John Fairfax Group P/L v Farley, R.A

[1994] FCA 249

JOHN FAIRFAX GROUP PTY LIMITED AND DAVID CLARK v. RICHARD ANDREW FARLEY,
GRAHAM JOHN BLIGHT, JOHN WESTON SEAFORTH MACKENZIE, WILLIAM THOMAS HAYES
BODMAN, ROSS JAMES OLIVER MACTIER AND NEIL GRAHAM SAMUELS
Nos. AG120-125 of 1993
FED No. 249/94
Number of pages - 8
Defamation

COURT

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
GALLOP, BURCHETT AND GUMMOW JJ

CATCHWORDS

Defamation - class of persons - aspersions cast on some or all of class - whether material capable of referring to plaintiff in light of special facts or knowledge proved in evidence - whether issue appropriate for determination on strike out application - whether leave to appeal should be given against decision refusing strike out application.

Morgan v. Odhams Press Limited (1971) 2 All ER 1,156

Vlasic v. Federal Capital Press of Australia Proprietary Limited (1976) 9 ACTR 1

Knupffer v. London Express Newspaper Limited (1944) AC 116

John Fairfax and Sons Limited v. Foord (1988) 12 NSWLR 706

McCormick v. John Fairfax and Sons Limited (1989) 16 NSWLR 485

Thompson v. Australian Capital Television Pty Limited (1989) 97 FLR 366

HEARING

CANBERRA, 19 April 1994
#DATE 2:5:1994

Counsel and solicitors Mr J. Sackar Q.C. and
for the applicants: Mr M. Lynch instructed by

Freehill, Hollingdale and Page

Counsel and solicitors Mr B. Connell instructed by
for the respondents: Macphillamy Cummins and Gibson

ORDER

Nos. AG120-AG125 of 1993
THE COURT ORDERS THAT:-

1. The applications for leave to appeal be dismissed.

2. The costs of the respondents be paid by the applicants.

NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

GALLOP, BURCHETT AND GUMMOW JJ These six applications for leave to appeal from a decision of a Judge of the Supreme Court of the Australian Capital Territory ("the Supreme Court") were heard together. On 25 November 1993 the primary Judge (Higgins J) delivered reasons for judgment on applications to strike out six statements of claim. The plaintiff in each of those actions was a respondent to one of the applications for leave to appeal to this Court. The strike out applications had been heard together. Higgins J ordered that the applications be dismissed.

1. Each of the actions in the Supreme Court alleged defamation by reason of the publication of an article on p. 15 of the issue of "The Australian Financial Review" dated 22 June 1992. The article is headed "Meatman sent packing to undertakers". It appears under the "by line" of David Clark. The applicant before us, John Fairfax Group Pty Limited ("John Fairfax"), is alleged to have published the article in the Australian Capital Territory and in other states and territories of Australia. Mr Clark is the second applicant in three of the applications to this Court.

2. The article in question was before the primary Judge and a copy is attached to these reasons. For ease of reference each paragraph in the article has been given a number.

3. From the article it will be observed that in paras. 5, 7 and 24 there are references respectively to "officials of the national and Victorian farmers' federations", "NFF and VFF officials - and assorted lawyers and consultants -" and to "NFF and VFF officials and their lawyer and consultant mates". Paragraphs 8 and 10 contain an account attributed to a Mr Bill Matthews, identified as the manager of a Victorian abattoir who agreed to help the NFF and VFF change the work practices in his industry. There are references in paras. 8 and 10 respectively to "representatives of the NFF and the now VFF" and to "representatives of the VFF and the NFF."

4. Each action in the Supreme Court was commenced by writ and there is a statement of claim or amended statement of claim. Mr Matthews and Mr Clark were joined as defendants in the actions by Mr Farley, Mr Blight and Mr MacKenzie. Neither Mr Matthews nor Mr Clark was joined as defendant in any of the other three actions. Mr Matthews was not an applicant on the strike out application and therefore is not an applicant on any of the present applications to this Court.

