Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd
[1984] FCA 167
•19 Jun 1984
C A T C H W O R D S
TRADE PRACTICES - misleading or deceptive conduct - whether publication of statements including statements of opinions made in ordinary course of publication of news (not being advertising material) can constitute misleading or deceptive conduct - publication of material constituting conduct for purposes of sub-s. 52(1) of the Trade Practices Act 1974 - publication of incorrect information constituting misleading or deceptive conduct only if conduct contains or conveys a misrepresentation - some articles of news more readily to be taken as statements by newspaper than others - disadvantages of Stated Case procedure,
| Trade Practices Act 1974, ss. 4(2), B, 52(1), 53(e), 02, 84, | 85(3), 87 |
| Federal Court of Australia Act 1976, sub-s. 25(6) | |
| GLOBAL SPORTSMAN PT7 LTD and JEFFREY ROBERT THOMSON v, MIPRQR NEl/JSPAPERS LIMITED and NATIONWIDE NEWS PTY LTD | |
| (QLD G69 OF 1983) | |
| BOWEN C.J., LOCKHART & FITZGERALD JJ. BRISBANE 19 JUNE 1984 |
| IN THE FEHDERAL COURT OF AUSTRALIA | ) | ||
| QUEENSLAND DISTRICT REGISTRY |
| ||
| GENERAL DIVISION |
BETWEEN:
GLOBAL SPORTSMAN PTY LTD and
JEFFREY ROBERT THOKSON
Applicants
AND:
MIRROR NEWSPAPERS LIMITED and
NATIONWIDE NEWS PTY LTD
Respondents
O R D E R
| JUDGES MAKING ORDER; | BOWEN C.J., LOCKHART & | FITZGERALD JJ. |
| DATE OF ORDER: | 19 JUNE 1964 | |
| WHERE t̂ADE: | BRISBANE | |
| THE COURT ORDERS THAT: |
I.
Question
(1) Is a purchaser or a reader of a newspaper
a ''consumer'’ within the meaning of the
Act in relation to those parts of a newspaper which are not advertising
material?
Answer
Unnecessary to answer.
I
Oueatlon
| (11) Can the publication of statements | the ordinary course of the publication of including statements of opinion made in | |||
| news in those parts of a newspaper which are not advertising material constitute | ||||
| ||||
| Answer |
Question
(iii)(a) Is the injury of which the second applicant complains loss or damage within the meaning of s.82 of the Act?
(b) If the first applicant suffered the the circumstances which the applicants loss or damage of which it complains in
allege was that loss or damage suffered
|
Answer
(a) Yes
| (b) Yes | , if the matters in paragraphs | 3 and |
| 13 1 | of the Case are established. |
Question
| (iv) If | the facts in paragraphs 2-12 and the |
applicants' allegations in paragraphs 13
and 15(a) are established:
(a) have the appllcant.s or either and if so ŵ hich of them made out a claim under the Act?
applicants or either of them and if so (b) if "No" to (iv)(a), will the
which of them establish a claim under che Act by proof of all or some and if so which of the allegations in paracrraphs 16 and }
the respondents establish, a defence to (c) if "Yes" to (iv)(a) or ;iv)(ij), can
the claim under the Act of the applicants or either and if so which of them, and, if so, what defence?
Answer
(a) Not answered
(b) Not answered
(c) Not answered
Question
| (V) If the facts 1 paragraphs 2-12 and the | appiicanus' allegations in paragraphs 13 |
| and 15(b) are established; | |
| (a) have the applicants or either and if so which of them made out a claim under the Act? | |
| (b) if "No" to (v)(a), will the applicants or either of them and if so which of them establish a claim under the Act by proof of all or some and if so which of the allegations in paragraphs 16 and 17? | |
| the respondents establish a defence to (c) if "Yes" to (v)(a) or (v)(b), can | |
| the claim under the Act of the applicants or either and if so which of tnem, and, if so, what defence? |
Answer
(a) Not answered
(b) Not answered
| (c) | Notanswered |
4.
