Sands v Channel Seven Adelaide Pty Ltd
[2005] SASC 182
•20 May 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Appeal from a Master: Civil)
SANDS v CHANNEL SEVEN ADELAIDE PTY LTD AND AUSTRALIAN BROADCASTING CORPORATION
Judgment of The Honourable Justice White
20 May 2005
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
First respondent broadcast on television a promotion for a current affairs programme in which it was stated that appellant was a suspect in a murder case - Third party obtained interim injunction preventing broadcast of the programme to which the promotions related - Continuance of injunction argued in District Court - Second respondent broadcast on radio and published in an article on the Internet reports of the District Court proceedings, including a concern expressed by the District Court Judge that the appellant was referred to in the programme as a murder suspect - Appellant sought to amend Statement of Claim - Respondents sought to have struck out paragraphs in Statement of Claim which alleged that the natural and ordinary meaning of the broadcasts and article were that appellant was suspected of murder and that there were reasonable grounds for such suspicion - Master accepted that the broadcasts were not capable of bearing that meaning - Broadcasts of first and second respondents were capable of bearing that meaning - Unnecessary to decide whether words actually bear that meaning at this stage - Consideration of "repetition rule" - Statement of Claim disclosed reasonable causes of action - Pleading not ambiguous - Appeal allowed
Supreme Court Rules 1987 rr 53.01, 46.19, 97.08, referred to.
Chapman v Australian Broadcasting Corporation [2000] SASC 146; (2000) 77 SASR 181; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148; Stern v Piper [1997] QB 123, applied.
Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10; Bennett v News Group Newspapers Ltd [2002] EMLR 39, distinguished.
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, discussed.
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519; Nationwide News Pty Ltd v Chapman [2001] SASC 30; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Ronci v Nationwide News Pty Ltd [2001] SASC 30; Lim v TVW Enterprises Ltd [2002) WASC 214; Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Lewis v Daily Telegraph [1964] AC 234; Shah v Standard Chartered Bank Ltd [1999] QB 241; Chase v News Group Newspapers Ltd [2003] EMLR 11; Jameel v Times Newspapers Ltd [2004] EMLR 31; Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147; Polly Peck (Holdings) Plc v Trelford [1986] QB 1000, considered.
SANDS v CHANNEL SEVEN ADELAIDE PTY LTD AND AUSTRALIAN BROADCASTING CORPORATION
[2005] SASC 182Appeal from a Master
WHITE J:
Introduction
This is an appeal from a decision of a Master by which the Master refused to grant leave to the appellant (the plaintiff in the proceedings below) to amend further the Statement of Claim filed in the action, and, in addition, struck out two paragraphs of the appellant’s Amended Statement of Claim.
Background Circumstances
The circumstances which I set out below are drawn from the appellant’s allegations contained in the proposed Amended Statement of Claim. I note that they are allegations only at this stage.
Channel Seven is a commercial broadcaster of free to air television in South Australia. The Australian Broadcasting Corporation (“the ABC”) is, amongst other things, a radio broadcaster and a publisher of news on its internet site.
On Friday, 14 May 2004 and Saturday, 15 May 2004, Channel Seven broadcast promotions for its Today Tonight programme in the following terms:
On Today Tonight South Australian Federal MP, her boyfriend and the business trip – disgusted that taxpayer funds have been used – the paper trail and whistle blower – he is a suspect in a murder case.
The Channel Seven promotions included pictures of Patricia Draper, a South Australian Member of the Federal Parliament, and of the plaintiff and of one Corinna Marr.
Corinna Marr was murdered in South Australia on 4 July 1997. The Amended Statement of Claim alleges that the fact that she was murdered is known to a large number of South Australians, that her picture would have been identified by a large number of South Australians, and that the appellant would have been identified by a large but unidentifiable number of persons who saw the promotions.
On Sunday, 16 May 2004, Ms Draper obtained an interim injunction from a District Court Judge preventing Channel Seven from broadcasting the programme which had been the subject of its promotions. On Wednesday, 19 May 2004 there were two hearings before the District Court Judge during which the continuance of the injunction was argued.
