terms and the latter not considering the point. Loveday was essentially concerned with qualified privilege and, as Dixon J pointed out, questions of consent have nothing whatever to do with the defence of qualified privilege.
[3](1938) 59 CLR 503 at 514.
In the celebrated case of Ettingshausen v Australian Consolidated Press Ltd[4] Hunt, CJ at CL held that for a defendant to succeed on a defence of consent he must prove that the plaintiff has consented to the “act done towards him of which he now complains . . .”. I interpret his Honour as meaning that the plaintiff must be shown to have consented to the tortious conduct in respect of which he is suing.
[4]Unreported, Supreme Court of New South Wales, 11 March 1993.
The defendants argue that the plaintiff acknowledges the defence of consent in terms too narrow. In his oral argument Mr Ruskin sought to widen the scope of his clients’ defence so as to exculpate them in respect of exaggeration of the plaintiff’s peccadillos beyond that which the plaintiff himself acknowledged in his autobiography. He submitted that he should be able to argue that the plaintiff consented to such exaggeration because he knew of the second defendant’s writing style as being “colourful, satirical, irreverent and metaphoric”. In other words, submits Mr Ruskin, the defendant should be able to argue that the plaintiff’s consent to publication embraced not only consent to the defendants' publishing what the plaintiff published about himself in his autobiography but also any exaggeration of that publication, although he acknowledged that there must be limits to the extent of such permissible exaggeration.
I am unable to accept this submission. Whether consent is being given is ultimately a question of fact, just as the extent of that consent is a question of fact. If for example, the defendants were able to plead and prove a document in the plaintiff’s hand accompanying the book which he sent to the second defendant which in terms expressed his consent to the journalist writing about him not only in terms defamatory of him which he himself used in his book, but also in any other terms the journalist wished, no question could arise as to what the plaintiff consented to. Here where, I presume, the defendants can prove only the sending of the book with the note endorsed on its fly leaf, to avoid liability they must confine their publication of defamatory material about the plaintiff to what can be derived from the book itself, for they do not seek to plead anything the plaintiff has said or done which could possibly be construed as extending his consent to publication beyond that boundary. Whilst what may be published without liability by the defendants need not be confined to the actual words used in the autobiography, it must be substantially the same, for that is what it can be argued, the plaintiff consented to. It is certainly not arguable, on the pleading proposed by the defendants, that he consented to more. In particular, it could not be argued that he consented to exaggeration so as to permit the author of the article to write in more defamatory terms about the plaintiff than the plaintiff did about himself.
Whether what the journalist said is substantially what the plaintiff wrote in his autobiography will ultimately be a matter for the tribunal of fact on the trial of this proceeding to determine but at this point the defendants’ proposed amended pleading can only stand if it confines the argument as to consent within the bounds which I have set.
Applying these principles to the terms of the defendants' proposed amended defence it can be seen that difficulties arise from paragraphs 8(ca), 8(g) (iii), 9(b) and 9(c).
Presumably the purpose of seeking to plead paragraph 8(ca) is to demonstrate that the second defendant has a particular style of writing. But if I am correct in setting the bounds for the argument about consent as I have done the style of writing of the second defendant is irrelevant. He has either defamed the plaintiff within an area in which he is immune from liability by reason of the plaintiff’s consent or he hasn’t. Paragraph 8(ca) would introduce a false issue into the case if it were permitted to be pleaded, namely the writing style of the second defendant. It should not be permitted.
The most difficult proposed amendment to the defendants’ defence is that contained in paragraph 8(g) (iii). This proposed pleading seems to me to be seeking to widen the consent to the defendants to include defamatory matters beyond those in the plaintiffs autobiography. In particular, the use of the words “such as those referred to in . . .” suggests that it might be sought to excuse defamatory matter published by the defendants beyond the plaintiff’s autobiography. If I am correct as to the bounds I have set upon the question of consent, then this pleading cannot be permitted to stand.
Different questions arise with respect to paragraphs 9(b) and (c). There was much debate on the hearing of this summons as to whether there is any difference between “leave and licence”, “consent” and “volenti non fit injuria”.Many authorities were referred to and it is difficult to reach a conclusion as to whether those terms are, in substance, distinguishable or not. Whilst the weight of authority seems to suggest that “leave and licence” and “consent” amount to the same thing there is little agreement as to whether “volenti non fit injuria” expresses the same legal concept.
Although literally translated volenti non fit injuria means “there can be no injury to the willing”, it is usually loosely translated as “voluntary assumption of the risk”. The introduction of the word “risk” into the principle creates an ambiguity which could lead to error if used in that sense with respect to the intentional tort of libel. When a plaintiff consents to being defamed in the way in which it is alleged this plaintiff consented, he consents to the commission of an actual tort, the boundaries of which can be drawn by reference to the terms of his consent. He does not consent to the “risk” of being libelled. He consents to the libel itself. He may, perhaps, consent to the risk of injury as, although injury is presumed to be the consequence of the publication of a libel it is not inevitable that such publication will always lead to actual injury. Thus there could be a sense in which a person who consents to a libel does take a “risk”. But that would be an unusual case.
In particular, a plaintiff in a libel action does not consent to the “risk” that the person to whom he has given a consent to publish will go beyond that consent in publishing defamatory material about him. To revert to this case, if the defendants prove their allegations as to the sending of the plaintiff’s autobiography to the second defendant they will probably have proved that the plaintiff consented to having published about him the material which was in his book. They will not have proved that he has consented to any "risk" of their publishing defamatory material about him beyond what is contained in his book. Accordingly it is probably better if the term volenti non fit injuria was confined to the concept of the voluntary assumption of the risk of injury by a non-intentional tort as the late Professor Fleming suggested in the 9th Edition of his book on torts. He classified voluntary assumption of risk in relation to negligence as being the analogue of consent to an intentional tort.[5]
[5]Fleming, JG The Law of Torts 9th Ed (1998) p 327.
Paragraph 9(c) ought not be permitted to be pleaded. If it could add anything to paragraphs 9(a) and (b) then it could only do so in the way in which I have discussed so as to permit an argument which I consider would not be open to the defendants. If it expresses no more than paragraphs 9(a) and (b) then it is otiose.
The other proposed amendments to the defendants amended defence were not contentious and should be permitted.
Conclusion
The Court will make the following orders:-
1.That the defendants have leave to file and serve a further amended defence in the form annexed to their summons of 9 June 2004 with paragraphs 8(ca), 8(g)(iii) and 9(c) excised therefrom, on or before 3 September 2004;
2.That the plaintiff have leave to file and serve a reply in respect of the defendants’ further amended defence on or before 15 September 2004.
I shall hear counsel further on the question of directions and the fixing of a trial date.
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