Question
(vl) If the facts in paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(c) are estahlished:
| ||
| Ch) if "No" to (Vi)(a), will the applicants or either of them and if so which of them establish a claim under the Act by proof of all or some and if so which of the allegations in paragraphs 16 and 17? | ||
| (c) if "Yes" to (vi)(a) or (vi)(b), can the respondents establish a defence to the claim under the Act of the applicants or eifher and if so which of them, and, if so, what defence? |
Answer
(a) Not answered
(b) Not ansvjered
(c) Not answ^rea
2, As agreed and recorded in che Case
Stated, the Responaents must pay to the
| applicants their taxed costs of and | to the Case Stated.incidental to che proceedings in relation |
| IN THE FEDERAL COURT OF AUSTRALIA | ) | ||
| QUEEN3LMD DISTRICT REGISTRY |
| ||
| GENERAL DIVISION | ) |
BETWEEN:
| GLOBAL SPORTSMAN PTY LTD ana | JEFFREY ROBERT THOMSON |
| AND: | Applicants |
MIRROR NEWSPAPERS LIMITED and
NATIQ^MIDE NEWS PTY LTD
Respondents
| CORAM: | BOWEN C.J., LOCKHART & FITZGERALD JJ. |
DATE: 19 JUNE 1984
REASONS FOR JUDGMQJT
| THE COURT; | This is a special case stated pursuant to suh-s, |
25(5) of The Federal Court of Australia Act 1976,
The applicants claim damages from the respondents for alleged contraventions of the Trade Practices Act 1974 ("the Act"). The second applicant also claims damages for alleged defamation.
The second applicant is a professional cricketer. On 9 February 1978 the first and second applicants entered into an agreement under v7hich, in return for payments from the first: applicant, the second applicant agreed to perform various activities associated with the exploitation of his sporting reputation. Neither respondent had any knowledge of the existence of the first applicant or of the agreement between the applicants at any material time.
Each of the respondents is a trading corporation within the meaning of the Act. The first respondent prints, publishes, and sells newspapers including “The Australian" and "The Weekend Australian" on behalf of che second respondent. Each of "The Australian" and "The Weekend Australian" is published throughout Australia.
On 16-17 July 1963 an article punlished in "The Weekend Australian" at p.16 in the "Focus on IL'rort" section V7as headed "Mutinous Elements threaten to destroy Australian cricket" "A team divided - gallows await yesterday'” heroes" and included a cartoon caricature of m e Australian Cricket team captain, Kim Hughes, playing cricket with a large knife through his back and also a photograph of che second applicant. A further article "Factions are not cricket" was published in the editorial section of "The Australian" newspaper on 18 July 1983. Each of the articles was written by a journalist employed by the first respondent as a specialist writer on cricket. Only the former article identified the journalist as its author.
3.
The decision to publish ‘‘he first article was made by an editor of "The Weekend Australian" employed as such by the first respondent and his decision was made in the oifdinary course of his employment. The decision to publish the second article was made by an editor of "The Australian" employed as such by the first respondent and his decision was made in the ordinary course of his employment. Neither editor had any knowledge concerning any of the matters stated in the respective articles and each relied entirely upon the author of the article. No other officer or employee of either respondent had any knowledge concerning the contents of either a m c l e prior to publication.
The facts summarized above are taken from paragraphs 2-12 of the Special Case which also records a number of allegations by the applicants in the following numbered paragraphs:
| "13. | The applicants allege that each of the articles injured the secona applicant | |
| ||
| embarrassment and hurt and impaired his prospects of selection and employment as a professional cricketet and as a 'medium for the advertising of goods and services', and that in consequence each of the articles caused the first applicant to lose business | ||
| 14. | The applicants allege that each article was not only defamatory of the second applicant but was misleading and | |
| deceptive within the meaning of s.52 of the Act; |
4.
| 15. | The applicants allege | tnat each of the |
| articles: |
(a) made or repeated inaccurate statements of fact concerning the conduct, character and reputation of the second applicant, including inaccurate statements as to opinions held, statements made, and acts done by the second applicant and others;
(b) made or repeated statements of opinions of the author of tne articles or of the respondents (or one or other
of them) or of some other person (not being one of the applicants) concerning the conduct, character and reputation of the second applicant for which opinions there was no sufficient basis;
(c) made or repeated statements held, statements made and acts done by Including statements as to opinions
the second applicants and others, which, in the circumstances, had and meanings concerning the conduct, conveyed expressly or by innuendo false
character and reputation of the second
applicant.
