Lane and Hurley v Channel Seven Adelaide Pty Ltd
[2008] SASC 180
•3 July 2008
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
LANE AND HURLEY v CHANNEL SEVEN ADELAIDE PTY LTD
[2008] SASC 180
Judgment of The Honourable Acting Justice Lander
3 July 2008
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - CRIMINAL
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - AS TO CAPACITY, FITNESS, RESPECTABILITY AND THE LIKE
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - INNUENDO - GENERALLY
DEFAMATION - ACTIONS FOR DEFAMATION - OTHER PROCEEDINGS BEFORE TRIAL - SEPARATE DECISIONS OF QUESTIONS
Broadcasting Services Act 1992 (Cth) s 206; Criminal Injuries Compensation Act 1978 (SA) ; Defamation Act 1974 (NSW); Defamation Act 2005 (NSW) s 46; Supreme Court Rules 1987 (SA) r 46A.12, referred to.
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Bjelke Petersen v Warburton [1987] 2 Qd R 465; Capital and Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741; Chakravarti v Advertiser News Ltd (1998) 193 CLR 519; Chapman and Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181; David Syme & Co v Canavan (1918) 25 CLR 234; Drummond-Jackson v British Medical Association [1970] 1 All ER 1094; Gordon v Amalgamated TV Services [1980] 2 NSWLR 411; Grubb v Bristol United Press Ltd [1963] 1 QB 309; Hough v London Express Newspaper Ltd [1940] 2 KB 507; Jones v Skelton [1963] 3 All ER 952; Keogh v Incorporated Dental Hospital of Ireland [1910] 2 IR (Irish) 577; Lewis v Daily Telegraph [1963] 1 QB 340; Lewis v Daily Telegraph [1964] AC 234; Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663; Morgan v Odhams Press Ltd [1971] 2 All ER 1156; Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (n); Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175; Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Sim v Stretch [1936] 2 All ER 1237; Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; Stubbs Ltd v Russell [1913] AC 386; Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581, applied.
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, distinguished.
Cornwall v Rowan (2004) 90 SASR 269; David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346; Gorton v Australian Broadcasting Commission and Walsh (1973) 1 ACTR 6; Knupffer v London Express Newspaper Ltd [1944] AC 116; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; Parmiter v Coupland (1840) 6 M & W 105; Tournier v National Provincial and Union Bank of England [1924] 1 KB 461, discussed.
Burrows v Knightly (1987) 10 NSWLR 651; Channel Seven Adelaide Pty Ltd v Manock (2007) 241 ALR 468; Charleston v News Group Newspapers Ltd [1995] 2 AC 65, considered.
LANE AND HURLEY v CHANNEL SEVEN ADELAIDE PTY LTD
[2008] SASC 1801 LANDER AJ: The first plaintiff is a barrister and the second plaintiff a solicitor. The defendant is the licensee of a commercial television station (Channel Seven) which broadcasts television programmes throughout the Adelaide metropolitan area and other regions of South Australia.
2 The facts which follow are taken from the pleadings and appear not to be in dispute. They are recounted to enable the reasons for decision to be better understood.
3 On 5 June 2001, Peter Liddy, who had been a stipendiary magistrate, was convicted of a number of sexual offences against young boys and sentenced to 25 years imprisonment. Mr Liddy owned a house property at 5 Cameron Street, Kapunda and a substantial quantity of artefacts, antiques and collectables.
4 A number of men who claimed to be victims of Mr Liddy (the victims) brought proceedings against him in the District Court of South Australia claiming damages at common law or compensation under the Criminal Injuries Compensation Act 1978 (SA).
5 On 14 June 2001, one of the victims who was represented by solicitors, Tindall Gask Bentley, applied ex parte for an injunction to restrain Mr Liddy from removing from the jurisdiction, disposing of, securing in any way, or otherwise dealing in any manner with his assets.
6 On 18 June 2001, an interlocutory injunction was made in those terms. His Honour Judge Smith also ordered that Mr Liddy file and serve an affidavit disclosing with full particularity his assets as at the date of the swearing of the affidavit.
7 The second plaintiff was a consultant to the firm of McGee and Associates (McGees), who were the solicitors acting for Mr Liddy and who were instructed to vary or discharge the interlocutory injunction made by his Honour Judge Smith in the District Court of South Australia on 18 June 2001 and to stay the victims’ civil actions brought in the District Court. On 24 July 2001, the first plaintiff was retained as counsel for those applications.
8 On 20 June 2001 and 31 July 2001, Mr Liddy swore affidavits in purported compliance with his Honour Judge Smith’s orders.
9 Other victims were represented by Hume Taylor, solicitors. Meetings were held between the solicitors for the victims and the legal representatives of Mr Liddy to determine whether the parties could agree to the discharge of Judge Smith’s order and the terms of the discharge.
10 On 19 October 2001, the District Court was told that the parties had agreed on terms which had been incorporated in a Memorandum of Understanding (which had been signed on 21 August 2001). The Court was also told that the solicitors for the victims and Mr Liddy had exchanged letters “setting out the spirit in which the assets of Mr Liddy are going to be valued, disposed of and the proceeds utilised”.
11 The defendant has pleaded that the plaintiffs were aware of the contents of the Memorandum of Understanding, the letters and the matters told to the Court.
12 On 19 October 2001, the orders made on 18 June 2001 were varied by consent.
13 On 19 October 2001, the District Court judge ordered:
that Liddy file and serve an affidavit disclosing with full particularity information as to the superannuation policies previously held by him and the transfer of monies to his bank account as a result of the redemption of such policies and the use of such monies after the transfer;
that the disposal of Liddy’s assets or the use of Liddy’s money with the consent of the Plaintiffs’ solicitors (which consent shall not be unreasonably withheld) shall not constitute a breach of the Mareva injunction.
14 It was a term of the Memorandum of Understanding that a Mr Erik Van Kruyssen, “a barrister and solicitor and also a licensed antique dealer with a special interest in maritime artefacts” would value identified artefacts, being:
a collection of perishable maritime artefacts including antiques;
a collection of fragile American artefacts and documents;
a collection of rare books and magazines; and
a collection of books in relation to shipwrecks and maritime artefacts.
15 On 29 October 2001, Mr Van Kruyssen provided McGees with a letter which is described in the pleadings as the Van Kruyssen valuation. In October, McGees, on behalf of Mr Liddy, negotiated for the sale of Mr Liddy’s house property at Kapunda to a Mr Stephens.
16 On 16 November 2001, McGees, acting for Mr Liddy, applied to the District Court for an order varying the orders made on 18 June and 19 October 2001 to allow Mr Liddy’s house property to be sold to Mr Stephens. The Court was informed that Mr Stephens’ offer would be withdrawn on 19 November 2001. Sometime between 16 and 19 November Judge Smith varied the injunction to allow the sale to proceed although the victims’ solicitors did not consent to the variation.
17 On 10 June 2002, 22 July 2002, 16 August 2002, 25 April 2005 and 2 May 2005 in its “Today Tonight” current affairs program, which is broadcast at 6.30 pm on each week night, Channel Seven broadcast and published programs concerning the value and disposal of Mr Liddy’s assets.
18 On 12 August 2002, and after the second broadcast, the plaintiffs commenced this action against the defendant claiming that the publications by the defendant in the first two broadcasts were defamatory of the plaintiffs and claimed damages for libel. An action for damages for defamation arising out of a television broadcast is an action in libel because the broadcast is deemed to be in the permanent form: s 206 of the Broadcasting Services Act 1992 (Cth).
19 The summons which commenced this action was accompanied by a statement of claim which has been amended with leave of the Court from time to time to include further claims for defamation arising out of the third, fourth and fifth broadcasts and claims for aggravated and exemplary damages by reason of those further broadcasts: Rule 46A.12 of the Supreme Court Rules 1987 (SA). The plaintiffs have also amended their statement of claim to rely on other broadcasts and conduct in support of their claims for aggravated and exemplary damages. Attached to this judgment and marked “A”-“E” are the descriptions of the matters depicted and the transcripts of the five broadcasts the plaintiffs plead were made by the defendant and are defamatory of the plaintiffs. There is no real dispute about the accuracy of the transcripts. The plaintiffs have pleaded the imputations which they say arise from each of the broadcasts. Attached to this judgment and marked “F” is the schedule of imputations which have been taken from the statement of claim which are said to arise from the depictions and words used in the broadcasts.
20 The parties agreed that the question whether the pleaded imputations arise should be determined before the trial.
21 On 20 February 2008, Bleby J ordered that the issue whether the imputations pleaded by the plaintiffs in paragraphs 9AA, 9C, 9CA, 9H, 9HA, 9L, 9LA and 9R were conveyed be tried separately. On 1 April 2008 he amended that order to include a reference to paragraphs 9 and 9M.
22 At the conclusion of the hearing, with the consent of the parties, I made further orders amending Bleby J’s orders:
1The order made by Bleby J on 20 February 2008 (as varied on 1 April 2008), further varied by deleting references to paragraphs 9AA, 9CA, 9HA, 9LA and 9M.
2That within 21 days of the delivery of the Court’s reasons, the plaintiffs’ solicitors write to the defendant’s solicitors indicating which of the imputations in paragraphs 9AA, 9CA, 9HA, 9LA and 9M are pressed and if such imputations are pressed by reference to:
(a) 9AA.1; or
(b) 9AA.2.1; or
(c) 9AA.2.2
or the corresponding sub-paragraphs of paragraphs 9CA, 9HA or 9LA respectively, in respect of the imputation in question.
3The parties have liberty to apply.
23 I will explain as I go through the statement of claim why that amendment was necessary.
24 There is no application before me to strike out the imputations or any other part of the statement of claim. The parties are apparently content to go to trial on the pleadings as they presently stand. Because this is not a strike out application, the defendant is not inhibited by the test laid down by the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129: see also Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675.
25 The parties have apparently agreed on this course of action because, amongst other defences, the defendant has raised pleas of justification. Although Bleby J’s orders only speak of the issue whether the pleaded imputations were conveyed, the parties have agreed that I should also decide whether any imputations that are conveyed are defamatory. It is convenient therefore to determine what imputations are conveyed and whether they are defamatory in advance of the trial in order that the trial may proceed efficiently. These are my reasons for decision in relation to the trial of that separate issue.
26 The plaintiffs contend that the plea in paragraph 9M raises a true innuendo. Where a true innuendo is pleaded, the plea must be accompanied by particulars of the extrinsic facts which would give the words, to those who read the publication, a meaning which they would not otherwise have: Capital and Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741 at 748; Grubb v Bristol United PressLtd [1963] 1 QB 309. Paragraph 9M will need to be considered separately because, apart from that paragraph, the plaintiffs contend that the words in the broadcasts are defamatory in their natural and ordinary meaning.
