Johnston v Australian Broadcasting Corporation
[2001] WASC 272
JOHNSTON -v- AUSTRALIAN BROADCASTING CORPORATION [2001] WASC 272
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2001] WASC 272 | |
| Case No: | CIV:2676/2000 | 28 AUGUST 2001 | |
| Coram: | STEYTLER J | 10/10/01 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Defendant's application allowed in part | ||
| B | |||
| PDF Version |
| Parties: | DAVID ALBERT LLOYD JOHNSTON AUSTRALIAN BROADCASTING CORPORATION |
Catchwords: | Defamation Television broadcast Whether imputations lacking in precision Turns on own facts |
Legislation: | Nil |
Case References: | Jones v Skelton (1963) 63 SR (NSW) 644 Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 Lewis v Daily Telegraph Ltd [1964] AC 234 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 Nationwide News Pty Ltd v Abboud, unreported; FCt SCt of WA; Library No 960710; 12 September 1996 Singleton v Hudson (1998) 20 WAR 191 Smith v Littlemore (1996) 15 WAR 289 Taylor v Jecks (1993) 10 WAR 309 Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148 Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254 Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 AC 741 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Gascoine v McGinty (1995) 14 WAR 542 General Steel Industries Ltd v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gumina v Williams (No 1) (1990) 3 WAR 342 Gumina v Williams (No 2) (1990) 3 WAR 351 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997 Rasile v The Daily News Pty Ltd, unreported; SCt of WA; Library No 7390; 24 November 1988 Reynolds v Nationwide News Ltd [2001] WASC 90 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
AUSTRALIAN BROADCASTING CORPORATION
Defendant
Catchwords:
Defamation - Television broadcast - Whether imputations lacking in precision - Turns on own facts
Legislation:
Nil
Result:
Defendant's application allowed in part
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr R W Richardson
Defendant : Mr R L Le Miere QC
Solicitors:
Plaintiff : Stephen Browne
Defendant : Blake Dawson Waldron
Case(s) referred to in judgment(s):
Jones v Skelton (1963) 63 SR (NSW) 644
Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663
Nationwide News Pty Ltd v Abboud, unreported; FCt SCt of WA; Library No 960710; 12 September 1996
Singleton v Hudson (1998) 20 WAR 191
Smith v Littlemore (1996) 15 WAR 289
Taylor v Jecks (1993) 10 WAR 309
Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148
Case(s) also cited:
Allworth v John Fairfax Group Pty Ltd (1993) 113 FLR 254
Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 AC 741
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gascoine v McGinty (1995) 14 WAR 542
General Steel Industries Ltd v Commissioner for Railways (NSW) (1964) 112 CLR 125
(Page 3)
Gumina v Williams (No 1) (1990) 3 WAR 342
Gumina v Williams (No 2) (1990) 3 WAR 351
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997
Rasile v The Daily News Pty Ltd, unreported; SCt of WA; Library No 7390; 24 November 1988
Reynolds v Nationwide News Ltd [2001] WASC 90
(Page 4)
1 STEYTLER J: This is an application to strike out various paragraphs of a statement of claim in defamation proceedings.
2 The plaintiff is a legal practitioner employed by a law firm, MacDonald Rudder.
3 The defendant carries on business, amongst other things, as a television broadcaster. It publishes a weekly program on ABC television under the name "Four Corners".
The "Four Corners" broadcast
4 The plaintiff claims to have been defamed by a segment of the "Four Corners" program which was broadcast on 20 March 2000. The broadcast dealt with an Aboriginal native land title claim which had been lodged in respect of land in the northwest of Western Australia. The claim was lodged by a group of people known as the Yaburara.
5 Stephen McDonell, one of the presenters of the broadcast, reported that the Yaburara had, as a "backer", one Nik Zuks, the managing director of a company identified only as "Kingstream Steel", and that Kingstream Steel had "kicked in the seed money to get the Yaburara claim off the ground". He later referred to the sum "kicked in" as having been $28,000.