| The applicants allege that | the author |
| of the articles: |
(a) did not believe in the accuracy of
the statements of facts made therein;
therein as his opinions or opinions of (b) did not hold the opinions stated
| and did not believe that the opinions of other persons (not being one of the | the respondents (or either of them), |
| applicants) stated therein were persons;reasonably and honestly held by such | |
| meaning conveyed by the articles.(c) did not believe in the truth of the |
17. The applicants further allege that no basis existed for belief by the author of the articles in the accuracy of the
5.
facta stated therein or in the truth of the meanings conveyed, or for the
opinions of the author or of the respondents (or either of them) or of other persons, not being one of the applicants, which are stated in the articles.
The respondents' primary contention is that neither applicant has a claim for damages under s.02 of the Act because the publication of statements, including statements of opinion, made in the ordinary course of the publication of news cannot be conduct which is misleading or deceptive or likely to mislead or deceive within the meaning of s,52 of the Act. Further questions were raised concerning which of their allegations must be proven by the applicants to establish their claims if the respondents' primary contention is not correct, and what, if any, defences might be available to the respondents.
At the request of the parties the following questions
were reserved for the consideration of the Full Court;
(i) Is a purchaser or a reader of a newspaper a "consumer" within the meaning of the Act in relation to those parts of a newspaper which are not advertising material?
(ii) Can the publication of statements including statements of opinion made in the ordinary course of the publication of news in those parts of a newspaper which are not advertising material constitute conduct which is misleading or deceptive or likely to
| ||
| of s.52 of the Act? |
6,
Clii) (a) Is the injury of which the second applicant complains loss or damage within the meaning of s,82 of the Act?
the loss or damage of which it (b) If the first applicant suffered
complains in the circumstances which damage suffered by the first applicant the applicants allege was that loss or
| either of them within the meaning of | "by" conduct of the respondents or |
| 3.82 of the Act? |
(iv) If the facts in paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(a) are established:
(a) have the applicants or either and if so which of them made out a claim under the Act?
(b) if "No" to (IV)(a), will the which of them establish a claim under applicants or either of them and if so
the Act by proof of all or some and if so which of the allegations in paragraphs 16 and 17;
can the respondents establish a defence (c) if "Yes” to (iv)(a) or (iv)(b),
to the claim under the Act of the applicants or either and if so which of them, and, if so, what defence?
(v) If the facts in paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(b) are established:
(a) have the applicants or either and if so which of them made out a claim under the Act?
(b) if "No' to (v)ia), will the applicants or either of them and if so which of them establish a claim under the Act by proof of all or some and if so which of the allegations in paragraphs 16 and 17?
the respondents establish a defence to (c) if "Yes" to (v)(a) or (v)(b), can
the claim under the Act of the applicants or either and if so which of them, and, if so, what defence?
7.
(vl) If fhe facts in paragraphs 2-12 and the applicants' allegations in paragraphs 13 and 15(c) are established:
(a) have the applicants or either and if so which of them made out a claim under the Act?
| ||
| the Act by proof of all or some and if paragraphs 16 and 17;so which of the allegations in | ||
| (c) if "Yes" to (vi)(a) or (vi)(b), can the respondents establish a defence to the claim under the Act of the applicants or either and if so which of them, and, if so, what defence? |
It was common ground before this Court that it was unnecessary to answer question (i). The respondents acknowledged that question (lii) should be answered;
(iii) (a) Yes
|
The respondents also acknowledged that, if questions (iv)(c), (v)(c) and (vi)(c) are answered, they should be answered in the negative.
