Nationwide News Pty Ltd v Chapman and Chapman No. DCCIV-99-192 Judgment No. D148

[1999] SADC 148

NATIONWIDE NEWS PTY LTD  V  CHAPMAN AND CHAPMAN
 [1999] SADC 148

Judge Noblet
Civil

1 This is an appeal from a decision of a Master of the District Court.  The plaintiffs in this action (the respondents to this appeal) seek damages for defamation from the defendant/appellant in respect of the following article published by it on 10 November 1994 in the newspaper The Australian.
"Lib warns of bridge ban precedent
By PATRICK LAWNHAM
LIBERAL frontbencher Mr Ian McLachlan has re-ignited political conflict over the national implications of an Aboriginal - heritage ban on a South Australian bridge project, saying the use of partly secret spiritual claims could flow on to native title actions.
Mr McLachlan opposes the 25 year declaration last July by the federal Minister for Aboriginal Affairs, Mr Tickner, stopping the Hindmarsh (Kumarangk) Island bridge.
He told the Weekend Australian the ban had implications "we can't allow to be countenanced if the country is to go ahead".
Mr McLachlan, the federal Coalition's environment spokesman, said an Opposition study of the decision had convinced him Mr Tickner's decision followed an "inadequate" report by Melbourne legal academic Professor Cheryl Saunders.
The bridge-site ban four years after State planning approval had also involved unacceptable secrecy and uncertain spiritual authenticity, although he did not doubt the sincerity of Aboriginal women involved, Mr McLachlan said.
Mr Tickner reiterated this week that consultation of Aborigines over the State-funded, $6 million, 300m bridge had been insufficient.
The ecologically sensitive Hindmarsh Island, about 15km long, with 350 residents, lies across a Murray mouth channel from the town of Goolwa, itself built on the heavily damaged remains of an Aboriginal river settlement.
Mr McLachlan said he moved a motion in the House of Representatives on Wednesday seeking to disallow the declaration, lost as expected on party numbers, to give the House a chance to sit as "judge and jury".
Mr McLachlan said he was on record as having opposed public funding of the bridge on economic grounds, but that was "an irrelevancy now something like this can turn up".
He told Parliament Mr Tickner had made a request on July 8 to the Aboriginal and Torres Strait Islander Commission for possible compensation and this suggested he was concerned the ban could be illegal.
This was because Mr Tickner had denied his department would have to compensate anyone for land acquisition by banning the bridge site which was the lawful matter that would require compensation, Mr McLachlan said.
'(But) there is no way that ATSIC could possibly compensate him .... he was asking ATSIC to do things that were in no way in its charter within the ATSIC Act,' Mr McLachlan said.
A Federal Court judge, Justice O'Loughlin, is expected to rule next month whether or not the decision was unlawful in a review case initiated by the Chapman family, developers of a marina on Hindmarsh Island.
They were evicted from the marina by Westpac receivers after the declaration.  The marina was to have been served by the bridge, promised and approved four years ago by the Bannon government."
2 The plaintiffs were shareholders in a company known as Binalong Pty Ltd and the second plaintiff was a director of that company. Binalong was developing a marina on Hindmarsh Island and, in about 1989, proposed to build a bridge from Goolwa to the island. Approval was granted on 12 April 1990 by the Governor under section 51 of the Planning Act.
3 In their statement of claim, the plaintiffs allege that the proposal to build the bridge excited much controversy throughout Australia, and particularly in South Australia, since about early 1993.
4 Paragraph 5 of the statement of claim reads as follows:
"As at 10th November 1994, it was known to, and understood by, the public, or a substantial section of the public, that -
(a)  the Plaintiffs were directors of, or closely associated with, Binalong
(b)  Binalong was a company of the plaintiffs
(c)  Binalong was developer of, protagonist for, or otherwise involved in, the bridge development
(d)  additionally, or alternatively, the Plaintiffs were developers of, protagonists for, or otherwise involved in, the bridge development
(e)  the Plaintiffs carried out planning processes in connection with securing the aforesaid planning approval for the bridge
(f)  a key issue in the controversy mentioned in paragraph 4 was whether or not Binalong, and/or those involved in Binalong or in the bridge development namely the Plaintiffs, had properly consulted Aboriginals or Aboriginal groups in carrying out planning processes in connection with securing the aforesaid planning approval for the bridge."
5 The plaintiffs then claim that, by reason of  the matters alleged in paragraph 5, the following words in the article were understood to refer to the plaintiffs and, accordingly, were published of and concerning the plaintiffs:
"Mr Tickner reiterated this week that consultation of Aborigines over the State-funded, $6 million, 300m bridge had been insufficient."
6 Paragraph 10 of the statement of claim reads as follows:
"10. Such words, in their natural and ordinary meaning, carried the imputation that the Plaintiffs -
(a)  failed to properly consult with the Aboriginals in obtaining planning approval for the bridge
(b)  failed to carry out planning approval processes for the bridge properly or according to law
(c)  did not obtain a valid or proper planning approval to build the bridge
(d)  caused Binalong to act in the manner referred to in (a), (b) and (c)."
7 The defendant applied for an order that the whole of the statement of claim be struck-out or, in the alternative, that summary judgment be entered against the plaintiffs in favour of the defendant.  The affidavit filed in support of the application alleges that portions of paragraph 5 should be struck-out as being imprecise and embarrassing to plead to.  However, the more significant allegations in the affidavit are as follows:
"4.1 The meanings and imputations pleaded in paragraph 10 do not arise from the publication.
 4.2 Paragraph 10(a) does not identify the consultation alleged to have been required and the planning approval processes referred to.
 4.3 Paragraph 10(b) does not identify the planning approval processes referred to.
 4.4 Paragraph 10(c) does not identify the planning approval to be obtained.
 4.5 Binalong is not referred to in the publication.  The imputation in paragraph 10(d) does not arise but in any event adds nothing to the plea."
8 The affidavit also alleges that the plaintiffs are not identified in the publication as being associated with the development of the bridge and that they are specifically referred to only as the 'developers of a marina on Hindmarsh Island'.