6 The report, which is reasonably lengthy, also recorded that "the Yaburara ended up with the services of law firm MacDonald Rudder" and that the plaintiff, one of the firm's senior solicitors, "was presented to the Yaburara as their lawyer".
7 The broadcast is pleaded then to have proceeded as follows:
"STEPHEN MCDONELL: There are two elements to native title. The first requires preparation for the Federal Court case that ultimately determines if title is to be granted. The second involves negotiating land compensation payments from development companies.
In dealing with resource companies, MacDonald Rudder did its job extremely well, raising almost $1.8 million which went into the Yaburara trust account. According to an affidavit by the Yaburara's accountant, the lawyers kept more than $1 million for their fees and disbursements. One of these disbursements was, according to the trust accounts, to Nik Zuks of Kingstream, who was personally paid $90,000.
(Page 5)
- Four Corners was curious to know why it was that, while Mr Zuks' COMPANY paid $28,000 in seed money for the Yaburara claim, he seemed to have PERSONALLY received $90,000 back. Nik Zuks refused an interview.
The Chairman of Kingstream is the West Australian Premier's brother, Ken Court. He was also unavailable.
As for the Yaburara claimants, they received $768,000 of the money their lawyers had raised. Valerie Holbrow [one of the Yaburara claimants] questioned why the legal bills ate up so much of the money and she asked her accountant to have a look at the trust's books.
VAL HOLBROW: I had no intentions of getting rid of MacDonald Rudder. No, no, no intentions at all. I just wanted an accountant to go in and audit my accounts which I have the right to do.
STEPHEN MCDONELL: Her accountant, though, received a hostile response.
DAVID THOMPSON, ACCOUNTANT: It was just a blanket, 'If you want to look at the files, you sack us'. There was no alternative, no discussion. When I relayed that to the claimants, they were just absolutely stunned.
STEPHEN MCDONELL: So the Yaburara did sack their lawyer, David Johnston, and hired solicitor Paul Williams in his place. He asked Macdonald Rudder to hand on all the Yaburara documents to him.
PAUL WILLIAMS, YABURARA LAWYER: So there was a lot of -- buggerising around before I finally got the documents. I was finally allowed to --
STEPHEN MCDONELL: Would it be fair to say that MacDonald Rudder resisted giving you the documents?
PAUL WILLIAMS: I gained that distinct impression.
DAVID THOMPSON: Since that period they have been, in my view, in my opinion -- .. have done their best to frustrate us to access any records that they had.
(Page 6)
- STEPHEN MCDONELL: And when they did get the papers, Paul Williams was surprised at what he found and more importantly, what he didn't find.
PAUL WILLIAMS: As we went through these boxes and realised there was nothing of relevance to the Federal Court -- or directly relevant to the Federal Court proceedings, I started to almost panic. And in fact I was so concerned, I believed we'd left boxes behind. I rang the courier company and asked them to go back to MacDonald Rudder's office and see were there any boxes left. And they called me and said, 'No, we've collected everything'.
DAVID THOMPSON: And the people cannot get their heads around that. They cannot understand that level of expenditure for -- .. and not being prepared.
PAUL WILLIAMS: I'd certainly expect my case to be ready to go to trial.
STEPHEN MCDONELL: And was this one ready to go to trial?
PAUL WILLIAMS: No.
STEPHEN MCDONELL: One of the key things missing from the Yaburara's case was an anthropologist's report. Which raises the question -- what exactly was Rory O'Connor's involvement?
PAUL WILLIAMS: We've been told by third parties and by people who claim to know what went on, that O'Connor was to produce an anthropological report for my clients. Uh, that report doesn't exist. And we've certainly been unable to get a response from O'Connor in that regard."
