Southern & Western Community Broadcasters Inc v Osborn
[2008] SADC 46
•2 May 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
SOUTHERN & WESTERN COMMUNITY BROADCASTERS INC v OSBORN
[2008] SADC 46
Judgment of Her Honour Judge Simpson
2 May 2008
PROCEDURE
Appeal from a decision of a Master dismissing the application of the defendant to strike out a paragraph from the plaintiff's statement of claim - the plaintiff claims that he was the subject of defamatory statements made in a radio programme broadcast by the defendant - the plaintiff is not named in the broadcast - identification of the plaintiff is by way of innuendo, i.e., it depends on special knowledge of extrinsic facts - Held: by pleading that imputations relied on arise from the 'natural and ordinary meaning' of published words, without reference to extrinsic facts, the pleadings are ambiguous and cause embarrassment to the defendant in preparation of defence - appeal allowed - innuendo paragraph struck out - permission should be granted to plaintiff to amend paragraph if so advised in accordance with the decision.
District Court Act 1991 s 43; District Court Civil Rules 2006 rr 17, 98, 104, 292, referred to.
Fullam v Newcastle Chronicle and Journal Ltd and Another [1977] 1 WLR 651; Morgan v Odhams Press Ltd and Another [1971] 1 WLR 1239; [1971] 2 All ER 1156; Grubb v Bristol United Press Ltd [1963] 1 QB 309; Consolidated Trust Company Limited v Browne (1948) 49 SR (NSW) 86; Mirror Newspapers Limited v World Hosts Proprietary Limited (1979) 141 CLR 632; Dingle v Associated Newspapers Ltd and Others [1961] 2 QB 162; Grappelli and Another v Derek Block (Holdings) Ltd and Another [1981] 1 WLR 822; Lewis v Daily Telegraph Ltd [1964] AC 234; Channel Seven Adelaide Pty Ltd and Another v S, DJ (2006) 94 SASR 296; Jones v Skelton (1963) 63 SR (NSW) 644; Chapman and Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181, applied.
SOUTHERN & WESTERN COMMUNITY BROADCASTERS INC v OSBORN
[2008] SADC 46
This is an appeal from a decision of a Master on 21 November 2007 refusing the application of the defendant, Southern & Western Community Broadcasters Inc, for an order that paragraph 5 of the plaintiff’s statement of claim be struck out.
The appeal is brought pursuant to section 43 of the District Court Act 1991, which relevantly provides:
(1)A party to an action may, in accordance with the rules of the appellate court, appeal against any judgment given in the action.
(2)The appeal lies—
(a) in the case of a judgment given by a Master or the Court constituted of a Master—to the Court constituted of a Judge;
Rule 17 of the District Court Civil Rules 2006 provides that an appeal lies as of right from a judgment of a Master to the Court constituted of a Judge. Pursuant to DCR 292:
(1)An appeal is to be by way of rehearing (unless the law under which the appeal is brought provides to the contrary).
(2)Subject to any limitation on its powers arising apart from these rules, the Court may determine an appeal as the justice of the case requires despite the failure of parties to the appeal to raise relevant grounds of appeal, or to state grounds of appeal appropriately, in the notice of appeal.
(3)Subject to any limitation on its powers arising apart from these rules, the Court may—
(a) draw inferences of fact from evidence taken at the original hearing and, in its discretion, hear further evidence on a question of fact;
(b) amend or set aside the judgment subject to the appeal and give any judgment that the justice of the case requires;
(c) remit the case or part of the case for rehearing or reconsideration;
(d) make orders for the costs of the appeal.
The plaintiff, Torrie Ronald Osborn, filed a summons and statement of claim on 13 June 2007, claiming damages and injunctive relief in respect of defamatory statements said to have been made about him on a radio programme broadcast by the defendant on 29 July 2006. The plaintiff claims as a consequence he has suffered distress and embarrassment and serious damage to his personal and professional reputation as a senior and experienced Marketing Sales and Sponsorship Manager.
In the statement of claim the transcript of the broadcast containing the words said to be defamatory of the plaintiff is set out in full in paragraph 3 as follows:
Ian Tige (“IT”): Now listen, er, we have, let’s say two more weeks and then we’ll make the draw, 2 more weeks to get your name in the barrel so everybody that requests a song, gets it put to air, will win um, will get their name on the potential winners’ list for the ‘Hitcall Party Pack’ which er, apparently … somebody’s giving away.
