McDonald v North Queensland Newspaper Company Limited

[1996] QCA 115

IN THE COURT OF APPEAL	[1996] QCA 115
SUPREME COURT OF QUEENSLAND	Appeal No. 2874 of 1996
Brisbane
Before	Fitzgerald P. Shepherdson J. Byrne J.

[McDonald v. N.Q. Newspaper Company]

BETWEEN:

SIMON JAMES MCDONALD

(Plaintiff) Respondent

AND:

THE NORTH QUEENSLAND NEWSPAPER COMPANY LIMITED

(A.C.N. 009 655 690

(Defendant) Appellant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 03/05/1996

The respondent’s action against the appellant is based on two photographs published on Tuesday, 14

March 1995 in the appellant’s newspaper, “The Herbert River Express”, which circulates in the Herbert

River district, including the township of Ingham. Both photographs related to the respondent’s

participation in a rugby league match on the previous Sunday between his team, “The Hinchinbrook

Crushers”, and another team, “Centrals”. One of the photographs, which was on page 12 of the

newspaper, depicted the respondent and other players, and was accompanied by the words “Crusher’s

hooker Simon MacDonald off-loads during Sunday’s match against Centrals. Photo: Gary Hodson”.

The other photograph, which was on page 1 of the newspaper, comprised only a portion of the photograph on page 12 and depicted only the respondent. Each photograph showed the respondent

passing the football while being tackled and, in each, part of his penis was visible outside the right leg

of his shorts. For present purposes, it is to be assumed that the publication of the photographs made

it likely that the respondent would be ridiculed by other persons; the appellant did not dispute that a jury

might so conclude. The issue for decision is whether, on that assumption, the photographs were

“defamatory matter” within the meaning of the Defamation Act 1889. If so, unless the publication of

the photographs was “protected, or justified, or excused by law” (s. 6), it was an “actionable wrong”

(s. 7).

Sub-section 4(1) of the Defamation Act defines “defamatory matter” which, so far as presently material,

is “[a]ny imputation concerning any person ... by which other persons are likely to be induced to ...

ridicule ... the person”. For the respondent to succeed, the photographs must have made or conveyed

or contained an “imputation” “concerning” the respondent “by which other persons are likely to be

induced to ... ridicule ...” him; by the publication of the photographs, the appellant would then have

published that imputation. As presently pleaded in his statement of claim, the imputation concerning him

which the respondent contends that the appellant published when it published the photographs of him

is that he “... is a person whose genitals have been exposed to the readers of the newspaper ...”:

statement of claim, para. 6.

The case so advanced by the respondent is directly based on the decision of Hunt J. (as his Honour then

was) in Ettingshausen v. Australian Consolidated Press Ltd (1991) 23 N.S.W.L.R. 443. At p. 449,

his Honour said of an imputation (imputation (b)), that the “... plaintiff is a person whose genitals have
been exposed to the readers of the defendant’s magazine ...”:

“... I am satisfied that imputation (b) is capable of defaming the plaintiff. ... the publication of this imputation is in my view capable of subjecting the entirely blameless plaintiff to a more than a trivial degree of ridicule. It was not seriously argued to the contrary. Accordingly, the imputation is capable of defaming the plaintiff.”

A perusal of earlier passages in his Honour’s judgment reveals that his conclusion was substantially

based upon an analysis of an American decision, Burton v. Crowell Pub Co. 82F(2d) 154 (1936),

which he said ”continues to be cited by the text writers as authority for defamation by the exposure of

the plaintiff to ridicule; see, eg, Eldridge, The Law of Defamation (1978) at 38-40; Fleming, The Law

of Torts (7th ed, 1987) at 503.”

Ettingshausen was successful at trial, and an appeal by the defendant in that case to the New South

Wales Court of Appeal succeeded only on the issue of damages; the majority, Gleeson C.J. and Clarke

J.A., Kirby P. dissenting, dismissed the appeal against liability: New South Wales Court of Appeal

40079 of 1993, unreported, 13 October 1993. However, the Court of Appeal judgments provide little

assistance for present purposes. At trial, it seems that imputation (b), as referred to by Hunt J. in

(1991) 23 N.S.W.L.R., was relied on by the plaintiff, Ettingshausen, only as an alternative to what was

referred to in Hunt J.’s decision in that report as imputation (a). It seems that the jury was satisfied that

imputation (a) had been published and therefore did not need to consider imputation (b), and there was

no challenge on the point in the Court of Appeal. The most that can be said is that the Court of Appeal

did not express any adverse comment concerning imputation (b).

