Nationwide News v Chapman & Chapman No. Scgrg-99-1374

NATIONWIDE NEWS PTY LTD v CHAPMAN & CHAPMAN
[2001] SASC 30

Full Court: Doyle CJ, Duggan and Williams JJ

1................ DOYLE CJ....... Mr and Mrs Chapman (“the Chapmans”) have sued Nationwide News Pty Ltd (“NWN”) for defamation. The action has been brought in the District Court. Their claim is based on an article published in the Australian Newspaper.

NWN applied to have the Statement of Claim struck out, and in the alternative for summary judgment. The affidavit in support of the application asserted that the article did not bear the imputations pleaded by the Chapmans, and that it did not identify the Chapmans as the persons the subject of any defamatory imputation. That submission, if successful, would not support the making of the orders sought. However, the application appears to have been supported at earlier stages by a submission that the article was not capable of bearing the defamatory imputations alleged, and was not capable of identifying the Chapmans as the subject of any defamatory imputation.
A District Court Master refused the application. On appeal a District Court Judge struck out the whole Statement of Claim, because none of the pleaded imputations “are capable of arising out of the natural and ordinary meaning of the words complained of.” A Judge of this Court allowed a further appeal, reinstating the Statement of Claim and dismissing NWN’s application. I will return shortly to his reasons. NWN appeals against that decision by leave granted by a differently constituted Full Court.
The appeal was argued on the basis that the Statement of Claim should be struck out. It was not submitted that summary judgment should be entered. An application to strike out a Statement of Claim under r 46.18 of the Supreme Court Rules does not raise the same issues as are raised by an application for summary judgment under r 25.04: see Chapman and Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181, [2000] SASC 146, at [23] - [35]. The fact that different issues are raised by each application is disguised somewhat when the main issue is the capacity of a written statement to bear a defamatory imputation, but the differences should nevertheless be observed.
On appeal, as I have already said, the submission was that the Statement of Claim should be struck out in exercise of the power conferred by r 46.18. In my opinion that submission succeeds.

Facts

It is simpler to set out the article in full, rather than to summarise it. The article is as follows:
“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”.
The plaintiff complains only of the following sentence:
“Mr Tickner reiterated this week that consultation of Aborigines over the State-funded $6 million, 300m bridge had been insufficient.”
The article refers to the Chapmans only in passing, in the penultimate paragraph and again in the last paragraph. In general terms the article repeats criticisms made of the decision by Mr Tickner to impose a “ban” for 25 years on the construction of a bridge to Hindmarsh Island. The article links the ban to Aboriginal heritage issues. The sentence complained of attributes to Mr Tickner a response to the criticisms of his decision, as outlined in the article.
Although there is only a passing reference to them, in subpar (d) and subpar (e) of par 5 of the Statement of Claim the Chapmans plead that “the public, or a substantial section of the public” knew that the Chapmans were “developers of, protagonists for, or otherwise involved in, the bridge development” and knew that the Chapmans “carried out planning processes in connection with securing the ... planning approval for the bridge”. They also plead that it was known by “the public, or a substantial section of the public” that they were “directors of, or closely associated with” Binalong Pty Ltd, which company was “developer of, protagonist for, or otherwise involved in, the bridge development.”
The Chapmans pleaded the natural and ordinary meaning of the statement attributed to Mr Tickner, which meaning they claim is defamatory of them. It was proper to do so: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 532 Brennan CJ and McHugh J; at 542 - 543 Gaudron and Gummow JJ; Chapman and Chapman v ABC at [56]. The pleading is 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)”
The Judge of this Court whose decision is under appeal appears to me to have decided the matter on the basis of an imputation not pleaded by the Chapmans. He said at [13]:
“If one stands back from the article in question and has regard to the sentence complained of, in my opinion it is at least arguable that the ordinary and rational meaning is that, for whatever reason, consultation on the part of the Chapmans with Aborigines had been insufficient. The word “insufficient” presupposes that there is a level of consultation which is objectively sufficient, and a degree of consultation falling short of that. It is open, I would have thought, for a Court or a Judge to come to the view that to proceed with this project, even if planning approval had been given by the State, with an insufficient level of consultation with Aboriginals, using the word insufficient in the sense which I have explained, might properly be regarded as defamatory of the plaintiffs.”
The Judge postulates an imputation that consultation with the Aboriginal people was objectively insufficient, although he does not identify the standard by reference to which sufficiency is to be judged.
As I have said, I consider that this imputation differs from those pleaded in par 10. The pleading of par 10 is open to criticism. The pleader has introduced the adverb “properly” and the adjective “proper”, despite criticism in the cases of the use of that word, and has introduced the word in a context in which its meaning is imprecise: see Chapman and Chapman v ABC at [64]. However, read as a whole par 10 asserts, in my opinion, that the relevant consultation was insufficient as a matter of law, or not as required by law. That is plainly what is asserted by subpar (b) and is implicit in subpar (c), and equally implicit in subpar (a).
Both parties invited us to deal also with the further imputation identified by the single Judge, in the interests of economy of effort. Mr Kourakis QC, counsel for the Chapmans, refined that further imputation as follows:
“that the consultation carried out by the plaintiffs was less than that required according to proper moral or community standards.”