In a number of its regular radio news broadcasts on Wednesday, 19 May 2004, the ABC reported the proceedings in the District Court including an application by Channel Seven for the injunction to be revoked. The principal focus of each report was the Court’s prohibition of Channel Seven reporting that Ms Draper had travelled overseas with the appellant at the taxpayers’ expense. However, in the course of each report, the ABC reported an expression of concern by the District Court Judge about Channel Seven having mentioned in the promotions that the appellant was a murder suspect. The language used in each report varied but I think one example is sufficient to identify the basis of the appellant’s claim. In its 2.00 pm news bulletin the ABC said:
[the Judge] said that he would not have imposed an injunction if the story was just about a travel rort. He said he was concerned Channel Seven referred to Sands as a murder suspect.
In addition, in an article on its website on Wednesday, 19 May 2004, the ABC reported the statement by the District Court Judge that he was concerned that Channel Seven had referred to the appellant as a murder suspect.
In some of the bulletins it was said that the concern of the Judge was that the appellant “had been” a murder suspect, ie, the past tense was used. It was not submitted that the difference in the tenses used had any significance on the present appeal.
The Proceedings
In these proceedings the appellant sues each of Channel Seven and the ABC for damages in respect of the alleged defamation of him in the publications to which I have referred.
The Statement of Claim filed at the time of institution of the proceedings was amended by the appellant, pursuant to SCR 53.01, on 23 July 2004. In its then form, paragraphs 7, 8 and 11 (ignoring the highlighting of the amendments) were as follows:
7. The nature [sic] and ordinary meaning of the promotion is:
(a) the plaintiff is a suspect in a murder case arising from the death of Corinna Marr,
(b) there are grounds to so suspect him, which are reasonable.
8.On Wednesday, 19 May 2004 the second defendant broadcast by radio in South Australia the article which is annexed hereto and marked ‘A’ (hereinafter called ‘the Article’).
…
11.The natural and ordinary meaning of the Article is:
(a)the plaintiff is and was a person suspected of murder; and
(b)there are grounds to so suspect him, which are reasonable.
The ABC applied to have paragraphs 8 and 11 of the Amended Statement of Claim struck out. Channel Seven applied to have paragraph 7 of the Amended Statement of Claim struck out.
On 20 August 2004, the appellant applied for leave to amend further the Statement of Claim. I set out the amended form of paragraphs 7, 8 and 11 of the Amended Statement of Claim proposed by the appellant (again, ignoring the highlighting of the amendments proposed):
7. The natural and ordinary meaning of the promotion is:
(a) the plaintiff is a suspect in a murder case arising from the death of Corinna Marr; and
(b) there are grounds to so suspect him, which are reasonable.
8.On Wednesday, 19 May 2004 the second defendant broadcast by radio in South Australia on its news at 2.00 pm on Stations ABC Local Radio, ABC News Radio and ABC Radio National the words which are annexed hereto and marked “B” hereinafter called “the 2.00 pm Words” and on its news at 3.00 pm on Stations ABC Local Radio, ABC News Radio and ABC Radio National the words which are annexed hereto and marked “C” [hereinafter] called “the 3.00 pm Words” and on its news at 4.00 pm on Stations ABC Local Radio, ABC News Radio and ABC Radio National the words which are annexed hereto and marked “D” [hereinafter] called “the 4.00 pm Words”.
…
11.The natural and ordinary meaning of the 2.00 pm Words, the 3.00 pm Words, the 4.00 pm Words and the Article are:
(a)the plaintiff is and was a person suspected of murder; and
(b)there are grounds to so suspect him which are reasonable.
The promotion referred to in paragraph 7 is the Channel Seven promotion. The article referred to in paragraph 11 is the article published by the ABC on its website. The annexures referred to in paragraph 8 set out a full transcript of the relevant part of the ABC news broadcasts. It is not necessary in these reasons to set out that full transcript.
Channel Seven and the ABC opposed leave being granted to the appellant to make the amendments to paragraphs 7, 8 and 11 of the Amended Statement of Claim. In addition to the amendments proposed to those paragraphs, the appellant proposed a number of other changes, described by the Master as “cosmetic changes”, to the Amended Statement of Claim. As I understand it, neither Channel Seven nor the ABC opposed the grant of leave to the appellant to make the cosmetic changes.
