Loo v Regional Publishers Pty Ltd

[2003] NSWSC 834

CITATION:	LOO v REGIONAL PUBLISHERS PTY LTD [2003] NSWSC 834
HEARING DATE(S):	1 and 2 July 2003
JUDGMENT DATE:	6 August 2003
JUDGMENT OF:	Hulme J at 1
DECISION:	The Defendant's application is dismissed with costs
CATCHWORDS:	Trial under s7A of Defamation Act
PARTIES :	Plaintiff: Ronald Loo Defendant: Regional Publishers Pty Ltd
FILE NUMBER(S):	SC 20458/02
COUNSEL:	Plaintiff: TS Hale SC; J White Defendant: B McClintock SC; M Richardson
SOLICITORS:	Plaintiff: Margiotta Solicitors Defendant: Gilbert & Tobin

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

20458/2002
HULME J

6 August 2003


Ronald LOO v REGIONAL PUBLISHERS PTY LTD

Judgment

1 His Honour: On 1 and 2 July last a trial under s7A of the Defamation Act was held in this matter. During the course of the trial the Defendant indicated that it wished to make application that I should hold that a number of the imputations alleged were incapable of arising.

2 I adopted, without dissent, the course of allowing the suggested imputations to go to the jury without prejudice to the Defendant’s application. The jury found that 2 of the imputations the subject of the application had not been shown to arise. These Reasons deal with the balance. The contending arguments are contained in submissions forwarded to my Associate on 4 and 22 July on behalf of the Defendant and on 11 July on behalf of the Plaintiff.

3 There were 4 publications which led to the proceedings -

(i) An article in the Northern Daily Leader of 26 August 2002,
(ii) The contents of a poster published on 30 August 2002 advertising the issue of the Northern Daily Leader of that day,
(iii) An article in the Northern Daily Leader of 30 August 2002, and
(iv) An article in the Northern Daily Leader of 31 August 2002.

4 The imputations the subject of the Application presently under consideration were said to arise from the second and fourth of these publications and were pleaded in the following terms (I adopt the numbering in the questions submitted to the jury):-

The Poster
3(a) That the plaintiff was reasonably suspected by the Australian Competition and Consumer Commission of using his monopoly of pharmacies in Moree of take unfair advantage of consumers by charging them inflated prices for prescription drugs.

3(b) That the Australian Competition and Consumer Commission reasonably suspected that (sic) the plaintiff of ripping off the people of Moree by overcharging them for prescription drugs.

The 31 August 2002 Article
7(e) That the plaintiff as a pharmacist in Moree was reasonably suspected by Moree residents of unscrupulously taking advantage of the lack of competition in Moree by charging inflated prices for prescription drugs.
7(f) That the plaintiff, as a pharmacist, was reasonably suspected by Moree residents of ripping off the people of Moree by overcharging for prescription drugs.

The Poster

5 The terms of the poster were:-

“MOREE
ACCC
PROBES
CHEMIST
MONOPLY” (sic)”

6 In support of its claim that the publication conveyed the imputations alleged, the plaintiff relied on 2 matters by way of extrinsic facts. As pleaded they were:-

(a) That the plaintiff owned and operated the only two pharmacies in Moree.
(b) That there appeared in the 26 August 2002 edition of the Northern Daily Leader an article entitled “A big headache,” “Chamber petition reacts to ill feeling over Chemist monopoly”, in which the following words were written:
“Claims of inflated prices for prescription drugs have led to Moree residents mounting a campaign to attract an additional chemist to the town to provide competition against the established pharmacies.
Moree District Chamber of Commerce President Mark Tramby said the chamber had received numerous complaints about the difference in price of prescription drugs between the Moree chemists – operated by the same businessman – and pharmacies in other towns.”

7 Evidence that the Plaintiff owned the only 2 pharmacies was given by the Plaintiff and other witnesses. It was not challenged. The 26 August edition of the Northern Daily Leader was also tendered and admitted. It contained the words just quoted. Except insofar as there may have been evidence constituting some degree of repetition of the contents of the article in the 26 August edition concerning the Plaintiff, otherwise there was no attempt to prove the matters in paragraph (b). There was evidence from which one would infer that the Northern Daily Leader circulated in Moree.