That refinement highlights the difference between this imputation and the imputations pleaded.

Striking out - the relevant test

A number of cases in this Court have proceeded on the basis that the test in a case like this is whether the words published are capable of bearing the defamatory meaning pleaded in the Statement of Claim: see, for example, Chapman and Chapman v ABC at [53] Lander J, a judgment with which I agreed at [1]. The test as stated is the same as the test that would be applied by the trial Judge, were that Judge asked to enter judgment in favour of the defendant at the trial, at the conclusion of the case for the plaintiff.
In Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Hunt J said that an application to have a Statement of Claim struck out, in the exercise of the Court’s summary jurisdiction to do so before the matter has gone to trial, is governed by statements made by the High Court, and by Barwick CJ in particular, in General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125. Without going into detail, that case is generally taken as establishing that the summary jurisdiction should not be exercised unless the claim advanced is obviously untenable or manifestly groundless. In Monte Hunt J said had he been the trial Judge, he would have directed judgment in favour of the defendant (at 668), but he went on to say (at 675) that he could not “[B]e satisfied that the plaintiff’s claim is ‘so obviously untenable that it cannot possibly succeed’ or ‘manifestly groundless’ to select only two of the expressions used”.
When the subject matter of an application to strike out a Statement of Claim is the meaning of written words, or, to be more precise, the meaning that those words are capable of bearing, the distinction between whether words are capable of bearing a certain meaning, or are shown clearly or manifestly to be incapable of doing so, is very much a matter of impression and of emphasis. The distinction identified by Hunt J is not an easy one, as he himself notes, but as his decision demonstrates it is one that can be drawn. In the present case Mr Harris QC, counsel for NWN, accepted that the more stringent test was the appropriate one, and I proceed on that basis without deciding the point, no detailed submissions having been put on other side about the matter.

Is it clearly shown that the words complained of are incapable of bearing the defamatory imputations alleged?