5. In each action the plaintiff alleges that the matter in the article was published "of and concerning the plaintiff" and that in its natural and ordinary meaning it was defamatory of the plaintiff in various respects. The ground pressed on each of the strike out applications before the primary Judge was that the matter complained of by the respective plaintiffs was not capable of being construed as defamatory of that plaintiff.

6. It was accepted before us that in order to succeed on their respective applications the applicants had to satisfy what was described as the "General Steels standard", a reference to General Steel Industries Inc v. Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130. It may be noted that in speaking of the corresponding provisions in the Rules of Court governing strike out applications in England, Lord Reid said that the procedure "is only intended to apply to cases where it is plain and obvious that the plaintiff has no case": Morgan v. Odhams Press Limited (1971) 2 All ER 1,156 at 1,159. That litigation concerned an action for defamation.

7. The article of which complaint is made criticises the activities of unnamed officials, representatives, lawyers and consultants engaged by or acting for the National Farmers Federation ("NFF") and the Victorian Farmers Federation ("VFF"). The matter complained of identifies, in paras. 14-19 and 25, one person by name as a former office holder in the VFF and the NFF. However, none of the plaintiffs is identified by name. Thus, as the primary Judge pointed out, if officers and representatives of the NFF and the VFF are defamed it is by reference to their membership of the class of persons described in the article of which complaint is made.

8. In the particulars of identification supplied by their solicitors, Mr Farley (the respondent in this Court in proceeding AG 120) is stated to have been Deputy Director of the NFF from July 1985 and Executive Director thereof since February 1988. He is also said since 20 May 1988 to have been trustee of a trust known as Australian Farmers' Fighting Fund ("the Fund").

9. Mr Blight (the respondent in AG 121) is stated to have been a delegate of the Council of the NFF since August 1979, a member of the Industrial Committee of the NFF since May 1984, Chairman of that Committee between May 1986 and May 1991, to have been elected Senior Vice President of the NFF in May 1990 and to have been President of the NFF since 16 May 1991. He is also stated to have been a trustee of the Fund since May 1990.

10. Mr MacKenzie (the respondent in AG 122) is stated to have been delegate to the Council of the NFF since May 1984, a representative on its Executive Committee since May 1983, Treasurer from May 1984, a member of the Industrial Committee since May 1986 and a trustee of the Fund since August 1986.

11. Mr Bodman (the respondent in AG 123) is stated to have held a number of positions in the VFF. These include membership of the General Council of the VFF and Presidency of the VFF from 1992. The particulars also state that since 1979 Mr Bodman has sat on various committees concerning meat production and processing including the Victorian Abattoir and Meat Inspection Authority, the Producers Consultative Group to the Australian Meat and Livestock Corporation, the Australian Meat and Livestock Industry Policy Council and the Meat Industry Selection Committee.

12. Mr Mactier (the respondent in AG 124) has been General Councillor of the VFF from 1987 and Treasurer thereof from 1992. Mr Samuels (the respondent in AG 125) was Executive Director of the VFF from August 1989 to July 1992.

13. In his judgment on the strike out applications, the primary Judge said that a member of a class may be defamed by aspersions cast upon some or all of its members, and that whether a particular article is capable of doing so depends on a range of factors. His Honour referred to various authorities, including decisions of the Supreme Court. One was the judgment of Blackburn J in Vlasic v. Federal Capital Press of Australia Pty Limited (1976) 9 ACTR 1. Each of the plaintiffs in that case had been a member at the material times of the committee of a club. The publication complained of expressly related the defamatory imputations to "some" of the members of the executive. Nevertheless, readers who knew the plaintiffs gave evidence that they considered the article to refer to the plaintiffs. Blackburn J held that that belief was reasonable, and that the article was capable of referring to each of the plaintiffs. Blackburn J said (at 3-4):
    

"It is for the judge to rule whether the words complained of are capable of referring to the plaintiffs in the light of the special facts or knowledge proved in evidence (per Lord Reid in Morgan v. Odhams Press Limited (1971) 2 All ER 1,156 at 1,160). At (All ER) 1,162, his Lordship said: 'The fact that a number of honest witnesses formed a certain view is by no means conclusive. It is only an item of evidence. It is for the judge to decide whether on the evidence an ordinary sensible man could draw an inference that the article referred to the plaintiff.'