27 Where words are said to be defamatory in their natural and ordinary meaning, the pleas in the statement of claim can be described as raising false innuendos.
28 It has become established in South Australia in more recent times that it is good pleading practice to plead the imputations which are said to arise out of a publication even if those imputations are said to arise in the natural and ordinary meaning of the words: Chapman and Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181. The plaintiffs were right in my opinion to identify the imputations which they say arise out of the depictions and the words used in the broadcasts.
29 Lord Morris of Borth-y-Gest said in Jones v Skelton [1963] 3 All ER 952 at 958:
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words (see Lewis v. Daily Telegraph, Ltd. [1963] 2 All E.R. 151.). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader, guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction, would draw from the words.
See also Lord Reid in Lewis v Daily Telegraph [1964] AC 234 at 258; Lord Bridge of Harwich in Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 71 and Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 532.
30 Often the words of a false innuendo do not convey the particular sting complained of by the plaintiff so, in those circumstances, the defendant should be put on notice of the imputation which is said to arise: Chapman and Chapman v Australian Broadcasting Corporation at 189.
31 There are in any defamation case two issues to be addressed in considering the published words. First, whether the words give rise to the pleaded imputations and whether those imputations are capable of bearing a defamatory meaning. Secondly, whether the imputations are in fact conveyed and that the imputations convey a defamatory meaning. Although there is some doubt as to whether the first question is a question of law, it is a question for the Court: Stubbs Ltd v Russell [1913] AC 386. In Stubbs Ltd v Russell per Lord Kinnear and Jones v Skelton per Lord Morris of Borth-y-Gest, the House of Lords and Privy Council held that it was a question of law.
32 However, in Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728 at 733, Lord Keith of Kinkel, in delivering the opinion of the Privy Council, after referring to the decision of the Court of Appeal of New South Wales (David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346) under appeal but without reference to the opinion of the Privy Council in Jones v Skelton, said the question is not strictly a matter of law but whether there was evidence sufficient for the matter to go to the jury. The second question is whether it is open to the trier of fact to find that an ordinary reasonable reader would have understood the words complained of in the defamatory sense pleaded. That second question is undoubtedly a question of fact for the trier of fact.
33 Because in this State the trial judge is the trier of fact, both questions may be rolled up and answered at once so that the question which is raised for decision is whether the pleaded imputations in fact convey a defamatory meaning. I need to decide therefore whether the pleaded imputations arise from each of the broadcasts and whether any of those which do arise have a defamatory meaning.
34 The parties do not disagree on the legal principles to be applied. The principles may be shortly stated.
35 The question is whether the words are reasonably capable of conveying a defamatory meaning: Chakravarti v Advertiser News Ltd per Kirby J at [134].
36 Words will convey a defamatory meaning if reasonable persons might understand the words in a defamatory sense: Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515; Capital and Counties Bank Ltd v Henty & Sons at 745.
37 Leaving aside paragraph 9M, it is claimed that the words are defamatory in their natural and ordinary meaning. In those circumstances, the words should be construed in a manner which reasonable persons of ordinary intelligence with ordinary general knowledge and experience of worldly affairs would be likely to understand them. It is not, however, a question of construction in the legal sense: Lewis v Daily Telegraph Ltd at 258.
38 Any strained, forced or utterly unreasonable interpretation must be rejected: Jones v Skelton. The ordinary reasonable viewer (in the case of a claim for defamation in a television broadcast) is a layperson, not a lawyer. He or she is, for the purpose of this inquiry, a person of fair average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; neither perverse nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland [1910] 2 IR (Irish) 577; and a person not avid for scandal: Lewis v Daily Telegraph. The ordinary reasonable viewer does not live in an ivory tower and can and does “read between the lines” in the light of his or her general knowledge and experience of worldly affairs: Lewis v Daily Telegraph at 258. He or she is permitted to draw “rather far fetched inferences” and is also prone to a certain amount of loose thinking. He or she does not view a sensational article cautiously or carefully, but casually: Morgan v Odhams Press Ltd [1971] 2 All ER 1156. The more sensational the article in a newspaper the less likely it is that the ordinary reasonable viewer will have viewed it with the degree of analytical care which otherwise may have been given to a book (Morgan v Odhams Press Ltd) and the less the degree of accuracy which would be expected by the viewer. There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 citing Lewis v Daily Telegraph [1963] 1 QB 340 at 374.
39 In Lewis v Daily Telegraph [1964] AC 234, Lord Devlin said at 285:
A man who wants to talk at large about smoke may have to pick his words very carefully, if he wants to exclude the suggestion that there is also a fire ... [The words] can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
40 The same applies but with even more force when complaint is made of defamatory material published in the electronic media. It is assumed that the ordinary reasonable viewer in the case of a television broadcast has seen the whole of the broadcast of which complaint is made: Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (n).
41 The ordinary reasonable viewer, however, does not have the same advantage as the ordinary reasonable reader of an article in the permanent form. There is no ability for a person viewing a television broadcast to view again an earlier part of the article to put it into the context of a later part of the broadcast. Thus, the ordinary reasonable viewer will more often reach his or her conclusion on first impressions rather than cautious analysis.
42 In Gordon v Amalgamated TV Services [1980] 2 NSWLR 410 at 413, Hunt J said:
Particularly in the case of radio and television publications, a plaintiff is entitled to submit to the jury that the reasonable listener or viewer, as the case may be, although deemed to have listened to the whole of what was broadcast, nevertheless, may not have devoted the same degree of concentration to it as he would have to a written document: Morosi v Broadcasting Station 2GB Pty Ltd. In the case where there is a written document, of course, it is possible for the reader to consider or reread the whole document at leisure.
43 The more the ordinary reasonable viewer is excited by the claims in the program, the more likely it is that that ordinary reasonable viewer will reach impressionable conclusions.
44 I have had the advantage of seeing the video of the broadcasts in my chambers on more than one occasion. During the hearing I was taken to the video by the defendant’s counsel, Mr Smark SC who took me through the broadcasts slowly and carefully. I have read the account of the actions depicted and the transcripts of the words spoken a number of times. To that extent I am in a different position to the ordinary reasonable viewer. He or she saw each of the broadcasts once only and never saw the transcript. He or she had to reach his or her opinion immediately. The broadcasts occupied approximately 8 minutes, 10 minutes, 6 minutes, 18 minutes and 8 minutes for the first to fifth broadcasts respectively.
45 To judge the meaning which the ordinary reasonable viewer would give to the matters depicted and the words spoken after “repeated scrutiny and close analysis can be quite unreal”: Gorton v Australian Broadcasting Commission and Walsh (1973) 1 ACTR 6. Nevertheless, it must be done.
46 Baron Parke was responsible for the “classic” formulation for the meaning of what is defamatory in Parmiter v Coupland (1840) 6 M & W 105:
A publication, without justification or lawful excuse, which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule, is a libel.
47 However, it was subsequently recognised that the statement was too narrow because it did not encompass a person’s reputation in his or her profession, trade or calling. A person may be defamed in his or her trade or calling without being brought into hatred, contempt or ridicule. Lord Blackburn in Capital and Counties Bank Ltd v Henty & Sons recognised that Parke B’s formulation did not go far enough when he said at 771:
A libel for which an action will lie, is defined to be a written statement published without lawful justification, or excuse, calculated to convey to those to whom it is published an imputation on the plaintiffs, injurious to them in their trade, or holding them up to hatred, contempt, or ridicule.
48 His Lordship extended the formulation to statements which were injurious to persons in their trade or calling.
49 More modern authority recognised that the classic formulation was too narrow in that it failed to recognise a defamation of a person in his trade or calling. In Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 at 477, Scrutten LJ said that the formulation omitted reference to damage to the reputation as a business man which would be unconnected with hatred, contempt or ridicule. In the same case, Atkin LJ said at 486-487:
I do not think that it is a sufficient direction to a jury on what is meant by “defamatory” to say, without more, that it means: Were the words calculated to expose the plaintiff to hatred, ridicule or contempt, in the mind of a reasonable man? The formula is well known to lawyers, but it is obvious that suggestions might be made very injurious to a man’s character in business which would not, in the ordinary sense, excite either hate, ridicule, or contempt—for example, an imputation of a clever fraud which, however much to be condemned morally and legally, might yet not excite what a member of a jury might understand as hatred, or contempt.
50 In Sim v Stretch [1936] 2 All ER 1237 at 1240 Lord Atkin said that Parke B’s formulation was probably too narrow and said, after a review of the authorities that the test was “would the words tend to lower the plaintiff in the estimation of right thinking members of society generally”.
51 In Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 50 TLR 581 at 587, Slesser LJ extended Parke B’s formulations to include any words that “[tend] to make the plaintiff be shunned and avoided and that without any moral discredit on [the plaintiffs’] part”. He identified two classes of persons who had been alleged to be insane or suffering certain diseases who should be entitled to bring an action “to protect their reputation and their honour”.
52 It is now clear that words may be defamatory of a professional person if they impute a lack of knowledge, judgment, efficiency or competence in the conduct of that person’s profession: Drummond-Jackson v British Medical Association [1970] 1 All ER 1094.
53 The words will be defamatory of these plaintiffs if they would tend to lower the plaintiffs in the estimation of right thinking members of society or cause the plaintiffs to be shunned and avoided. Moreover, the words will be defamatory if the imputations arising from the words tend to injure the plaintiffs in their profession. But to do so the words must be such that they impute a defect of character or a want of professional competence in the wider sense.
54 In Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632, Mason and Jacobs JJ said at 638:
... the plaintiff [has] to prove at common law that the defendant published to a third party a statement about the plaintiff of a kind likely to lead the recipient as an ordinary person to think the less of him.
55 If the imputations assert that particular acts or omissions were caused by or contributed to by the plaintiff who acted incompetently, dishonestly, unethically, improperly, disloyally or who was guilty or suspected of being guilty of criminal conduct, those imputations will convey a defamatory meaning: Michael Gillooly, The Law of Defamation in Australia and New Zealand, (The Federation Press, 1998), p 47. It is not absolutely necessary that the imputations convey fault on the part of the plaintiff but this action is about imputations which are said to convey fault of the kind mentioned above.
56 The ordinary person referred to in Mirror Newspapers Ltd v Word Hosts Pty Ltd is the same person who determines the imputations conveyed by the words: Readers Digest Services Pty Ltd v Lamb (1982) 150 CLR 500.
57 Before going to the words themselves, it is necessary to say something about the structure of the statement of claim because it has some unusual features or, as the defendant contended, some unconventional features.