8 The broadcast then touched upon the role which Mr O'Connor, an anthropologist, had played and featured some comments from him in which he suggested that the law firm involved was arranging for the preparation of an anthropological report and that the work that he had done for the Yaburara people involved the filling in of an application form on their behalf and the lodgment of that form on their behalf. The broadcast is then pleaded to have continued as follows:
(Page 7)
- "STEPHEN MCDONELL: For that task, Rory O'Connor was paid at least $15,000 according to court documents. Whether Rory O'Connor started an anthropologist's report is unknown but he's now working with a third claimant group -- an even smaller one, also overlapping the Burrup Peninsula. Eventually, MacDonald Rudder engaged another anthropologist. From the time you became involved until the court date, was it possible for you to assemble enough anthropological information to give your clients a reasonable showing in court?
RON PARKER, ANTHROPOLOGIST: No, no. That would take many, many months -- many months -- and it still hasn't been done today.
STEPHEN MCDONELL: The Yaburara say that David Johnston has never adequately explained how he spent their money. And now they've taken his firm to the Supreme Court.
PAUL WILLIAMS: We've asked for orders that MacDonald Rudder explain what monies they received on behalf of my clients, where they banked it to and how they disbursed it.
STEPHEN MCDONELL: According to Mr Williams' affidavit supporting his court action, MacDonald Rudder failed to prepare historical, archaeological, linguistic and genealogical reports. There was no evidence counsel had been briefed and no witness lists.
PAUL WILLIAMS: We've still yet to find any witness proofs, even though we've found or we've discovered that MacDonald Rudder have charged my clients for the preparation of those witness proofs. As far as we can tell, they don't exist. We've certainly been unable to locate them.
STEPHEN MCDONELL: MacDonald Rudder told the Federal Court that immediately prior to being dismissed, it was, in fact, in the process of taking witness proofs. In court, Government lawyers suggested that maybe MacDonald Rudder wasn't ready for trial because its clients instructed the firm to win maximum compensation from developers and put little effort into the court case itself. David Johnston refused Four Corners' requests for an interview. Both the Yaburara's native title hearing and their
(Page 8)
- action against MacDonald Rudder in the Supreme Court continue this week."
The pleaded imputations
9 In par 4 of his statement of claim the plaintiff pleads that the broadcast bore the following imputations (leaving out those in respect of which no complaint has been made):
"4.1 the plaintiff had paid $90,000 from his clients' trust account to a person who had no entitlement to be paid that sum.
4.2 the plaintiff had paid out $90,000 from his clients' trust account without his client's knowledge and/or authority.
4.3 the plaintiff had unjustifiably refused his clients' lawful request to have their trust account audited.
4.4 the plaintiff had arrogantly refused his clients' lawful request to have their trust account audited.
4.5 the plaintiff had engaged in unprofessional conduct by refusing to hand over his ex-clients' documents to their new solicitors within a reasonable time.
…
4.8 the plaintiff had been negligent in the conduct of a native title claim on behalf of his clients in failing to prepare the necessary reports for the proper conduct of the action.
4.9 the plaintiff had been incompetent in the conduct of a native title claim on behalf of his clients in failing to prepare the necessary reports for the proper conduct of the action."
10 It is these paragraphs which are the subject of the application to strike out.
Applicable principles
11 The principles to be applied on an application of this kind are well known.
(Page 9)
12 It is generally accepted that a party, in proceedings of this kind, is entitled to have the imputations for which it contends left to the trier of fact for the ultimate decision (see Singleton v Hudson (1998) 20 WAR 191 at 195, per Owen J and Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 341) although pleadings asserting imputations will be struck out where they are clearly untenable or manifestly groundless. (See Singleton, above, ibid, Lewis v Daily Telegraph Ltd [1964] AC 234; Smith v Littlemore (1996) 15 WAR 289 at 294 and Nationwide News Pty Ltd v Abboud, unreported; FCt SCt of WA; Library No 960710; 12 September 1996, per Malcolm CJ at 7, 9-12).
13 In considering whether the words complained of are reasonably capable of bearing the defamatory meaning contended for, those words must be looked at in the context of the publication as a whole (see Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638). The test has often been said to be that of whether reasonable people to whom the publication was made would be likely to understand it in a libellous sense. (See Jones v Skelton (1963) 63 SR (NSW) 644 at 650-656. The characteristics of the ordinary reasonable person are summarised in Smith v Littlemore, above at 294-295).
