Jensen v Nationwide News Pty Limited [No 9]
[2019] WASC 171
•21 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: JENSEN -v- NATIONWIDE NEWS PTY LIMITED [No 9] [2019] WASC 171
CORAM: QUINLAN CJ
HEARD: 30 APRIL 2019
DELIVERED : 30 APRIL 2019
PUBLISHED : 21 MAY 2019
FILE NO/S: CIV 1535 of 2016
BETWEEN: DENNIS GEOFFREY JENSEN
Plaintiff
AND
NATIONWIDE NEWS PTY LIMITED
First Defendant
ANDREW BURRELL
Second Defendant
Catchwords:
Defamation - Trial by jury - Form of questions for jury - Ordinary reasonable reader or listener - Whether ordinary reasonable person defined as a class determined by reference to particular publication
Legislation:
Nil
Result:
Orders made as to form of question to jury
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett |
| First Defendant | : | Mr T Blackburn SC & Mr J D MacLaurin |
| Second Defendant | : | Mr T Blackburn SC & Mr J D MacLaurin |
Solicitors:
| Plaintiff | : | Bennett & Co |
| First Defendant | : | MacPherson & Kelley Lawyers |
| Second Defendant | : | MacPherson & Kelley Lawyers |
Case(s) referred to in decision(s):
Amalgamated Television Services v Marsden (1998) 43 NSWLR 158
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675
Jensen v Nationwide News [No 5] [2018] WASC 360
Jeynes v News Magazines Limited [2008] EWCA Civ 130
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16
Sir Elton John v Times Newspapers Limited [2012] EWHC 2751
Trkulja v Google LLC [2008] HCA 25
QUINLAN CJ:
(This judgment was delivered extemporaneously on 30 April 2019 and has been edited from the transcript.)
An issue has arisen in relation to the questions to be put to the jury as to the meaning of the various publications relied upon by both the plaintiff and the plaintiff by counterclaim in this defamation action. The background to the plaintiff's claim, and the second defendant's counterclaim, is set out in Jensen v Nationwide News[No 5] [2018] WASC 360 (Jensen [No 5]) per Tottle J at [4].
The particular controversy is as to the form of the question whether the plaintiff (or plaintiff by counterclaim) has established that the meanings pleaded by them were conveyed by the relevant publications.
The plaintiff submits that the question ought to contain reference to the particular source of the publication in question. The defendants submit that the question should refer to the ordinary reasonable reader or listener simpliciter.
To take one example, the first question posed will be a question as to whether the plaintiff, Dr Jensen, has established that the article in The Australian newspaper dated 31 March 2016 conveyed the meaning that Dr Jensen is 'a hypocritical purveyor of smut'.
The plaintiff submits that the form of that question should be whether Dr Jensen established that the article conveyed 'to the ordinary reasonable reader of The Australian' that meaning. The defendants, by contrast, submit that the question should simply refer to be 'the ordinary reasonable reader'.
The same submission is made in relation to other forms of media, including radio interviews (i.e. 'the ordinary reasonable listener of ABC Radio' versus 'the ordinary reasonable listener').
In my view the form of the questions to be put to the jury should refer to the ordinary reasonable reader or listener simpliciter; that is, without reference to 'of The Australian' or 'of ABC Radio' or 'of 6PR Radio'.
My reasons for that are as follows.
The plaintiff relies upon the decision of the High Court in Trkulja v Google Inc [2018] HCA 25, and in particular, [53] - [55] where Kiefel CJ, Bell, Keane, Nettle and Gordon JJ were dealing with imputations said to arise from searches on the Google search engine.
The particular passage that the plaintiff relies upon is [53]:
Further, although it might be correct to say that the capacity of the search results to convey the alleged defamatory imputations is to be judged by reference to the 'ordinary reasonable user of a search engine such as the Google search engine', by analogy, say, to the way it is said that the capacity of a newspaper article to defame is to be judged by reference to the standards of an ordinary reasonable reader, to do so would be correct only so long as the expression were understood to mean an ordinary reasonable person who has made the Google search in issue.
The plaintiff submits, by analogy, that the capacity of a newspaper article to defame is to be judged by reference to the standards of an ordinary reasonable reader of that newspaper.
I do not regard the decision in Trkulja v Google as authority for the proposition that the particular newspaper, for example, would need to be referred to in the characterisation of 'the ordinary reasonable reader'. Indeed, the passage in [53] itself, where their Honours refer to the standards of an ordinary reasonable reader (by reference to Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716), does not refer to the particular newspaper in question.
These references to the ordinary reasonable user of Google must be read in context. The court in Trkulja v Google, as their Honours expressly recognised, was concerned with a medium of communication that was, to some extent, novel. In that respect, the Court said, at [55]:
Additionally, the question of law of whether the standard knowledge of comprehension of the processes involved should be taken at some hypothetical midpoint in the range of understanding is yet to be authoritatively determined. It may well be that the answer will turn on evidence as to the standards of knowledge and comprehension among users of the Google search engine, (be they first time or experienced participants, and recognising that the two classes may require separate consideration for the purposes of the law of defamation) and on inferences to be drawn from that kind of evidence as to the implications, particularly derogatory implications, that a user with that degree of knowledge and comprehension would be likely to attribute to the results of a Google search of the kinds in issue. As Kirby P (as his Honour then was) observed in another context, in Wickstead v Browne, appellate courts should be loath to consider the application of the law to evidence in novel contexts without the benefit of evidence having been adduced and a trial concluded. Testimony 'gives colour and content to the application and development of legal principle', and out of the detail of the evidence ultimately proved may arise an insight which aids our understanding whether and how principles should be developed.