58 The statement of claim identifies each of the imputations which are said to arise from each of the separate broadcasts which are conveniently numbered first, second, third, fourth and fifth. I will refer to the particular paragraphs. In the case of each broadcast, the plea is that the broadcast referred to or was understood to refer to the plaintiffs.
59 Whether the words referred to the plaintiffs will be in due course a question of fact which will be determined by reference to the ordinary reasonable viewer who has determined whether the imputations have been conveyed and whether they are defamatory: Morgan v Odhams Press.
60 In none of these broadcasts are the plaintiffs mentioned by name. But that does not mean that the broadcasts are not of and concerning the plaintiffs. They may be identified by means other than name. They will be identified if persons who know or are acquainted with the plaintiffs are led to believe that the plaintiffs were the persons to whom reference was made: David Syme & Co v Canavan (1918) 25 CLR 234 at 238.
61 In paragraph 8 the plaintiffs plead two separate ways in which the words were published of and concerning the plaintiffs. First, it is asserted in paragraph 8.1:
[A]s at 10 June 2002 and all material times thereafter, it was known to and understood by the public or a substantial section of the public and, in particular, of the Adelaide legal profession, staff of the Courts Administration Authority and the Department of Correctional Services, that the plaintiffs were Liddy’s lawyers in respect of the civil proceedings;
62 The plea is that there was at the relevant time a particular section of the public that was aware that the two plaintiffs were Mr Liddy’s lawyers. In paragraphs 8.2 to 8.5 the plaintiffs plead the particulars which would allow them to be identified as Mr Liddy’s lawyers. It is pleaded:
8.2.in so far as it consisted of pictures, the broadcast showed a letter bearing the date 11 October 2001 written on the letterhead of McGee & Associates and signed by Hurley;
8.3.the plaintiff Lane has been identified and referred to in at least the following newspaper articles or media releases to his knowledge:
8.3.1. “Liddy Wins Civil Case Adjournment”, AAP General News (Australia), 17 September 2001;
8.3.2. “Liddy Appeal Halts Claim”, The Advertiser, Adelaide, 18 September 2001;
8.4.the plaintiff Hurley has been identified and referred to in at least the following newspaper articles to her knowledge:
8.4.1. “Appeal Delay in Liddy Case Appalling”, The Advertiser, Adelaide, 14 August 2001;
8.5.the plaintiff Hurley has been identified and referred to as a lawyer acting for Liddy in television broadcasts over the Adelaide metropolitan and country areas on 25 September 2001 and 31 January 2002 to her knowledge;
63 The above is not a plea of a “class libel”. The plaintiffs do not rely upon being members of a class for their claim. Their claim is that particular persons know that they were the persons referred to in the broadcasts. It means of course that only those persons amongst the whole of the viewers of those broadcasts would have understood whatever defamatory imputations were made to refer to the plaintiffs. The evidence as to whom the defamatory imputations are published is limited to those persons.
64 In those pleas the plaintiffs rely on extrinsic facts to prove the broadcasts were of and concerning them. They will have to establish at trial that an ordinary person who has the special knowledge pleaded would have understood that the defamatory imputations referred to the plaintiffs.
65 Separately, there is a claim in paragraph 8.6:
8.6.in the alternative to paragraphs 8.1 to 8.5 (inclusive), the plaintiffs were members of a class of persons, namely lawyers of Mr Liddy, which class was identified in the first broadcast.
66 It is not necessary at this stage of the proceeding to address whether the plaintiffs’ membership of the class identified in paragraph 8.6 would provide them with an action for defamation in respect of the pleaded broadcasts.
67 In some cases a “class action” provides all members of the class with a cause of action: Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728; Bjelke Petersen v Warburton [1987] 2 Qd R 465. However, some statements may only relate to one member or a few members of the class: Bjelke Petersen v Warburton; Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175. That might mean some lesser imputation is conveyed. For example, it might mean that a member of the class possibly conducted themselves in the way about which complaint is made or was guilty of associating with a person who acted in such a way.
68 The plaintiffs have pleaded in relation to the first four broadcasts that the broadcasts were defamatory of the plaintiffs in the sense conveyed in paragraphs 8.1 to 8.5. In respect of the fourth broadcast, the plaintiffs have relied on further particulars in support of the plea in paragraphs 8.1 to 8.5: paragraphs 9K.1 to 9K.4. In the case of the fifth broadcast, the plaintiffs rely on the particulars given in paragraph 9K.1 to 9K.5. Paragraph 9K.5 repeats the particulars in paragraphs 8.1 and 8.3 to 8.5 (inclusive). In respect of the first four broadcasts, the plaintiffs have also pleaded that the plaintiffs were members of a class of lawyers, namely lawyers of Mr Liddy (paragraph 8.6) or, in the case of the fourth broadcast, the class described as the lawyers of the monster (paragraph 9K.6). In the case of the fifth broadcast, there is no claim of a defamation of a class.
69 The plaintiffs have pleaded a “class libel” because they contend it is not clear when the broadcasts refer to Liddy’s lawyers or in the fourth broadcast to the monster’s lawyers that a reference is being made to all lawyers in the class or some of the lawyers in the class.
70 The plaintiffs explained why the pleading is in that form:
The reason why there are specific imputations for defamations by class, as well as the other imputations pleaded, is to cover an uncertainty in the law of defamation by class. The uncertainties relate to reconciling the Full Court decision of Pryke v Advertiser Newspapers (1984) 37 SASR 175, and the decision of Hunt J in McCormick v John Fairfax & Sons (1989) 16 NSWLR 485.
71 The plaintiffs contend that it is also appropriate to rely on a class libel because of the decision of the Full Court in Cornwall v Rowan (2004) 90 SASR 269 at 396 and, in particular, at [543] to [565].
72 The pleader may have overlooked the speech of Lord Atkin in Knupffer v London Express Newspaper Ltd [1944] AC 116 at 121:
The only relevant rule is that in order to be actionable the defamatory words must be understood to be published of and concerning the plaintiff. It is irrelevant that the words are published of two or more persons if they are proved to be published of him, and it is irrelevant that the two or more persons are called by some generic or class name. There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a particular building is not actionable, if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant. The reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalizations is ingrained in ill-educated or vulgar minds, or the words are occasionally intended to be a facetious exaggeration. Even in such cases words may be used which enable the plaintiff to prove that the words complained of were intended to be published of each member of the group, or, at any rate, of himself. Too much attention has been paid, I venture to think, in the textbooks and elsewhere to the ruling of Willes J. in 1858 in Eastwood v. Holmes, a case at nisi prius in which the judge non-suited the plaintiff both because he thought there was no evidence that the words were published of the plaintiff and for other reasons, and, so far as the first ground is concerned, it appears to me on the facts to be of doubtful correctness. His words: “it only reflects on a class of persons” are irrelevant unless they mean “it does not reflect on the “plaintiff”, and his instance “All lawyers were thieves” is an excellent instance of the vulgar generalizations to which I have referred. It will be as well for the future for lawyers to concentrate on the question whether the words were published of the plaintiff rather than on the question whether they were spoken of a class. (Footnotes omitted.)
73 In the end, the words must be defamatory of and concerning the plaintiffs.
74 For reasons which I have mentioned, that is not an issue for now. However, it is to be observed that whether the plaintiffs are identified directly or only identified as one of a class who might be the person referred to in the broadcast or who might be an associate of a member of the class who is guilty of that conduct, the words in those broadcasts only convey whatever defamation imputations are found to have been conveyed to the limited audience in paragraph 8.1.
75 The pleas in relation to the first four broadcasts all take the same form. First, the plaintiffs plead imputations “as individuals”. Secondly, they plead imputations as “members of a class”. The plaintiffs only rely upon identification as individuals in respect of the fifth broadcast. It is an unusual pleading. However, somewhat reluctantly, I shall adopt the plaintiffs’ description of the pleas.
76 The plaintiffs rely upon each of the five broadcasts as giving rise to a separate cause of action in defamation. That is conventional enough. In relation to the fourth broadcast, they also rely on a particular plea in paragraph 9M as raising a true innuendo. That raises a separate cause of action in relation to the fourth broadcast to that cause of action which relies on the natural and ordinary meaning of the words in that broadcast. Thus, there are six causes of action arising out of the five broadcasts.
77 There is, apart from the plea in paragraph 9M, no plea that the viewers of one broadcast were the viewers of a later or earlier broadcast. The plaintiffs therefore rely upon each broadcast standing on its own. The plaintiffs have eschewed any reliance upon a viewer having knowledge of any particular fact gained from an earlier broadcast when viewing a later broadcast, except in the sense of a suggestion that a later broadcast may act as a “reinforcement”. In that regard, they are not presenting the type of case considered in Burrows v Knightly (1987) 10 NSWLR 651.
78 The plaintiffs do not allege anywhere in the statement of claim that the words were defamatory of the plaintiffs. They assert, as I have already said, that the words were published of and concerning the plaintiffs but they do not assert that the words are defamatory. However, the defendant has accepted that the plea may be implied because in paragraph 10 it is said that the plaintiffs were injured in their reputation.
79 The plaintiffs do not discriminate in their pleas between each other. It follows that all the imputations pleaded in the statement of claim should be understood as referring to both plaintiffs.
80 There are some other unconventional pleas in the statement of claim to which I will refer as I travel through the statement of claim and before I go to the pleaded imputations.
81 In paragraph 7 of the statement of claim the plaintiffs identify the first broadcast on 10 June 2002 and provide a description of the matters depicted and a transcript of the words of that broadcast. The claim that the broadcast concerned the plaintiffs is contained in paragraph 8 to which I have already referred. In paragraph 9 the plaintiffs plead a series of imputations which they say arise out of the natural and ordinary meaning of the words. This plea relies upon the identification plea in paragraphs 8.1 to 8.5. This is said to be the plea of the defamations of the plaintiffs as individuals.
82 In paragraph 9AA the plaintiffs plead a further series of imputations but only insofar as the plaintiffs were members of the class of persons pleaded in paragraph 8.6, namely lawyers of Mr Liddy. These are what the plaintiffs have called lesser imputations and are pleaded on three different bases.
83 In paragraph 9AA the plaintiffs plead that the imputations are conveyed because they were members of the class pleaded in paragraph 8.6 and that they might have been guilty of the conduct pleaded in paragraph 9AA or were persons who knowingly were associated or connived in the conduct of Mr Liddy’s other lawyers when they engaged in the conduct later pleaded in paragraph 9AA.
84 This plea is the typical “class libel” plea which is raised in each of the first four broadcasts.
85 When analysed, the plaintiffs’ claim that as members of the class they were libelled in three separate ways. First, by a viewer understanding that as a member of the class they might have been guilty of the conduct particularised: paragraph 9AA.1. Secondly, as persons who were knowingly associates of Mr Liddy’s lawyers who engaged in such conduct: paragraph 9AA.2.1. Thirdly, as persons who connived with Mr Liddy’s other lawyers in the conduct: paragraph 9AA.2.2.