Song volume up
IT: Ah sod it
‘Bald Man’: Don’t know nothing about it.
IT: No we’re giving it away. You and I. Who cares? Now listen, that brings to mind Terry the Phantom Menace … has sprung a leak – He’s sprung a leak I was going to say … he’s over shearing sheep in New Zealand I think at the moment but listen, he’s coming back, he’s back I’ve heard, so watch out for things to go wrong, anything that can happen will go wrong, so watch out for that … uh, what else is new around the place, tell me Bald Man?
Bald Man: Uhhh … yeah.
IT: Yeah that. Ok, thank you very much to Tommy Kaye, he’ll be back uh next week, and he had a host of people in.
Bald Man: Oh there was …
IT: Including one …
Bald Man: Every man and his …
IT: Yes er he er he had no, the gentleman was …
(unidentified voice)
IT: Andy Sutton – from East Side Service Centre and …
Bald Man: Trevor … Shazza.
IT: No no no hang on, we haven’t finished with this bit yet. East Side Service I’ve gotta get it right, he’s a sponsor. East Side Service and Performance Centre. That’s right, who, who sponsors an hour of your show, which according to Terry the Phantom Menace also doesn’t happen, but listen, um, he’s a nice fellow … and it was, it was great to meet him. Thank you, Tommy for having him in. He drew – he did a draw prize – prize draw.
(unidentified voice)
He put his hand in the barrel.
IT: …
Did he get it out?
(unidentified voice)
IT: Oho. Pardon, you probably didn’t hear that and probably just as well. Now listen, um, on behalf of Tommy, thank him for coming in. Now the other people Tommy were here were …?
Bald Man: Trevor, Shazza, Linda …
IT: This is getting longer and longer, this list of people that we have to say thank you to, to coming in for helping Tommy out. Er ok, let’s get on with the show …
…
It is apparent that in the broadcast, there was no reference to the plaintiff by his name. The person referred to in the broadcast and about whom certain defamatory statements are alleged to have been made is called “Terry the Phantom Menace”.
A defamatory statement may be published without identifying any particular person and an ordinary member of the public who reads or hears it in its context cannot tell who is the person to whom it relates. However readers or listeners with special knowledge may read or hear the published words as referring to a particular person. In that event, the plaintiff is required to give sufficient particulars of the special facts on which he will rely, i.e., the particular person or persons to whom the words were published and the special circumstances known to that person or persons. (Fullam v Newcastle Chronicle and Journal Ltd and Another [1977] 1 WLR 651) Unless it is plain and obvious that no sensible person could, by reason of knowing those facts, jump to the conclusion that the words refer to the plaintiff, then the issue will be one to be decided at trial. The first question is, are the words defamatory? The next question is whether the words are capable of referring to the plaintiff and whether they did refer to the plaintiff. (Morgan v Odhams Press Ltdand Another [1971] 1 WLR 1239 at 1241-1242; [1971] 2 All ER 1156)
Because the plaintiff relies on special circumstances which convey to particular persons knowing those circumstances a special defamatory meaning other than the natural and ordinary meaning of the words, then it is necessary for the plaintiff to plead both the innuendo and the extrinsic facts upon which it depends. (Mirror Newspapers Limited v World Hosts Proprietary Limited (1979) 141 CLR 632)
It is in paragraph 4 of the statement of claim where particulars are given to support the allegation that the words referred to and were understood to refer to the plaintiff. Those particulars are as follows:
(a)The plaintiff is and was at all material times a senior and experienced Marketing Sales and Sponsorship Manager, having been engaged in such activity for approximately 30 years, and was engaged in such capacity by the defendant between 18 June 2003 and 10 May 2007, both dates inclusive;
(b)Mr Tige had previously referred to the plaintiff as “Terry the Phantom Menace”;
(c)The plaintiff was known to a large and unidentifiable number of persons as the stations’ (sic) sales sponsorship and marketing manager;
(d)The plaintiff was known to a large and unidentifiable number of persons as “Torrie Osborn – Torrie with an ‘O’, not Terry”, this description having been broadcast on a number of occasions the dates of which the plaintiff cannot now recall;
(e)It was known to a large and unidentifiable number of persons that the plaintiff had, as at the date of the broadcast, made two recent trips to New Zealand;
(f)The words concerned issues pertaining to station sponsorship;
(g)A number of persons understood the reference to ‘Terry the Phantom Menace’ in the words as being a reference to the plaintiff.
