Perry v The Examiner Newspaper Pty Ltd

[2006] TASSC 18

[2006] TASSC 18

CITATION:              Perry v The Examiner Newspaper Pty Ltd [2006] TASSC 18

PARTIES:  PERRY, Dale Neville
  v
  EXAMINER NEWSPAPER PTY LTD (THE)

PERRY, Leon Maxwell
v
EXAMINER NEWSPAPER PTY LTD (THE)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  43/2005

44/2005

DELIVERED ON:  10 April 2006
DELIVERED AT:  Launceston
HEARING DATE:  24 March 2006
JUDGMENT OF:  Underwood CJ

CATCHWORDS:

Defamation – Actions for defamation – Other proceedings before trial – Separate decision of questions – Determination of question whether the publication is capable of bearing the alleged defamatory meanings – Question determined upon the basis of facts pleaded in the statement of claim.

Defamation Act 1957 (Tas), s5(4).

Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, applied.
Jones v Skelton [1964] NSWR 485; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, followed.
Aust Dig Defamation [144]

REPRESENTATION:

Counsel:
             Applicant/Defendant:  G L Jones and G Hryce
             Respondents/Plaintiffs:                   D Crampton
Solicitors:
             Applicant/Defendant:  Douglas & Collins
             Respondents/Plaintiffs:                   Levis Stace & Cooper

Judgment Number:  [2006] TASSC 18
Number of paragraphs:  26

Serial No 18/2006

File Nos 43/2005

44/2005

DALE NEVILLE PERRY v THE EXAMINER NEWSPAPER PTY LTD
LEON MAXWELL PERRY v THE EXAMINER NEWSPAPER PTY LTD

REASONS FOR JUDGMENT  UNDERWOOD CJ

10 April 2006

Introduction

1. The plaintiffs, who are brothers, each issued a writ on 9 May 2005, claiming damages for defamation against the defendant newspaper.  Apart from the name of the plaintiff, the statements of claim in each action are identical.  The plaintiffs claim that they were defamed by the publication of the following article in the Sunday Examiner:

"perrys to face off in big match

Brothers Dale and Leon Perry fell out in a dispute over a family inheritance five years ago and haven't spoken to each other since.

Despite the fact they are former football team‑mates and their sporting careers have run almost in parallel they continue to keep their distance from each other.

At the Devonport Oval tomorrow their personal battle will continue when they are opposed to each other for the first time as senior coaches in the Anzac Day town premiership.

Dale is into his sixth year as coach of the Magpies and Leon took over as coach of East Devonport at the start of the season.

Although the communication lines have broken down between them they have a respect for each other's achievements.

Leon Perry on his brother Dale: 'Outside of his own family, coaching football has been the biggest part of Dale's life, that's what he has wanted to do', he said.­

'He has been able to get all the coaching accreditation and to overtake Noel Johnson as Devonport's longest serving coach would be very sweet for him'

Dale Perry on his brother Leon: 'We were team‑mates together at Devonport in 1981 and I coached him at Wesley Vale in 1993,' he said.

'Leon had a good record as a player and he worked very hard on his football team when he was young'.

Both are members of Wesley Vale's Team of the Century and their premierships also came in the same years.

Dale won back‑to‑back premierships in the statewide League with the Devonport Colts in 1996 and 1997 while Leon was winning consecutive flags with Wesley Vale.

Both coaches say their personal rivalry won't get in the way of the job at hand on Monday."

1. Paragraph 5 of the statement of claim pleads:

"5In their natural and ordinary meaning the said words meant and were understood to mean:

(a)   The Plaintiff had fallen out with his brother over financial and property matters involved in the estate of his late Father over five years ago and that falling out was continuing.

(b)   The Plaintiff had a dispute with his brother over such financial matters and as a consequence the Plaintiff had not spoken to his brother for over five years.

(c)   As a result of such a dispute the Plaintiff and his brother had continued to keep their distance from one another throughout that five year period.

(d)   The Plaintiff had throughout the five year period been engaged in a personal conflict (battle) with his brother.

(e)   The Plaintiff's respect for his brother and his brother's respect for him was limited to their respective achievements.

(f)    The 'personal rivalry' between the Plaintiff and his brother was such that it had the potential to affect or impair the Plaintiff's judgment in his capacity as coach of his football team.

(g)   The Plaintiff had allowed or caused his natural love and affection for his brother to be destroyed over matters for financial gain.

(h)   The Plaintiff was unable or unwilling to enjoy normal and cordial relations with his brother."

1. By par6, it is claimed that by reason of the alleged imputations, the reputation of each plaintiff was likely to be injured and/or that other persons are likely to be induced to shun, avoid and ridicule him.

1. Although the Defamation Act 2005 commenced on 1 January 2006, by virtue of s48 of that Act, these actions fall to be determined in accordance with the provisions of the Defamation Act 1957 ("the Act"). 