86 The plea then identifies exactly the same conduct as pleaded in paragraph 9. In paragraph 9, 19 separate imputations are said to arise. Because paragraph 9AA repeats those pleas and because it is pleaded that the imputation might arise in any of the three ways mentioned, the plea raises a further 57 separate imputations. The same style of pleading is used in respect to the further broadcasts.
87 In paragraph 9A the plaintiffs identify the second broadcast on 22 July 2002 and provide a description of the matters depicted and a transcript of the words used in the second broadcast. In paragraph 9C the plaintiffs plead the imputations which they say arise out of the natural and ordinary meaning of the words, as individuals. In paragraph 9CA they plead the imputations which they say arise out of their membership of the class of persons identified in paragraph 8. That plea is in the same form as paragraph 9AA.
88 In paragraph 9D it is pleaded:
9D Further, the second broadcast reinforced in the minds of persons who viewed both broadcasts, the imputations pleaded in paragraph 9 herein.
89 The plea is both curious and unconventional. It is curious because it only applies to the imputations pleaded in paragraph 9 and not those pleaded in paragraph 9AA. If the plea is good there does not seem to be any reason to discriminate between paragraphs 9 and 9AA.
90 I was told by Mr Trim QC, senior counsel for the plaintiffs, that the plea should not be understood as any separate cause of action but should only be understood as a plea going to damages and, in particular, aggravated damages. The plaintiffs claim in paragraph 9A that the second broadcast gives rise to a claim for damages and in paragraph 9D that the second broadcast also is a particular of aggravated damages. However, it is not suggested by the plaintiffs that by publishing the second broadcast the defendant thereby republished the first broadcast. The plea is unconventional.
91 In paragraph 9E it is pleaded:
9E Further, in a subsequent broadcast by the defendant at about 6.30 pm on 13 August 2002 in its Today Tonight program, the defendant broadcast and published, or caused to be broadcast and published, a further segment concerning the sale of Liddy’s assets at a gross undervalue thereby reinforcing in the minds of the viewers the [sic] first broadcast, and/or second broadcast, the defamations respectively contained therein, as pleaded above.
92 It is not pleaded in paragraph 9E that the broadcast on 13 August 2002 was defamatory of the plaintiffs. No cause of action is said to arise out of that broadcast. The plea in paragraph 9E has to be understood, at least as far as I understand it, as a claim that by reason of the broadcast on 13 August 2002, which was not defamatory of the plaintiffs, the defendant aggravated whatever damage had been caused to the plaintiffs in the two earlier broadcasts by reinforcing in the minds of the viewers of the two separate broadcasts the defamations contained in those broadcasts.
93 In this case it is claimed that the viewer will be reminded of all imputations arising out of the depictions and words used in the first and second broadcasts. That would include the imputations pleaded in paragraph 9AA which were not the subject of the reinforcement plea in paragraph 9D.
94 Assuming that the licensee of a television station could aggravate damage earlier occasioned by a non-defamatory broadcast in the course of its business, it is difficult to understand what is meant by reinforcing the viewers’ minds. If it is meant by that to remind the viewers of previous defamatory imputations, one would have expected the pleader to say so. However, that will need to be addressed at the later trial.
95 In paragraph 9F the plaintiffs identify the third broadcast on 16 August 2002 and, again, give a description of the matters depicted and transcript of the words in that broadcast.
96 Thereafter, the plaintiffs adopt the same formula as in their pleas in relation to the first and second broadcasts. First, they plead the imputation which they say arises out of the natural and ordinary meanings of the words as individuals: paragraph 9H. Next, they allege the imputations which they say arise if the depictions or words in the broadcast identifies the plaintiffs as members of the class pleaded in paragraph 8: paragraph 9HA.
97 In paragraph 9I the plaintiffs again raise the “reinforcement” pleading and plead:
9I Further, the third broadcast reinforced in the minds of viewers who had seen it, and either or both of the first broadcast and second broadcast, the defamations contained in the first broadcast and second broadcast as respectively pleaded above (as the case may be), and in particular the imputations in paragraphs 9.7, 9AA.18, 9C.9 and 9C.10, 9CA.11 and 9CA.12 herein
98 This reinforcement plea is a little different to the earlier plea because it asserts that the viewers of the first and second broadcasts will be reminded of particular imputations which are said to arise out of the first and second broadcasts. This plea is unlike the plea in paragraph 9D which refers to all imputations pleaded in paragraph 9 herein. Thus it would reinforce in the viewers’ minds the imputations in paragraph 9AA. It is difficult to understand why this broadcast would reinforce in the minds of the viewers the imputations in paragraph 9AA but the second broadcast would not. The plaintiffs again rely on a later cause of action in the third broadcast as a particular of their claim for aggravated damages. In any event, as this plea is to be understood as a plea only going to aggravated damages, it is not a matter for further consideration at this time.
99 In paragraph 9J the plaintiffs identify the fourth broadcast and provide a description of the matters depicted and a transcript of the words. Paragraphs 9K.1 to 9K.6 gives further particulars as to why the fourth broadcast concerned the plaintiffs as individuals. However, paragraph 9K.6 seems to introduce the “class libel” into the libel “as individuals”. However, paragraph 9LA purports to deal with the “class libel”. There is some confusion in the two pleas as to how the plaintiffs are identified. Paragraph 9K.6 pleads a different class to that pleaded in paragraph 8.6. In paragraph 9L, the plaintiffs identify the imputations which they say arise out of the natural ordinary meaning of the words as individuals and in paragraph 9LA, consistent with their earlier form of pleadings, they identify the imputations which they say arise if the plaintiffs are known to be members of the class of persons identified in paragraphs 8.6 and 9K.6 and, perhaps, 9K.5. There is some confusion in this plea as to the class of which the plaintiffs are said to be members.
100 In paragraph 9M there is a plea not seen in relation to the second and third broadcasts. In paragraph 9M it is pleaded:
9M Further or in the alternative, the fourth broadcast asserted the correctness of the earlier broadcasts concerning the disposal of Liddy’s assets as pleaded above, and thereby adopted their meaning. In the premises the publication of the earlier broadcasts as pleaded above would have been known to a substantial but unquantifiable number of unidentifiable viewers of the Today Tonight program and such of these viewers who viewed the fourth broadcast would have understood its meaning as having adopted the meaning of the earlier broadcasts as pleaded above. The plaintiffs repeat the imputations pleaded in paragraphs 9, 9AA, 9C, 9CA, 9H and 9HA hereof mutatis mutandis.
101 This plea, I was told, was a plea of the true innuendo. It is asserted that anyone who had seen the first three broadcasts would understand that the fourth broadcast had adopted those three broadcasts. It is difficult to understand what is meant by adopted the three broadcasts.
102 I think, with respect, that there is some confusion in paragraph 9M between a pleading of a true innuendo and a pleading of a republication.
103 If this were a pleading of a true innuendo, the plea would be that the persons who had seen the earlier broadcasts would understand the words in the fourth broadcast, which are not in their natural and ordinary meaning defamatory, as being defamatory by reason of the knowledge they acquired in the first three broadcasts.
104 But that is not how paragraph 9M is put. In paragraph 9M it is said that the knowledge acquired by the viewers of the first three broadcasts would enable them to understand that the fourth broadcast had adopted the imputations contained in the first three broadcasts. In paragraph 9M it is said that the imputations which arise are those in paragraphs 9, 9AA, 9C, 9CA, 9H and 9HA. The pleader is asserting that the viewers who saw the fourth broadcast have thereby received a publication of all of the imputations in the first three broadcasts whether of the plaintiffs as individuals or as members of the classes in paragraphs 8.6, 9K.6 and, perhaps, 9K.5. It might be an understatement to describe this plea as all embracing.
105 In my opinion, if this plea can stand, it is a plea of republication rather than a plea of the true innuendo, because there is no plea that the viewers who had acquired the particular knowledge, acquired by reason of the publication of the first three broadcasts, would understand the matters depicted or the words in a different sense than those without that knowledge. Instead it claims that the viewers would have understood its meaning as having adopted the meaning of the earlier broadcasts. Apparently it is suggested the viewers would have recalled any imputation which was conveyed in the earlier broadcasts. That is not a plea of true innuendo. Whilst paragraph 9M is now not to be addressed on this hearing, it has serious defects which I think should be addressed.
106 In paragraph 9N an alternative plea is put. It is pleaded:
9NFurther or in the alternative, the fourth broadcast reinforced in the minds of viewers who had seen it, and any one or more of, the first broadcast, second broadcast and third broadcast, the defamations contained in the first broadcast, second broadcast and third broadcast, as may be the case, as respectively pleaded above, and in particular conveyed to such viewers the credibility of the matters asserted in the first broadcast, second broadcast and third broadcast, as the case may be, by asserting to the effect that:
9N.1 the defendant had the use of hi-tech criminal intelligence computer software and specialist investigators;
9N.2 which use, and specialist skills as deployed by the defendant, had been able to uncover facts no others (including the Major Fraud squad police) had been able to uncover;
9N.3 that, for legal reasons only a small portion of what the defendant had uncovered could be revealed at the time of the fourth broadcast, which implied that yet more unspecified but highly damaging information was still to be revealed.
107 This is a further variation of the “reinforcement” pleading. Like the second and third broadcasts, this plea relies upon a later cause of action to support a claim for aggravated damages in respect of the earlier broadcasts. However, this plea pretends to go further than the plea in the other “reinforcement” pleadings. It does not seem to be limited to a claim for aggravated damages. It also claims that the broadcast conveyed to the viewers “the credibility of the matters asserted” in the earlier broadcasts and particularises the assertions. I do not know what is meant by this plea if it is intended to raise issues other than aggravated damages. In particular, I do not understand what is meant by conveying to the viewers the credibility of the earlier broadcasts. Those earlier broadcasts either were or were not defamatory of the plaintiffs. Moreover, I do not understand what is meant by the fourth broadcast “asserting” the particulars in paragraph 9N. Those particulars are not said to be imputations defamatory of the plaintiffs.
108 In paragraph 9O it is pleaded:
9OFurther, in a subsequent broadcast by the defendant at about 6.30 p.m. on 26 April 2005 in its Today Tonight program, the defendant broadcast and published, or caused to be broadcast and published, a further segment concerning the sale of Liddy’s assets at a gross undervalue thereby reinforcing in the minds of the viewers the:
9O.1 First broadcast;
9O.2 Second broadcast;
9O.3 Third broadcast; and/or
9O.4 Fourth broadcast;
and the defamations respectively contained therein, as pleaded above, and in particular in the context of comment on the segment referred to in this paragraph, by one Angus Redford MP, who was held out to be (as is the case) as a member of parliament, and senior lawyer admitted since 1979, such comment being to the effect that the sale of Liddy’s assets was such a scandal that it was eroding confidence in the justice system itself, and by implication that the plaintiffs had procured such a scandal.