The facts alleged in paragraph 4 of the statement of claim are not matters apparently generally known by members of the community; they are extrinsic to the matter of which complaint is made. It will be necessary for the plaintiff to prove in due course that a person or persons who heard the broadcast knew of the extrinsic matters at the time of hearing the broadcast. (Grubb v Bristol United PressLtd [1963] 1 QB 309 at 329; Consolidated Trust Company Limited v Browne (1948) 49 SR (NSW) 86 at 88)
Paragraph 5 of the statement of claim is introduced by the phrase “In their natural and ordinary meaning the words meant and were understood to mean that the plaintiff:” etc. Paragraph 5 then sets out the imputations alleged to arise from the published words, as follows:
In their natural and ordinary meaning the words meant and were understood to mean that the plaintiff:
(a)Upon his return would cause anything at the station that could go wrong to go wrong;
(b) Was incompetent in his profession;
(c) Was incompetent generally;
(d) Lacked knowledge, skill, judgment and efficiency in his profession;
(e) Lacked knowledge, skill, judgment and efficiency generally;
(f) Did not know who sponsored a show broadcast by the station;
(g) Failed to arrange or adequately arrange sponsors for the station.
It was submitted before the Master that the imputations as pleaded in paragraph 5(b) – (g) of the statement of claim are in their natural and ordinary meaning as a matter of law incapable of arising from the broadcast and the imputations as pleaded in paragraph 5 of the statement of claim are not capable of being defamatory of the plaintiff.
The learned Master made a careful analysis of the published words and of inferences which might be made by a reasonable and fair minded person hearing the broadcast, having regard to the principles established by the authorities to which the Master referred.
The learned Master first had regard to the words as they might apply to ‘Terry the Phantom Menace’. He concluded that in his view:
… it is clearly arguable that any reasonable and fair minded person listening to these words may very well conclude that if “things go wrong” (presumably at the radio station) then “Terry the Phantom Menace” will make them go wrong.
In other words, that his conduct and what he does, whatever it is, are bound, inevitably, to cause things to go wrong.[1]
[1] Paragraphs 50 – 51, Reasons for Decision, 21 November 2007
The learned Master concluded that the words used included an assertion that Terry the Phantom Menace did not know, or denied, that a particular business sponsor of the programme sponsored one hour of the radio programme.[2]
[2] Paragraph 55, Reasons for Decision, 21 November 2007
When regard is had to the special circumstances pleaded in paragraph 4 of the statement of claim, identifying the person referred to as “Terry the Phantom Menace” as the plaintiff, the learned Master found that to anyone who knew that the plaintiff was the station’s sales sponsorship and marketing manager, it is reasonably arguable that by implying a lack of knowledge of sponsors of the programme and that the plaintiff is connected with everything going wrong, the published words are a disparaging reflection on the plaintiff’s professional competence and are defamatory of him.
The learned Master found that it was reasonably arguable that the plaintiff:
- who has previously been identified by Mr Tige as “Terry the Phantom Menace” – (paragraph 4(b)) – and who is the station’s sales sponsorship and marketing manager – (paragraph 4(c)) – has both a lack of knowledge of who sponsors an hour of the programme, and is connected with everything going wrong (not just the odd thing, but everything).
It is clearly arguable, therefore, that the alleged broadcast words are a reflection on the plaintiff’s competence, and are defamatory of him.[3]
[3] Paragraphs 57 – 58, Reasons for Decision, 21 November 2007
The learned Master found that it can be established that the plaintiff is “Terry the Phantom Menace” and that he was known to a large and unidentifiable number of people as the station’s sales sponsorship marketing manager, then the words broadcast, by themselves, and by reason of natural inference or implication other than a pleaded innuendo are at least capable of the meanings referred to in paragraph 5 of the statement of claim and are potentially defamatory of the plaintiff[4].
