GWA Pty Ltd v Russo
[2000] QDC 387
•3/11/2000
DISTRICT COURT OF QUEENSLAND CITATION: GWA P/L v Russo & Anor [2000] QDC 387 PARTIES: GWA PTY LTD
ACN 006 0112 344
Plaintiff
-v-
NICK RUSSO
First Defendant
and
EQUUSCORP PTY LTD (FORMERLY EQUUS
FINANCIAL SERVICES LIMITED)
ACN 006 012 344
Second DefendantFILE NO/S: 81 of 1993 COURT: District Court of Queensland DELIVERED ON: 3 November 2000 HEARING DATE: 5 September 2000 JUDGE: Judge Brabazon QC ORDER: Application dismissed CATCHWORDS: Defamation – identification of person defamed – intention of
publisher – Lee v Wilson (1934) 51 CLR 276 and Baltino v
Foreign Language Publications Pty Ltd (1986) 6 NSWLR 85
consideredCOUNSEL: Mr SSW Couper QC (for applicant/defendants)
Mr DR Cooper SC (for respondent/plaintiff)SOLICITORS: Gadens (for applicant/defendants)
Lees Marshall Warnick (for respondent/plaintiff)Judgment
In this action GWA Pty Ltd claims damages for defamation by the defendants.
The defendants now apply to strike GWA’s Further Amended Plaint of 27 March
1998, and to dismiss its claim, on the basis that it cannot plead sufficient facts to support a cause of action against the defendants. This is the third such application –
similar applications have already been dealt with by Judge McGill and Judge
McLauchlan. Each application resulted in an amendment to the statement of claim
in the plaint.
The present pleading
The further amended plaint alleges that, in about 1990, a group of Brisbane based
investors participated in some primary production projects. That Brisbane group
comprised investors who were officers, shareholders or employees of GWA, or
were companies associated with GWA. GWA itself is said not to have been an
investor. However, the investors were said to be known as, and referred to by the
other investors in the projects as either “the GWA group of borrowers”, or “the
GWA Pty Ltd group of borrowers” or “the Brisbane based borrowers”. The
pleading refers to them as “the Brisbane based borrowers”.
The pleading asserts that the second defendant, Equus Financial Services Limited,
was in the business of general financing. The first defendant, Mr Russo, was its
managing director. The second defendant had some involvement in the project.
The pleading alleges that the defendants wrote to other investors in the projects, in
October 1992. A long extract from the letter is incorporated in the pleading. It
refers to “the Brisbane based borrowers”. There is no actual reference to GWA, in
the letter.
Paragraphs 11 and 12 of the pleading assert that the words quoted were published
“concerning the plaintiff”. Paragraph 13 then complains of a number of
defamatory imputations concerning the plaintiff, to be found in the letter.
Because GWA was not actually named in the letter, paragraph 12 sets out to plead
facts to sustain the allegation, that “the matter complained of was published
concerning the plaintiff”. It makes these assertions:
(i) at no time was GWA one of the Brisbane-based borrowers;
(ii) the investors other than the Brisbane-based borrowers
erroneously believed that GWA was in fact one of the
Brisbane based borrowers;
(iii) the defendants knew that the investors referred to in sub-
paragraph (ii) held that erroneous belief;
(iv) the defendants published the matter complained of with the
knowledge pleaded in sub-paragraph (iii) and with the
intention that the investors pleaded in sub-paragraph (ii)
would identify the matters complained of as referring to the
plaintiff;
(v) the matter complained of was in fact read and understood by
the investors pleaded in sub-paragraph (ii) as referring to the
plaintiff;
The Defendants’ submissions
The submissions link two principles. The first is that: “it is well established that
ordinarily a defendant cannot be made liable for an identification made by a reader
on the basis of an erroneous belief in the existence of a particular extrinsic fact upon which the plaintiff relies to establish identification”. See Judge McGill in
GWA Pty Ltd v Russo & Anor, in giving judgment in the earlier application in this
action on 23 January 1997, at page 8. It is said that he correctly relied on
statements to that effect in Mirror Newspapers Ltd v World Hosts Pty Ltd (1979)
141 CLR 632 at 642 and Abbott v TCN Channel 9 Pty Ltd (1987) Aust Tort Rep 80-
138 at 69,078.
It was further submitted to be an established principle, that the intention of the
defendants in publishing the matter is irrelevant to the question of identification.
By combining those two principles, together with the pleaded fact that GWA was
not a Brisbane based borrower, it was submitted by the defendants that the action
must fail.
The application was opposed for two reasons. First, it was pointed out by GWA
that a similar issue was determined by Judge McLauchlan in favour of GWA, when
counsel for the defendants conceded that an amendment to the plaint, to add what is
now paragraph 12, would defeat an application to strike out the plaint.
That is what did happen for Judge McLauchlan. Counsel for the defendants now
says that the concession should not have been made and that, in any case, there is
no prejudice to GWA because of it. If it is true that the action is bound to fail, then
the pleading should now be struck out, regardless of the earlier concession. At the
most, the concession might have a consequence in costs.
Secondly, it is submitted for GWA that the existence of an erroneous belief on the
part of readers of the defamatory matter coupled with the actual intention of the defendants that GWA would be identified by those readers as one of the Brisbane
based borrowers, is sufficient. It is said that paragraph 12, therefore, reveals a
sustainable cause of action.