109 Paragraph 9O of the statement of claim is like paragraph 9E. It asserts that a further broadcast by the defendant on 26 April 2005 reinforced in the minds of the viewers the first, second, third and fourth broadcasts and “the defamations respectively contained therein”.
110 There is no complaint that the content of the broadcast of 26 April 2005 was defamatory, although there is a faint suggestion that a defamatory imputation arises out of something Mr Redford said. This, again, is apparently a plea which goes to damages. This plea seems to be a little like the plea in the previous paragraph (9N). The pleader seems to suggest that because Mr Redford said something in his broadcast, that would “reinforce” in the minds of the viewers the defamations contained in the earlier broadcasts. The comments I made in relation to paragraph 9E would equally apply to this paragraph.
111 In paragraph 9P the plaintiffs identify the fifth broadcast on 2 May 2005 and give a description of the matter depicted and a transcript of the words in the broadcast.
112 The plaintiffs plead that this broadcast referred to them by reference to the particulars in paragraphs 9K.1 to 9K.5: paragraph 9Q. I have already pointed out the defect in paragraph 9K.5 which picks up the “class libel” in paragraph 8.6. In paragraph 9R the plaintiffs plead the imputations which they say arise out of the natural and ordinary meaning of the words as individuals. There is no separate plea in respect of this broadcast relying on paragraph 8.6 or, indeed, paragraph 9K.6. The reference to paragraph 8.6 in paragraph 9K.5 is limited to the fourth broadcast. Thus, there is no plea of a class libel in respect of this broadcast unless the ambiguity in the plea in paragraph 9K.5 disguises some other class.
113 The plaintiffs plead alternatively that the fifth broadcast reinforced in the minds of the viewers who had seen the fifth broadcast “and any one or more” of the previous broadcasts of the defamations contained in those broadcasts: paragraph 9S. The plea therefore relies upon the fifth broadcast, again a cause of action in itself, as a matter in support of the plea of aggravated damages.
114 In paragraph 9T the plaintiffs assert that a broadcast by the defendant in its Today Tonight program of 14 November 2005 had the effect of “reinforcing in the minds of viewers the first broadcast, and/or second broadcast, and/or third broadcast, and/or fourth broadcast, and/or fifth broadcast (as the case may be) and in particular the imputations pleaded in 9L.7 and 9LA.9”. This is another reinforcement plea arising out of a publication which is not itself said to be defamatory of and concerning the plaintiffs. Thus it is confined to a plea of aggravated damages.
115 In paragraph 10 it is pleaded:
10. By reason of the:
10.1. first broadcast;
10.2. second broadcast;
10.3. third broadcast;
10.4. fourth broadcast;
10.5. fifth broadcast;
and each of them, and the reinforcement of the imputations conveyed by those broadcasts, as pleaded in paragraphs 9D, 9E, 9I, 9N, 9O, 9S and 9T herein, the plaintiffs have been gravely injured in their credit, character, reputation and profession as lawyers and have been brought into public scandal, odium and contempt.
116 This plea appears to contradict the plaintiffs’ counsel’s explanation that the pleas in paragraphs 9D, 9E, 9I, 9N, 9O, 9S and 9T are matters going only to the question of damages and, in particular, aggravated damages. Paragraph 10 is the plea from Parke B’s judgment in Parmiter v Coupland and Lord Blackburn’s speech in Capital and Counties Bank Ltd v Henty & Sons which goes to the cause of action, not damages. Indeed, as I read paragraph 10, the plaintiffs are relying on paragraphs 9D, 9E, 9I, 9N, 9O, 9S and 9T for the claim that the first, second, third, fourth and fifth broadcasts are defamatory. However, as I have said, there is no application to strike out the statement of claim or any part of it.
117 There is a separate plea (paragraph 11 of the statement of claim) claiming aggravated damages which incorporates in paragraph 11.4 the pleas in paragraphs 9D, 9E, 9I, 9N, 9O, 9S and 9T which refer to non-defamatory broadcasts. Other facts and circumstances pleaded not relevant to this decision are raised by way of aggravation.
118 Paragraph 12 is a plea claiming exemplary damages which relies also, in part, on the non-defamatory publications referred to in paragraphs 9D, 9E, 9I, 9N, 9O, 9S and 9T. In those circumstances, it must be understood that the pleaded non-defamatory broadcasts are also particulars of exemplary damages.
119 The defendant has pleaded that none of the imputations pleaded by the plaintiffs in paragraphs 9, 9AA, 9C, 9CA, 9H, 9HA, 9L, 9LA and 9R were conveyed or defamatory of the plaintiffs: paragraphs 9, 15, 23, 28 and 37 of the defence. It further denies the allegations contained in paragraph 9M of the statement of claim: paragraph 32 of the defence. The defendant has pleaded justification, fair comment and qualified privilege in respect of some or other of the broadcasts. Those particular pleas and the broadcasts to which those defences refer do not need to be addressed.
120 As I have said, the broadcasts do not name the plaintiffs. The only direct reference to either plaintiff is in the first broadcast where a letter is shown on the letterhead of McGee and Associates which is signed by the second plaintiff. The defendant denies that the broadcasts referred to were capable of referring to the plaintiffs. I have shown how the plaintiffs seek to establish that the words were published of and concerning them.
121 However, identification is not presently an issue before me. The parties agreed on the manner in which the question I have been asked should be addressed which is recorded in a letter of the defendant’s solicitors dated 12 December 2007:
... the preliminary hearing as to the imputation conveyed will proceed on the basis that the identification is assumed in your clients’ favour. Of course, if on completion of the preliminary hearing, the judge finds that any of the imputations have been conveyed and there is a subsequent trial on those imputations, then identification, along with all defences pleaded by our client, will remain at issue in that subsequent trial. It follows that the defendant would not require the plaintiffs to lead any evidence as to the identification at the stage of the preliminary hearing.
122 During the hearing a difficulty was identified in how the Court would deal with the separate pleas in the first four broadcasts which are based upon the class libel. The parties recognised the enormity of the task of not only considering the pleaded imputations “as individuals”, but then considering each of the imputations by reference to the three separate ways they might impact upon the plaintiffs as members of the class, a further 57 imputations. For those reasons, I was asked to make the orders confining this exercise to the imputations pleaded by reference to the plaintiffs as individuals.
123 The last observation that needs to be made before the words and imputations are considered is about the form of the imputations which are pleaded.
124 The common law governs this proceeding. This State did not have, at the time of any of the broadcasts complained of, an Act of the kind of the Defamation Act 1974 (NSW) (since repealed: see the Defamation Act 2005 (NSW), s 46). The scheme of that Act made each imputation a separate cause of action: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 676. As a consequence, particular precision was required in the expression of the asserted imputation.
125 In this jurisdiction the imputations are pleaded to put the defendant on notice of the case it has to meet and in this case to allow the defendant to know the imputations to which it needs to address in its defence to avoid being held liable in damages. In particular, the defendant needs to know the imputations which it seeks to justify.
126 However, the imputations still should be carefully pleaded. In Chapman and Chapman v Australian Broadcasting Corporation, I said at [64]:
In seeking to extract imputations from the words the pleader should avoid exaggeration. A pleader should use adverbs and objectives carefully. While that use of an adverb may give a certain flourish to the pleaded imputation the pleader must be careful to ensure that the use of such language does not make the imputation such that it could not arise from the natural and ordinary meaning of the words. Pleader’s flourishes must be avoided. An imputation should be capable of being supported by more than the pleader’s ingenuity: Grubb v Bristol United Press Ltd (at 326). The rhetorical imputation should not be pleaded: Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260. The use of the word “improperly” which is an imprecise word should be avoided: Morris v Newcastle Newspapers Pty Ltd. The words “unlawfully” and “wrongfully” should be used carefully: Felix v General Dental Council [1960] AC 704 at 717; McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485.
127 That remains my view.
The First Broadcast
128 A pre-program announcement of the first broadcast on 10 June 2002 opens with the compere asking the question, “Where has all the money gone?” Immediately thereafter, she identifies the paedophile “judge” who has left his victims with almost nothing and that the viewers could expect a new victim to speak out.
129 When the program commences, she reminds the viewers that they can expect a twist in the tale of Adelaide’s disgraced Magistrate paedophile and surprises about his gun collection and raises the further question, “Why Peter Liddy would agree to sell his home to someone like an ex-conman Terry Stephens.”
130 The pre-program announcement and the program introduction are calculated to arrest the viewers’ attention and to ensure they remain watching the program. The reference to surprises and questions being asked are designed to titillate the viewer.
131 Shortly after the reporter has introduced the story, he observes that many questions remain unanswered but that one stands out and he raises the same question raised by the compere, “why would former Magistrate Peter Liddy agree to sell his mansion, guns and all, to a convicted criminal?”
132 Immediately after the reporter promises that the program will reveal details of how Mr Stephens obtained the house while the Magistrate’s victims received nothing.
133 I accept Mr Trim’s contention that the introduction to this broadcast invites the audience to speculate and, as it were, read between the lines as to what might follow. He contended, I think correctly, that this is the type of story which suggests that there is a lot of smoke and where there is smoke there must be fire.
134 The reporter identifies the victim who the compere had said would “speak out”. The victim speaks about aspects of his experiences with Mr Liddy. The viewers are told that the victim wanted his day in court but because of the law he was restricted to pursuing Mr Liddy through the civil courts. The victim says that he has lost “so much”.
135 The focus of the program then changes to the victims’ claims for compensation. The viewers are informed that the victims were granted an injunction in the District Court to ensure that Mr Liddy’s house was not sold before their case was heard. Next they are told that to the distress of the victims, the Court agreed to the sale of the house so that Mr Liddy could pay his lawyers. That assertion is followed by the words, “But what was really baffling ... the buyer was convicted criminal Terry Stephens.”
136 The words would be understood to mean that the Court, notwithstanding the distress to the victims, agreed to the sale of the house to a convicted criminal so that Mr Liddy could pay his lawyers.
137 Next Mr Stephens is depicted saying that he paid $500,000 for the property “and it’s got the best part of 10 to 20 million dollars worth of collectables inside it”. The clear thrust of that statement is that the property and the collectables were sold very substantially under their true value. The different in the price paid for the house and collectables and the value of the collectables is to say the least, very substantial.