There is no definable boundary between conduct which is misleading or deceptive or likely to mislead or deceive and material which is defamatory. Material which is defamatory does not fall outside the operation of sub-s, 52(1) of the Act merely for that reason any more than it is brought within the operation of sub-s. 52(1) by reason only that it is defamatory. If the
operation of aub-s, 52(1) was limited to exclude material because it was defamatory, not only newspaper publishers, but all corporations would be exonerated. Such a proposition would severely restrict the broad generality of sub-s. 52(1) which has been emphasised by the High Court on more than one occasion: see Hornsby Building Information Centre Ptv Ltd v, Sydney Buildincr Information Centre Pty Ltd (1978) 140 C.L.R, 216; Parkdale Custom Built Furniture Pty Ltd v. Puxu Ptv Ltd (1982) 56 A.L.J.R. 715; 42 A.L.R. 1.
Further, the meaning of sub-s. 52(1) cannot be controlled by the doctrine of freedom of speech, which Incorporates the freedom of ohe press. Although there is no right to speak freely given by the Constitution or by statute, free speech is of fundamental importance. But in this as in other areas, freedom does not mean licence but freedom under law in a civilized society: cf. Samuels v. The Readers' Dlcfest Association Pty Ltd (1969) 120 C.L.R. 1, per Barwick C.J. at pp.l4 and 15. Speech is free if it is free from unwarranted restrictions. Freedom of speech is but one of a number of competing rights and interests which must be accommodated. Part V of the Act is broadly concerned with "Consumer Protection", which is itself an important matter of public interest. Like sedition, defamation, obscenity, copyright, etc., consumer
9.
protection can justify some restriction upon what may he published. The ambit of any sreatriccion is a matter for Parliament to the extern: that the sub]ect is within its constitutional power. Not all newspapers are published by corporations but many are, and it is with respect to those that the questions stated are of immediate significance. The validity of the Act for present purposes is not in doubt.
The respondents' primary argument to the effect that sub-s. 52(1) does not apply to the publication of "news" in a newspaper was met by an equally wide argument for the applicants that a corporation contravenes sub-s. 52(1) if it publishes a newspaper which contains any "news" which is incorrect. It was contended that a reader will be or is likely to be misinformed if the publisher publishes a statement of fact which is inaccurate or an opinion which is incorrect and that such conduct is sufficient to constitute a contravention of the sub-section. According to the applicants, such a conclusion is unrelated to whether any act or omission occurs or is likely to occur as a result of the publication; such considerations are material not to the existence of the contravention buo to the grant of relief (see ss. 8, 82 and 87 of the Act).
The latter part of the applicants' submission seems to us correct. A contravention of sub-s. 52(1) is established by conduct which is misleading or deceptive or which is likely to mislead or deceive. Conduct is likely to mislead or deceive if that is a "real or not remote chance or possibility regardless of whether it is less or more than fifty per cent": cf. Tlllroanns
10.
Butcheries Ptv Ltd v, Australasian Meat Industry Employees' Union (1979) 42 F.L.R. 331, per Deane J. at p.316; Sheen v. Fields Ptv Ltd C19843 58 A.L.J.R, 93. Evidence that an erroneous conclusion has been formed by reference to conduct is admissible to establish that the conduct was misleading or deceptive or likely to mislead or deceive; such evidence may be persuasive but it is not essential. Evidence of acts or omissions resulting from the erroneous belief may also be admissible but again is not essential. Sub-section 52(1) is concerned with the effect or likely effect of conduct upon the minds of those by reference to whom the question of whether the conduct is or is likely to be misleading or deceptive falls to be tested. The test is objective and the Court must determine the question for itself; Taco Company of Australia Inc v. Taco Bell Ptv Ltd (1982) 42 A.L.R. 177, at p.202.
Each of the rival contentions otherwise focussed upon the publication hy a corporation of information described as “news". A cause of action in defamaoion founds upon the puclicatlon or communication of defamatory macerial and detailed rules have been evolved to deal with the liability in defamation of those who publish or republish such material or cause its publication. No comparable provisions are found in the Act. Sub-section 52(1) simply proscribes "conduct" which is misleading or deceptive or likely to mislead or deceive. Sub-section 4(2) provides what constitutes "conduct". Wiiile information may be misleading or deceptive or likely to mislead or deceive, it is only conduct which is misleading or deceptive or likely to mislead or deceive which attracts the operation of sub-s. 52(1).