At (All ER) 1,162, his Lordship said:

'The court recognises that rather far fetched inferences may be made by sensible readers.'"

In Knupffer v. London Express Newspaper Limited (1944) AC 116 at 124, Lord Porter stated:-

"The question whether the words refer in fact to the plaintiff or plaintiffs is a matter for the jury or for a judge sitting as a judge of fact, but as a prior question it has always to be ascertained whether there is any evidence on which a conclusion that they do so refer could reasonably be reached. In deciding this question the size of the class, the generality of the charge and the extravagance of the accusation may all be elements to be taken into consideration, but none of them is conclusive. Each case must be considered according to its own circumstances."

In that case the House of Lords affirmed the decision of the Court of Appeal which had allowed an appeal from a judgment in a trial in which it had been held that the words complained of referred to the appellant, a member of the "Young Russia Party". Four witnesses had given evidence at the trial that when they read the article, their minds went to the plaintiff. Nevertheless the judgment for the plaintiff was set aside.

1. The judgments in Knupffer were extensively referred to in this Court, on an appeal from the Supreme Court, in Mann v. The Medicine Group Pty Limited (1992) 38 FCR 400.

2. In the present case, the primary Judge plainly had the remarks of Lord Porter in mind when referring to such matters as the size of the class, the generality of the defamatory allegations and the extravagance of the allegations as factors to be taken into account in determining whether a particular publication is capable of defaming each member of a class by reference to aspersions cast upon some or all of its members.

3. It may be noted that Knupffer, Morgan, Vlasic, and Mann were all cases which had gone to trial. Other examples, from the authorities to which we were referred are Dowding v. Ockerby (1962) WAR 110 and Steele v. Mirror Newspapers Ltd (1974) 2 NSWLR 348. In these decisions (excepting only Morgan) the question of the capacity of the words complained of to refer to the plaintiff or plaintiffs had not been ruled on in advance of the trial.

4. It is in that setting that further observations by Lord Reid in Morgan (supra at 1,159-1,160) are significant for the applications now before this Court. His Lordship there said:
   

"It must often happen that a defamatory statement published at large does not identify any particular person and that an ordinary member of the public who reads it in its context cannot tell who is referred to. But readers with special knowledge can and do read it as referring to a particular person. A number of matters are not in dispute in this case. It does not matter whether the publisher intended to refer to the plaintiff or not. It does not even matter whether he knew of the plaintiff's existence. And it does not matter that he did not know or could not have known the facts which caused the readers with special knowledge to connect the statement with the plaintiff. Indeed the damage done to the plaintiff by the publication may be of a kind which the publisher could not have foreseen. That may be out of line with the ordinary rule limiting damage for which a tortfeasor is liable, but that point does not arise in this case.

On the other hand when people come and say that they thought that the plaintiff was referred to by a statement which does not identify anyone there must be some protection for a defendant who is thus taken unawares. It is now well settled that the plaintiff must give sufficient particulars of the special facts on which he or his witnesses rely. But that in itself may not be enough. It may be plain and obvious that no sensible person could, by reason of knowing these facts, jump to the conclusion that the defamatory words refer to the plaintiff. Then R.S.C. Ord. 18, r. 19 can be used to stop the case from going to trial. Otherwise the case goes to trial.