138 Next the program moves to Mr Liddy’s involvement in the sale. It is suggested that if you believe him, he was apparently against the sale. A handwritten letter which is then depicted asserts that:
The creeps who put me in here blocked the sale of my house for six months but then withdrew their objections when Stephens offered to buy it.
139 The reporter then asks the question, “But how can that be right when it was Liddy’s own lawyers who beat the injunction and worked hard to set up the deal?”
140 It was put by the plaintiffs’ counsel that those words indicated that the lawyers had acted contrary to Mr Liddy’s instructions. In my opinion, the words used by the reporter convey the imputation that Mr Liddy is untruthful in his claim that he was apparently against the sale. That imputation not only arises out of the spoken words but, in my opinion, is consistent with the handwritten note which does not complain that the sale had occurred without his authority. Rather, it suggests that he acquiesced in the sale.
141 In my opinion, the ordinary reasonable viewer would have understood the words spoken by the reporter as imputing dishonesty to Mr Liddy, not unethical conduct on the part of Mr Liddy’s lawyers.
142 For those reasons, the plaintiffs’ counsel’s submission that the words would be understood to mean that the lawyers had acted without Liddy’s instructions must be rejected. It follows that the words do not convey the imputations pleaded in paragraphs 9.9. The imputation if it were conveyed is defamatory.
143 The focus of the program shifts again. A lawyer’s letter is shown on the screen. Further reference is made to Mr Liddy’s lawyers by the reporter saying “and as the victims feared, the lawyers pocketed almost all of it, leaving them little to gain from Court action”. The imputation which arises is that the lawyers profited at the expense of the victims by preventing the victims prosecuting their civil actions. The lawyers thereby put themselves ahead of the victims.
144 This statement must be understood together with the statement made earlier that the Court had agreed to the sale of the house and contents so that Mr Liddy could pay his lawyers. However, no imputation is pleaded that the plaintiffs had conducted themselves so as to prefer their interests over the interests of the victims.
145 The plaintiffs were probably right not to raise such a plea. Early in the broadcast it was said that the Court discharged the injunction so that Mr Liddy could pay his lawyers. That statement, together with the further statement that the lawyers pocketed almost all of the money, does not suggest some want of character on the part of the lawyers. Nor, in my opinion, does it suggest some conduct on the part of the lawyers inconsistent with their professional obligations either to Mr Liddy or to the Court. Whilst the imputation mentioned above arises, it is probably not defamatory.
146 Again, the program shifts direction. A further question is raised: “So should the house and contents have sold for significantly more?”
147 A valuation is produced prepared by a valuer. The reporter says after referring to its preparation that it was presented to the Court by Mr Liddy’s lawyers. The broadcast then depicts Mr Liddy’s house property in Kapunda which is a very substantial and imposing looking property. It appears to be a valuable property. The reporter, referring to the valuation, says that the house is put at $350,000 and the possessions were worth at best $150,000. The valuation figure of $150,000 is highlighted.
148 Immediately, the victim says words to the effect that the valuation is untrue. The program shifts to an article written by Mr Liddy himself in the Australian Shooters Journal in July 1989. The reporter tells the audience that the article has been written by Mr Liddy himself and that as a result “we know it’s accurate”. The audience is told that, in the article, Mr Liddy bragged about owning “literally dozens of guns, some dating back to the 1700s, as well as holsters, swords, powder horns and historic documents including one signed by George Washington”. He says that according to Mr Liddy the guns themselves would have set an Australian record for antique guns. The reporter points out that none of that is included in the valuation. That assertion is supported by a reference to the valuation itself which says:
I have not made any specific allowance for the collection of books nor any of the guns, holsters or powder horns.
149 After briefly speaking with the victim about his memories of the guns, the reporter says that the valuer had not checked the entire house and reads a further disclaimer from the same report in the following terms:
I do not pretend that this is a comprehensive list of items in the residence. I have not gone through all the cupboards, nor have I appraised each item minutely to establish authenticity.
150 The reporter says, “But despite all that, the valuation was accepted by lawyers on both sides.”
151 The ordinary reasonable viewer would remember that Mr Stephens had previously boasted that he had paid $500,000 for the house and contents and received the best part of $10 to $20 million worth of collectables inside the house. Moreover, the ordinary reasonable viewer would remember that the house and contents were sold so that Mr Liddy’s lawyers could be paid and, indeed, the lawyers pocketed almost all of the money at the expense of the victims.
152 The viewer has been told that the valuation is untrue and that Mr Liddy said that the guns themselves would have set an Australian record for antique guns. He or she has also been told that, despite all that, the valuation was accepted by lawyers on both sides and was presented to the Court by Mr Liddy’s lawyers.
153 What then are the primary imputations which arise as a result of the claims by the reporter that the valuation itself noted that the valuer had not made any specific allowance for the collection of books or of the guns, holsters or powder horns and had not made a comprehensive list of items in the residence, or gone through all of the cupboards or appraised each item minutely to establish authenticity?
154 In my opinion, the imputations which arise are that the house and contents were sold at a significant undervalue; that they were sold for the purpose of paying Mr Liddy’s lawyers; that the lawyers pocketed almost the whole of the sale price; that the valuation did not address two of Mr Liddy’s collections, one of which at least, the guns, had a very significant value and would have realised an Australian record; that the valuation itself indicated that the two collections had not been valued and that there was no comprehensive list of items in the residence and no search had been made through all of the cupboards; that the victims’ lawyers accepted the valuation; that Mr Liddy’s lawyers accepted the valuation; and that Mr Liddy’s lawyers presented the valuation to the Court.
155 It was submitted by the defendant that there is a difference between a valuation which is false and misleading and one which is manifestly inadequate. That may or may not be so. A valuation may be both false and misleading, and manifestly inadequate. It may also be false and misleading and complete or it may be not false and misleading but manifestly inadequate.
156 The imputation that arises is that the valuation is false and misleading. That is established by Mr Stephens’ claim that he acquired $10 to $20 million of collectables. A valuation of a house and contents at $500,000 in circumstances where the contents are worth $10 to $20 million is false and misleading.
157 The imputation also arises that the valuation is manifestly inadequate. That follows it seems to me, from the contents of the valuation itself, where the valuer said that he had not made any specific allowance for the collection of books or the guns or holsters or powder horns and the disclaimer in the valuation that the valuation is not a comprehensive list of items in the residence. Those matters, coupled with that part of the broadcast which refers to Mr Liddy’s appraisal of the guns, establishes the imputation that the valuation is manifestly inadequate.
158 In my opinion, the plaintiffs have established that the imputation arises that the valuation is both false and misleading, and manifestly inadequate. The imputations which are pleaded are put in the alternative.
159 It follows from the findings which I have made, that the plaintiffs might have pleaded that the valuation of Mr Liddy’s assets was both false and misleading, and manifestly inadequate. They have chosen not to do so but it cannot be said, because they have pleaded those matters in the alternative, that the imputations which they have pleaded in that regard do not arise.
160 The question is whether the imputation arises that Mr Liddy’s lawyers knew that the valuation was false and misleading and/or manifestly inadequate.
161 The plaintiffs’ counsel contended that that imputation arises by reason of the sensational nature of the program.
162 I think that contention to be right. When the program is viewed as a whole and the various segments, as I have explained them, are read together, in my opinion, the imputation is conveyed that Mr Liddy’s lawyers knew that the valuation was false and misleading. The thrust of the broadcast is that they must have known in circumstances where a house and contents sold for $500,000 and the purchaser received $10 to $20 million of collectables. I also think that the imputation arises that Mr Liddy’s lawyers knew that the valuation was manifestly inadequate. The broadcast asserts that the valuation was manifestly inadequate by reference to the valuation itself. In circumstances where the broadcast claims that Mr Liddy’s lawyers presented the valuation to the victims’ lawyers, it has to follow that the lawyers knew that the valuation was manifestly inadequate. To put it another way, a simple reading of the valuation would show, so it is claimed in the broadcast, that the valuation was manifestly inadequate.
163 There is no direct claim by the compere, reporter or the victim that it was Mr Liddy’s lawyers who procured the valuation but I think it may be inferred from the broadcast that it was Mr Liddy’s lawyers who procured the valuation as well as presenting it to the Court. That follows when one has regard to the following. The Court agreed to the sale of the house and contents so that Mr Liddy could pay his lawyers. It was Mr Liddy’s lawyers who beat the injunction and worked hard to set up the deal. It was his lawyers who pocketed almost all of the $500,000 obtained by reason of the sale of the house and contents. The house and contents were sold at an undervaluation. In my opinion, the imputation is conveyed that it was Mr Liddy’s lawyers who procured the valuation.
164 In my opinion, the imputation pleaded in paragraph 9.1 is conveyed and is defamatory. Paragraph 9.1A is put in the alternative and adds only to the imputation in paragraph 9.1 the purpose for which the valuation was presented to the victims’ lawyers and to the Court. I think the imputation is conveyed and it is defamatory. There is no doubt that was the purpose of the application.
165 The imputations in paragraphs 9.2 and 9.2A are pleaded in the alternative but are less serious imputations than those pleaded in paragraphs 9.1 and 9.1A. If the plaintiffs had actual knowledge of the falsity and/or the inadequacy of the valuation, it adds nothing to the claim that they ought reasonably to have known that it was false and misleading or manifestly inadequate. Ordinarily, the more serious imputations would include the less serious imputations and need not be pleaded. For completeness, I hold that the imputations in paragraphs 9.2 and 9.2A are conveyed and, in my opinion, are defamatory. However, I think if the defendant is prepared to go to trial on the basis that the imputations in paragraphs 9.1 and 9.1A are conveyed, I would hear argument that the imputations in paragraphs 9.2 and 9.2A ought to be struck out.
166 The imputation in paragraph 9.2B is put in the alternative. I think, however, it is a different imputation than those pleaded earlier. It is not a true alternative to paragraph 9.1A but is more serious in that it claims that the valuation understated the value of the assets concerned by many millions of dollars. I think the imputation does arise that the valuation did understate the value of the house and contents by some millions of dollars. That follows, it seems to me, from Mr Stephens’ statement that he acquired $10 to $20 million worth of collectables. The imputation in paragraph 9.2B is conveyed and is defamatory.
Archer:
01:48 “Last week we revealed our recovery of 18 Colt .45 revolvers, just part of the hidden collection of former Magistrate Peter Liddy. Since then much about other parts of his collection and its possible real value have surfaced.”
Lester:
02:04 “To get the highest and best price and not a fire sale approach – which the Liddy estate, in my opinion, was just a fire sale – you’d send things to America or the larger parts of Australia, such as Sydney or Melbourne.”
Archer:
02:21 “Because it’s really largely an international collection isn’t it?”
Lester:
02:24 “Most definitely an international collection.”
