Shave v West Australian Newspapers Ltd
[2000] WASC 172
•29 JUNE 2000
SHAVE -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2000] WASC 172
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 172 | |
| Case No: | CIV:1285/2000 | 23 JUNE 2000 | |
| Coram: | HASLUCK J | 29/06/00 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike out dismissed | ||
| PDF Version |
| Parties: | DOUGLAS JAMES SHAVE WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632) JAMES ANDREW McGINTY |
Catchwords: | Defamation Pleadings Imputation of criminal offence Whether imputations clearly untenable or manifestly groundless Understanding of ordinary reasonable reader |
Legislation: | Finance Brokers Control Act Rules of the Supreme Court 1971, O 20 r 19 |
Case References: | Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 Foord v John Fairfax & Sons Ltd, unreported; SCt of NSW (Hunt J); No 2045 of 1986; 27 February 1987 Gumina v Williams (No 2) (1990) 3 WAR 351 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 Jones v Skelton [1963] 1 WLR 1362 Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 Lewis v Daily Telegraph Ltd [1964] AC 234 Mirror Newpapers Ltd v Harrison (1982) 149 CLR 293 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Nationwide News Pty Ltd v Abboud, unreported; SCt of WA; Library No 960710; 12 September 1996 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Sim v Stretch [1936] 2 All ER 1237 Singleton v Hudson (1998) 20 WAR 191 Smith v Littlemore (1996) 15 WAR 289 Taylor v Jecks (1994) 10 WAR 309 Armitage v Double Bay Newspapers Pty Ltd, unreported; SCt of NSW; No 13056; 26 September 1991 Australian Consolidated Press v Uren (1966) 117 CLR 185 Emerson v Walker & Ors [1999] WASC 265 Metaxas v West Australian Newspapers Ltd & Anor, unreported; SCt of WA; Library No 970411; 18 August 1997 Rantzen v Mirror Group Newspapers Ltd [1994] QB 670 Ronci v Nationwide News Pty Ltd & Anor, unreported SCt of WA; Library No 960340; 21 June 1996 Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
First Defendant
JAMES ANDREW McGINTY
Second Defendant
Catchwords:
Defamation - Pleadings - Imputation of criminal offence - Whether imputations clearly untenable or manifestly groundless - Understanding of ordinary reasonable reader
Legislation:
Finance Brokers Control Act
Rules of the Supreme Court1971, O 20 r 19
(Page 2)
Result:
Application to strike out dismissed
Representation:
Counsel:
Plaintiff : Mr D M Stone
First Defendant : Ms C Galati
Second Defendant : In person
Solicitors:
Plaintiff : Williams & Hughes
First Defendant : Freehill Hollingdale & Page
Second Defendant : In person
Case(s) referred to in judgment(s):
Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
Foord v John Fairfax & Sons Ltd, unreported; SCt of NSW (Hunt J); No 2045 of 1986; 27 February 1987
Gumina v Williams (No 2) (1990) 3 WAR 351
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Jones v Skelton [1963] 1 WLR 1362
Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newpapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Nationwide News Pty Ltd v Abboud, unreported; SCt of WA; Library No 960710; 12 September 1996
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
Sim v Stretch [1936] 2 All ER 1237
Singleton v Hudson (1998) 20 WAR 191
Smith v Littlemore (1996) 15 WAR 289
Taylor v Jecks (1994) 10 WAR 309
(Page 3)
Case(s) also cited:
Armitage v Double Bay Newspapers Pty Ltd, unreported; SCt of NSW; No 13056; 26 September 1991
Australian Consolidated Press v Uren (1966) 117 CLR 185
Emerson v Walker & Ors [1999] WASC 265
Metaxas v West Australian Newspapers Ltd & Anor, unreported; SCt of WA; Library No 970411; 18 August 1997
Rantzen v Mirror Group Newspapers Ltd [1994] QB 670
Ronci v Nationwide News Pty Ltd & Anor, unreported SCt of WA; Library No 960340; 21 June 1996
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
(Page 4)
1 HASLUCK J: The plaintiff in this matter, Douglas James Shave, is a member of the Legislative Assembly of Western Australia and Minister for Fair Trading. On 15 March 2000, he issued a writ of summons seeking damages for libel against the first and second defendants. The first defendant is the publisher of The West Australia newspaper. The second defendant, James Andrew McGinty, is a member of the Legislative Assembly and was described in the newspaper article complained of as the Labor fair trading spokesman, the context revealing that he is a senior figure in the State parliamentary opposition. I have two applications before me, being an application by the first defendant to strike out the statement of claim in relation to the first defendant or, in the alternative, par 7, par 13 and par 14. The second defendant has also applied for the statement of claim to be struck out in relation to him or, in the alternative, that par 4, par 7 and par 9 of the statement of claim be struck out. In each case the grounds for the application are that the pleading fails to disclose a reasonable cause of action or will prejudice, embarrass or delay the fair trial of the action. Both defendants rely upon O 20 r 19 of the Rules of the Supreme Court1971.