The Master was informed that the plaintiff intended the pleading in sub-paragraphs (a) and (b) of each of paragraphs 7 and 11 of the proposed Amended Statement of Claim to be one conjunctive pleading and not to allege separate imputations.
The Decision of the Master
The Master accepted the submission of each of Channel Seven and the ABC that their respective publications were not capable of bearing the meaning pleaded by the appellant in paragraphs 7 and 11 of the Amended Statement of Claim or as proposed to be pleaded in the Further Amended Statement of Claim. Accordingly, the Master dismissed the appellant’s application for leave to amend further the Amended Statement of Claim. The Master also ordered paragraphs 7 and 11 of the Amended Statement of Claim filed on 23 July 2004 to be struck out. The effect of the first order of the Master was that the appellant was also refused leave to make the cosmetic changes to which neither defendant had objected.
The Master did not rule on an alternative submission made by Channel Seven, which was to the effect that the pleading in paragraph 7 of the Amended Statement of Claim (and in the proposed Further Amended Statement of Claim) should be struck out because of its ambiguity.
The Appeal
On appeal, the appellant alleges that the Master erred in law in striking out paragraphs 7 and 11 of the Amended Statement of Claim and in dismissing the application for leave to file a Further Amended Statement of Claim. The appellant submits that the Master should, as a matter of law, have found that the defamatory imputations pleaded by him were capable of arising from each of the respective publications of Channel Seven and the ABC.
Although Channel Seven had not filed any Notice of Alternative Contention,[1] it argued that the decision to strike out paragraph 7 of the Amended Statement of Claim should be upheld on its alternative ground, namely, its ambiguity.
[1] See SCR 97.08.
The Legal Principles
Each of the strike out applications was made pursuant to SCR 46.18. That Rule permits the Court to strike out the whole or part of a pleading which, amongst other things, discloses no reasonable cause of action or which has a tendency to cause prejudice, embarrassment or delay in the proceedings.
Although there is no Rule of Court requiring a plaintiff to plead imputations where only the natural and ordinary meaning of the words published is relied upon, it is the practice in this State to plead the imputations which the plaintiff alleges. I note that in Chapman v Australian Broadcasting Corporation, Lander J, with whom Doyle CJ and Nyland J agreed, held that the effect of Chakravarti v Advertiser Newspapers Ltd[2] was to require a plaintiff to plead the imputations said to arise, whether the imputations arise out of the natural and ordinary meaning of the words or whether they arise by reason of extrinsic facts and circumstances known by the person to whom the publication was made.[3] There is of course, an obligation to plead the imputations and particulars of the facts and matters relied upon for those imputations where the plaintiff alleges that the published words have a defamatory sense in other than their ordinary meaning.[4] In each case, the pleading of the imputation relied upon informs the defendant of the precise imputation alleged by the plaintiff, and assists in the identification by the defendant of the basis, if any, on which the claim can be defended. Thus the issues between the parties may be narrowed.
[2] [1998] HCA 37; (1998) 193 CLR 519.
[3][2000] SASC 146; (2000) 77 SASR 181 at 189 [56]. See also Nationwide News Pty Ltd v Chapman [2001] SASC 30 at [9] per Doyle CJ (with whom Duggan and Williams JJ agreed).
[4] SCR 46.19.
If the words published by the respondents are not capable of bearing the imputations alleged, then it may be said that the Statement of Claim does not disclose a reasonable cause of action, or, in the alternative, that, at the least, it has a tendency to cause prejudice, embarrassment or delay in the proceedings.
Each of the parties to the appeal accepted that the question raised by the two strike out applications was whether the words published by the respondents were capable of conveying the respective imputations pleaded by the appellant. Each also accepted that the application for leave to amend further the Statement of Claim involved the same question. The question on appeal was whether the Master was correct in concluding that the words of which the appellant complained were not capable of conveying those imputations.
