Snowy Mountains Organic Dairy Products Pty Ltd v Australian Broadcasting Corporation
[2006] VSC 138
•12 April 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
No. 9104 of 2005
| SNOWY MOUNTAINS ORGANIC DAIRY PRODUCTS PTY LTD | Plaintiff |
| v | |
| THE AUSTRALIAN BROADCASTING CORPORATION AND OTHERS | Defendants |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 MARCH 2006 | |
DATE OF JUDGMENT: | 12 APRIL 2006 | |
CASE MAY BE CITED AS: | SNOWY MOUNTAINS ORGANIC v A.B.C. | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 138 | |
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Tort – defamation – libel – joinder of two different libels – different defendants – similar subject matter – RSC r.9.01(a) not applicable – discretion under RSC r.9.01(b) – leave to renew application later – imputations – whether capable of arising.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S. Littlemore QC with Mr S. O'Meara | Rigby Cooke |
| For the 1st, 4th and 6th Defendants | Mr R. Whitington QC with Ms F.K. Forsyth | Minter Ellison |
| For the 5th Defendant | Mr L.W. Maher | Coadys |
| For the 2nd and 3rd Defendants | Not represented on these applications |
HIS HONOUR:
On 1 August 2005 the Australian Broadcasting Corporation broadcast a short interview between a programme compère, Ms Libby Price and a Mr Scott Kinnear, the Director of an organisation known as Biological Farmers Australia. The interview was broadcast on Radio National during its well known day-time rural affairs programme, the “Country Hour”. The interview was about the issue of the certification of food products as being “organic” and, in particular, about the plaintiff having labelled its products as “organic“, but not having been certified in respect of them.
In its edition of 24 August 2005 the rural newspaper, the Weekly Times, published an article which was generally on the same subject. The article carried the by-line “Megan McNaught”.
Both the radio programme and the newspaper article mentioned Snowy Mountains Organic Dairy Products Pty Ltd in the context of its being the subject of an investigation by Consumer Affairs Victoria as to the use by it of the epithet “organic” to describe its products.
On 31 January 2006 Snowy Mountains filed a writ in this Court naming the ABC, the Herald and Weekly Times Ltd as the publisher of the Weekly Times, Megan McNaught, Libby Price, Scott Kinnear and Melanie Sim as defendants, alleging that it was defamed both in the radio interview and in the newspaper article. In its statement of claim Snowy Mountains alleges different defamatory imputations as arising from each of the two publications. It claims damages, including aggravated and exemplary damages, against each of the defendants.
The Court is now concerned with two applications. The first is by the plaintiff for leave to continue this proceeding in its present form, that is in respect of each of the two allegedly defamatory publications against all defendants in the one proceeding. This application is opposed by the ABC, its employees and Scott Kinnear, the interviewee on the ABC programme. It is not opposed by the newspaper nor its journalist.
The second application is by the ABC, its employees and Kinnear to have the imputations pleaded as arising from its broadcast struck out as not being capable of being conveyed by the words published. No similar application is made by the publisher of the newspaper article nor its journalist in respect of the imputations alleged to arise from that article.
The joinder issue
RSC r 9.02 permits the joinder of two or more persons as defendants in a proceeding either where a common question of law or fact would arise and the relief claimed arises out of the same transaction or same transactions or, generally, by leave of the Court.
It is not contended here that there is any common question of law or fact involving all the defendants which is apparent at this stage of this proceeding, no defences having yet been filed by the ABC defendants. Accordingly, to justify joinder the plaintiff must rely on the general discretion of the Court conferred by RSC r 9.02(b).
Mr Littlemore SC who appeared with Mr O’Meara for the plaintiff, submitted that although there was no common question of fact or law in this case there was a high degree of commonality of subject matter between the two causes of action pleaded. In due course, after the ABC defendants have filed their defences, there may even be common questions with the meaning of RSC r.9.02(a). In any event, whatever may turn out to be the case as to that, there is plainly much convenience, argued Mr Littlemore, in having all the causes of action against all the defendants litigated in the one proceeding. He submitted that, inevitably, there will be evidence common to issues relevant to both alleged defamations.
Mr Littlemore referred to the description of the discretion conferred by RSC r 9.02(b) by Young CJ in Glenwood Management Group Pty Ltd & Anor v Mayo[1] where he described the discretion to permit joinder as being wide and “. . . not to be cut down by restrictive interpretation”. His Honour decided the case before him as “a matter of convenience”. Virtually the same sentiments were expressed by Wilcox J in Bishop v Bridgelands Securities & Anor[2] in relation to a similar, but not identical, provision in the Federal Court Rules. Wilcox J expressed the basic applicable principle as being that the Court should take whatever course seems to be conducive to a just resolution of the dispute between the parties, having regard to the desirability of limiting, as far as practicable, the cost and delay of the litigation. He emphasised that the court should be effectively satisfied that joinder is unlikely to result in unfairness to any party before it would be permitted.