2 It is apparent from the statement of claim that the claims against the two defendants arose in this way. In mid-February 2000, Mr McGinty wrote a letter to the Commissioner of Police asking that certain matters involving Mr Shave be investigated. Shortly afterwards, The West Australian published a report to the effect that the State opposition, by its fair trading spokesman, Mr McGinty, had requested the police commissioner to take certain action. The report quoted a passage from the letter. I will turn to the details of the article in a moment. In addition to setting out the imputations in the letter and newspaper article which are said to be defamatory, the statement of claim includes reference to various facts and matters which are said to support claims for aggravated damages against both defendants and exemplary damages against the first defendant.
3 It emerged at the hearing before me that the contents of the McGinty letter, which were set out in par 3 of the statement of claim, did not match the letter actually written by Mr McGinty. The consequence was that counsel for the plaintiff felt obliged to review his pleading as to the defamatory imputation allegedly contained in the letter and to review his pleading generally in respect of the claim against the second defendant. Against this background, all parties before me accepted that the second defendant's application to strike out the claim against him and the adequacy of the pleas concerning aggravated and exemplary damages against both defendants should be adjourned. Submissions were therefore
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- confined to the question of whether the words in the newspaper report based upon the letter and surrounding circumstances were capable of conveying a defamatory meaning. It follows from this that I will limit my observations to the newspaper article and the imputations it is said to contain.
4 The newspaper report written by Michael Southwell is set out in par 6 of the statement of claim. The two headings preceding the author's name are "Shave 'Broke' Secrecy Rule" (I will call this the first heading) and "Police May Probe Naming of Broker Complainant" (I will call this the second heading). The body of the article is in these terms:
"THE State Opposition has asked Police Commissioner Barry Matthews to order an investigation into a possible breach of the Finance Brokers' Control Act involving Fair Trading Minister Doug Shave.
Labor fair trading spokesman Jim McGinty has complained that despite secrecy provisions in the Act, Mr Shave obtained the name of a man who lodged a complaint with the Finance Brokers Supervisory Board then revealed the man's identity in a letter to the editor published in The West Australian last week.
Mr Shave's letter referred to an earlier report which revealed the Finance Brokers' Supervisory Board had failed to investigate a complaint made in January last year which indicated that finance broker Blackburne and Dixon got a secret commission valued at $1 million for arranging a $4 million loan in 1993.
The board announced an investigation on February 3, three days after the report was published under the secrecy provision of the Finance Brokers Control Act, itis an offence for a registrar, member or officer of the board to divulge information about a person provided to the board.
In a letter to Mr Matthews, Mr McGinty said he believed the only way Mr Shave could have known the identity of the complainant was by breaching the secrecy provision.
'In any event, by writing the letter Mr Shave was an accessory after the fact to a serious breach of the legislation he has a duty to uphold,' the letter said.
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- A spokeswoman for Mr Matthews said the Commissioner was considering what action to take.
The man named by Mr Shave as the complainant developer Domenic Casella, said he was outraged by the Minister's action.