Given that this was a common position, I will decide the appeal on that basis. I note, however, that in Nationwide News Pty Ltd v Chapman, Doyle CJ (with whom Duggan and Williams JJ agreed) adverted to the possibility that a more stringent test may be appropriate, namely, a test derived from General Steel Industries Inc v Commissioner for Railways (NSW)[5] to the effect that the pleading should not be struck out unless the Court is satisfied that the claim advanced is obviously untenable or manifestly groundless.[6] In Nationwide News Pty Ltd v Chapman, the defendant, who was seeking the striking out of the plaintiff’s pleading, accepted that the more stringent test was the appropriate test. The Full Court did not consider it necessary to decide which was the appropriate test and determined the matter on the basis accepted by the defendant. Likewise, as in this case each of the parties agreed on the approach to be applied, I will apply the agreed approach without deciding whether the more stringent test may be appropriate.
[5] (1964) 112 CLR 125.
[6][2001] SASC 30 at [14]-[16]. See also Ronci v Nationwide News Pty Ltd [2001] WASC 239 at [10] and at [26]; Lim v TVW Enterprises Ltd [2002] WASC 214 at [11].
The approach to be taken in determining whether the pleaded words are capable of bearing the meaning attributed to them is well established. I refer to, without repeating, the summary of the relevant principles by Lander J in Chapman v Australian Broadcasting Corporation.[7] I accept that the question of whether the words complained of by the appellant are capable of bearing a defamatory meaning is a matter of law for the Court. That meaning is to be determined objectively, ie, by considering whether reasonable persons may have understood the words in their natural and ordinary meaning to have a defamatory sense. The intention of the publisher is immaterial.
[7][2001] SASC 30 at [57]-[65]. See also Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164-7 per Hunt CJ at CL.
The Channel Seven Promotions
I commence by observing that the appellant does not allege that the statement published by Channel Seven that he is a suspect in a murder case would be understood as meaning that he did murder Corinna Marr. Nor does he allege that the statements convey an imputation that he had engaged in any conduct at all in relation to Corinna Marr’s death.
The pleading is expressed passively. The only imputation alleged, in effect, is that there are reasonable grounds on which to suspect him in the murder case arising from the death of Corinna Marr. It is not pleaded that the Channel Seven promotion conveys any imputation as to the factual basis of the grounds for suspicion.
The suspicion to which the Channel Seven promotions refer should be understood to be a suspicion of the Police. The imputation pleaded by the appellant is, in effect, that the appellant is, on reasonable grounds, a suspect of the Police in the murder case arising from the death of Corinna Marr.
The meaning of a statement that a person is suspected, or its equivalent, has been considered in a number of cases. In several, it has been held that a statement that someone is suspected of something does imply that there are reasonable grounds for the suspicion. In Lewisv Daily Telegraph, Lord Hodson said:
It may be defamatory to say that someone is suspected of an offence, but it does not carry with it that that person has committed the offence, for this must surely offend against the ideas of justice which reasonable persons are supposed to entertain. If one repeats a rumour one adds one’s own authority to it and implies that it is well founded. That is to say, that it is true. It is otherwise when one says or implies that a person is under suspicion of guilt. This does not imply that he is in fact guilty but only that there are reasonable grounds for suspicion, which is a different matter.[8]
[8] [1964] AC 234 at 275.
In the same case, Lord Devlin said:
But a statement that an enquiry is on foot may go further and may positively convey the impression that there are grounds for the enquiry, that is, that there is something to suspect. Just as a bare statement of suspicion may convey the impression that there are grounds for belief in guilt, so a bare statement of the fact of an enquiry may convey the impression that there are grounds for suspicion.[9]
[9] Lewis v Daily Telegraph [1964] AC 234 at 285.
Earlier, Lord Devlin had held that a statement of suspicion, as a matter of law, does not convey an imputation of guilt. In the course of his reasoning on that topic, his Lordship said:
One always gets back to the fundamental question: what is the meaning that the words conveyed 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.
In Australia, in Whelan v John Fairfax & Sons Ltd[10], Hunt J held that a statement that the police suspected that the plaintiff had committed a crime was capable of conveying the imputation that the suspicion was warranted.