[4] Paragraph 63, Reasons for Decision, 21 November 2007
On the basis that the reference to ‘Terry the Phantom Menace’ is established to be a reference to the plaintiff, the learned Master did not hold the view that ‘an ordinary listener would need special powers of insight or would have to strain to make all of the connections required to reach the imputations contended for relating to the broadcast words.’[5] No exception is taken by the defendant generally to the learned Master’s conclusions in that regard.
[5] paragraph 62, Reasons for Decision, 21 November 2007
By the Notice of Appeal filed on behalf of the defendant on the 12 December 2007, the defendant identifies the following grounds of appeal:
(1)That the learned Master erred in finding that the imputations pleaded by the plaintiff were capable, as a matter of law, of arising from the broadcast complained of.
(2)That the learned Master erred in finding that the imputations pleaded by the plaintiff were capable, as a matter of law, of being defamatory of and concerning the plaintiff.
(3)That the learned Master erred in that he confused the issue of the identification of the plaintiff with the issue of the natural and ordinary meaning of the words complained of.
(4)That error referred to in (3) above arose because the learned Master erred in taking into account the extrinsic facts pleaded in paragraph 4 of the Statement of Claim which are limited to the identification of the plaintiff when considering the imputations pleaded in paragraph 5 of the Statement of Claim. Those imputations are false innuendos rather than true innuendoes such that their meaning must be determined, as a matter of law, without reference to extrinsic facts such that no reference could be made to paragraph 4 of the Statement of Claim for that purpose.
The submission of the defendant on appeal focussed on the fact that in paragraph 5 of the statement of claim, the plaintiff has introduced the alleged imputations with the words, ‘In their natural and ordinary meaning the words meant and were understood to mean’, etc, without reference to the extrinsic facts alleged in paragraph 4 of the statement of claim. It is the defendant’s submission that none of the imputations alleged by the plaintiff in paragraph 5 of the statement of claim can arise in the natural and ordinary meaning of the words and that by introducing the paragraph in that way, the pleadings are ambiguous and embarrassing.
It is the defendant’s submission that the published words are not capable in their natural and ordinary meaning of being defamatory of anyone, and in the absence of special knowledge of the reference to Terry the Phantom Menace being a reference to the plaintiff, as a person who has professional involvement with the radio station, the published words are not capable of being defamatory of the plaintiff. In other words, without special knowledge from which it could be understood that the reference to Terry the Phantom Menace in the broadcast was a reference to the plaintiff, the words used in the broadcast, in their natural and ordinary meaning, are not defamatory. Before they are capable of a defamatory meaning, and in particular a meaning defamatory of the plaintiff, it is the defendant’s submission that specific reference must be made to the extrinsic facts giving rise to the alleged imputation.
It is only by taking the special knowledge into account, to infer that the reference to Terry the Phantom Menace is a reference to the plaintiff and that the plaintiff is the marketing sales and sponsorship manager for the defendant radio station, as the learned Master did, that the alleged imputations can arise. The defendant submits it is of critical importance that it is made clear on the pleadings that the plaintiff relies on what is considered an identification innuendo similar to a true innuendo, so that its defence may be properly prepared. (The Law of Defamation in Australia and New Zealand, Gillooly, Federation Press, 1998 at pp 41-42 and 63)
In the defendant’s submission, paragraph 5 should make plain that it is only by specific reference to the extrinsic facts alleged in paragraph 4 of the statement of claim that the imputations alleged in paragraph 5 arise from the published words. The defendant submits that it is imperative that the pleadings are clear, because there are implications in relation to questions of evidence and proof, and damages; when an allegation is made of a true innuendo, ‘it is essential to prove that at least one of the recipients of the matter had the required special knowledge of extrinsic facts in order to prove the publication[6] and the number who had such knowledge is relevant on the question of damages’[7]. The statement of claim must specify the particular person or persons to whom the words were published and the special circumstances known to that person or persons. (Fullam v Newcastle Chronicleand Journal Ltd and Another [1977] 1 WLR 651 at 654-655; Grappelli and Another v Derek Block (Holdings) Ltdand Another [1981] 1 WLR 822)
[6] Consolidated Trust Company Limited v Browne (1948) 49 SR (NSW) 86
[7] The Law of Defamation in Australia and New Zealand, Gillooly, Federation Press, 1998 at 58, 280-281; Dingle v Associated Newspapers Ltd and Others [1961] 2 QB 162 at 190-192
A reference in pleadings to the ‘ordinary and natural meaning’ of the words used is generally understood to 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’. (Channel Seven Adelaide Pty Ltd and Another v S, DJ (2006) 94 SASR 296 at 301, referring to Jones v Skelton (1963) 63 SR (NSW) 644 at 650)
I note that the learned author of The Law of Defamation in Australia and New Zealand (Gillooly, Federation Press, 1998 at 57) says that in the case of allegations of true innuendo, the innuendo paragraph commonly begins with words like, “The said words [ie the matter complained of] mean and were understood to mean,” etc. In order to reflect the character of the plaintiff’s claim, without ambiguity, and to allow the defendant to prepare its defence properly, the defendant submits the innuendo paragraph in the statement of claim should be introduced with words like, “By reason of the facts referred to in paragraph 4, the words mean and were understood to mean,” etc. If the plaintiff’s case were pleaded in that way, the defendant submits it would have no complaint to make about it.