Whether and in what circumstances the mere communication of information is or may be sufficient to contravene that sub-section is a question to which it will be necessary to return. However, it is not in douot that a corporation contravenes sub-s. 52(1) if it makes a statement which is misleading or deceptive or likely co mislead or deceive: see, for example. Bill Acceptance Corporation Ltd v, G.W.A. Limited (1983) 50 A.L.R. 242. It is convenienc to proceed initially by reference to that proposition. Its practical application has been revealed by a number of decisions of the High Court and this Court.
If a corporation Is alleged to have contravened sub-s. 52(1) by making a statement of past or present fact, the corporation's state of mind is immaterial unless the statement involved the state of the corporation s mind. Whether or not sub-s. 52(1) is contravened does not depend upon the corporation's Intention or its belief concerning the accuracy of such statement, but upon whether the statement in fact contains or conveys a meaning which is false; that is to say whether the statement contains or conveys a misrepresentation. Most commonly, such a statement will contain or convey a false meaning if what is stated concerning the past or present fact is not accurate; but a statement which is literally true may contain or convey a meaning which is false.
12.
Many statementg, for example, promises, predictions and opinions, do Involve the state of mind of the maker of the statement at the time when the statement is made. Precisely the same principles control the operation of sub-s. 52(1) with respect to the making of such statements. A statement which involves the state of mind of the maker ordinarily conveys the meaning (expressly or by implication' that the maker of the statement had a particular state of mind when the statement was made and, commonly at least, that there was basis for that state of mind. If the meaning contained in or conveyed by the statement is false in that or in any other respect, the making of the statement will have contravened sub-s. 52(1) of the Act. Compare Lyons v. Kern Konstructions (Townsville) Ptv Ltd (1983) M A.L.R. 114.
The non-fulfilment of a promise when the time for performance arrives does not of itself establish that the promisor did not intend to perform it when it was made or that the promisor's intention lacked any, or any adequate, foundation. Similarly, that a prediction proves inaccurate does not of itself establish that the maker of the prediction did not believe that it would eventuate or that the belief lacked any, or any adequate, foundation. Likewise, the incorrectness of an opinion (assuming that can be established) does not of itself establish that the opinion was not held by the person who expressed it or that it lacked any, or any adequate, foundation.
13.
The applicants argued that, nevertheless, the statement of an Incorrect opinion is misleading or deceptive or likely to mislead or deceive merely because it misinforms or is likely to misinform. An expression of opinion which is identifiable as such conveys no more than that the opinion expressed is held and perhaps that there is basis for che opinion. At least if those conditions are met, an expression of opinion, however erroneous, misrepresents nothing.
To this point, attention has been concentrated upon the making of statements, whether of fact or opinion. Whether a statement is a statement of past or present fact, a promise, a prediction, or an expression of opinion, the making of it constitutes conduct which is misleading or deceptive or likely to mislead or deceive if the statement contains or conveys a misrepresentation. As we said earlier, the arguments for each side were related to the publication of information as "news". There has been little prior consideration by the Courts to publication of material as constituting conduct for the purposes of sub-3. 52(1) of the Act.
In Universal Telecasters (Old) Ltd v. Guthrie (1978) 32 F.L.R. 360, the proprietor of a television station was prosecuted for an alleged contravention of para. 53(e) of the Act In connection with a broadcast of an advertisement containing false or misleading statements concerning the existence of a price reduction. The corporation was convicted but the conviction was quashed by a majority on appeal. Special leave to appeal to the High Court was refused. All three members of the Full Court
CBowen C.J., Nlmmo and. Franki JJ.) were of opinion that, by broadcasting the advertisement, the corporation had made the statements concerning the existence of the price reduction which was contained in the advertisement, although since the corporation succeeded, the opinions of the two judges who comprised the majority tBowen C.J. and Frank! J.) were obiter.