[1]Unreported, Supreme Court of Victoria, 14 August 1990.
[2](1990) 25 FCR 311.
Mr Maher, for the fifth defendant, Mr Kinnear, submitted that his client had a right to be sued separately. He argued, by reference to cases on O.16 R 1 of the former rules, that “transaction or series of transactions” in a defamation case must be read as “publication or series of publications”. He said that if this is correct it would mean that this case could not satisfy RSC r 9.02(a). But this proposition is conceded by the plaintiff. The issue is whether the broad discretion conferred by r 9.02(b) should be exercised in favour of permitting this proceeding as currently constituted to continue where it is clear that it cannot satisfy the criteria required by r 9.02(a).
Mr Maher referred to two cases in which English courts, applying rules and practices in that jurisdiction at the end of the nineteenth century, refused to allow joinder of separate causes of action in tort against different defendants in the one proceeding: Thompson v London County Council [3] and Sadler v Great Western Railway Co.[4] The Court of Appeal and the House of Lords respectively reached their conclusions in these cases, not on any point of principle or even procedural convenience but because they held that the then Rules of Court did not permit such joinder. That reason alone would distinguish these cases from the present case which must be determined on a different set of rules in an age when efficiency, costs and the limiting of litigation are much greater considerations than they were in the 1890’s. Indeed, the judges in those cases expressed no concern whatsoever that the effect of their decisions was to commit the plaintiff in each case to hazardous serial litigation which carried the risk of failure if only because each defendant would be able to blame a party who was not present. These cases are of no assistance in determining the present application. They merely illustrate the obvious proposition that, on the facts, two separate torts were being alleged in each case. That is not an issue here.
[3][1899] 1 QB 840.
[4][2896] AC 450.
Mr Maher also referred to the judgment of Starke J in Paton v Parker[5] which was to similar effect to the English cases referred to. That case was decided in the context of a statutory provision which only permitted the joinder of causes of action at common law where they were by and against the same parties and in the same rights.[6] Again, no provision such as that in RSC r 9.02(b) was available to be applied.
[5](1941) 65 CLR 187.
[6]Common Law Procedure Act 1899 (NSW) s 49.
Mr Maher also pointed to RSC r 9.04 which permits the court to disallow joinder and make ameliorating orders in cases where joinder has occurred and is subsequently found to be inconvenient. He submitted that his client would be prejudiced by having the plaintiff’s claim remain in its present form and that therefore the rule should be applied. This prejudice was said to arise from a difficulty concerning procedural directions and the conduct of a mediation, as well as the conduct of the trial at which the jury would have to consider each publication relied upon by the plaintiffs, separately. Mr Maher’s procedural objections could be made as well in respect of any multi party case and whether mediation is conducted separately in respect of each libel can be decided by the parties or the Court without reference to the state of the proceeding.
Mr Maher was unable to point to any specific prejudice to his client at trial arising from the state of the proceeding other than that which he said would arise from the possibility of the jury unfairly holding his client responsible for the Weekly Times article. But on a daily basis in this Court juries consider different allegations against different defendants in joint trials – both civil and criminal. They are appropriately instructed and perform their task pursuant to those instructions. There is no reason to believe the jury would not act similarly in this case.
Mr Whitington QC, who appeared with Ms Forsyth for the ABC defendants, adopted Mr Maher’s argument. He emphasised that the claims made in respect of the two publications pleaded by the plaintiff were different – a proposition not contested by Mr Littlemore. He argued that even if the ABC defendants seek to justify they will need to prove different facts to those required to be proved in justification by the publisher of the Weekly Times articles. But this may or may not be so: the ABC defendants have not yet pleaded to the plaintiff’s statement of claim. Even if there are different facts to be proved it is unlikely that evidence concerning organic products, their alleged beneficial characteristics and their marketing would not be relevant to both cases. There may indeed turn out to be much evidence relevant to one case which would be relevant to the other. Only time and the preparation of cases for trial will determine that question.
The continuing of this proceeding in its present form has the potential for cost and time savings. Whether they will materialise will depend upon further developments. Whether they do or not, the preparation of two proceedings is highly unlikely to be more cost effective for the plaintiff and the preparation by each defendant for their defence of this proceeding should not be more expensive than if the two publications were each the subject of a separate proceeding.