Subject to the point just dealt with by me, the approach to be taken in a case like this is well established. It is conveniently summarised by Lander J in Chapman and Chapman v ABC at [57] - [65]. I will not repeat the principles stated by him.
In my opinion it is clear that the words complained of are not capable of bearing the imputations pleaded in par 10 of the Statement of Claim.
As I have already said, the statement attributed to Mr Tickner is a bland one, that the consultation was insufficient. There is no allusion in the article to a failure to comply with a requirement of the law. The article refers to Mr Tickner’s ban coming “four years after State planning approval” and, at the very end, to the bridge having been “approved four years ago by the Bannon Government”. So far as it goes, the article makes is clear that there has been an approval under State law, followed by a “ban” imposed by Mr Tickner in his capacity as a Commonwealth Minister. The article links the “ban” to the impact of the construction of the bridge on Aboriginal cultural heritage. But, as I have said, there is nothing in Mr Tickner’s statement, standing alone or in context, that supports an implication that his statement means that the Chapmans had not complied with State law or with State planning processes. The reason for the imposition of the “ban” is not given, although it is an obvious inference that it is linked to the protection of Aboriginal cultural heritage, and has something to do with consultation with the relevant Aboriginal people.
In my opinion, it is not arguable that the ordinary reasonable reader would read the statement attributed to Mr Tickner as imputing a failure by the Chapmans to comply with State law. There is simply no basis in the article for doing so.
It is well known in South Australia and elsewhere that the construction of the bridge in question is controversial, and that there have been claims that the construction of the bridge will damage important Aboriginal cultural sites. It is also well known that there have been allegations that the process of consultation with the relevant Aboriginal people was deficient. But the article does not allude to these allegations, nor does it adopt them, directly or indirectly. The fact that a memory of the controversy, and of the allegations, might be revived by the article, does not render the article defamatory. A memory of the controversy and of the allegations might be revived even if the statement complained of did not appear in the article. There is nothing about the article to suggest that it should be read as meaning that the author or Mr Tickner were adopting or repeating any earlier allegations about the Chapmans: see Hepburn v TCN Channel 9 Pty Ltd [1983] 2 NSWLR 664.
I agree that some readers of the article might reason from the fact of Mr Tickner having imposed a ban to the conclusion that a reason for the ban was, or might have been, that the process of consultation was not as required by law. But that process of reasoning is not one which discloses an imputation that the article is capable of bearing. It is a process of reasoning which merely discloses a belief suggested in the mind of the reader as a result of a further inference or deduction made by the reader from a statement which is not, itself, defamatory. The Chapmans cannot rely upon this process of reasoning. In Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, in a judgment with which other members of the High Court agreed, Mason J said 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 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.”
There are no rules of thumb here, but in my opinion the reasoning of Mason J precludes the Chapmans’ relying upon the possible line of reasoning identified by me.
For those reasons, I conclude that it is clearly established that the words complained of are not capable of bearing the meanings pleaded in par 10 of the Statement of Claim.
I have come to the same conclusion in relation to the further imputation identified by Mr Kourakis.
As to that imputation, I accept the submission by Mr Harris QC, counsel for NWN, that it is clear that the article does not impute a failure to act according to “proper moral standards”. There is simply nothing in the article which implies that or suggests that. Indeed, the tenor of the article is to repeat statements critical of Mr Tickner for imposing the ban and to imply that compensation might be payable to persons, among whom would be the Chapmans, who might have suffered because of the ban. In my opinion it is clearly shown that this imputation is not capable of being drawn from the article.
The response attributed to Mr Tickner is capable of referring to consultation by the State Government, to the inadequacy of the requirements of State law in relation to consultation, or to the conduct of the Chapmans in connection with the obtaining of planning approval for the bridge. For present purposes it suffices that the response is capable of being read as referable to the conduct of the Chapmans.
But, in my opinion, something more needs to be found before one can find in the statement a charge that the Chapmans have not observed “proper moral standards”.
I turn to the claim that the statement is capable of meaning that they did not consult as required by “proper community standards”. Sometimes the very generality of a statement will, because of its particular content, make it capable of bearing both defamatory and non-defamatory meanings. That will suffice, for the purposes of a plaintiff, on an application to strike out a pleading. But sometimes the generality or blandness of a statement will negative any such process of reasoning. Everything depends on the context. In the present case, I consider it clear that no fair minded reasonable reader could conclude that the statement, general as it is, and the context in which it is, is making a judgment of the Chapmans’ conduct by reference to “proper community standards”. Although it is fair to say that the reader would assume that Mr Tickner must have had in mind some standard or benchmark for the purposes of his statement, there is no reason to conclude that the standard he had in mind was that of “proper community standards”. In my opinion the statement is one of those brief and general statements, which one finds from time to time, which is capable of leading to no particular conclusion as to the point of reference which the speaker has in mind.
Once again, I put to one side allegations made by others on other occasions about the Chapmans.
For those reasons I conclude that it has been clearly shown that the statement is not capable of bearing the defamatory imputations relied upon by the Chapmans.

Is it clearly shown that the words complained of are incapable of identifying the Chapmans?

In view of the conclusion to which I have already come, I deal with this point briefly.
I consider that the extrinsic facts pleaded in subpar (d) and subpar (e) of par 5 of the Statement of Claim are, if proved, capable of identifying the Chapmans as the persons responsible for any insufficiency in the consultation with the Aboriginal people. That being so, the Statement of Claim should not be struck out on the basis that the statement complained of is incapable of being read as referrable to the Chapmans.

I accept the submission that subpar (f) should in any event be struck out. It is tantamount to an attempt to plead other allegations made on other occasions relating to the plaintiffs. It may well be that, in relation to identification of the plaintiffs, the pleading of further extrinsic facts would enable the pleader to cover much the same ground, but that is not a matter that requires consideration.

Conclusions

For those reasons I would allow the appeal, set aside the judgment of the Supreme Court allowing the appeal to this Court, and order that there be substituted for that judgment a judgment and order dismissing the appeal against the order of the District Court striking out the Statement of Claim in this action.

36.............. DUGGAN J..... I agree that the appeal should be allowed for the reasons given by the Chief Justice.

I also agree with the orders proposed by the Chief Justice.

38.............. WILLIAMS J... I agree.

[2001] SASC 30

2 March 2001