Stuart Rendell v Federal Capital Press of Australia Pty Ltd
[2003] ACTSC 100
STUART RENDELL v FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LTD & ORS [2003] ACTSC 100 (4 December 2003)
EX TEMPORE RULING
No SC 665 of 2003
Judge: Crispin J
Supreme Court of the ACT
Date: 26 November 2003
IN THE SUPREME COURT OF THE )
) No. SC 665 of 2003
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:STUART RENDELL
Plaintiff/Respondent
AND:FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LTD & ORS
Defendant/Applicant
ORDER
Judge: Crispin J
Date: 26 November 2003
Place: Canberra
THE COURT ORDERS THAT:
the applicant be granted liberty to amend the notice of motion in terms of the document handed up and signed by Mr Clynes and dated 26 November 2003;
subparagraph 4(d) of the statement of claim be struck out;
the motion otherwise be dismissed;
the defendant/applicant to pay the plaintiff/respondent’s costs of the motion; and
the action be referred to the Registrar so that a timetable can be prepared; in the event that the parties are unable to agree on one.
IN THE SUPREME COURT OF THE )
) No. SC 665 of 2003
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:STUART RENDELL
Plaintiff/Respondent
AND:FEDERAL CAPITAL PRESS & ORS
Defendant/Applicant
Judge: Crispin J
Date: 26 November 2003
Place: Canberra
EX TEMPORE REASONS FOR RULING
This motion initially sought orders striking out certain paragraphs of the statement of claim on the grounds that they disclose no reasonable cause of action and make claims which are frivolous or vexatious, or alternatively make claims that tend to prejudice, embarrass, or delay the fair trial of the action.
When the matter began before me this morning Mr Littlemore QC, who appears for the respondent to the motion, quite properly drew my attention to the decision of the Federal Court of Australia in West Australian Newspapers Ltd v Aboriginal Nations Pty Ltd [1999] FCA 873, an unreported decision delivered on 13 May 1999, in which Heerey J, with whom Miles and Finn JJ apparently agreed, criticised the approach that had been taken in that case of pursuing a strikeout application in relation to the form of imputations and observed that if the applicants had sought a binding determination of any legal question they could have applied for a preliminary trial under O 37 r 2 of the ACT Supreme Court Rules.
Their Honours went on to observe that there was an element of unfairness in the approach adopted by the defendants in that if a strikeout application failed, the defendant could still run the same argument at trial, and if it succeeded the defendants could effectively stop the plaintiff. Their Honours also added that, even if unsuccessful, such applications could wear down a plaintiff’s resolve and financial resources.
Mr Littlemore submitted that it was inappropriate for me to hear the motion. Faced with this difficulty, Mr Connell, who appeared for the applicant then sought leave to amend the notice of motion in order to seek resolution of the questions of law identified by reference to whether the imputations were capable of arising from the defamatory matter. Mr Littlemore did not oppose this course and I granted leave for the matter to proceed on that basis.
I should stress at the outset that I am concerned solely with that question. I make this point because, during the course of his submissions, Mr Connell from time to time referred to questions of public policy. I accept that important public policy considerations may arise in cases involving the publication of allegations against prominent people, whether in sport or in any other field of human endeavour. However, whilst those considerations may provide a context with which the overall body of legal principles governing defamation cases must be considered, they do not necessarily impinge upon every issue that arises in relation to elements of particular claims. Furthermore, a defence of fair comment, which is based upon those principles, is available in appropriate cases, but the proceedings before me this morning do not require me to consider any defences of that nature. Nor do they require me to consider any defences of truth, whether augmented by other factors, such as public interest, as is required in some jurisdictions.
It would also be inappropriate for me to address any issue as to whether or not any of the imputations alleged in the statement of claim were, as a matter of fact, conveyed by the allegedly defamatory material. The only question which I am required to address this morning is whether, as a matter of law, they are capable of being found to have so arisen.
In that respect, the classic test of whether a statement is defamatory is that postulated by Lord Wensleydale in Parmiter v Coupland (1840) 6 M&W 105 at 108; a publication would be defamatory if “calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule . . .”.
More recently the test has been restated by reference to whether the words would tend “to lower the plaintiff in the estimation of right-thinking members of society generally”, per Lord Atkin in Sim v Stretch (1936) 52 TLR 669 at 671, or be “likely to lead ordinary decent folk to think the less of the person about whom it is made”, per Jordan CJ in Consolidated Trust Co Ltd v. Browne (1948) 49 SR (NSW) 86 at 88.
The test requires a consideration of what meaning a hypothetical ordinary reader could be presumed to have deduced from the publication in question. The hypothetical ordinary reader has been variously described as a “reasonable reader”, a “right-thinking member of society”, an “ordinary man, not avid for scandal”, and sometimes as a “reader of average intelligence”. Such a person is presumed to have no special knowledge and to be devoid of the extremes of suspicion or cynicism on the one hand, and naivety and disbelief on the other: see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, and in particular the remarks of Kirby J at [134.1]. It has been said that he or she can and does read between the lines in the light of his or her general knowledge and experience of worldly affairs, and has a capacity for implication that is much greater than that of a lawyer: see Farquhar v Bottom & Anor (1980) 2 NSWLR 380 at 386.