[10] (1988) 12 NSWLR 148.
In the earlier case of Jackson v John Fairfax & Sons Ltd[11], the plaintiff complained of a report published in a newspaper by the defendant. At one stage the plaintiff had been charged with the offence of conspiring with a third party to cheat and defraud various other persons. Later, however, that charge had been withdrawn. Despite the withdrawal, the defendant published an article as to the purported progress of the charges. The plaintiff pleaded that the report conveyed the defamatory meaning that he was suspected of having conspired with the third party to cheat and defraud others. In relation to that imputation, Hunt J said that he regarded a concession by the defendant that a statement that a person is suspected of something necessarily implies that the person has so conducted himself or herself so as to have warranted that suspicion as being an appropriate concession. For some time, Jackson v John Fairfax & Sons Ltd was regarded as authority for the proposition that an imputation that a person was suspected of certain conduct implied that the person had so conducted himself or herself as to give rise to the suspicion. However, in Whelan v John Fairfax & Sons Ltd Hunt J modified that position, but maintained that a statement of suspicion without more was obviously capable of conveying the suggestion that the plaintiff had so conducted himself as to have warranted that suspicion.
[11] [1981] 1 NSWLR 36.
Given the various judicial statements to which I have referred, I do not consider that it can be held that the words published by Channel Seven are not capable, on any reasonable view, of conveying the imputation pleaded by the appellant.
The respondents placed considerable reliance on the decision of Levine J in Rakhimov v Australian Broadcasting Corporation[12]. In that case, an ABC program said of the plaintiff that the FBI suspected him of drug trafficking. A plea that those words meant that “the plaintiff behaved in such a way as to deserve to be suspected by the FBI of drug trafficking” was struck out. The respondents referred in particular to the following passages from the judgment:
I am satisfied that a statement in a publication that “Mr Rakhimov is suspected by the FBI of drug trafficking” is a statement which can be pleaded in the passive voice and contain the substance of the sting, namely, that he is suspected by the FBI of drug trafficking – that is the condition captured by the imputation founded quite fairly and properly in the language of the matter complained of.
I do not accept the proposition encapsulated in the first basis argued for the plaintiff that the ordinary reasonable reader as a matter of direct inference from the statement of the fact of the FBI’s suspicion could conclude that suspicion is based on conduct. When one thinks about it, it is pure speculation and not a matter of natural inference. An ordinary reasonable viewer could consider any number of bases upon which the FBI harboured its suspicion of the plaintiff: intelligence gathering based upon multiple layers of hearsay, for example. I am not persuaded that in every case the statement in the passive voice that someone is suspected cannot constitute a properly formed imputation by reason of not attributing a “condition”. I am not persuaded that someone being “suspected” leads inevitably and always to an inference that the object of the suspicion had conducted himself or “behaved” in a way that leads to it. There could be many reasons why that person is suspected.
The matter complained of here is perfectly clear in its terms which can be captured in an imputation proper in form (irrespective of the passive voice and the use of the language in the matter complained of), and capable of arising in the minds of the ordinary reasonable viewer namely: “the plaintiff is suspected by the FBI of drug trafficking”. That is a statement of a condition of the plaintiff which could lower him in the estimation of ordinary right thinking members of the community.
That is the language the matter complained of uses; that is language with which both the plaintiff and the defendant are “stuck”. It does not permit of what, in my respectful view, is a speculative gloss of the additional component, by conversion to an active voice, that the suspicion was based upon the plaintiff’s conduct. This, in my view, is a clear case of where the ordinary reasonable viewer would understand nothing more than what is being said: that the plaintiff was suspected by the FBI of being a drug trafficker.
[12] [2001] NSWSC 10.
It can be seen that Levine J attached considerable significance to the way in which the impugned statement had been expressed, namely, in the passive voice. The statement did not allege any action by the plaintiff himself.