I take this passage to be recognising the somewhat novel context as to how an ordinary reasonable person may understand a Google search. I do not take it as authority that it is necessary in all cases to characterise the ordinary reasonable person to be a person, or a subset or class of ordinary reasonable persons, receiving the particular publication.
Rather, in my view, as I have noted below, in Australia (save in the case where a true innuendo is pleaded) there is but one standard of the ordinary reasonable reader (or listener etc, as the case may be).
Before turning to the Australia authorities, I note that the plaintiff referred me to the decision of Tugendhat J in Sir Elton John v Times Newspapers Limited [2012] EWHC 2751.
That case provides some support for the notion of there being a subset or class of ordinary reasonable persons (being the readers of the particular publication). In that case, Tugendhat J identified the relevant principles set out by Sir Anthony Clarke in Jeynes v News Magazines Limited [2008] EWCA Civ 130 at [14] as including, as one of the features of the hypothetical reasonable reader: 'The hypothetical reader is taken to be representative of those who would read the publication in question.'
In that regard, Tugendhat J referred at [19] to the submission that:
In the case of the Times I take the hypothetical reasonable reader to be amongst the more highly educated and better informed members of the public.
In determining the result, his Honour concluded that the hypothetical reader of the Times would not reach the meaning pleaded by the claimant.[1]
[1] Sir Elton John v Times Newspapers Limited [2012] EWHC 2751 [31].
That decision needs to be understood in its context. It is a decision dealing with an application for a ruling as a matter of law as to whether words were capable of bearing a particular meaning and it did so in circumstances in which a particular meaning was sought to be derived from the headlines and a photograph of the claimant, Sir Elton John.
In that respect, in making the submission that, as a matter of law, it would not be possible to infer an imputation in the nature of the words complained of, his Honour said at [28]:
There might be some readers who would infer that actual, or possible, guilt is an imputation made in the words complained of. But by the rules of interpretation set out in Jeynes, the fact (if it be such) that some readers might draw that inference is not enough. Any such readers would not be within the definition of the hypothetical reasonable reader.
In the circumstances of that case, in my view, it was not clear whether his Honour was relying upon some difference of approach between 'the hypothetical reader of the Times' and the hypothetical reader generally.
In context, I think it most likely that his Honour was seeking to distinguish the hypothetical reasonable reader generally from a hypothetical reader that did not fit that description ('some readers'), namely readers that would draw an unreasonable or idiosyncratic inference from the article in question.
None of this is to say that the mode of the publication, including the particular newspaper that the matter appears in (or the radio program that it appears on), is not relevant to the determination by the jury of what a reasonable and ordinary reader or listener would take to be the meaning.
In that respect, the High Court in Trkulja v Google cited with approval the leading judgment of Hunt CJ at common law, in Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 and, in particular, his Honour's discussion at pages 164 - 167 of the attributes of the hypothetical ordinary reasonable reader. It is clear from that description that it includes reference to the mode or manner of publication being a matter material to the determination of whether an imputation is capable of being conveyed. So, for example, the ordinary reasonable reader of a book, is assumed to read it with more care than he or she would read a newspaper.
This principle however focusses on the medium itself rather than focussing on a hypothetical subclass of the ordinary reasonable reader.
In that respect, some assistance may be drawn from the decision in Radio 2UE Sydney Pty Ltd v Chesterton 2009 238 CLR 460; [2009] HCA 16 (Radio 2UE). That case, I would emphasise, was not concerned with whether the imputations were conveyed but, rather, whether or not the imputations alleged were defamatory.
Nevertheless, and recognising that different context, it is notable that the plurality (French CJ, Gummow, Kiefel and Bell JJ) described the trial judge's directions referring to 'ordinary reasonable listeners' as 'impeccable'.[2] Their Honours went on to conclude,[3] in relation to the suggestion that there were different tests to be applied in relation to defamation in the way of a plaintiff's business or professional reputation:[4]
The general test for defamation is relevant to all imputations which are said to have injured a plaintiff's reputation in some respect. The likelihood that the ordinary reasonable person may think the less of a plaintiff because of the imputations is assessed by reference to that person's general knowledge and their knowledge of standards held by the general community, as they may apply to what is said about the plaintiff. Because such a person can be expected to apply the standards of the general community, he or she may be described as 'decent'. The standards are not limited to those of a moral or ethical kind. That a particular imputation may not require the application of a community standard does not render the general test inapplicable. The inquiry as to the effect upon reputation remains. In a case where a secondary defamatory meaning is alleged, which may require knowledge of particular facts within a business or profession, those special facts may be pleaded and led in evidence in support of a true innuendo.
Their Honours concluded:
There is no warrant for the application of the knowledge or attitudes of a hypothetical referee other than those of the ordinary reasonable person.
[2] Radio 2UE [58].
[3] Disapproving the approach of the Court of Appeal in Gacicv John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675.
[4] Radio 2UE [60] (French CJ, Gummow, Kiefel and Bell JJ).
Again, recognising the different context, in my view Radio 2UE supports the broad principle that, in Australia, while mode and manner of publication will be of significance to the ordinary reasonable person, there is nevertheless but one hypothetical ordinary reasonable reader (or listener, as the case may be).
In the event that I am wrong about that, the approach that the jury must take to the particular articles and to the ordinary reasonable reader is a matter to be dealt with in detail in the submissions and directions to the jury and need not be fleshed out in detail in the questions for the jury.
In my view, particularly in circumstances in which the evidence is yet to be led, to include reference to the particular publication (as an attribute of the ordinary reasonable reader) in the questions themselves, might lead the jury to speculate in relation to matters which are not properly the subject of inference from the evidence before them.
Accordingly, I would not include the disputed words within the questions, although I will, of course, hear counsel during the course of the trial as to any particular directions which ought to be put to the jury in relation to their assessment of the publications having regard to the publications in which they appear.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan22 MAY 2019
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