14 However, it is important to bear in mind, also, what was said by Mason J in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 as follows:
"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 reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation 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 the mind of the ordinary reasonable reader."
(Page 10)
15 A plaintiff must give particulars of the defamatory meaning upon which he or she relies. Precision is important in this respect. This is so because each defamatory imputation creates a separate cause of action and it is of some importance to the defendant to know precisely what case is to be made against it. (See Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 676 and Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148 at 155).
The plaintiff's complaints
16 That brings me to the defendant's complaints with respect to the pleaded imputations:
Paragraph 4.1
17 Counsel for the defendant objects to the imputation pleaded in par 4.1 of the statement of claim upon the basis that there is nothing in it which is defamatory. He contends that, merely to say of a solicitor that he paid money from a client's trust account to a person who had no entitlement to be paid that sum, is not, without more, defamatory. It seems to me that this is plainly correct. The solicitor might not have known, or had any reason to know, that that person was not entitled to be paid the sum. Indeed, the solicitor might have made the payment on his client's instructions. It follows that there is nothing in the terms of the pleaded imputation, taken on its own, which is to the plaintiff's discredit, or which tends to lower him in the estimation of others, or to expose him to hatred, contempt or ridicule, or to injure his professional reputation and which is accordingly defamatory of him (see Smith v Littlemore, above at 294). The imputation should consequently be struck out.
18 The plaintiff has proposed to amend par 4.1 to read as follows:
"The plaintiff had paid $90,000 from his client's trust account to a person he knew had no entitlement to be paid that sum."
19 Counsel for the defendant objects to this imputation, too, but only upon the basis that there is nothing in the broadcast which is arguably capable of conveying that imputation.
20 Counsel for the plaintiff contends that the imputation arises from that part of the broadcast which suggests that Four Corners was curious to know why, when Kingstream Steel paid $28,000 in order to fund the Yaburara claim, Mr Zuks was himself "personally paid $90,000" or, as it
(Page 11)
- was also put, personally "received $90,000 back", when taken together with various references to the plaintiff as the lawyer for the Yaburara claimants. He relies, also, upon the fact that the firm of MacDonald Rudder is reported as having resisted an audit of the relevant accounts, resisted giving up the relevant documents to the Yaburara claimants' new solicitor and having done its best to frustrate access to any records that it had. He also relies upon that part of the broadcast in which it is suggested that the plaintiff has never adequately explained how he spent the Yaburara claimants' money.
21 I am not persuaded that the imputation which is proposed to be introduced by way of amendment is so clearly untenable or manifestly groundless that I should disallow it at this stage. It seems to me plainly to be arguable that the broadcast gives rise to an imputation that MacDonald Rudder paid to Mr Zuks money to which he was not entitled. When this is coupled with the assertions, in the broadcast, as to MacDonald Rudder's obstructionism in respect of attempts to investigate the relevant accounts, the identification of the plaintiff as one of that firm's senior solicitors and the person who "was presented to the Yaburara as their lawyer", and the assertion that the plaintiff "has never adequately explained how he spent … [the Yaburara people's] money", the imputation seems to me to be sufficiently arguable to warrant it going forward.
Paragraph 4.2
22 Next, the defendant complains that the imputation pleaded in par 4.2 is not open. It submits that there is nothing in the broadcast which is capable of suggesting that the payment of $90,000 was made without the client's knowledge or authority. It also contends that the words "and/or" introduce some confusion and are consequently embarrassing.
23 As to the first of those complaints, it seems to me that, once it is accepted that the broadcast arguably gave rise to an imputation that the plaintiff paid the sum of $90,000 to a person he knew had no entitlement to that sum, it must, for similar reasons, be arguable that it gave rise, also, to an imputation that the payment was made without the Yaburara people's authority.
24 As to the defendant's second complaint, it seems to me that the reference to "knowledge and/or authority" is unnecessary and that a reference to a lack of authority would suffice. The other words add nothing and should consequently be struck out as surplusage which may, if allowed to stand, give rise to embarrassment.