The real question then is, as Wilcox J said in Bishop v Bridgelands Securities & Anor[7] whether permitting joinder to occur (in this case permitting joinder to continue) is unlikely to result in unfairness to any party. No such risk of unfairness has been demonstrated by the defendants’ arguments.
[7](1990) 25 FCR 311.
The Court is satisfied that taking all relevant circumstances into account it is now convenient not only from the point of view of the parties but also from the Court's point of view to permit the matter to proceed in its present form. In this case at this stage of its preparation there is no undue risk of unfairness to any party by permitting this course and there may turn out to be considerable savings of time and cost in doing so.
The orders which will be made will permit further applications to be made by any defendant pursuant to RSC r 9.04, or otherwise, if in the course of interlocutory processes circumstances change so as to render it appropriate to make some remedial order. Such change in circumstances may occur because of pleadings filed or interlocutory steps taken by any party hereafter. Indeed there is no reason why RSC r 9.04 could not be invoked, if appropriate, immediately before or at trial. At this stage, however, the proceeding will continue as at present constituted.
Strike out of imputations
The ABC defendants attack each of the imputations alleged in [11] of the plaintiff’s statement of claim as being not capable of arising from the words in the ABC broadcast which the plaintiff has sued upon. There are four such imputations.
Whether the words sued upon are capable of bearing one or more of those defamatory imputations is a question of law to be determined by the Court.[8] That question is whether it is open to a jury to hold that ordinary reasonable persons would understand the words complained of in the relevant defamatory sense: Favell v Queensland Newspapers Pty Ltd[9].
[8]Jones v Skelton [1964] NSWR 485.
[9](2005) 79 ALJR 1716; (2005) 221 ALR 186; [2005] HCA 52.
In Favell v Queensland Newspapers Pty Ltd the High Court referred to Lewis v Daily Telegraph.[10] In that case Lord Reid referred to the imputed characteristics of the ordinary man which did not include living “in an ivory tower” or being inhibited by knowledge of the rules of construction. His Lordship acknowledged that the ordinary man “can and does read between the lines in the light of his general knowledge and experience of worldly affairs”. The High Court considered that, in determining what reasonable persons might understand the words complained of in a libel action might mean, the Court must bear in mind Lord Reid’s dictum. It is of no particular relevance here where the defamation is as much one of impression from the juxtaposition of ideas conveyed by the broadcast as it is of the words themselves.
[10][1964] AC 234.
In Lewis v Daily Telegraph the Court was concerned with whether a statement of suspicion imputed guilt. In a well known passage (specifically approved by the High Court in Favell) Lord Devlin pointed out that “. . . it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis”.
To succeed on this application the ABC defendants must affirmatively establish that it would not be open to a jury to find that the imputations pleaded by the plaintiff arose from the words sued upon. It is convenient to consider each of the imputations in turn.
Paragraph 11(a)
This imputation is in the following form:
“(a)The Plaintiff was reasonably suspected by Consumer Affairs Victoria of falsely advertising that its milk was organic;”
Mr Whitington submitted that an ordinary reader would not regard the fact of an investigation by Consumer Affairs Victoria as suggesting even a suspicion of any wrongdoing: Consumer Affairs Victoria has a much wider charter in its area of operation than, for example, the police whose only remit is to investigate crime. He likened an investigation by Consumer Affairs Victoria to an audit rather than to an investigation of wrongdoing by an investigative body such as the police. In any event, the word “verify” is, he argues, a more neutral word than “suspect” or “charge” and is incapable of itself suggesting wrongdoing of any kind.
Mr Maher for the fifth defendant, in a separate argument, submitted that in Favell the High Court made it clear that a mere statement that a person is under investigation is not necessarily enough to impute guilt or suspicion. He argued that the imputation pleaded in [11](a) sought to elevate what was said to mean that an investigation necessarily implied suspicion. In the ABC broadcast the fifth defendant referred to the enquiry by Consumer Affairs Victoria as being necessary to “verify” the integrity of organic products because there is “some question of whether (organic) is an appropriate claim to make” for the plaintiff’s products.
The issue to be determined at this stage of the proceeding is one of capability of the words to convey the meaning alleged. The words “verify” and “claim“ each, in its own way, is capable of suggesting a suspicion of irregularity. With the name of a body which, even if it carries out other functions, is and is widely known to be, responsible for consumer protection in this State it is distinctly possible that a jury would find the imputation in [11](a) established. At least it could not be said that it could not have that meaning.