The issues

1. The Act, s5(4), provides that "the question whether matter that is alleged to be defamatory is or is not capable of bearing a defamatory meaning is a question of law".  The defendant has brought interlocutory applications seeking orders in each case that:

·   the question of whether the publication is capable of bearing a defamatory meaning be tried before any other question (Supreme Court Rules 2000, r559(1)(b)); or

·   alternatively, the imputations pleaded in the statement of claim, par5, be struck out.

1. The second alternative application relies upon the Supreme Court Rules, r259, and was, in effect, an application that the statement of claim be struck out as it did not disclose a cause of action.

1. In Downie v Tasmanian Eye Clinics Pty Ltd [1999] TASSC 42, the parties consented to an order that the issue of whether the matter complained of was capable of bearing a defamatory meaning be tried first. Crawford J agreed to the proposed course, but expressed misgivings about doing so. He said, at par4 of his reasons for judgment:

"It is only in rare cases that the facts are so clearly and definitely stated in the pleadings that it can confidently be said that the court has all the necessary facts before it to decide the point, without hearing witnesses or hearing any more about the case. I presume that if the point is decided by me in favour of the plaintiffs, the trial judge will be bound to adopt my determination made on the pleadings, regardless of the evidence presented at the trial. If I decide the point in favour of the defendants, the action will terminate immediately, with judgment for the defendants, regardless of the evidence which might have been presented at the trial. They are the risks the parties have taken in consenting to the point of law being determined by me now. I note, without comment, the disapproval of the use of rules similar to O28, r2 for the purpose for which it is being used in this case, which was expressed by the Court of Appeal in Morris v Sanders Universal Products [1954] 1 All ER 47 at 51 and by the Court of Appeal in World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 at 717, 718 and 722."

1. The learned trial judge's misgivings were endorsed by the Full Court when his judgment was under consideration on appeal. See [1999] TASSC 121. The problem is that a finding of law made upon a preliminary question is made without taking any evidence, but is binding on the trial judge who will be hearing evidence.

1. However, this case is quite different from Downie's case as in the latter, the plaintiffs were not named in the alleged defamatory material.  In such a case, the taking of evidence is often important.  In this case, no issue of identity arises.  Although Mr Crampton, who appeared for the plaintiffs, did not consent to the determination of the question of law before the determination of all other questions, he did not suggest that there might be some evidence relevant to this question of law that could be led.

1. The determination of the question of law calls for an approach different from that applicable on a strike-out application.  With respect to the latter, the issue for the Court is whether it is unarguably clear, or manifestly apparent, that the facts pleaded give rise to no cause of action.  See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128 – 130; Coyne v West Australian Newspapers Ltd (No 1) (1995) 15 WAR 51 at 57; Vasta v Queensland Newspapers Pty Ltd [1991] 2 Qd R 354 at 358.

1. With respect to a determination of a question of law, whether matter is capable of bearing a defamatory meaning, in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, the majority judgment at 189 – 190 applied the following passage taken from the advice of the Privy Council in Jones v Skelton [1964] NSWR 485 at 491:

"In deciding whether words are capable of conveying a defamatory meaning the Court will reject those meanings which can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation ... The test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."

1. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ at CL said, at 165, with respect to this question of law:

"The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is implied by that matter, or what is inferred from it: Jones v Skelton (at 650; 1065). In deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable (Defamation Act, s 7A, reflecting the common law: Capital and Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 745; Lewis v Daily Telegraph Ltd [1964] AC 234 at 259, 266; Jones v Skelton (at 650; 1065); Farquhar v Bottom (at 385); Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 302), and any strained or forced or utterly unreasonable interpretation must be rejected: Jones v Skelton (at 650; 1065). The ordinary reasonable reader (or listener or viewer) is a person of fair average intelligence (Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7), who is neither perverse (ibid at 7), nor morbid or suspicious of mind (Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir R 577 at 586), nor avid for scandal: Lewis v Daily Telegraph Ltd (at 260). That person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (at 277); Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 412; Middle East Airlines Airliban SAL v Sungravure Pty Ltd [1974] 1 NSWLR 323 at 340."

1. It seems to me that this is an appropriate case in which to determine the question of law whether the alleged defamatory matter is capable of bearing a defamatory meaning before the determination of all other questions.  With respect to the separate trial of different questions, Kirby P said in CBS Productions Pty Ltd v O'Neill [1985] 1 NSWLR 601 at 607:

"… it is my view that the court should be facultative in the matter of separate decisions on questions arising in the course of the trial.  The rules now provide for it.  Where the exceptional circumstances exist that make it sensible to do so (and no reason exists to suggest the contrary) the procedure can be beneficial.  It can contribute not only to the prompt disposal of crucial issues in the litigation (sometimes resulting in disposal of the whole action and even judgment for a party).  It can also contribute to the saving of time and costs where an authoritative decision narrows the issues for trial substantially, excluding the necessity to explore factual matters which, on one determination of the preliminary question, are entirely unnecessary."