8 Relying on statements of Hunt J in Nicholson v Seidler (unreported, 19 September 1990) and in Stewart v Shoalhaven and Nowra News Pty Limited (unreported, 26 September 1980), counsel for the Defendant submitted that to succeed, the Plaintiff had to prove not only the reporting of the extrinsic facts relied on but independently their existence. From the second of these cases, counsel quoted the following passage (I omit the authorities cited):-

“A true innuendo – that is, a secondary or extended meaning of the matter complained of – must be based on existing facts: The existence of these facts must be proved independently of knowledge of their existence in those who read the matter complained of. Their existence is not proved by the mere tender of a newspaper in which they are stated. If the facts do not exist at all, an erroneous belief as to their existence (whether or not engendered by incorrect newspaper reports concerning them) does not support an innuendo;”

9 Counsel did not refer to the immediately following passage, as he clearly should have, and as was necessary if what he did cite was not to be misleading. The passage reads:-

“Statements made in newspapers which have not been either published by the Defendant (and thus constitute an admission by him) or expressly or by implication adopted by the defendant are not themselves extrinsic facts upon which a true innuendo can be based: Astaire v Campling (1966) 1 WLR 34, at 39-41.

10 Assuming that the extrinsic matter alleged was the facts asserted in the 26 August article, and not the article itself, the Plaintiff was under no obligation to prove those facts in any particular way. As Hunt J made clear, as against the Defendant, its earlier assertions were evidence of the facts asserted.

11 But the second extrinsic matter pleaded was not the factual matter alleged in the earlier newspaper article. It was the article itself. And in my view, when regard is had to the terms of the poster and all the extrinsic matter pleaded, the poster is capable of carrying the imputations alleged.

12 The reference “ACCC probes” is in context, capable of carrying the imputations that the ACC reasonably suspected, and that the plaintiff was reasonably suspected by the ACCC – see Gatley on Libel and Slander, 9th ed., para. 3.25. I do not need to rely on this but one may take account also of the fact, which I take to be notorious, that the ACCC is not just one policeman or an individual investigator but a powerful government body.

13 The references in the earlier article to “Chemist monopoly”, “inflated prices” for prescription drugs – items which are, in effect, necessities, to “campaign” and “numerous complaints” – references suggestive of enough inflation of prices to inspire a significant proportion of the public to complain, are sufficient to “flesh out” to those who remembered the earlier article, the terms of the poster so as to make it capable of carrying the imputations alleged.

14 For its part, reliance was placed by the Defendant on, inter alia, the following:-

(i) The poster referred forward to an article in that day’s paper, not to an earlier one.
(ii) The earlier article did not mention the ACCC and gave no indication of any investigation and it would have been unreasonable for a reader of the poster to leap to a conclusion that the investigation focussed on the charging of inflated prices.
(iii) As the earlier article contained a denial of overcharging by the Plaintiff, the matter complained of (even in conjunction with the earlier article) is not capable of conveying a reasonable suspicion of, or any meaning involving, overcharging.
(iv) Simply because a reader of the poster may have recalled the earlier article does not mean that the Defendant has repeated the substance of them.

15 None of these matters precludes the imputations alleged being capable of arising.

The 31 August 2002 Article

16 So far as is presently relevant, the terms of this article included:-

“The truck driver’s claims followed a story on the front page of last Monday’s Leader which reported that some Moree residents were mounting a campaign to attract an additional chemist to the town to provide competition against the two Loo-owned pharmacies.
Moree District Chamber of Commerce president Mark Tramby was quoted as saying the chamber had received ‘numerous complaints about the difference in price of prescription drugs between the Moree chemists and pharmacies in other towns’. “

17 It was submitted that there is nothing to support a meaning of reasonable suspicion -

(a) of unscrupulous behaviour by the plaintiff in relation to pricing,
(b) of taking advantage of the lack of competition in relation to pricing, or
(c) that the plaintiff charges inflated prices of prescription drugs, or overcharges for prescription drugs, or is ripping off the people of Moree.

18 I disagree. The clear suggestion that there was a difference in process between those charged by the Plaintiff and those charged, not in one but in “other towns”, the references to “numerous complaints” and a “campaign” – references suggestive of a high level of dissatisfaction, and by inference, substantial cause for dissatisfaction and substantial rather than marginal differences in prices, when coupled with the reference to the reason for an additional chemist being to “provide competition” are clear indications of “a lack of competition”, that prices charged by the Plaintiff were inflated and inflated enough to amount to “ripping-off” or “unscrupulous behaviour”, that the Plaintiff was taking advantage of the lack of competition. The fact that the difference in price was said to be relating to “prescription drugs”, i.e. the sorts of drugs that doctors prescribe on health grounds, which are of the nature of necessities, and which can be expected to be of the same general nature in any town adds force to a number of the implications.

19 Accordingly the Defendant’s application is dismissed, with costs.

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Last Modified: 09/17/2003