(Page 12)
Paragraph 4.3
25 The imputation pleaded in par 4.3 is said to be so vague as to be embarrassing. Counsel for the defendant contends that there is an ambiguity inherent in the use of the word "unjustifiably" and also in the phrase "lawful request".
26 I am unable to accept that there is, in this context, any ambiguity in the use of the word "unjustifiably". It seems to me to mean no more or less than that the plaintiff's refusal of his clients' request to have their trust account audited lacked any justification.
27 However it is, in my opinion, unclear just what is intended by the use of the adjective "lawful" in describing the request. It also seems to me that it adds nothing to the imputation to the effect that the request was unjustifiably refused. That being so, it should, in my opinion, be struck out.
Paragraph 4.4
28 A similar complaint is made as regards the use of the word "lawful" in par 4.4. It seems to me that it adds nothing to the imputation that the request for an audit was "arrogantly" refused. It also seems to me, once again, to be unclear in its import. So, for example, it could mean that there was nothing unlawful in the making of the request or that it was made pursuant to some unidentified legal right (which would, in either case, add little to the imputation of arrogance in the course of refusing it). It consequently seems to me that the word should be struck out.
29 Counsel for the defendant also contended, as regards this imputation, that there is no substantive difference between an imputation to the effect that the plaintiff arrogantly refused the request referred to and one which alleges an unjustifiable refusal. However, it seems to me that the two imputations are sufficiently distinct. To say of someone that he has unjustifiably refused to do something does not necessarily import the subsidiary meaning that he was arrogant in doing so.
Paragraph 4.5
30 The defendant objects to par 4.5 upon the basis that it is not clear whether the words "unprofessional conduct" are used in their technical legal sense or in some more general sense. It also raises the objection that it is not clear whether the reference to "unprofessional conduct" is
(Page 13)
- intended simply to characterise what follows those words and, if so, why, or whether they are intended to add something and, if so, what, to the balance of the imputation.
31 It seems to me to be plain enough that the words in question are used in the non-technical sense of conduct which lacks professionalism. It also seems to me to be plain that the lack of professionalism is said to arise from the refusal to hand over the documents referred to within a reasonable time. While counsel for the defendant contended that, in that event, it would have been enough to plead an imputation of refusal to hand over the documents within a reasonable time, without characterising that conduct, it seems to me that the characterisation is intended only to identify what is said to be the "sting" of the alleged imputation (as to which see Monte v Mirror Newspapers, above, at 676 and Taylor v Jecks (1993) 10 WAR 309 at 315) and that it does so in a manner which is both sufficient and permissible.
32 I am consequently not prepared to strike out par 4.5 on this ground. I should add that no contention was made that the imputation is incapable of arising from the terms of the broadcast.
Paragraph 4.8 and 4.9
33 The defendant complains that there is no material distinction between the imputations pleaded in par 4.8 and par 4.9. Because the plaintiff has indicated a preparedness to delete imputation 4.9, this objection can be dealt with by striking out par 4.9.
34 However, the defendant contends also that the imputation pleaded in par 4.8 does not arguably arise from the terms of the broadcast. I am not persuaded by that contention. It seems to me that the imputation is arguably capable of arising from Mr Paul Williams' comments to the effect that he was concerned at finding how little there was, in the papers handed over to him, of direct relevance to the Federal Court proceedings and that he expected the case to be ready for trial but it was not (to the point that he "started to almost panic"), when taken together with the reference to Mr Williams' affidavit evidence that MacDonald Rudder had "failed to prepare historical, archaeological, linguistic and genealogical reports" and the reference to the fact that the Yaburara had said that the plaintiff had "never adequately explained how .. [the plaintiff] spent their money".
(Page 14)
Conclusion
35 It follows that I propose to strike out the whole of par 4.1, the words "knowledge and/or" in par 4.2, the word "lawful" in each of par 4.3 and 4.4 and the whole of par 4.9, but otherwise to dismiss the defendant's application.
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