'Instead of concentrating on why his department did not investigate this complaint when I made it in January last year, he has tried to discredit me,' Mr Casella said.
He said he phoned Mr Shave several times since the letter was published to demand an apology but the Minister had not responded to his calls.
'Mr Shave has been defending the brokers and saying there's nothing wrong, then he's ready to publicly attack someone who tries to blow the whistle,' Mr Casella said.
Mr Shave said he learnt that Mr Casella was the complainant when he was provided with a copy of the complaint by the Ministry of Fair Trading.
He said he was aware of the secrecy provision in the Act and that the information had been provided by the ministry, not a member or officer of the board. The registrar and officers of the board are employed by the ministry.
Mr Shave said the identity of a complainant had no bearing on whether a complaint would be investigated by the board and the ministry."
5 The words comprising the newspaper article are called the "second words" in the statement of claim to distinguish them from the contents of the McGinty letter. I note in passing that it was common ground before me that a full stop should have been placed after the word "published" in line two of the fourth paragraph to create a complete sentence reading as follows "The board announced an investigation on February 3, three days after the report was published." Paragraph 7 of the statement of claim was in these terms:
"The second words complained of in their natural and ordinary meaning meant and were understood to mean that Mr Shave had
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- committed a criminal offence by breaching the provisions of the Act."
6 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of society: Sim v Stretch [1936] 2 All ER 1237; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 447. It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable, then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning.
7 In Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, Hunt J noted that the test which is appropriate at trial as to the capacity of the matter complained of to bear an imputation defamatory of the plaintiff is not the same as the test to be applied upon a striking-out application. I will return to the requirements of the latter test in a moment.
8 In deciding whether the words are capable of conveying a defamatory meaning as a matter of law, the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. The question is whether, under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.
9 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. 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: Jones v Skelton [1963] 1 WLR 1362 at 1370 - 1371; Lewis v Daily Telegraph Ltd [1964] AC 234. The ordinary reader may engage in a certain amount of loose thinking when reading the article and may not be expected to read it with cautious and critical analytical care: Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245, 1254.
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10 It should be assumed that reasonable people of ordinary intelligence and education who are also fair-minded and entertain a sense of justice will read the article as a whole and in the context of its publication: Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679.
11 In Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472, the New South Wales Court of Appeal held that, if the matter alleged to be defamatory is contained in other written material, it is sufficient to set out the defamatory passages only, provided that their meaning is clear and distinct, but that if, on the other hand, the meaning of the passages taken singularly is not clear, or if the complexion of the imputation conveyed by the passages alleged to be defamatory is materially altered or qualified by other passages in the written material, the plaintiff must set out the whole of the written material which affects the sense of the matter alleged to be defamatory.
12 It remains a rule of practice that the plaintiff must specifically plead the imputations alleged to arise from the words complained of in their natural and ordinary meaning, unless the defamatory meaning is so clear that enlargement is obviously unnecessary: Gumina v Williams (No 2) (1990) 3 WAR 351; Taylor v Jecks (1994) 10 WAR 309. In Monte v Mirror Newspapers Ltd (supra), Hunt J noted at 678 that what the plaintiff must plead as the imputation upon which he relies is the precise act or condition asserted of, or attributed to, him, or with which he is charged. It follows from this requirement for precision that any words not required for the purpose of conveying the imputation relied on should be struck out of the plea. Words which are repetitious, ambiguous, vague, too broad or otherwise of uncertain meaning may be embarrassing.
13 The test to be applied in relation to a strike-out application is well-known. It is generally accepted that in a defamation action a party is entitled to have the imputations for which it contends left to the trier of fact for the ultimate decision: Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 at 341. However, pleadings asserting imputations will be struck out on an interlocutory application where the imputations are clearly untenable or manifestly groundless: Lewis v Daily Telegraph Ltd (supra); Monte v Mirror Newspapers Ltd (supra); Smith v Littlemore (1996) 15 WAR 289. Also see Singleton v Hudson (1998) 20 WAR 191.