The respondents submitted that I should apply the reasoning of Levine J in the present case. However, it is to be noted that Levine J was not concerned with the same question with which I am presently concerned, namely, whether a statement that a person is a suspect in relation to a particular crime conveys an imputation that there are grounds for that suspicion. Levine J was concerned with the different question of whether the statement that the plaintiff is a suspect conveys an imputation that there are aspects of the plaintiff’s own conduct which warrant that suspicion. Put slightly differently, whereas in this case I am concerned only with the question of whether a statement that a person is suspected of something conveys an imputation that there are reasonable grounds for the suspicion, Levine J had to consider whether the words not only conveyed that meaning but the further meaning that the reasonable grounds for the suspicion were to be found in the plaintiff’s own behaviour. Accordingly, I do not think that much assistance can be derived from the judgment of Levine J on the present aspect of the case.
Quite apart from authority, the circumstances of the Channel Seven promotions support the conclusion that they were reasonably capable of conveying the meaning that reasonable grounds for the suspicion of the appellant did exist. The death of Corinna Marr by murder has been a matter of great notoriety in this State. The fact of an extensive and continuing police investigation into that murder has also been a matter of notoriety. It is reasonable to suppose that many of those who saw the Channel Seven promotions would have been aware of the death and of the police investigation. In those circumstances, a statement that the appellant is a suspect in relation to the death of Corinna Marr is, in my opinion, capable of conveying to the reasonable observer the meaning that, after its intensive investigations, the police did have material on which reasonably to suspect the plaintiff of involvement in her death.
For these reasons, the words published by Channel Seven of the appellant are, in my opinion, capable of bearing the meaning alleged by the appellant. The Master was in error, therefore, in acceding to the strike out application and in refusing the appellant’s application for leave to amend the Amended Statement of Claim insofar as it concerned Channel Seven.
My decision on this aspect is not to be understood as indicating acceptance of the submission of Mr Heywood-Smith QC, who appeared for the appellant, that the words published by Channel Seven do mean, or in the alternative, are capable of meaning, that the appellant has engaged in conduct which is capable of warranting the suspicion. I have not had to determine that question because that is not the pleading of the appellant. As already noted, the promotions were expressed in the passive voice. They do not on their face allege any conduct of the appellant. Furthermore, the appellant himself has not pleaded an imputation to the effect that he has engaged in conduct which is capable of warranting the suspicion. If the pleading had been in that form, it would have given rise to the very issue which was considered by Levine J in Rakhimov v Australian Broadcasting Corporation to which I have referred above.
I do not wish to be understood as expressing any view at all on the question of whether a defence of justification based on reasonable grounds for suspicion must focus upon some conduct of the appellant which it is said gives rise to the suspicion.[13] The question of whether the statement may be justified by reference to the appellant’s own conduct, or by reference to circumstances independent of the appellant’s own conduct which appear to implicate him, or by reference to information supplied to the police (whether substantiated or not), or some combination of these matters, is one which may arise later in these proceedings. I think it undesirable for me to be expressing a view about that at this stage.
[13]Cf Shah v Standard Chartered Bank Ltd [1999] QB 241 at 261 per Hirst LJ and at 266 per May LJ; Chase v News Group Newspapers Ltd [2003] EMLR 11 at [30] per Brooke LJ.
Mr Heywood-Smith acknowledged that some Australian decisions had accepted that a statement that a person is suspected of something meant no more than just that – the person was suspected of that thing – without conveying any imputation as to the basis for, or nature of, the suspicion.[14] He contrasted this with the English position as summarised by Brooke LJ in Chase v News Group Newspapers Ltd:
The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act.[15]
[14]Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10; Lim v TVW Enterprises Ltd [2002] WASC 214; Ronci v Nationwide News Pty Ltd [2001] WASC 239.
[15][2003] EMLR 11 at [45]. See also Lewis v Daily Telegraph Ltd [1964] AC 234 at 282 per Lord Devlin; Bennett v News Group Newspapers Ltd [2002] EMLR 39; Jameel v Times Newspapers Ltd [2004] EMLR 31 at [10] per Sedley LJ.
The submission was that the English decisions had established distinct categories of meaning which are open when a statement is made that a person is suspected of something and that those categories operate as fixed criteria by which the meaning which the statement is capable of conveying is to be assessed. It was submitted that I should follow the English authorities and, in particular, that I should find that the words complained of in the present case were within the second category to which Brooke LJ referred in the passage quoted above.