Nimmo J. expressed the view at p.368 that "the making and publishing of the statements in this case were contemporaneous and mutually inclusive". His Honour did not expand upon the process of reasoning by which he arrived at that conclusion other than to say that he considered that it was supported by sub-s. B5(3) of the Act which provides a defence to a corporation which is an "innocent" publisher. Reference was also made by the other members of the Court to sub-s. 65(3), Frank! J. said at p.377:
"Although the phrase 'make false or misleading statements' rather suggests that there may very well be a difference between making a statement and publishing the statement of somebody else, I have come to the conclusion that, in general, where a television station telecasts an advertisement that contains
certain spoken words, it is proper to Viold
that the television station has made a
points in the same direction."statement. Section 65(3) of the Act also
Bowen C.J. dealt with the relationship between publication and the making of a statement at some length. He did not rely upon sub-s, 85(3) for his conclusion that the television station proprietor had made the false or misleading statements in the advertisement. His Honour said at p.353:
"Counsel for Universal Telecasters sought to obtain some support for his argument upon the interpretation of 'make' in s.53(e) by reference to the use of the vord 'publish' in 3.85(3), I do not consider that the use of the word 'publish' in s.85(3) requires s.53(e) to be construed in the manner suggested. It may be noted that s.85(3) provides a defence which is available in respect of the offences provided for in other paragraphs of s.53, besides s,53(e)."
Of course, no present question arises of what is meant by the word "make". Its present use arises not as part of a statute but in the discussion of the effect and application of a statutory provision expressed in different language. Further, importantly for present purposes, Bowen C.J. made it clear that whether the publication of an advertisement containing false or misleading statements constituted the making of those false or misleading statements could only be decided by reference to all of the facts of a particular case, including the content of the advertisement.
One of the disadvantages of I'he Stated Case procedure in this matter is that questions which the parties anticipate may arise must be considered in the abstract.
However, if such difficulties be put to one side, it is possible to conclude that the publication of incorrect information may constitute conduct wnich is misleading or deceptive or likely to mislead or deceive within the meaning of sub-s. 52(1) of the Aco; but will only do so if the conduct contains or conveys a misrepresentation. Obviously, in the determination of that question, the meaning of the words
published will be of considerable importance. It is important to emphasise that the meaning is to be determined by reference to what is published by the corporation, and that the ultimate task is to determine whether its conduct in publishing the words is misleading or deceptive or likely to mislead or deceive. "There can be little doubt that the nature and quality of the ... publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted.’’; Wake v. John Fairfax and Sons Ltd (1973) 1 N.S.W.L.R. 43 at p.49 (C.A.). In the same case it was said at p. 50:
repeat or report the defamatory statement of "C41ien a defamatory publication purports to
another it is an essentially different libel directly."from one where the same imputation is conveyed
A similar observation is applicable to the publication of the inaccurate statement of another. Such a statement is essentially different in the meaning which it contains or conveys unless it is adopted by the publisher and he will not necessarily do this by merely publishing the statement.
Once it is recognised that it is the conduct of a corporation which must be misleading or deceptive or likely to mislead or deceive to attract the operation of sub-s. 52(1), the principal difficulty which exists concerns the proper approach to the interpretation of the conduct which is impugned. Similar problems have been encountered in determining the meaning of material which is alleged to be defamatory. In defamation
17.
proceedings, a wide approach has sometimes been adopted to the meanings which may be attributed to a statement by those to whom it is published. See, for example, Lewis v. Daily Telegraph Ltd C1963D 1 Q.B. 340; affd C19641 A.C. 234; Mo reran v. Odhams Press Ltd C19713 1 W.L.R. 1239; Steele v. Mirror Newspapers Ltd C19743 2 N.S.W.L.R. 343. In Mirror Newspapers Ltd v. Harrison C1982!] 56 A.L.J.R. 808 the leading judgment was delivered by Mason J. It
IS convenient to quote two passages from p.812. At 2nd column,
letter C, His Honour said:
"... It is necessary to repeat the remarks of Holroyd Pearce L.J. in Lewis which preceded the sentence which I have already quoted from
his judgment:
'When persons publish words that are imprecise, ambiguous, loose, fanciful or variation of reasonable opinion on what unusual, there is room for a wide
the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did nor mean. But when words with a precise and well-known meaning are used 'iJltbout the addition of any expressions which could impart some other flavour to them, it is not fair to twist them from their "ormal sense.' Cp.374)"
However, as his Honour had earlier pointed out at 1st column, letter A:
"...A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable
18.
reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result.
statement is capable of bearing such an It is quite another thing to say that a
imputation merely because it excites in some readers a belief or prejudice from which they
proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of
the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in i:he mina of the ordinary reasonable reader."