14 It follows from a review of the decided to this point that the pleader must not only extract from the words complained of a precise imputation which is capable of lowering or adversely affecting the plaintiff in the estimation of right-thinking members of society, but also must exercise
(Page 10)
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- care in ensuring that the imputation crafted from the words actually used truly reflects the meaning of the words. In other words, the first question to be addressed upon a striking-out application will often be whether the pleaded imputations can be said to arise from the words complained of. If so, the next question will be whether the words complained of are capable of conveying a meaning defamatory of the plaintiff.
15 The decided cases also indicate that special care has to be exercised where the words complained of concern inquiries or investigation. For example, in Mirror Newpapers Ltd v Harrison (1982) 149 CLR 293, the substance of a newspaper report was that the plaintiff and others had been arrested in connection with the bashing of a member of parliament, Peter Baldwin. The report reminded readers that Baldwin was said to have been viciously bashed and to have suffered shocking facial injuries and a fractured skull. The arrests were said to have followed a month of "intensive investigation by a special squad of detectives" who had "worked around the clock to fulfil a directive from the deputy premier, Mr Ferguson, that the culprits be found." The High Court approved the ruling of Hunt J at first instance that the matter complained of was not capable of bearing either of the two imputations relied on, these being first, that the plaintiff was involved in the bashing of Mr Baldwin and second, that the plaintiff was guilty of a criminal offence in connection with the bashing.
16 Mason J said this at 300:
"As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.
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- In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. 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 his 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."
17 Counsel for the first defendant, in pursuing the first defendant's application to strike out, placed considerable reliance upon this passage from Mirror Newspapers Ltd v Harrison (supra). Counsel emphasised that the test is whether the matter complained of is capable of conveying the pleaded imputation to the ordinary reasonable reader. Such a person is a person of fair, average intelligence. He or she does not live in an ivory tower and is not inhibited by strict rules of construction. He or she is not unusually suspicious or naive or avid for scandal: Lewis v Daily Telegraph Ltd (supra) at 258 to 259.
18 Counsel for the plaintiff met this challenge by placing considerable reliance upon the decision of Owen J in Singleton v Hudson (supra) in which Mirror Newspapers Ltd v Harrison (supra) was distinguished. In that case, the defendant television station published a broadcast which contained a report relating to the criminal trial of a prominent lawyer who was the plaintiff's husband. The report referred to oral evidence given by a witness at the trial that "S and his wife organised for $300,000 to be paid to him." In the statement of claim, the plaintiff claimed that the report meant and was understood to mean in its ordinary and natural meaning that the wife of S was guilty of a criminal offence or that she had so
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- conducted herself as to give rise to a suspicion on reasonable grounds of having committed a criminal offence. In response to an application to strike out, his Honour held that the words, in their ordinary and natural meaning in the context of the report as a whole, were capable of bearing the imputations that the plaintiff was guilty of a criminal offence and that she was suspected on reasonable grounds of committing a criminal offence.
19 Owen J was not convinced that Harrison applied to the circumstances of the case before him. It was not said in the broadcast that the plaintiff had been charged with an offence or that further inquiries were being undertaken. It was not a case of a report narrating the fact that a person had been arrested or charged with an offence. The report was in the nature of an assertion of fact that the money had been paid. The words used asserted a particular act or condition, namely, that the plaintiff and her husband organised a payment to the witness. The report contained a statement made by a person on oath in a court of law that this act occurred. The fact that such a payment had led to the laying of a criminal charge, admittedly not against the wife, was apparent from the fact that the statement appeared in the report of an ongoing trial.
