George Apap v Nationwide News Pty Ltd No. SCGRG 1309 of 1992 Judgment No. 3618 Number of Pages 4 Defamation

[1992] SASC 3618

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DUGGAN J

CWDS
Defamation - actions for defamation - appeal from refusal to strike out pleadings in statement of Claim - whether arguable that words in article capable of particular defamatory meanings. General Steel Industries v Commonwealth Commissioner for Railways 112 CLR 125 and Lewis v Daily Teleqraph
(1964) AC 234 referred to.

HRNG ADELAIDE, 10 September 1992 #DATE 17:9:1992
Counsel for appellant:     Mr S. Ward
Solicitors for appellant:    Piper Alderman
Counsel for respondent:     Mr A. Durkin
Solicitors for respondent: Duncan Groom Hannon

ORDER
Appeal dismissed.

JUDGE1 DUGGAN J The appellant company, which is the defendant in an action for defamation brought by the respondent, applied to a Local Court magistrate for an order striking out certain pleadings in the Particulars of Claim. The appellant was partly successful in that application, but this appeal is against the learned magistrate's refusal to strike out sub-paragraphs 5.3 and 5.4 of the Particulars. 2. The article containing the alleged defamatory statement appeared in the appellant's newspaper of 15th August, 1991. Although the words complained of must be read in the context of the article as a whole, it is sufficient for present purposes to set out the following extract. Under the heading "Key MPs give ALP lesson in mortality" the article stated:
    "The South Australian Labor Party is once again learning
    the cost of its organisational hubris in the aftermath of last
    week's knife-edge defeat of the Opposition's parliamentary
    no-confidence motion. And it is a rueful lesson. The vote on
    the motion refocused attention on the two Independent Labor MPs
    in the evenly divided House of Assembly - who since the 1989
    elections have kept the Bannon Government in power - and on how
    they got there. The Speaker and Member for Semaphore, Mr Norm
    Petersen, won his solid Labor seat in 1979 when as secretary of
    the Federated Clerks Union he trounced the official labor
    candidate, an unpopular union hack. The ALP didn't learn from
    this debacle the consequence of party-union deals, and in 1984
    went on to make a second big blunder in the preselection contest
    for the equally solid seat of Elizabeth." 3. The words which I have underlined are those to which major objection is taken. For the purposes of the appeal it was not disputed that the words referred to the respondent. 4. The Particulars of Claim allege that the words were understood to mean:
    "5.1 The Plaintiff was a commonplace uninspired union
    official.
    5.2 The Plaintiff was unfit for his office as a union official.
    5.3 The Plaintiff was unfit to be a candidate for a
    Parliamentary seat.
    5.4 The Plaintiff was an unworthy candidate for the seat of
    Semaphore in the 1979 election.
    5.5 The Plaintiff was trounced in the 1979 election due to
    his being a commonplace and uninspired union official.
    5.6 The Plaintiff was not a popular figure in his union." 5. The appellant applied for the striking out of the whole of paragraph 5. The learned magistrate agreed that sub-paragraphs 5.2, 5.5 and 5.6 should be struck out. The appellant does not complain of the failure to remove 5.1, but the decision with respect to sub-paragraphs 5.3 and 5.4 is challenged. 6. In the course of his carefully reasoned ruling the learned magistrate correctly identified the principles upon which applications of this nature fall to be considered. He referred to the observations of Barwick CJ in General Steel Industries v Commonwealth Commissioner for Railways 112 CLR 125 to the effect that a plaintiff ought not to be denied access to the court unless his lack of a cause of action is clearly demonstrated, the test having been expressed on occasions by reference to various phrases such as "manifestly groundless" or, "so obviously untenable that it cannot possibly succeed". (see also Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663.) In the present case it would seem that the test to be applied is whether it is arguable that the words complained of meant what is alleged in sub-paragraphs 5.3 and 5.4. I should point out that Mr Ward for the respondent conceded that if the words used did convey the meanings referred to in sub-paragraph 5.3 and 5.4, they were capable of being defamatory. It was the connection between the words actually used and the meaning attributed to them in those sub-paragraphs which he challenged. 7. Mr Durkin for the respondent argued that the word "hack", when used in the present context, meant a "common drudge", "an uninspired and uninspiring person", "a commonplace person". When combined with the other words in the description "unpopular union hack" the meaning conveyed was that the respondent was unfit to be a candidate for a parliamentary seat. 8. Mr Ward emphasises the context of the article. He said it criticised the preselection process and was a comment on the cynical manner in which that process was viewed by the electorate. Read in that light, he said, no criticism and no defamatory comment is made of the respondent. However Mr Durkin argued that if that was the thrust of the article, its implication for the respondent nevertheless remained, namely, that he was an unfit and unworthy candidate thrown up by the system. 9. In an appeal in an interlocutory manner such as this it is important that I should say no more than is necessary to dispose of the application. In my view the learned magistrate did not err in deciding that the impugned pleadings should remain. It is arguable that the words meant that the plaintiff was an untalented person with a pedestrian nature who was thereby unfit for the high office of parliamentary representative in the sense that he was incapable of performing the task effectively. In my view the learned magistrate was correct in leaving that issue for the trial court to decide. 10. Mr Ward argued further that even if sub-paragraph 5.3 were allowed to remain, sub-paragraph 5.4 which alleged that the words meant the plaintiff was an unworthy candidate for the seat of Semaphore in the 1979 election should be struck out. He said that what was alleged in sub-paragraph 5.4 was no more than a nuance of the meaning complained of in sub-paragraph 5.3. (Lewis v Daily Telegraph (1964) AC 234) Mr Durkin replied by saying that the words already referred to should be taken in conjunction with a later paragraph in the article which stated: "Not surprising, then, is the latest speculation in Labor circles about the possibility of Mr Petersen's resignation from Parliament, which would lead to Labour's certain recapture of Semaphore." 11. Mr Durkin said that when read with the passage from the article quoted above this implied that Semaphore was a safe Labor seat and that the respondent should have won it in 1979 and would have done so if he were not "an unpopular union hack". 12. Once again I do not think that the respondent should be prevented from arguing the proposition which has been advanced on his behalf. In my view Mr Ward has correctly pointed out that the subsequent paragraph which I have quoted above should have been specifically pleaded. But now that there is no doubt as to the basis of the respondent's case under sub-paragraph 5.4 I think the pleading should remain. 13. For these reasons the appeal will be dismissed.