9 The learned Master dismissed the application as far as the strike-out of paragraphs 7 - 10 of the statement of claim was concerned.  His reasons for decision include the following:
"I am able for the limited purposes of this application to take judicial notice of the notorious fact that the question whether the aboriginal people have been properly consulted over the building of the Hindmarsh Island bridge excited quite extraordinary and protracted public controversy, involving many strong comments both for and against the development (if not the developers).  That alone is sufficient to persuade me that the question whether the imputation in question is defamatory is best left to the trial judge who will hear evidence of all the facts.  Because it may be necessary, I express the opinion that the imputation is possibly libellous."
10 As to the complaints made by the defendant about paragraph 5 of the statement of claim, the learned Master made some slight alterations to the wording of this paragraph and then dismissed the application.  He awarded costs to the plaintiffs and certified the matter fit for counsel.
11 The defendant appeals against the whole of the order of learned Master. However, no point was taken on the appeal regarding the Master's decision and orders in relation to paragraph 5 of the statement of claim.
12 The orders made by the Master were not orders finally disposing of the action.  The appeal before me is therefore to be conducted by way of re-hearing and I may exercise my own discretion without regard to the manner in which it was exercised by the learned Master (DCR R97.01).
13 The plaintiffs rely on the ordinary and natural meaning of the words impugned, not on a "true innuendo". The plaintiffs therefore do not rely upon extrinsic facts to establish that the words are defamatory. However, an ordinary and natural meaning includes any defamatory "sting" that is not so much in the words themselves as in what an ordinary reader would infer from them (Lewis v Daily Telegraph Ltd [1964] AC 234 per Lord Reid at 258). "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 .... 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." (Jones v Skelton (1963) SR(NSW) 644 at 650).
14 In determining the meaning of the words alleged to be defamatory, an objective approach is required.  The standard is that of an ordinary reasonable reader of average intelligence.  "Ordinary men and women have different temperaments and outlooks.  Some are unusually suspicious and some are unusually na_ve.  One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question."  (Lewis at 259).
15 My first task in this appeal is to determine whether the words complained of are capable of bearing the defamatory meaning ascribed to them. I must discard any interpretation of the words complained of "which can only emerge as the product of some strained or forced or utterly unreasonable interpretation (op cit). I must look at the words complained of in the context of the article as a whole. I must bear in mind the warning given by Mason J (as he then was) in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301:
"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's 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."
16 I consider that an allegation of failure to consult properly with aborigines over a project such as the one in question may, in some circumstances, be capable of bearing a defamatory meaning. That meaning would not necessarily require a strained or forced or utterly unreasonable interpretation.  However, that interpretation can arise in a particular case only if the reader considers that there is some obligation to consult.  The article makes it clear that the construction of the bridge had "State planning approval" and was "approved ... by the Bannon Government".  The average reader would surely assume, therefore, that those to whom the approval was given must have done what was required of them.  The article does not claim that there was a legal or other obligation to consult and I doubt that the average reader's "own knowledge and experience of human affairs" would enable him or her to know whether any such obligation existed.  The article mentions that the decision made by Mr Tickner "followed an 'inadequate' report by Melbourne legal academic Professor Cheryl Saunders".  It does not claim that the reason for the ban imposed by Mr Tickner was inadequate consultation with aborigines.  The inference to be drawn from the article is that the reference to inadequate consultation is no more than an opinion expressed by Mr Tickner.  I therefore do not consider that the words complained of are, in the context of the article as a whole, capable of bearing a defamatory meaning. 
17 In any event, even if those words are capable of bearing a defamatory meaning, they are not capable of bearing that meaning in relation to the plaintiffs.  Those whom the article identifies as having some involvement with the decision to build the bridge are the State of South Australia (to the extent that bridge is said to be "State-funded"), those involved in "State planning approval" and "the Bannon Government".  The only reference to the plaintiffs is in the penultimate paragraph of the article, which mentions two things.  First, that the Chapman family were the developers of a marina on Hindmarsh Island.  Secondly, that the Chapman family initiated "a review case" before a Federal Court Judge to determine "whether or not the decision [to ban the bridge development] was unlawful".  These statements would reasonably support an inference that the plaintiffs wanted the bridge built because it was important to the success of the marina development, but not an inference that they were responsible for a failure to consult with aborigines.
18 Even if the ordinary, reasonable reader were to consider that the failure to consult sufficiently with aborigines was such a serious failure as to be defamatory of someone (which I do not find to be the case), I do not consider that he or she would identify the person or persons responsible for the failure as the plaintiffs.  The reaction of the ordinary reasonable reader would seem to me to be more likely to be, at worst, "it looks like someone might not have consulted properly with aborigines when the bridge was approved.  I wonder who was responsible?".
19 For these reasons I find that none of the imputations referred to in paragraph 10 of the statement of claim are capable of arising out of the natural and ordinary meaning of the words complained of and I order that the whole of the statement of claim be struck-out. 
20 The plaintiffs must pay the costs of the defendant on this appeal and the application before the Master.  I certify the matter fit for counsel.

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