The next protection for the defendant is that at the end of the plaintiff's case the judge may be called on to rule whether the words complained of are capable of referring to the plaintiff in light of the special facts or knowledge proved in evidence. The main question in this case is: how is he to make that decision? It is often said that because a question is for the judge to answer it must be a question of law. I have more than once stated my view that the meaning of words is not a question of law in the true sense, even in other departments of the law where a much stricter test of the meaning of words is adopted than in the law of libel. It is simply a question which our law reserves for the judge.

... We have to consider how 'ordinary sensible men' (per Lord Devlin (in Lewis v. Daily Telegraph Limited (1964) AC 234 at 286)) would understand the words. So here the judge had to consider how ordinary sensible men, having the special knowledge proved, could understand the words complained of."

1. Several points of present significance may be drawn from this passage.

2. The first is that in some jurisdictions legislation has specifically characterised the nature of the question of the capacity of material to bear a defamatory meaning. We were referred to the decision of the Queensland Full Court in Bjelke-Peterson v. Warburton (1987) 2 Qd R 465. The Full Court there decided on demurrer the question whether certain matter was capable of bearing a defamatory meaning. It will be recalled what Lord Reid said upon the question, as regards the common law, namely that the question is not one of law in the true sense. However, s. 367 of The Criminal Code (Q) so deals with the matter as to render a demurrer an appropriate procedure. It states:-
   

"367 The question whether any matter is or is not defamatory is a question of fact.

The question whether any matter alleged to be defamatory is or is not capable of bearing a defamatory meaning is a question of law."

No such provision applies in the Australian Capital Territory pursuant to the continued applications there of the New South Wales statutes of 1901 and 1909 by the New South Wales Acts Application Ordinance 1984 (ACT).

1. Secondly, in some jurisdictions, particularly where defamation actions still are tried by jury, there has developed a practice of determining the issue of capacity of the matters complained of by the plaintiff to convey the imputations pleaded. Examples in New South Wales are Krahe v. TCN Channel Nine Pty Limited (1986) 4 NSWLR 536, Baltinos v. Foreign Language Publications Pty Limited (1986) 6 NSWLR 85, John Fairfax and Sons Limited v. Foord (1988) 12 NSWLR 706, and McCormick v. John Fairfax and Sons Limited (1989) 16 NSWLR 485.

2. In the third of these cases, a decision of the Court of Appeal, Clarke JA, with whom Hope JA agreed, favoured (at 728) the view that separate trials on the issue of capacity should be ordered only in exceptional cases or with the consent of the parties, so that leave to appeal from decisions on such separate trials generally should not be granted; rather the parties should be left to contest the trial upon the basis of the earlier ruling. In the fourth of these cases, McCormick, the separate trial was by consent and Hunt J (at 486) said:
   

"The plaintiff, although not named in either of the matters complained of, is easily identified as one of three partners in a firm of private investigators which is referred to in the published articles. It is agreed by the parties that such extrinsic fact upon which the identification is based produces a straightforward effect upon the matters complained of and that there is no uncertainty as to the precise basis upon which the plaintiff will go to the jury upon that identification issue. The matter is therefore a suitable one in which a separate trial should be ordered: Krahe v. TCN Channel Nine Pty Limited (1986) 4 NSWLR 536 at 542."

In Thompson v. Australian Capital Television Pty Limited (1989) 97 FLR 366, Miles CJ dismissed motions, in an action for defamation, each of which sought to have disposed of before trial what were described as points of law. His Honour indicated (at 370) that it will be rare indeed for a point of law to be disposed of before determination of the facts, where there is a disputed area of fact which bears on the point of law.

1. The third point arising from Lord Reid's observation concerns the provision of particulars. In the present matters there was correspondence between the solicitors for the parties as to the adequacy of particulars provided by the respective plaintiffs. In each statement of claim para. 1 pleaded facts, to which we have already referred, showing the involvement of the plaintiff in the affairs of either the NFF or the VFF. Under the heading "Particulars of Identification" it was then said that the plaintiff referred to the matters pleaded in para. 1 "which were widely known throughout Australia." The solicitors for the defendants sought further particulars in respect of those particulars of identification. They sought (a) particulars of the facts, matters and circumstances relied on in support of the assertion that the particulars were widely known throughout Australia at the time of the publication of the matter complained of; and (b) full particulars of those persons alleged to have knowledge of the extrinsic facts pleaded to whom it is alleged the matter complained of was published.

