MacDonald v 3AW Southern Cross Radio Pty Ltd
[2003] VSC 239
•27 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 8135 of 2002
| BRIAN JAMES MACDONALD | Plaintiff |
| v | |
| 3AW SOUTHERN CROSS RADIO PTY LTD | Defendant |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2003 | |
DATE OF RULING: | 27 June 2003 | |
CASE MAY BE CITED AS: | Macdonald v 3AW | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 239 | |
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TORTS – Defamation – pleadings – whether imputation capable of arising from words pleaded – allegation or rumour – report of police investigation.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr MF Wheelahan | Phillips Fox |
| For the Defendant | Mr W Houghton QC with Ms G Schoff | Corrs Chambers Westgarth |
HIS HONOUR:
This is an application by the defendant to strike out paragraph 9 of the plaintiff’s Amended Statement of Claim dated 18 February 2003, filed on 25 February 2003. The defendant submits that the imputation pleaded in paragraph 9 is not capable of arising from the words published by the defendant as set out in paragraph 5 of the Amended Statement of Claim.
The plaintiff by his Amended Statement of Claim pleads two publications by the defendant on 30 September 2002 and 3 October 2002 in radio broadcasts on radio station 3AW. The publication pleaded as defamatory occurred on 3 October 2002 and is as follows:
"Caller: Good Morning. The Major Fraud Squad is investigating the circumstances surrounding the sale of a very expensive horse. It’s alleged a director of a major Melbourne educational facility paid $250,000 for the animal but discovered that it died en route from the US. Having failed to insure the animal, he allegedly arranged to transfer ownership of the horse over to the educational facility he works for to get his money back. The new owners claimed they went to collect their acquisition, which they had planned to use for a breeding program, but discovered it wasn’t going to be much good.
Stevenson: On account of the fact that it was dead.
Caller: Yeah.
Stevenson: Dead horse, excellent rumour, excellent rumour. Thank you very, very much."
The earlier publication on 30 September is pleaded as extraneous material identifying the plaintiff, a matter not in issue on the current application. By paragraph 9 of the Amended Statement of Claim the plaintiff contends that the above words “meant and were understood to mean that the plaintiff fraudulently sold a dead horse to the educational facility of which he was Director in order to obtain a financial advantage for himself of $250,000”.
The defendant submits that the publication is merely a report of an allegation of fraud and the investigation of that allegation by the police and, as such is not capable of giving rise to the imputation that the plaintiff was guilty of the offence. Expressed in terms of the legal test applicable, the defendant contends that it is not capable of conveying that meaning to the ordinary reasonable listener and should therefore be struck out of the plaintiff's pleading.
In support of this submission, Mr Houghton QC for the defendant relied on the well known cases of Lewis v Daily Telegraph Ltd[1] and Mirror Newspapers Ltd v Harrison[2].
[1][1963] Q.B. 34 (C.A.) and [1964] AC 234 (H.L.).
[2](1982) 149 CLR 293.
In Lewis the libel sued upon was a non-specific statement in a newspaper to the effect that officers of the City of London Fraud Squad were inquiring into the affairs of a company and its subsidiaries of which the plaintiff was chairman. The only other information published was that the investigation was requested after criticisms of the chairman's statement and the accounts by a shareholder at a recent company meeting. The plaintiffs claimed that the published words meant and were understood to mean that they had been guilty of or were suspected by the police of being guilty of fraud or dishonesty.
In holding that the words complained of were not reasonably capable of meaning that the plaintiffs were guilty of fraud the Court of Appeal, and subsequently the House of Lords, (sub nom Rubber Improvements Ltd v Daily Telegraph drew a distinction between words which carry only an imputation of suspicion and words which are capable of carrying the meaning that the person to whom they refer is guilty. In the Court of Appeal Holroyd Pearce LJ said:[3]
"To say that the Fraud Squad are making inquiries into a person's affairs is plainly a serious defamation, but it is less than an allegation that he has been fraudulent or convicted of fraud. The making of inquiries by the police may be the initial stage in criminal proceedings. But also it may be found at that stage that there is no offence and no case for a prosecution. A further and a different stage is reached when the person concerned is charged or tried. Again it may be found that he is innocent. The third and final stage is reached when guilt is established and there is a conviction. Those three stages in procedure are quite distinct and known to all."