Archer:
02:26 “Mmm.”
Lester:
02:27 “I know that he – well, some of the items that I purchased he purchased from England.”
Archer:
02:32 “Despite assurance to the Court and to Liddy’s victims to maximise the return on any sale, this didn’t happen, and the house and contents were sold privately to conman Terry Stephens back in December 2001.
02:48 On Friday members of the Fraud Squad revealed some Liddy secrets of their own.”
Rankine:
02:54 “Over the last year or so, however, we have recovered a fair proportion of property that is believed to have been Peter Liddy’s at one stage or another, in one location or another.”
Archer:
03:07 “Tony Rankine and his staff put on display this fascinating collection of artefacts from shipwrecks to the American West, as well as 600 of the remarkable 1500 antique miniature bottles apparently stolen from Liddy’s mansion, Shenandoah, in September 2001.”
Rankine:
03:26 “We believe it’s the bottom class of that fifty – of that hundred percent that was stolen and so we’re still looking for the other liquor bottles.”
Lester:
03:35 “There was a sale in town at the local Christie’s agent, which – it was advertised that there was some of the estate of Peter Liddy there. And I knew that the providences of what he was collect – what he had collected was going to be good, so I attended the auction and proceeded to bid on various items.”
Archer:
03:55 “One of those came forward with a small portion of the puzzle is high-profile Adelaide Property developer, Damien Lester.”
Lester:
04:03 “I have been collecting for over 20 years and I can comfortably say that it was under basis of fire sale conditions.”
Archer:
04:12 “What Damien was bidding for was the residue from the Terry Stephens’ auction back in 2002, and it raises further questions about the original valuation done by Liddy’s friend, lawyer Eric Van Kruyssen.”
Lester:
04:27 “Well, this is a sea chest that – they’re quite rare to find, and this is in exceptionally good condition. I paid the paltry sum of nine hundred dollars for it at auction at Christie’s; it’s at least worth at least double. However if I had the providence [sic] on it for argument’s sake and if it was fortunate enough to be Captain James Cook’s …
Archer:
04:52 “Mmm?”
Lester:
04:53 “… it could be worth, you know, four to five hundred thousand dollars.”
Archer:
04:56 “So its just really history unknown, value unknown at this stage?”
Lester:
05:02 “Indeed.”
Archer:
05:02 “But there were other items for which Damien paid just $300 that are even more intriguing.”
Lester:
05:09 “There was [sic] two tanks in the sale and they were both saltwater fish tanks, and at the bottom of the fish tanks there was sand and in the sand, sitting on top of the sand, was [sic] crustaceans.
05:24 Well, these were basically shipwrecked items of interest, such as cutlasses, cannonballs, keys, stuff you’d find from shipwrecks in the 17th Century.”
Archer:
05:40 “And what could those items be possibly worth?”
Lester:
05:44 “A friend of mine, who’s an antique dealer, told me that he paid 4,000 English pounds for the cannonball alone. This is in very good order, the cutlass, so are the other items.”
Archer:
05:56 “So once again, if you could trace what the history of these things are [sic], they could be worth anything couldn’t they?”
Lester:
06:02 “Well, they would be a lot more than worth three hundred dollars…”
Archer:
06:05 “Mmm. Mmm.”
Lester:
06:05 “…possibly tens of thousands of dollars.”
Archer:
06:07 “What’s very interesting is the purchaser of the other aquarium with its buried treasure was Eric Van Kruyssen, the original and so-called independent valuer. In doing so, we understand, he picked up this valuable coral-encrusted pistol almost certainly knowing Liddy had paid thousands for it 10 years before.”
VOICEOVER:
06:28 “1733 coral-encrusted pistol $3,218.”
Archer:
06:34 “The value of the guns we recovered depends almost entirely on their condition and authenticity. We have some paperwork, and early estimates start from around $100,000. We’ve also discovered that most of the guns should have been registered as they can fire commercially available ammunition.
06:54 As for the items the police found, some are referred to in various magazines. For example:
VOICEOVER:
07:00 “This artefact set me back almost $3,000.”
Archer:
07:04 “We also came across this: an article written by Liddy in May 1998 laying claim to part of an extraordinary collection from a sunken treasure intended as a gift for Pope Pius IX in 1869.”
VOICEOVER:
07:20 “My portion of the treasure consists of 15 gold rings, numerous gold 20 franc pieces, a magnificent 160cm intricate gold chain, and the gold Legion of Honour medal from one and half miles under the sea.”
Archer:
07:36 “So far these items have never been mentioned, nor have items from the First World War collection.”
Rankine:
07:43 “If anybody has information as to their handling of the property or where the property might have been over the last two years, we’d like to hear from them.”
Archer:
07:54 “But there is some good faith available to the victims: Damien Lester has made a pledge.”
Lester:
08:01 “Well, after seeing your segment the other night, I’m more than happy to donate all the contents of the fish tank in a proper sale that should receive the proper money that it deserves and donate the money to the victims. Because I just think it’s shocking the predicament that they’re in, and if money helps them in some way, well, I’ll do my little bit.
McClusky:
08:28 “Nice to hear”.
“ANNEXURE F”
Schedule of ImputationsFirst Broadcast
9.The first broadcast was defamatory of the plaintiffs in that the audio and pictures in their natural and ordinary meaning meant and were understood to mean that the plaintiffs:
9.1.procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they knew was false and misleading or manifestly inadequate;
9.1A.in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that they knew was false and misleading or manifestly inadequate;
9.2.in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate;
9.2Ain the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that they ought reasonably to have know was false and misleading or manifestly inadequate;
9.2Bin the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate, in that such valuation understated the value of the assets it concerned by many millions of dollars;
9.3.procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the purpose of ensuring that their own fees, and those of the other lawyers engaged by Liddy from time to time, were paid;
9.3Ain the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate (in that such valuation understated the value of the assets it concerned by many millions of dollars) for the purpose of ensuring that their own fees, and those of other lawyers engaged by Liddy from time to time, were paid;
9.3Bin the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the further purpose of ensuring that their own fees, and those of the other lawyers engaged by Liddy from time to time, were paid;
9.4.procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the purpose of depriving the alleged victims of fair or any compensation;
9.4Ain the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate (in that such valuation understated the value of the assets it concerned by many millions of dollars) for the purpose of depriving the alleged victims of fair or any compensation;
9.4Bin the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the further purpose of depriving the alleged victims of fair or any compensation;
9.5.procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the purpose of ensuring that Liddy’s assets were dissipated in such a way as to deprive Liddy’s alleged victims of any recovery of damages in pending civil actions against Liddy;
9.5Ain the alternative, procured, and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate (in that such valuation understated the value of the assets it concerned by many millions of dollars) for the purpose of ensuring that Liddy’s assets were dissipated in such a way as to deprive Liddy’s alleged victims of any recovery of damages in pending civil actions against Liddy;
9.5Bin the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the further purpose ensuring that Liddy’s assets were dissipated in such a way as to deprive Liddy’s alleged victims of any recovery of damages in pending civil actions against Liddy;
9.6.wrongly conspired with or knowingly assisted Liddy in depriving his alleged victims of fair compensation by the disposal of his assets at an undervalue;
9.7.acted unscrupulously and unethically in their own interests to procure payment of fees that were exorbitant;
9.8.submitted to Liddy and had paid from the proceeds of the sale of Liddy’s assets fees which were other than fair and reasonable;
9.9.ignored or failed to follow Liddy’s instructions;
9.10.conspired with or knowingly assisted Liddy to connive with a person of ill-repute, one Mr Terry Stephens, to put his assets beyond the reach of the alleged victims of his offending.
9AA Further, or in the alternative, insofar as the first broadcast referred to and was understood to refer to the plaintiffs by reason of the matters pleaded in paragraph 8.6 herein, the first broadcast was defamatory of the plaintiffs in that the audio and pictures in their natural and ordinary meaning meant and were understood to mean that the plaintiffs:
9AA.1might (being members of a class referred to) have been guilty of the conduct referred to in paragraphs 9AA.3 to 9AA.21 (inclusive) herein; or
9AA.2were persons who:
9AA.2.1knowingly were associates of; and/or
9AA.2.2connived in the conduct of;
Liddy’s other lawyers, when such other lawyers engaged in the conduct referred to in paragraphs 9AA.3 to 9AA.21 (inclusive) herein;
Namely, the plaintiffs (for the purposes of paragraph 9AA.1 herein), or other lawyers (for the purposes of paragraph 9AA.2 herein):9AA.3procured and presented to that District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they knew was false and misleading or manifestly inadequate;
9AA.4in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that they knew was false and misleading or manifestly inadequate;
9AA.5in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate;
9AA.6in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate;
9AA.7in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate, in that such valuations understated the value of the assets it concerns by many millions of dollars;
9AA.8procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the purposes of ensuring that their own fees, and those of other lawyers engaged by Liddy from time to time, were paid;
9AA.9in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate (in that such valuation understated the value of the assets it concerned by many millions of dollars) for the purpose of ensuring that their own fees, and those of other lawyers engaged by Liddy from time to time, were paid;
9AA.10 in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents presented to that Court and the lawyers for Liddy’s alleged victims, a valuations of Liddy’s assets that was false and misleading or manifestly inadequate for the further purpose of ensuring that their own fees, and those of the other lawyers engaged by Liddy from time to time, were paid;
9AA.11 procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the purpose of depriving the alleged victims of fair or any compensation;
9AA.12 in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate (in that such valuation understated the value of the assets it concerned by many millions of dollars) for the purpose of depriving the alleged victims of fair or any compensation;
9AA.13 in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the further purpose of depriving the alleged victims of fair or any compensation;
9AA.14 procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the purpose of ensuring that Liddy’s assets were dissipated in such a way as to deprive Liddy’s alleged victims of any recovery of damages in pending civil actions against Liddy;
9AA.15 in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate (in that such valuation understated the value of assets it concerned by many millions of dollars) for the purpose of ensuring that Liddy’s assets were dissipated in such a way as to deprive Liddy’s alleged victims of any recovery of damages in pending civil actions against Liddy;
9AA.16 in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the further purpose of ensuring that Liddy’s assets were dissipated in such a way as to deprive Liddy’s alleged victims of any recovery of damages in pending civil actions against Liddy;
9AA.17 wrongly conspired with or knowingly assisted Liddy in depriving his alleged victims of fair compensation by the disposal of his assets at an undervalue;
9AA.18 acted unscrupulously and unethically in their own interests to procure payment of fess that were exorbitant;
9AA.19 submitted to Liddy and had paid from the proceeds of the sale of Liddy’s assets fees which were other than fair and reasonable;
9AA.20 ignored or failed to follow Liddy’s instructions; and
9AA.21 conspired with or knowingly assisted Liddy to connive with a person of ill-repute, a Mr Terry Stephens, to put his assets beyond the reach of the alleged victims of his offending.