2. The response was as follows:-
   

"(a) This is a matter for evidence. In any event, the plaintiff says the position was a prominent one and received wide publicity in the course of activities of the NFF (or as appropriate, the VFF). Further the plaintiff may rely on any material discovered from the (John Fairfax) clippings files identifying the plaintiff. It is expected that any such documents will be discovered.

(b) In the circumstances of this case, this is not a proper request for particulars. In any event, the plaintiff says the extrinsic facts would have been known to members of the NFF (or VFF), persons dealing with the NFF (or VFF) and members of the public, including those who read material in the press referring to the plaintiff and activities of the NFF (or VFF). Again, the plaintiff will seek to rely on any material from the defendant's clippings files identifying the plaintiff."

1. The solicitors for the defendants reserved their rights to press for further particulars but pressed the strike out motions on the footing that in each action the matter complained of failed to identify the plaintiff. The solicitors for the defendants told the solicitors for the plaintiffs that they would not be raising any other issues in relation to the statements of claim at that stage, but that their clients reserved their rights to raise other issues in relation to the statements of claim once the applications had been determined.

2. Thus the applications were not concerned with the question whether the plaintiffs had given sufficient particulars of the special facts on which they or their witnesses relied. Accordingly, it is difficult to treat the present applications as cases where sufficient particulars of the special facts undoubtedly having been given, it is, to adopt Lord Reid's expression, "plain and obvious" that no sensible person could, by reason of knowing these facts, jump to the conclusion that the defamatory words refer to the plaintiff. It will be recalled that it was in those circumstances that his Lordship referred to the strike out procedure as an appropriate one to stop a case from going to trial.

3. Leave is now sought to appeal from decisions on the strike out motions where there was still outstanding a debate as to the adequacy of particulars of the special facts on which the plaintiffs and their witness would rely on the question, to be ruled on by the trial judge, whether the words complained of are capable of referring to the respective plaintiffs.

4. In his judgment dismissing the motions, the primary Judge said:-
   

"In this case, I do not know precisely the size of the group of persons referred to in the matter complained of. I cannot say if the size of the group will lead with certainty to a conclusion that the average reasonable reader will assume that the general allegations made were intended to refer only to some but not all of the class of persons referred to.

The allegations in the article relate to a specific fact situation. The allegations, although of serious commercial impropriety, are not, per se, extravagant. They are not all incapable of application to each of the members of the impugned class.

It seems to me, that I cannot conclude that it is not possible for the matter complained of to defame the plaintiffs."

1. In our view, no ground has been shown for a conclusion that his Honour fell into any error of principle in approaching the matter as he did. Further, in our view, it is desirable that the strike out procedure only be utilized, in cases such as the present, where sufficient particulars have been given of the special facts on which the plaintiff or his witnesses rely. If this has been done in a given case it may then be plain and obvious that no sensible person could, by reason of knowing of those facts, jump to the conclusion that the alleged defamatory words refer to the plaintiff. We also point out that it may not be possible to provide such particulars until discovery has been given, for example of clippings files maintained by the publisher and identifying the plaintiff.

2. Finally, even if a strike out application has been mounted at an appropriate stage, but has failed, there will be much to be said, when deciding whether it is appropriate to grant leave to appeal to the unsuccessful defendant, for the proposition that the action should not be fragmented. It may well be that the parties should be left to contest at the trial the question whether the words complained of are capable of referring to the plaintiff in the light of the special facts or knowledge proved in evidence.

3. In each application, leave to appeal should be refused. The costs of the respondents to the applications should be paid by the applicants.