The cases
It is helpful to start with the decision of Hunt J in Baltinos v Foreign Language
Publications Pty Ltd (1986) 6 NSWLR 85. It appears to be the most detailed
judicial examination of the question, as to whether or not the intention of a
defendant is admissible evidence in relation to the identification of a plaintiff who
claims to have been defamed. The learned judge emphasized the importance of a
fundamental principle, that liability for defamation depends not upon the intention
of the defamer but upon the facts of defamation. He then discussed the authorities
which held, or assumed, that the defamer’s intention might be relevant to the
identification of the plaintiff. They were the decision of Dixon J in Lee v Wilson
(1934) 51 CLR 276 at 288-289; David Syme & Co v Lloyd (1984) 3 NSWLR 346 at
362 and the decision of the Privy Council in Lloyd v David Syme & Co Ltd (1985) 3
NSWLR 728 at 734; (1986) AC 350 at 364. He described those cases as providing
“respectable authority” for the proposition, that the defendant’s actual intention is
relevant to the issue of identification.
In the end, Hunt J followed the Privy Council because he believed that he was
bound to do so. His own opinion was to the contrary – in principle, such an
intention could not be relevant (at least upon the basis that where such an intention
existed it must be presumed to have the effect intended) in identifying the plaintiff.
Hunt J repeated his views in Abbott v TCN Channel 9 Pty Ltd (supra). He put the
matter this way:
“Just as an innuendo must be based upon an existing extrinsic fact ... so must a plaintiff in every case prove also the existence of the extrinsic fact upon which he relies for his identification and that the matter complained of was published to someone with knowledge of that existing fact ... a defendant cannot be made liable for an identification made by a reader or viewer who erroneously believes in the existence of the particular extrinsic fact upon which the plaintiff relies ... but the nature of that extrinsic fact may vary in different cases.
...(I do not propose to complicate this discussion by any reference to the defendant’s actual intention to refer to the plaintiff. It is to be hoped that the anomaly imposed upon the law by the decision of the Privy Council in Lloyd v David Syme & Co Ltd will prove to be a temporary aberration only: see Baltinos v Foreign Language Publications Pty Ltd.”)
Since then, Chernov J of the Supreme Court of Victoria has expressed support for
the views of Hunt J. In Lew v Herald and Weekly Times Ltd (1999) 1 VR 313, he
pointed out that the Australian courts were no longer obliged to follow the advices
of the Privy Council. He said that:
“For the reasons given by Hunt J in Baltinos, the subjective intention of the publisher is not relevant to the question of identification. Intention is to be determined on an objective basis having regard to the words in question (albeit looked at in the context of relevant extrinsic facts where they are alleged) ... despite his criticism of Lloyd v David Syme & Co Ltd Hunt J nevertheless felt bound to follow that case. No such requirement is presently in force, given that the Privy Council is no longer the apex of our judicial hierarchy ...”
In Lee v Wilson and McKinnon Dixon J had expressed himself this way:
‘If it be necessary to find which, of several equally described, was the person actually meant, the intention of the writer, not of the publisher, would appear to govern the answer. An actual intention, whether in writer or publisher, of referring to the plaintiff cannot be treated as irrelevant. Indeed where the words are capable of relating to the plaintiff, but it is uncertain whether they actually do so, the fact that they are used with him in view appears to be decisive. The reason may be that if words are capable of being read as referring to the plaintiff, and are intended to be so read, it must be presumed in his favour that they actually were so read.” (at p 289)).
Here, it is submitted for the defendants that the views of Hunt J and Chenov J are
decisive, and should be applied , and the pleading struck out.
There are some other considerations. First, the strong views of Hunt J do not
address the very situation alleged in this case – that other investors erroneously
believed that GWA was in fact one of the Brisbane based borrowers, and that the
defendants knew that the other investors held that erroneous belief. The pleading
contains that additional allegation. This is a case where the defendants are alleged
to have achieved the very effect they intended. It is more than a presumption that a
certain effect has been achieved (see Baltinos at p 95D).
Secondly, it is submitted that the erroneous belief on the part of other investors
might in this case be regarded as an extrinsic fact, because it was known to the
defendants.
Thirdly, it cannot be said that the question has been decisively settled, so that it
admits of only one answer. The jurisdiction to strike out an action should only be
exercised if it is apparent that a plaintiff must fail at trial – Wester v Lampard (177
CLR 598, 602).
Fourthly, because the true facts are not yet established, it is said to be desirable to
have a trial of the action, if the question is to be submitted to the trial judge, and
perhaps Court of Appeal. That was the approach taken by the Full Court of
Queensland in Bjelke-Petersen v Warburton (1987) 2 Qd R 465, where a question of identification was in issue. It was made clear that the issue of identification
should only be resolved at trial. As Connolly J said:
“At the end of the plaintiff’s case, on the trial of this action, the question which is likely to arise is whether the words complained of are capable of referring to the plaintiff in the light of any special facts or knowledge which may be proved in evidence ...”
Fifthly, if the facts should prove to be as pleaded in paragraph 12 of the further
amended plaint, then it would be my opinion that the intention of the defendants is
relevant to the issue of identification. The two established principles upon which
the defendants rely cannot simply be combined, if the fact is that the other
borrowers had a mistaken belief about GWA, and the defendants knew that, and
intended that they would therefore identify GWA when they read the letter.
The application is dismissed. The parties should suggest directions for the conduct
of the action, which has been far too long delayed.
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