In the House of Lords, Lord Reid invented a hypothetical conversation between someone who would have leapt to a conclusion that the plaintiffs in Lewis were guilty and someone whom he considered more balanced, more like the "ordinary man", who cautioned against jumping to such a conclusion. His Lordship emphasised that what the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. In the case at hand he considered that such ordinary man would not infer guilt of fraud merely because an inquiry was on foot. He considered that the jury in Lewis had been misdirected in being permitted to consider whether the words complained of imputed guilt or not. Lord Jenkins, Lord Hodson and Lord Devlin concurred with Lord Reid in the result. Lord Devlin dealt with the matter as follows:[4]
"It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. 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; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They 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."
[3][1963] Q.B. at 374.
[4][1964] A.C. at 285.
In Mirror Newspapers Ltd v Harrison[5] the High Court considered the question of what imputations are capable of being raised by a newspaper report that a man has been arrested and is expected to be charged with offences of conspiracy and fraud. Mr Houghton draws considerable support for his argument from a passage appearing in the judgment of Mason J as follows:[6]
"As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although we know that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.
In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have grounds for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader."
Mr Houghton contends that a conclusion of guilt could only be reached by someone who heard the 3AW broadcast if he allowed his own beliefs and prejudices to colour the words which were actually spoken.
[5](1982) 149 CLR 293.
[6]At 300.
Mr Wheelahan of counsel for the plaintiff sought to distinguish the facts of this case from those of Lewis and Harrison by reference to the detail contained in the report which, he submitted, had the effect of enlarging a report of a police investigation into a report of a police investigation into very specific facts even if the report was liberally sprinkled with the adverb "allegedly". He also relied on those cases which emphasise that when determining the effect of allegedly libellous statements the transitory nature of a radio broadcast must be taken into account.[7]
[7]Gordon v Amalgamated Television Services [1980] 2 NSWLR 410 at 413; Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 92-3; TCN Channel 9 Pty Ltd & Ors v Mahony (1993) 32 NSWLR 397 at 400-1 and Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165, 166 and 172.
Mr Wheelahan argued that although the cases to which Mr Houghton referred provided authority in relation to reports of allegations and charges, that authority is limited to “mere reports” and that they leave the question of the capacity of an imputation of guilt to be determined according to the particular circumstances of each case.
In Harrison Brennan J cited with approval the passage quoted above from Lord Devlin's judgment in Lewis. He specifically reserved the question (as did Mason J) as to whether a report stating merely that a person has been arrested and charged by police is capable of bearing an imputation that the police had reasonable cause for suspecting the person arrested had committed the offence. Bearing this reservation in mind as it might apply to the words complained of in this case and considering the dictum of Lord Devlin there is, it seems to me, a considerable and material difference between a simple statement such as that published in Lewis and the detailed description of a serious fraud said to be under investigation by the Major Fraud Squad in the present case. Even the more extensive newspaper report considered by the High Court in Harrison did no more than suggest that the plaintiff was one of three men arrested.
In the instant case the fraud is set out in detail. The fact that the Major Fraud Squad is investigating it is almost irrelevant to the imputation for which the plaintiff contends.
If the words "it's alleged" and "allegedly" had not been used in describing the fraudulent acts attributed to the plaintiff it could hardly have been argued that the words did not carry the imputation contended for. In the context of this radio report I do not consider that those words have saved the passage from being capable of conveying that imputation. Whether it does, of course, will be a question for the tribunal of fact at trial in due course.
To use the words "it's alleged" or "allegedly" in reporting the modus operandi of a crime seems to me to be virtually indistinguishable from using the words "they say", "it is said" or even "there are rumours to the effect". In the context of the person making the allegation being not identified is the radio programme doing any more than peddling a rumour which happens to have attracted the attention of the Major Fraud Squad? It might be argued that the facts in this case are much closer to the "rumour" cases such as Watkin v Hall[8] than they are to the facts of either Lewis or Harrison.
[8](1868) L.R. 3QB 396.
The application before me is an application, pursuant to RSC r23.02 to strike out paragraph 9 of the plaintiff's amended statement of claim on the ground that the words complained of could not, as a matter of law, bear the imputation pleaded in that paragraph. The question I must determine is not whether the words are capable of bearing a defamatory meaning but whether they are arguably capable of bearing such meaning.[9] I am not satisfied that the words complained of are not capable of bearing the meaning alleged.
[9]Keays v Murdoch Magazines Ltd [1991] 1 WLR 1184 per Neill LJ at 1191.
In the circumstances the defendant's summons will be dismissed with costs.
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