In Taco and Puxu, supra, it was similarly emphasised that there is no contravention of sub-s. 52(11 of the Act unless error or misconception results from conduct of the corporation, and not other circumstances for which the corporation Is not responsible. One such circumstance may in some cases be a lack of care or vigilance in all the circumstances by those said to have been or to be likely to be misled or deceived; see Puxu, supra, per Gibbs C.J. at p.6 and per Mason J. at p.l5. However, the character of the corporation's conduct is not tested by reference to its effect or likely effect only on the reasonable man, but by reference to the entire class of "possible victims": Puxu. supra, ibid and per Murphy J. at p.l9; Taco, supra, at p.202.
It follows from what has teen said that question (ii)
must be answered in the affirmative.
In our view none of the remaining questions should be answered. In the first place, all such questions involved the applicants' alleged loss and damage as presently claimed which the respondents elected not to make the subject of argument
19.
before this Court, in consequence of which we were not addressed on the topic by the applicants. Secondly, central to all those questions are relationships between the respondents, and between the first respondent and the journalist who wrote the articles and the editors who decided to publish them. Inevitably, details of those relationships were not explained by reason of the Case Stated procedure which the parties adopted. There is obvious scope in these areas for factual controversies. For example, while the state of mind of a corporation is in law the state of mind of those who control the corporation (Commissioner of Taxation (Commonwealthi v. Mnitfords Beach Ptv Ltd C1982I1 55 A.L.J.R. 240) that principle may be of little assistance here when the facts are ultimately found.
In practice opinions may be published by a newspaper which are not in fact the opinions of those who control the newspaper, but are the opinions of employees and others. The lastmentloned opinions may nevertheless be presented as the newspaper's opinions. Further, s.84 of the Act can only operate by reference to the facts of a particular case. Any answer which the Court may give to the questions now under consideration may impinge upon the future conduct of this proceeding in a manner which might cause it to miscarry.
As is recognized in general terms by paragraph 15 of the Case Stated, the contents of a newspaper such as "The Australian" or "The Weekend Australian" cover an extremely broad range, with wide variations both in form and subject matter. Law lists, weather forecasts, stock exchange reports, reviews.
20.
articles on specialised subjects by identified experts, photographs, cartoons, etc. all accompany what might be more narrowly considered "news", which commonly relates both to local and foreign events. Some articles woula more readily be taken as statements by the newspaper than others. For example, an item of local news, such as a statement that a local company had failed, particularly If unaccompanied by a by-line, might often fit readily into that category. On the other hand, foreign news such as a report of the commencement of a war in another part of the world might, of its very nature, often suggest that the newspaper was doing no more than retailing information which had been supplied to it. It is impossible to generalise and futile and dangerous to attempt to do so.
The basic dispute between the parties concerns the respondents' contention than the publication of statements including statements of opinion made in the ordinary course of the publication of news in those part- of a newspaper which are not advertising material cannon: be conduct which is misleading or deceptive or likely to mislead or deceive within the meaning of sub-3. 52(1) of che Act. For the reasons which we have stated, we are of opinion that the respondents' assertion is incorrect. Beyond that, as has previously been emphasised, for example, in Taco, supra, at p.l99:
"The question whether particular conduct of which complaint is made is misleading or deceptive or likely to mislead or deceive is, in the ordinary case, a question of fact to be answered in the context of the evidence as to the alleged conduct and as to the relevant surrounding facts and circumstances."
See also Puxu, supra, per Gibbs C.J. at p.7
In the result, question (li) should be answered "Yes"; question (111)(a) should be answered “Yes"; and question (iii)(b) should be answered "Yes, if the matters in paragraphs 3 and 13 of the Case are established". No other questions should be answered.
As agreed and recorded in the Case Stated, the respondents must pay to the applicants tneir taxed costs of and incidental to the proceedings in relation to the Case Stated.
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