The plaintiff accepted in the course of submissions on the appeal and wished to make it clear that, on the plaintiff’s case, extrinsic knowledge was required to identify the plaintiff as the person referred to in the published words as “Terry the Phantom Menace”. The plaintiff submits that once it is established by way of extrinsic knowledge that “Terry the Phantom Menace” is the plaintiff, by reference to the matters alleged in paragraph 4 of the statement of claim, then the imputations alleged in paragraph 5 arise from the ‘natural and ordinary meaning’ of the published words.
The plaintiff was invited to consider an amendment to the introductory words of paragraph 5 to include a reference to the extrinsic facts pleaded in paragraph 4 of the statement of claim. No application to amend was made.
In my opinion, there can be no dispute that the plaintiff’s case is one where identification is by way of innuendo, that is, one ‘where special knowledge of extrinsic facts is necessary to identify the plaintiff’. In other words, ‘(t)he specific question to be asked is: would ordinary reasonable persons armed with the requisite special knowledge understand the defamatory imputation to be directed at the plaintiff?’ However, the present reference in paragraph 5 of the statement of claim to the ‘natural and ordinary meaning’ of the words implies that the imputations which follow arise ‘without the need for any special knowledge on the part of the audience’. (Lewis v Daily Telegraph Ltd [1964] AC 234 at 264, 279-282; The Law of Defamation in Australia and New Zealand, Gillooly, Federation Press, 1998 at 54, 63)
The plaintiff has an obligation to make plain in the pleadings the imputations which the plaintiff says arise from any publication which the plaintiff says is defamatory of and concerning the plaintiff, and ‘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.’ (Chapman and Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at 189)
In the circumstances here, the use of the term, ‘in their natural and ordinary meaning’, referring to the published words, in the introduction to paragraph 5 of the statement of claim is misleading. The reference to ‘the natural and ordinary meaning’ of the words, without more, raises an apparently unintended and unnecessary ambiguity, suggesting that it is alleged that the imputations set out in paragraph 5 arise from the published words without any reference to extrinsic facts and circumstances known by the person to whom the publication was made. I am satisfied that it causes embarrassment to the defendant in preparing its defence.
Pursuant to Rule 104 of the District Court Civil Rules 2006, the Court may strike out a pleading in whole or part if the pleading –
(a) does not comply with these rules; and
(b)is an abuse of the process of the Court or prejudices the proper conduct of the action.
Rule 98(2)(c)(ii) provides that a pleading must not contain a matter that is evasive or ambiguous.
In my opinion, paragraph 5 of the statement of claim in its present form is evasive and ambiguous and prejudices the proper conduct of the action.
The objectionable form of the introduction to paragraph 5 of the statement of claim is one which may be redressed by simple amendment in terms referred to above, i.e., by deleting the reference to the ‘natural and ordinary’ meaning of the words, and including a reference to the extrinsic facts by reference to which the words are alleged to mean and were understood to mean the pleaded innuendos relating to the plaintiff. If the plaintiff made an application to amend the introductory words of the paragraph, if so advised, the plaintiff should have permission to bring in an amendment in accordance with the decision.
The appeal is allowed. Paragraph 5 of the plaintiff’s statement of claim filed on 13 June 2007 is struck out.
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