Paragraph 11 (b)
Paragraph 11 (b) of the plaintiff’s statement of claim pleads the following imputation as arising from the ABC broadcast:-
“(b)The plaintiff had so conducted itself as to warrant government investigation of claims made in its advertising of organic milk;”
The “so conducted itself” imputation is one way of expressing the same imputation as that in [11](a) in the active voice – by attributing conduct to the plaintiff directly. Again the use of the word “claim” by Mr Kinnear, when referring to the plaintiff’s advertising or labelling is said by Mr Littlemore to suggest action by the plaintiffs. A similar conclusion might be drawn from the statement that Consumer Affairs Victoria is looking at the “appropriateness” of the plaintiff’s action in using the word “organic” on its products.
Mr Whitington submitted that the imputation cannot arise because it invited pure speculation as to the plaintiff’s conduct. He relied on what was said by Levine J in Rakhimov v Australian Broadcasting Corporation & Anor[11] and referred to in Lim v TVW Enterprises Ltd[12].
[11][2001] NSWSC 10.
[12][2002] WASC 214.
But here no speculation is involved – the defendants published, not only that the plaintiff made the claim that its products were “organic”, but also that it is whether that claim is true which is under investigation. The imputation here does not suffer from the deficiencies identified by Levine J in Rakhimov. A jury could well find that the broadcast meant that the plaintiff’s conduct involved some impropriety in the use of the word “organic” as that was the cause of the investigation by Consumer Affairs Victoria.
Paragraph 11(c)
This paragraph is in the following terms:
“(c) The plaintiff was reasonably suspected of making misleading and deceptive claims in relation to its trade in organic milk.”
This imputation might be said to be the essential sting of this alleged libel. Mr Whitington said that the broadcast was not about the plaintiff at all but about a lack of standards in the organic food industry. The imputation is of a reasonable suspicion of the plaintiffs having engaged in deceptive and misleading conduct in its labelling and or advertising of its products. This imputation is capable of being found by a jury to have been conveyed by the broadcast.
Paragraph 11(d)
The final imputation pleaded by the plaintiff is in the following terms:
“(d)The plaintiff had made questionable claims that its milk product was organic.”
Mr Whitington argued that the word “questionable” was so ambiguous as to render the imputation incapable of being pleaded to – it was embarrassing. He pointed to two dictionary definitions, that it meant “open to question, arguable”, alternatively “dubious, dishonest, shady”. Mr Littlemore labelled this submission “opportunistic” because it depended upon being able to find more than one meaning for a word in a recognised dictionary – not an uncommon situation.
There is nothing in Mr Whitington’s argument. Different shades of meaning of ordinary words, depending upon their context, are common. In this instance a jury could find that the words sued upon carried an imputation in which the word “questionable“ was used in the more serious of the meanings proffered by Mr Whitington. The defendants must take that possibility into account when framing their pleading. But this does not make the pleading embarrassing. The ambiguity would have to be considerably greater than can be shown here for the pleading to be embarrassing in the technical sense, and thus liable to be struck out.
Mr Maher adopted Mr Whitington’s submission and added complaints that the pleading of the plaintiff’s imputations were repetitive and imprecise and that the plaintiff had used the word “milk” instead of “dairy products” to describe its products. He said that use of the word “milk” instead of “dairy products“ was not justified by the words sued upon.
Mr Littlemore submitted that the complaint about the reference to milk instead of dairy products was trivial. So it was and was, accordingly, not something which would justify striking out of a pleading. Similarly, there is nothing in the complaints of repetitiveness or imprecision.
The imputation pleaded by the plaintiff in paragraph 11(d) will be permitted to remain in its pleading.
Conclusion
None of the first, fourth, fifth and sixth defendants' complaints about the plaintiff's statement of claim have been made out. Their application to strike it out must be dismissed.
Subject to hearing counsel as to form and as to costs the orders which the Court will make will be as follows:
(1)That the plaintiff have leave to continue this proceeding as at present constituted against all the defendants named, but without prejudice to the right of any defendant to apply again at or before trial for appropriate relief, whether pursuant to RSC r.9.04 or otherwise, as to the plaintiff's claims in respect of the ABC broadcast and the Weekly Times publication referred to in its statement of claim;
(2)That the first, fourth, fifth and sixth defendants' applications to strike out any part of the plaintiff's statement of claim be dismissed;
(3)That the first, fourth, fifth and sixth defendants file and serve defences to the plaintiff's statement of claim by 17 May 2006.
(4)That any further pleadings be filed and served in accordance with the Rules of the Supreme Court.
To these will be added other orders and directions, if required, after hearing counsel.
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