Gunston v Davies Brothers Ltd - [2012] TASSC 15

[2012] TASSC 15

COURT: SUPREME COURT OF TASMANIA

CITATION: Gunston v Davies Brothers Ltd [2012] TASSC 15

PARTIES: GUNSTON, Andrew Scott
v

DAVIES BROTHERS LTD
  BAILEY, Gary
  ANDERSON, Catherine
  LOWER, Gavin
  WHINNETT, Ellen
  ROSE, Danny

FILE NO/S:  92/2004
DELIVERED ON:  17 April 2012
DELIVERED AT:  Burnie
HEARING DATE:  18, 19, 20 and 21 July 2011
JUDGMENT OF:  Crawford CJ

CATCHWORDS:

Defamation – Statements amounting to defamation – Particular statements – Imputation – Immoral conduct – Newspaper articles repeatedly referring to plaintiff as "Sergeant Sleaze" – Whether capable of defamatory meaning – Ridicule.

Defamation Act 1957 (Tas), s5(1).
Aust Dig Defamation [12]

REPRESENTATION:

Counsel:
             Plaintiff:  D J Gunson SC, L Brooks
             Defendants:  D F M Zeeman
Solicitors:
             Plaintiff:  Gunson Williams
             Defendants:  Butler McIntyre & Butler

Judgment Number: [2012] TASSC 15
Number of paragraphs: 212

Serial No 15/2012
File No 92/2004

ANDREW SCOTT GUNSTON v DAVIES BROTHERS LTD, GARRY BAILEY, CATHERINE ANDERSON, GAVIN LOWER, ELLEN WHINNETT
and DANNY ROSE

REASONS FOR JUDGMENT CRAWFORD CJ
17 April 2012

The plaintiff, who was once a sergeant in Tasmania Police, sued the defendants for damages for defamation arising out of 30 articles or reports in The Mercury newspaper that were published on 27 different dates between 4 May 2002 and 9 August 2003, four day bills published on different dates and two cartoons published on different dates.[1] Essentially, his action is based on the fact that they all referred to him as "Sergeant Sleaze", "Sgt Sleaze" or simply "Sleaze".
[1] The statement of claim sues for what are itemised as 35 publications. Included in one is a report and a day bill.

The newspaper was published at Hobart by the first defendant, Davies Brothers Ltd. The second defendant, Gary Bailey, was the editor of the newspaper. The third to sixth defendants, Catherine Anderson, Gavin Lower, Ellen Whinnett and Danny Rose, were journalists employed by the company.

On about 12 December 2001 the Commissioner of Police dismissed the plaintiff from his employment pursuant to the Police Regulation Act 1898, s12(1)(c). On 4 January 2002, he applied under the Industrial Relations Act 1984, s29(1A)(a), for a hearing of an industrial dispute relating to the termination of his employment. Under s29(2), the President of the Tasmanian Industrial Commission allocated the application to Commissioner T J Abey for hearing.

The hearing commenced at Hobart on 1 May 2002 and continued on various dates throughout that month. During the course of those proceedings, there were published in The Mercury numerous reports of and concerning the proceedings, and, in particular, portions of the evidence given before the Commissioner by various witnesses. Cartoons and day bills were also published concerning the proceedings.

The first report was in The Mercury of 2 May 2002 on pages 1 and 5. The plaintiff has not sued because of it, accepting that it was a fair report of proceedings published in good faith for the information of the public. See Defamation Act 1957, s13(1).[2] I will refer to much of the report.
[2] The Act was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] TASSC 15
Decision Date: 17 April 2012

CaseChat Overview and Summary

The case of Gunston v Davies Brothers Ltd was brought before the court in a dispute concerning alleged defamation. The plaintiff, Gunston, a former police officer, sought to challenge newspaper articles published by the defendants, Davies Brothers Ltd, which repeatedly referred to him as "Sergeant Sleaze". The articles were said to have made various imputations of immoral conduct against Gunston. The central issue for the court was whether the statements made in the articles were capable of conveying a defamatory meaning. This included determining if the repeated use of the term "Sergeant Sleaze" could be seen as ridiculing Gunston's character in a way that would lower him in the estimation of right-thinking members of society.

The court examined the nature and effect of the statements in question, considering the context in which they were published and the potential impact on Gunston's reputation. The court had to assess whether the term "Sergeant Sleaze" and the accompanying articles were likely to cause ordinary people to think less of Gunston or to ridicule him. The defendants argued that the term was a mere nickname without defamatory intent and was not aimed at conveying any specific imputations of immoral conduct. However, the court found that the repeated use of the term, coupled with the articles' content, did indeed convey a defamatory meaning and had the potential to ridicule Gunston.

In reaching its decision, the court emphasised the importance of understanding the context and the cumulative effect of the statements. It concluded that the term "Sergeant Sleaze" and the articles were not merely nicknames but were defamatory as they implied a serious allegation of immoral conduct. The court found that the statements were capable of lowering Gunston in the estimation of right-thinking members of society and had the effect of ridiculing him. Consequently, the court ruled in favour of the plaintiff, finding that the defendants had indeed defamed Gunston. The court's decision was based on the clear evidence that the articles had a defamatory impact and had the potential to cause significant harm to Gunston's reputation. Final orders were made in favour of the plaintiff, with appropriate remedies to be determined in subsequent proceedings.

Orders