My present view is that the passage from Chase and the other English authorities should not be regarded as stating exhaustively all the possible imputations and shades of meaning which a statement of the existence of a suspicion may convey. I consider it desirable to avoid converting classifications developed in some cases into strict categories. I do not think it necessary to adopt the approach submitted by Mr Heywood-Smith in order to resolve this appeal. I have already set out my conclusion accepting that the Channel Seven promotions are reasonably capable of having the meaning for which the appellant contends.
The Form of the Pleading
Channel Seven submitted that paragraph 7 of the Further Amended Statement of Claim was appropriately struck out by the Master on an alternative ground, namely, because it was ambiguous, bad in form and was prejudicial to the making out of a defence of justification.
As noted earlier, the plaintiff has pleaded the imputation as being that there are reasonable grounds for the suspicion of him in the murder case arising from the death of Corinna Marr. He has not alleged any matter said to give rise to the reasonable suspicion.
As I understood Channel Seven’s argument, the ambiguity is said to arise because it does not know whether the plaintiff’s case at trial will be that there was conduct of his warranting the suspicion, or that there were circumstantial facts, existing independently of his conduct, which warranted the suspicion.
As already noted, the appellant has not pleaded that the Channel Seven promotion conveys the imputation that his conduct is capable of warranting the suspicion concerning him in relation to the death of Corinna Marr. If the appellant wished to rely on such an imputation – and thereby to limit the matters which could be the subject of a plea of justification by Channel Seven – then it should, in accordance with the pleading practice to which I have referred earlier, be pleaded. As was said by the Court of Appeal in Bennett v News Group Newspapers Ltd, a statement that a person is under investigation is no doubt defamatory, but the sting of the libel is not as sharp as a statement that he has by his own conduct brought suspicion on himself.[16] Channel Seven can go to trial knowing that the latter is not an imputation on which the appellant will rely.
[16] [2002] EMLR 39 at [36].
Accordingly, I do not consider it appropriate for the amendment to be refused, or the existing paragraph 7 to be struck out, on this ground.
The ABC Publications
As already noted, the principal subject matter of each ABC report was the proceedings in the District Court relating to the injunction which prevented Channel Seven reporting that a Member of the Federal Parliament had travelled overseas with the appellant at taxpayers’ expense. This was newsworthy because of the suggestion at the time that the Member of Parliament may not have been entitled to use public funds in that way.
I am not of course at this stage concerned with the question of whether the defence of qualified privilege is available to the ABC in relation to its reports. However, the fact that the ABC publications were reports of judicial proceedings is relevant, in my opinion, to the question of the meaning which the words used in the reports are reasonably capable of bearing.
The ABC reports are not a statement that the appellant is, or was, in fact a suspect in a murder case, let alone a murder suspect in relation to Corinna Marr. No mention of Corinna Marr is made at all. Hence the slightly different form of pleading by the appellant in paragraph 11 of the Further Amended Statement of Claim. The ABC reports are not a simple repetition of the Channel Seven promotions.
The ABC publications are not reports of a finding by the Judge to the effect that the appellant is, or was, a murder suspect. They are not a report of a statement by the Judge conveying any belief or conclusion, tentative or otherwise, of the Judge that the appellant is, or was, a murder suspect. They report an expression of concern by the Judge that the appellant had been described in that way. All of these factors are relevant to the question of the meaning which a reasonable listener would have understood from the ABC publications.
Mr Heywood-Smith QC relied on the so-called repetition rule. Persons who report defamatory statements made by another do themselves make a defamatory statement, even though the report of what was said by the other is factually accurate. Further, it is no defence for the defendant to prove that it was merely repeating what had been said by another. The basis for the rule was stated succinctly by the Court of Appeal in Bennett v News Group Newspapers Ltd as “repeating someone else’s libellous statement is just as bad as making the statement directly”.[17] The rule was stated more fully in Stern v Piper in the following terms:
The repetition rule … is a rule of law specifically designed to prevent a jury from deciding that a particular class of publication – a publication which conveys rumour, hearsay, allegation, repetition, call it what one will – is true or alternatively bears a lesser defamatory meaning than would attach to the original allegation itself. By definition, but for the rule, those findings would otherwise be open to the jury on the facts; why else the need for a rule of law in the first place?[18]
[17] Bennett v News Group Newspapers Ltd [2002] EMLR 39 at [20].