20 I pause to note that in arriving at this conclusion Owen J placed considerable reliance upon the reasoning in Foord v John Fairfax & Sons Ltd, unreported; SCt of NSW (Hunt J); No 2045 of 1986; 27 February 1987, where Hunt J said (at 51):
"The defendant also argues that in each case the imputation is expressed as a conclusion of guilty when the matter complained of makes clear that all of these matters are still the subject of inquiry and that questions have been raised concerning them which have yet to be resolved. Reliance is placed upon Lewis v Daily Telegraph Ltd and Mirror Newspapers Ltd v Harrison. This argument misinterprets what was held in those two cases. It does not follow, wherever a direct statement that the plaintiff had in fact committed a particular act is accompanied by a reference to inquiries which are being made into that act or to charges which are being laid in relation to it, that such a statement can be understood as asserting no more than that the plaintiff was suspected of having committed that act. Those two cases were concerned with publications which asserted no more than that inquiries were being made or that charges were being laid: cf Waterhouse v Broadcasting Station 2GB Pty Ltd (Unreported, Hunt J, 20 October 1986) at p 4. The defamatory
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- capacity of the matter complained of in each particular case still depends upon the effect of the whole of what was said in that case. Where there is a statement which says directly that the plaintiff had committed the particular act, an imputation of guilt would usually have to go to the jury whatever is added to that statement concerning further inquiries or charges in relation to the act said directly to have taken place."
21 The view expressed by Hunt J in Foord was adopted by the Full Court in Nationwide News Pty Ltd v Abboud, unreported; SCt of WA; Library No 960710; 12 September 1996. In that case, a newspaper published an article suggesting that a charitable collections agency had begun investigating the legality of a recently established enterprise. The report included a statement that "This distributor has been selling fund raising lollies but has no association with a registered charity." The Full Court held that, without knowing anything about the legislation in question, an ordinary reasonable reader would understand from the context that a charitable body had to be registered. The assertion that a new distributor had no association with a registered charity would convey to the reader an imputation of unlawful conduct. This conclusion was not altered by various references in the article to the plaintiff's business having justified its activities by making ad hoc donations to charity. As a matter of broad impression, the article indicated that unlawful conduct was taking place.
22 It is against this background that I turn to the circumstances of the present case and the imputation set out in par 7 of the statement of claim that the second words in their natural and ordinary meaning meant and were understood to mean that Mr Shave had committed a criminal offence by breaching the provisions of the Act. Can it be said that such an imputation is untenable or manifestly groundless in the circumstances of the present case? The critical question is whether such an imputation can be said to arise from the words complained of, for there can be little doubt that if such an imputation does arise, the allegation that a criminal offence has been committed by the plaintiff is capable of conveying a defamatory meaning.
23 Counsel for the first defendant submitted that the article is incapable of conveying any defamatory imputation of and concerning the plaintiff. Counsel drew attention to the second heading and to the opening paragraph of the article which referred to a request for an investigation into a "possible" breach of the Finance Brokers Control Act. This was said to provide a framework for the narrative that followed and bring the
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- case squarely within the reasoning reflected in the judgment of Mason J in Mirror Newspapers Ltd v Harrison (supra). In other words, it is immaterial that the article might excite in some readers a belief leading to a conclusion unfavourable to the plaintiff. The ordinary reasonable reader, with a mind not avid for scandal, would conclude that a "probe" (to use the language of the second heading) was being requested but guilt or innocence had not yet been established.
24 Counsel for the first defendant reinforced this submission by drawing attention to certain other features of the article. Counsel noted that Mr Shave had been allowed space within the article to provide an explanation as to how he had obtained the controversial information and his explanation, being squarely before the reader, would make it unlikely that the ordinary reasonable reader would conclude that Mr Shave was guilty of a criminal offence. The ordinary reasonable reader would simply suspend judgment about the matter. Such a reader would also notice, counsel argued, that two well-known politicians from different parties were involved in the matter with the result that the ordinary reasonable reader would assume that some political point scoring was involved and for that reason also would not conclude that Mr Shave had committed a criminal offence.
25 Counsel for the first defendant also submitted that, in the absence of any direct allegation in the article that Mr Shave had committed a criminal offence by breaching the provisions of the Act, an ordinary reasonable reader would not be inclined to draw an adverse inference to that effect. Such a reader would not necessarily conclude that a failure to observe secrecy provisions might amount to the commission of a criminal offence. Accordingly, the imputation contended for by the plaintiff was untenable or manifestly groundless.