Second Broadcast
9CThe second broadcast was defamatory of the plaintiffs in that the audio and pictures in their natural and ordinary meaning meant and were understood to mean that the plaintiffs:
9C.1procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they knew was false and misleading or manifestly inadequate;
9C.2in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that they knew was false and misleading or manifestly inadequate;
9C.3in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate;
9C.4in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that they ought reasonably to have know was false and misleading or manifestly inadequate;
9C.5in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate, in that such valuation understated the value of the assets it concerned, and in particular a navigational device called an astrolabe, which was valued at fifteen hundred dollars but which had a true value of well in excess of three hundred thousand dollars;
9C.6procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the purpose of ensuring that their own fees, and those of the other lawyers engaged by Liddy from time to time, were paid;
9C.7in the alternative, procured, and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate (in that such valuation understated the value of the assets it concerned, and in particular a navigational device called an astrolabe which was valued at fifteen hundred dollars but had a true value of well in excess of three hundred thousand dollars) for the purpose of ensuring that their own fees, and those of other lawyers engaged by Liddy from time to time, were paid;
9C.8in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the further purpose of ensuring that their own fees, and those of the other lawyers engaged by Liddy from time to time, were paid;
9C.9acted unscrupulously and unethically in their own interests to procure payment of fees;
9C.10in the alternative, acted unscrupulously and unethically in their own interests to procure payment of fees that were exorbitant;
9CAFurther, or in the alternative, insofar as the second broadcast referred to and was understood to refer to the plaintiffs by reason of the matters pleaded in paragraph 8.6 hereof (and repeated mutatis mutandis in paragraph 9B hereof), the second broadcast was defamatory of the plaintiffs in that the audio and the pictures in their natural and ordinary meaning meant and were understood to mean that the plaintiffs:
9CA.1might (being members of a class referred to) have been guilty of the conduct referred to in paragraphs 9CA.3 to 9CA.12 (inclusive) hereof, or were persons who:
9CA.2.1knowingly were associates of; and/or
9CA.2.2connived in the conduct of:
Liddy’s other lawyers, when such other lawyers engaged in the conduct referred to in paragraphs 9CA.3 to 9CA.12 inclusive herein;
Namely, the plaintiffs (for the purposes of paragraph 9AA.1 hereof), or other lawyers (for the purposes of paragraph 9AA.2 herein):9CA.3procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they knew was false and misleading and manifestly inadequate;
9CA.4in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that they knew was false and misleading or manifestly inadequate;
9CA.5in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate;
9CA.6in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy's alleged victims, a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate;
9CA.7in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that they ought reasonably to have known was false and misleading or manifestly inadequate, in that such valuation understated the value of the assets it concerned and, in particular, a navigational device called an astrolabe, which was valued at fifteen thousand dollars;
9CA.8procured and presented to the District Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the purpose of ensuring that their own fees, and those of other lawyers engaged by Liddy from time to time, were paid;
9CA.9in the alternative, procured and presented to the District Court and the lawyers for Liddy’s alleged victims a valuation of Liddy’s assets that was false and misleading or manifestly inadequate (in that such valuation understated the value of the assets it concerned and, in particular, a navigational device called an astrolabe which was valued at fifteen thousand dollars but had a true value of well in excess of three hundred thousand dollars) for the purpose of ensuring that their own fees, and those of other lawyers engaged by Liddy from time to time, were paid;
9CA.10 in the alternative, procured, and for the purpose of persuading the District Court to permit the sale of Liddy’s Kapunda house and contents, presented to that Court and the lawyers for Liddy’s alleged victims, a valuation of Liddy’s assets that was false and misleading or manifestly inadequate for the further purpose of ensuring that their own fees, and those of the other lawyers engaged by Liddy from time to time, were paid;
9CA.11 acted unscrupulously and unethically in their own interests to procure payment of fees; and
9CA.12 in the alternative, acted unscrupulously and unethically in their own interests to procure payment of fees that were exorbitant.
Third Broadcast
9HThe third broadcast was defamatory of the plaintiffs in that the audio and pictures in their natural and ordinary meaning meant and were understood to mean that the plaintiffs:
9H.1were complicit in an unethical or illegal scheme to deceive the Court, which scheme had the purpose of illicitly controlling who had access to Liddy’s remaining money.
9HAFurther, or in the alternative, insofar as the third broadcast referred to and was understood to refer to the plaintiffs by reason of the matters pleaded in paragraph 8.6 hereof (as pleaded mutatis mutandis in paragraph 9G hereof), the third broadcast was defamatory of the plaintiffs in that the audio and pictures in their natural and ordinary meaning meant and were understood to mean that the plaintiffs:
9HA.1might (being members of a class referred to) have been guilty of the conduct referred to in paragraph 9HA.3; or
9HA.2were persons who:
9HA.2.1knowingly were associates of; and/or
9CA.2.2connived in the conduct of;
Liddy’s other lawyers, when such other lawyers engaged in the conduct referred to in paragraph 9HA.3 herein;
Namely the plaintiffs (for the purposes of paragraph 9HA.1 hereof), or other lawyers (for the purposes of paragraph 9HA.2 herein):9HA.3were complicit in an unethical or illegal scheme to deceive the Court, which scheme had the purpose of illicitly controlling who had access to Liddy’s remaining money.
Fourth Broadcast
9LThe fourth broadcast was defamatory of the plaintiffs in that the audio and pictures in their natural and ordinary meaning meant and were understood to mean that the plaintiffs:
9L.1had deceived Liddy’s victims over the true extent of the value of his historic collection;
9L.2had subjected the defendant to litigation for the purpose, alternatively dominant purpose, of obstructing or hindering the defendant from uncovering the deceit referred to in paragraph 9L.1 herein;
9L.3had subjected the defendant to litigation for the purpose, alternatively dominant purpose, of preventing the victims from discovering the true extent of Liddy’s historic collection;
9L.4had abused the processes of the Supreme Court of South Australia by instituting and continuing the within proceedings for the dominant purpose of obstructing or hindering the defendant in uncovering the deceit referred to in paragraph 9L.1;
9L.5had abused the processes of the Supreme Court of South Australia by instituting and continuing the within proceedings for the dominant purpose of preventing the victims from discovering the true extent of Liddy’s historic collection;
9L.6had failed to ensure compliance, alternatively make any credible attempt to ensure compliance, with the orders of the Court in the civil proceedings, requiring discovery of Liddy’s assets;
9L.7had engaged, or caused to be engaged, a valuer to value Liddy’s assets for the purpose of the civil proceedings, without disclosing to any interested person that the valuer was a close friend of Liddy;
9L.8had engaged in the conduct referred to in paragraph 9L.7 herein, in circumstances that were so dubious as to merit investigation by the Fraud Squad;
9L.9had been wilfully blind to the disappearance of valuable assets from the Liddy collection;
9L.10took part in a criminal conspiracy with another lawyer, who was the valuer referred to in paragraph 9L.7 herein, for the purpose of placing Liddy’s assets beyond the reach of Liddy’s alleged victims;
9L.11knowingly assisted the criminal conduct of another lawyer, who was the valuer referred to in paragraph 9L.7 herein, for the purpose of placing Liddy’s assets beyond the reach of Liddy’s alleged victims;
9LAFurther or in the alternative, insofar as the fourth broadcast referred to and was understood to refer to the plaintiffs by reason of the matters pleaded in paragraph 8.6 hereof (as pleaded mutatus mutandis in paragraph 9K.5 hereof) and/or the matters pleaded in paragraph 9K.6, the fourth broadcast was defamatory of the plaintiffs in that the audio and pictures in their natural and ordinary meaning meant and were understood to mean that the plaintiffs:
9LA.1might (as members of a class referred to) have been guilty of the conduct referred to in paragraph 9LA.3 to 9LA.13 hereof; or
9LA.2were persons who:
9LA.2.1knowingly were associates of: and/or
9LA.2.2connived in the conduct of;
Liddy’s other lawyers, which such other lawyers engaged in the conduct referred to in paragraphs 9LA.3 to 9LA13 inclusive hereof;
Namely, the plaintiffs (for the purposes of paragraph 9LA.1 herein), or other lawyers (for the purposes of paragraph 9LA.2 herein):9LA.3had deceived Liddy’s victims over the true extent of the value of his historic collection;
9LA.4had subjected the defendant to litigation for the purpose, alternative dominant purpose, of obstructing or hindering the defendant from uncovering the deceit referred to in paragraph 9LA.3 herein;
9LA.5had subjected the defendant to litigation for the purpose, alternatively dominant purpose, of preventing the victims from discovering the true extent of Liddy’s historic collection;
9LA.6had abused the processes of the Supreme Court of South Australia by instituting and continuing the within proceedings for the dominant purpose of obstructing or hindering the defendant in uncovering the deceit referred to in paragraph 9LA.3 hereof;
9LA.7had abused the processes of the Supreme Court of South Australia by instituting and continuing the within proceedings for the dominant purpose of preventing the victims from discovering the true extent of Liddy’s historic collection;
9LA.8had failed to ensure compliance, alternatively make any credible attempt to ensure compliance, with the orders of the Court in the civil proceedings requiring discovery of Liddy’s assets;
9LA.9had engaged, or caused to be engaged, a valuer to value Liddy’s assets for the purpose of civil proceedings, without disclosing to any interested person that the valuer was a close friend of Liddy;
9LA.10 had engaged in the conduct referred to in paragraph 9LA.9 herein, in circumstances that were so dubious as to merit investigation by the Fraud Squad;
9LA.11 had been wilfully blind to the disappearance of valuable assets from the Liddy collection;
9LA.12 took part in a criminal conspiracy with another lawyer, which was the valuer referred to in paragraph 9LA.9 herein, for the purpose of placing Liddy’s assets beyond the reach of Liddy’s victims; and
9LA.13 knowingly assisted the criminal conduct of another lawyers, who was the valuer referred to in paragraph 9LA.9 hereof, for the purpose of placing Liddy’s assets beyond the reach of Liddy’s alleged victims.
Fifth Broadcast
9RThe fifth broadcast was defamatory of the plaintiffs in that the audio and pictures in their natural and ordinary meaning meant and were understood to mean that the plaintiffs:
9R.1in the course of acting as lawyers and owing ethical obligations as such, assured the District Court and Liddy’s victims, that they would ensure that the return on any sale of Liddy’s Kapunda house and its contents was maximized, which assurance was false and/or misleading;
9R.2 in the premises of 9R.1 misled the District Court
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