[18] [1997] QB 123 at 135-6 per Simon Brown LJ
As I understood the appellant’s submission, even though the ABC was reporting what the Judge said, and indeed a statement of concern by the Judge about the Channel Seven promotions, it had repeated the defamatory imputation contained in those promotions. It was therefore capable of bearing the same meaning as the promotions themselves.
Mr Whitington QC, who appeared for the ABC, submitted that the repetition rule has no effect where the publisher is reporting the result of an inquiry or investigation and, further, that in those circumstances the imputation may be justified by proof of the investigation and its result alone. In this respect, reliance was placed on Bennett v News Group Newspapers Ltd[19] in which the Court of Appeal accepted that a report of a matter being investigated by an official investigation may stand in a different position, for the purpose of the repetition rule, than repetition of rumour or hearsay in other circumstances. As the statement in the present case that the appellant was a suspect was to be understood as a statement that the appellant was a suspect of the police following their investigation, it was, as I understood the argument, to be understood as being in the category to which the Court of Appeal had referred.
[19] [2002] EMLR 39.
It is to be noted, however, that the Court of Appeal in Bennett was speaking in relation to a challenge to a Lucas-Box[20] defence – known in Australia colloquially as a Polly Peck[21] defence. It was concerned with the matters which might be proved by the defendant in justification of the defamatory statement alleged by the plaintiff. A decision as to what may be proved in justification of a defamatory imputation will require an identification of the meaning of the imputation. In that sense, judicial decisions as to available justifications of an imputation that a person is suspected of something may in some circumstances be of some assistance. But logically one ought to start with an ascertainment of the meaning of the words before considering what may be proved in justification of that meaning. In the present case, I am concerned with the existence of a defamatory meaning, more accurately, whether the words published are capable of conveying a defamatory meaning. The means by which the defamatory meaning, if it exists, may be justified do not in my opinion provide much assistance in determining the existence or otherwise of such a meaning.
[20] Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147.
[21] Polly Peck (Holdings) Plc v Trelford [1986] QB 1000.
I do consider the existence of the police investigation to be relevant to the determination of the meaning of the words used in this case, but not in the way suggested by Mr Whitington QC. A reasonable listener, aware of the intensive police investigation, could reasonably have understood the impugned words to indicate that that investigation had revealed reasonable grounds on which to suspect the appellant in relation to Corinna Marr’s death.
I consider that there is some force in the ABC submission that the content and circumstances of its publications make a defamatory meaning in those publications less obvious. However, I am satisfied that the ABC publications are reasonably capable of conveying the imputation pleaded by the plaintiff. Despite the fact that the statement that the appellant is a suspect is prefaced by a statement of the concern of the District Court Judge, and the fact that the apparent purpose was to communicate to its listeners the reason for the imposition of the injunction, the ABC has nevertheless repeated the statement made by Channel Seven, which I have found is capable of bearing a defamatory meaning.
Accordingly, in my opinion, the Master was in error in his decision concerning the appellant’s pleading with respect to the ABC.
I repeat that I have been concerned on this appeal only with the question of whether the words of which the appellant complains are capable of conveying the imputations pleaded by him. It will be for the trial Judge to determine whether or not those words do in fact convey those imputations.
Conclusion
For the reasons which I have given, the appeal should be allowed. I will make the following orders:
(1) The appeal is allowed.
(2) The orders made by the Master on 8 December 2004 are set aside.
(3)Leave is granted to the appellant to amend the Amended Statement of Claim in the form set out in exhibit marked “CSES1” attached to the affidavit of Christopher Swan sworn 20 August 2004.
(4)The application of the first defendant dated 16 August 2004 (FDN 12) is dismissed.
(5)The application of the second defendant dated 13 August 2004 (FDN 10) is dismissed.
I will hear the parties as to costs
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