26 I have already noted that counsel for the plaintiff relied heavily upon the reasoning in Singleton v Hudson (supra). In applying that reasoning to the circumstances of the present case, counsel contended that the most conspicuous feature of the newspaper article was an assertion of fact contained in a passage from Mr McGinty's letter quoted in the article that "In any event, Mr Shave was an accessory after the fact to a serious breach of the legislation he has a duty to uphold." An ordinary reasonable reader would attach considerable weight to such an assertion by a well-known and respected public figure such as Mr McGinty. The term "accessory after the fact" was bound to convey, even to the layman, that Mr Shave was alleged to be a participant in a criminal activity because the meaning of the term in question is common knowledge. Further, the
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- fourth paragraph of the article clearly established that it was an "offence" to divulge information provided to the board. Accordingly, the pleaded imputation was clearly referable to the words actually used.
27 In addition to the submissions made by counsel for the respective parties, there are some other features of the article to be considered. The first heading to the article - "Shave 'Broke' Secrecy Rule" - at a first glance seems likely to strike the ordinary reasonable reader as an assertion of fact. The use of quotation marks may be thought to diminish the force of the assertion to some extent, by adding a touch of ambiguity, but I doubt that this touch is sufficient to dilute the effect of the assertion entirely. The general tenor of the article is consistent with the notion that the secrecy provisions are important and that any transgression is likely to give rise to serious consequences. This is implicit in the fact that an approach has been made to the police commissioner. The article contains an explicit reference in the fourth paragraph to an "offence" concerning the divulging of information. In my view, as in Nationwide News Pty Ltd v Abboud (supra), the lay reader is given enough information to understand that an offence can be committed if the secrecy provisions are breached, although, admittedly, the word "offence", as it appears in the article, might seem to a careful analytical reader to be applicable only to members and staff of the Finance Brokers' Supervisory Board. Nonetheless, this early educative part of the article seems to serve as a lead-up to the crux of the report, namely, that Mr McGinty believes a breach of the secrecy provisions has occurred and, "in any event", Mr Shave was an accessory after the fact.
28 The threads of the preceding discussion can now be drawn together in this way. The decided cases recognise that the ordinary reasonable reader is not expected to read the words with analytical care, but may engage in a certain amount of loose thinking. The question in the present case is whether certain key words viewed in the context of the article as a whole, including the headings, are capable of conveying an imputation defamatory of the plaintiff by asserting that he is guilty of a criminal offence. The decided cases appear to draw a distinction between reports which are thought to do no more than state that a person is under investigation or has been charged with a criminal offence, such reports being characterised as not capable of bearing a defamatory meaning, as in Lewis v Daily Telegraph (supra) and Mirror Newspapers Ltd v Harrison (supra); and cases where the report asserts directly, or by clear implication, that the plaintiff has been involved in acts amounting to a criminal offence. Reports of the latter kind are regarded as being capable of bearing a defamatory meaning, notwithstanding that the report includes
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- explanations or suggests that further inquiries will be made in relation to the unlawful act said to have taken place. See Foord's case (supra), Nationwide News Pty Ltd v Abboud (supra) and Singleton v Hudson (supra).
29 It seems to follow that in those cases where it is stated, either directly or by clear implication, that an offence has been committed, and the qualifications contained in any of the surrounding statements are not sufficient to outweigh or nullify the effect of what appears to be a plain statement of fact, then such a statement will be characterised as an imputation capable of conveying a defamatory meaning, and will not be struck out.
30 One notices immediately that the present case differs markedly from Mirror Newspapers Ltd v Harrison (supra) in that there is no reference to anyone being arrested and charged. The reader's mind is not directed to the presumption of innocence or to the notion that the matter in issue will be tried by a court of law in a formal way. At a first glance, the report by its heading commences with what seems to be a statement of fact, namely, that Mr Shave broke a secrecy rule. The reader is soon told that the conduct under scrutiny concerns the Finance Brokers Control Act which has secrecy provisions and that these can give rise to an offence. A reference to Mr McGinty's belief that the only way Mr Shave could have known the identity of the complainant was by breaching the secrecy provision is then underpinned by what appears to be a more forceful statement, not of belief, but of fact. "'In any event, by writing the letter, Mr Shave was an accessory after the fact to a serious breach of the legislation he has a duty to uphold,' the letter said."