1. The crucial issue in this litigation is the question whether the words complained of are capable of bearing a defamatory meaning.  No evidence touching this issue will be called at trial.  If it is determined against the plaintiffs, the litigation will come to an end.  If it is determined in favour of the plaintiffs, it will almost certainly facilitate settlement.  In any event, the immediate determination of the question of law will result in a speedy resolution of the litigation and a saving of costs.

Is the publication capable of bearing a defamatory meaning?

1. A consideration of this question of law should begin with a reminder that the words complained of must be considered in the context in which they appear.  In Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165, Mason P, at 172, adopts this compelling observation by Holmes J in Towne v Eisner 245 US 418 (1918) at 425:

"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used."

1. Mason P went on to say:

"At the point of general principle, it is well established that the words complained of must be construed as a whole and in context (see the passage from Gatley on Libel and Slander set out in the judgment of Young CJ in Eq, which I have had the advantage of reading: P Lewis, Gatley on Libel and Slander, 8th ed (1981) London, Sweet & Maxwell)."

1. The article is a local football story.  It is about two teams that were due to play against each other the day after the article was published.  The football story is given a "human interest angle" by referring to the relationship between, and history of, the coaches of the two teams.  The article runs to some 19 paragraphs.  By far the greater part of the article is complimentary of both plaintiffs and states that each has respect for the other.  The only remotely possible source of complaint lies in some of the words written in the first five paragraphs.

1. Although Mr Hryce, who presented the argument on behalf of the defendant, submitted that "a dispute over a family inheritance" in par1 of the article did not mean, as imputation (a) alleged, a dispute over "financial and property matters",  I think it is open for a jury, acting reasonably, to so infer.  However, such a jury would not infer that such a dispute was over the estate of the plaintiffs' late father, nor that imputation (a) meant that each plaintiff was claiming property or money for himself and the other was resisting that claim.  Disputes over inheritances are common.  They often involve many members of a family.  It is not infrequent that they concern articles of great sentimental value, but little monetary value.  The article does not attribute blame or fault with respect to this dispute to either plaintiff.  No reasonable person would be likely to shun, avoid or ridicule either plaintiff, nor consider his reputation sullied, because he was involved in a dispute with the other plaintiff over a family inheritance.

1. The same observations can be made about imputation (b).  In part, it repeats imputation (a).  Insofar as it refers to neither brother speaking to the other for five years, no reasonable person would think any the worse of either plaintiff because they have not spoken to each other over an argument, with respect to an inheritance, that has persisted for five years. 

1. The reference in imputation (c) to "continued to keep their distance from each other" is no more than a repetition that the plaintiffs have been in argument over a family inheritance for five years and have not spoken during that time. 

1. In the course of his submissions with respect to pleaded imputation (d), Mr Crampton submitted that the imputation from the words, "at the Devonport Oval tomorrow their personal battle will continue when they are opposed to each other for the first time as senior coaches at the Anzac Day town premiership" was that the plaintiffs would somehow use the occasion to further their dispute over the family inheritance. Mr Crampton could not explain how either plaintiff could reasonably do this in front of a (hopefully large) crowd of football fans gathered at the Devonport Oval on Anzac Day.  I reject his submission.  A reasonable reader would infer from those words that a little literary licence had been used to transmogrify the inheritance dispute into a football contest or "battle".

1. Imputation (e) is not made out.  The article asserts that "they have respect for each other's achievements".  It does not say that their respect for each other is limited to their achievements.  Even if it did, the reasonable reader would not thereby think any the less of either plaintiff. 

1. Imputation (f) simply does not arise.  There is no suggestion that the capacity of either plaintiff to coach their team has been affected by the dispute over a family inheritance.  Indeed, the article not only lauds the coaching skills of both plaintiffs, but does so through the mouths of the plaintiffs themselves in such a way that a football fan would see the forthcoming game as being a good one to go and see.

1. Imputation (g) speaks of the destruction of each plaintiff's "natural love and affection for the other".  There are no standards or benchmarks to measure natural love and affection between siblings.  Everybody knows that the degree of sibling affection varies from family to family and often between sibling and sibling in one family.  No reasonable jury would find this imputation made out, or even if made out, that it was likely to lower one or both of the plaintiffs in the esteem of the reasonable reader.  Precisely the same observations can be made with respect to pleaded imputation (h), which is a repetition of imputation (g), but uses the words "normal and cordial relations" instead of "natural love and affection".

1. Accordingly, I determine as a matter of law, that the article published by the defendant and pleaded in the statement of claim, par4, is not capable of bearing the defamatory meanings alleged in the statement of claim, pars5 and 6 (mis-numbered 1 and 2 in Action No 44/2005). 

1. In result, there should be judgment for the defendant against the plaintiff in each action, but before proceeding so to order, I will give each counsel an opportunity to make submissions with respect to the ultimate disposition of this litigation.