Counsel for the appellant accepted the correctness of Ettingshausen but submitted that the Defamation

Act is materially different from both the common law and the Defamation Act 1974 (N.S.W.).
Reference was made to s. 9 of the New South Wales Act, especially sub-ss. 9(1) and (2). However,

the former provision is substantially directed to providing a foundation for the latter provision and the

following sub-sections of s. 9 (see the reference to “for the purposes of this section” in sub-s. 9(1)), and

sub-s. 9(2) are concerned to provide separate causes of action in respect of separate defamatory

imputations and /or separate publications. That aside, while the New South Wales Act has made

significant changes to common law principles, none is material for present purposes. Both generally and

for the purposes of sub-ss. 9(1) and (2) of the New South Wales Act, a publication can only give rise

to a cause of action for defamation in New South Wales if it makes (or conveys or contains) a

defamatory imputation of another person: see, e.g., Morgan v. John Fairfax & Sons Ltd. (1991) 23

N.S.W.L.R. 374. Insofar as there is a potentially significant distinction between the Queensland and

New South Wales law for present purposes, it lies in the circumstance that the New South Wales test

is arguably narrower than the test in this State, where it is unnecessary that the imputation be disparaging

to be defamatory: see Hall-Gibbs Mercantile Agency Ltd v. Dun (1910) 12 C.L.R. 84. Plainly, it does

not assist the appellant if the cause of action for defamation in Queensland is more extensive than that

in New South Wales. In the present circumstances, however, the question is of no consequence; the

cause of action for defamation in Queensland is at least co-extensive with that in New South Wales and,

as stated above, the appellant has accepted the correctness of Ettingshausen.

The appellant sought to derive support from the statement in Hall-Gibbs Mercantile Agency at pp. 91-

92 to the effect that an imputation involves the attribution or assertion of an act or condition concerning

a person, and pointed out that a similar view was also adopted by the High Court in relation to s. 5 of

the Defamation Act 1958 (N.S.W.) which was relevantly identical to sub-s. 4(1) of the Queensland Act in Sungravure Pty Ltd v. Middle East Airlines Airliban SAL (1975) 134 C.L.R. 1. However, that does

not mean that the meaning of “imputation” in this context had a different meaning at common law or has

a different meaning under the current New South Wales Act. Hunt J. plainly did not think so in

Ettingshausen: see p. 447, where he expressly adopted the Hall-Gibbs Mercantile Agency approach.

Further, the attempt to introduce such sophistry is misplaced. Broadly speaking, an imputation

concerning a person is a statement about him, however made: cf. Sungravure at p. 21 per Mason J. (as

his Honour then was).

While that is sufficient to dispose of the appellant’s principal ground of appeal, relying as is appropriate

on its concession, brief further comment is appropriate. My initial reaction to Hunt J.’s imputation (b)

was unfavourable. The imputation concerning the respondent which the photographs seem to me to

make is that his penis was, or became, exposed, while playing football. Hunt J.’s conclusion in respect

of imputation (b) in Ettingshausen at p. 449 is more readily understood if reference is made back to an

earlier statement at p. 487; namely:

“The condition of the plaintiff which imputation (b) expresses is simply that, as a result

of the exposure of his genitals, he has been held up (or exposed) to ridicule”.

His Honour then went on to state that imputation (b) “relies upon the oft quoted statement by Parke B.,

in Parmiter v. Coupland (1840) 6 M. & W. 105 at 108, 151 E.R. 340 at 342". Baron Parke’s

statement cannot readily be literally applied to the present circumstances, but the relevant principle

stated there can be applied; that is, a publication which exposes another to ridicule is defamatory. In

my opinion, that is the effect, briefly stated, of the Queensland Act; and material published concerning

a person which exposes him to ridicule must make an imputation concerning him as the basis for that

ridicule.
The appellant’s other point was that, in Queensland, an imputation cannot be defamatory unless it is

untrue. That submission finds no support in authority, is contrary to the entire structure of the

Queensland Act and is plainly incorrect.

The proceeding in this Court could be dealt with either by refusing leave to appeal or by granting leave

and dismissing the appeal. We have decided to adopt the former course. The appellant must pay the

respondent’s taxed costs.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND	Appeal No. 2874 of 1996
Brisbane
[McDonald v. N.Q. Newspaper Company]
BETWEEN:

SIMON JAMES MCDONALD

(Plaintiff) Respondent

AND:

THE NORTH QUEENSLAND NEWSPAPER COMPANY LIMITED

(A.C.N. 009 655 690)

(Defendant) Appellant

FITZGERALD P.
SHEPHERDSON J.

BYRNE J.

Judgment delivered 03/05/1996

REASONS FOR JUDGMENT - THE COURT

APPLICATION FOR LEAVE TO APPEAL REFUSED.

APPELLANT TO PAY RESPONDENT’S TAXED COSTS.

CATCHWORDS:	CIVIL - APPLICATION FOR LEAVE TO APPEAL (application under s. 92(2) District Courts Act 1967) - defamation - publication of photographs in newspaper - were the photographs ‘defamatory matter’ under the Defamation Act 1889 Ettingshausen v. Australian Consolidated Press Ltd (1991) 23 N.S.W.L.R. 443 Hall-Gibbs Mercantile Agency Ltd v. Dun (1910) 12 C.L.R. 84 Sungravure Pty Ltd v. Middle East Airlines Airliban SAL (1975) 134 C.L.R. 1 Morgan v. John Fairfax & Sons Ltd (No. 2) (1991) 23 N.S.W.L.R. 374 Parmiter v. Coupland (1840) 6 M. & W. 105 Defamation Law of Queensland 1889 Defamation Act 1974 (NSW)
Counsel:	D. Cooper for the Appellant P. Lyons Q.C. for the Respondent
Solicitors:	Suthers & Taylor for the Appellant Murrell Stephenson as t/a for Roberts Leu & North for the Respondent
Date(s) of Hearing:	22 April 1996