31 This latter statement lies at the heart of the report. The ordinary reasonable reader may have noted that the opening assertion that Mr Shave "broke" the secrecy rule was subject to some degree of ambiguity, this being denoted by the quotation marks enclosing "broke". Such a reader may also have given due weight to the second heading and to the notion in the opening paragraph that what was being spoken of was a "possible" breach. Such a reader may have gone on to take account of some elements of complexity in the situation, namely, that the secrecy provisions are directed principally at staff and members of the Board, that Mr Shave is the Minister and seems to be putting up an explanation in answer to the outrage expressed by Mr Casella and that the events may become the subject of an investigation ordered by the Police Commissioner. The reader may also take account of the fact that the presence of two senior politicians on opposite sides of the controversy
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- suggests that a degree of political point scoring is involved. However, in my view, bearing in mind the statement lying at the heart of the report, it would certainly be open to the ordinary reasonable reader to conclude as a matter of broad impression that, notwithstanding the complexities, one thing is clear. Mr Shave is an accessory after the fact to a serious breach of the legislation and to that extent at least it can be said that he has committed a criminal offence.
32 This reading of the words complained of requires that some emphasis be given to the words "In any event … " which precede the assertion I have just singled out as lying at the heart of the report. In my opinion, such a reading does not give the prefatory words an undue emphasis. Such a reading is consistent with the tenor of the article that, notwithstanding certain complexities, and some uncertainty as to what the Police Commissioner will do next, it seems that Mr Shave is an accessory after the fact to the commission of an offence. In other words, although the structure of the article may arguably have the effect of introducing a note of caution as to whether Mr Shave, or some other person, should be regarded as the perpetrator of a breach of the secrecy provisions, there is a basis for concluding that the word "broke" and the words "In any event … " would leave the ordinary reasonable reader with an impression that, according to the newspaper report, Mr Shave is in breach of the law concerning secrecy as an accessory after the fact.
33 As counsel for the plaintiff put it during the course of his argument, the article conveys the meaning that "if nothing else, Mr Shave is an accessory after the fact." When the matter is viewed in that light, the inverted commas around the work "broke" are capable of being understood not as a reference to what I called the complexities of the situation, but to the notion that what is being spoken of is an indirect breach of the Act by Mr Shave as an accessory after the fact. It is this condition of guilt, if nothing else, that is being attributed to him.
34 The term "accessory after the fact" is well-known and would be understood by the reader as a reference to collateral conduct amounting to a criminal offence. It follows that, in my view, the imputation contended for in par 7 of the statement of claim cannot be characterised as clearly untenable or manifestly groundless and should not be struck out. It is inherent in the words actually used and is capable of conveying a meaning defamatory of the plaintiff.
35 When I turn to the question of whether the pleading concerning the imputation will prejudice, embarrass or delay the fair trial of the action, I
arrive at a similar conclusion. It may be that this submission was directed principally at that part of the application concerning the aggravated and exemplary damages which presently stands adjourned. However, as to the imputation in par 7, in my view, it is pleaded with sufficient precision. I am unable to hold that it will prejudice, embarrass or delay the fair trial of the action. Counsel for the plaintiff suggested that the exact nature of the criminal offence is not specified. It follows from earlier discussion, however, that in circumstances where the article contains an explicit reference to an "offence" arising under the Finance Brokers Control Act, in the context of secrecy provisions, the plea in these circumstances is sufficiently precise.
36 I will defer making any formal orders until the parties have had an opportunity to consider these reasons, bearing in mind that amendments to the statement of claim are in contemplation and a date has been set for the parties to come before me again.
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