In Lewis v Daily TelegraphLtd (1964) AC 234 at 258-259, Lord Reid provided some guidance as to how an ordinary reader might be expected to construe statements concerning the character and conduct of others. His Lordship said:
There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs . . .
What the ordinary man would infer without special knowledge has generally been called the natural and ordinary meaning of the words. But that expression is rather misleading in that it conceals the fact that there are two elements in it. Sometimes it is not necessary to go beyond the words themselves, as where the plaintiff has been called a thief or a murderer. But more often the sting is not so much in the words themselves as in what the ordinary man will infer from them and that is also regarded as part of their natural and ordinary meaning . . .
Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question.
See also Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 and Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158.
In the last mentioned case, Hunt CJ at CL said that, in deciding whether any particular imputation is capable of being conveyed by the material in question, the issue is whether it is “reasonably so capable, and any strained or forced or utterly unreasonable interpretation must be rejected”: see p 165.
However, a wide degree of latitude will be attributed to the capacity of the ordinary reasonable member of society to draw adverse imputations where the language employed has been imprecise, ambiguous or loose: see Hunt CJ at CL at p 165 and Chakravarti v Advertiser Newspaper Ltd at [134.2]. It has also been suggested that the nature of the publication may be a material consideration: see Steele v Mirror Newspapers Ltd [1974] 2 NSWR 348 at 373.
The present motion concerns two separate publications and it is necessary to deal with them in order. The first was published in The Canberra Times on 23 April 2003 under the headline “Olympian ‘imported prohibited drugs’”. That headline appeared immediately underneath a smaller sub-headline “Canberra hammer thrower faces suspension”. The article proceeded to allege that the respondent could face suspension after it had been revealed that Australian Customs had sent him a seizure notice in 1999 for importing the performance enhancing drug, human growth hormone. For present purposes it is unnecessary for me to set out the bulk of the article in full.
The statement of claim alleges that the article contained four imputations: first, that he was guilty of the criminal offence of importing prohibited drugs into Australia; second, that he was guilty of trafficking prohibited drugs; third, that he, an Olympic athlete, was a drug cheat; and fourth, that he had so conducted himself in relation to performance enhancing drugs that he was liable to be suspended from participation in representative sport and from receiving support from official sporting bodies.
Mr Connell submitted that the article was incapable of conveying the first of these imputations. The relevant portions of the article appeared to be:
· the headlines to which I have already referred;
· the statement that it had been revealed that Australian Customs had sent the respondent a seizure notice in 1999 for importing the performance enhancing human growth hormone;
· the statement that the Australian Sports Commission had confirmed the report;
· the statement that Customs had seized three boxes of 40 tablets of anterior pituitary peptides;
· the statement that after intercepting the performance enhancing drugs Customs had warned the respondent that they were a prohibited import;
· a reference to the illegal importation of performance enhancing drugs;
· the use of the term offender, albeit in the context of the Australian Sports Commission’s anti-doping policy; and
· the reference to the respondent being under investigation for importing a performance enhancing drug.
Mr Connell submitted that these statements merely raised unsubstantiated allegations and that they should not be taken to have conveyed an imputation that the respondent was in fact guilty. Mr Connell relied heavily on the decision of the High Court of Australia in Mirror Newspapers v Harrison (1982) 149 CLR at 293, which confirmed that the statement that a person has been arrested and charged in relation to a particular offence does not convey an imputation that the person is guilty of that offence. The judgment makes clear that the ordinary reader should be taken to understand that in Australia people are presumed innocent until proven guilty and that the mere fact that a person has been charged does not involve an assumption of guilt. Their Honours also stressed that such a reasoning process would go beyond that contemplated in simply drawing an inference from the words printed as suggested in Lewis v Daily Telegraph Ltd and extend to a process of drawing inferences from inferences.
I accept Mr Connell’s submissions as to the relevant legal principles to be applied but having read the article in its entirety, as a hypothetical reasonable reader would be presumed to do, I must say that it seems to me that the article would, as a matter of law, be capable of conveying the first imputation pleaded. As I have mentioned, it is not for me to determine whether as a matter of fact such an imputation is conveyed. My task is merely to determine whether, if the matter were to proceed before a jury or another judge sitting alone, it would be legally open to the jury or the judge to draw the inference that the imputation was conveyed. I am satisfied that it would.
The second alleged imputation, that the respondent was guilty of trafficking prohibited drugs, is supported primarily by reference to a statement in the fifth paragraph of the article that,
Under the ASC’s anti-doping policy, it is an offence for an athlete to ‘knowingly be involved in trafficking’.
The term ASC plainly refers to the Australian Sports Commission and the reference to trafficking plainly refers to trafficking in prohibited drugs.
Nonetheless, Mr Connell submitted that the mere statement of policy was incapable of conveying an imputation that the respondent had acted in a manner that was contrary to that policy and certainly incapable of conveying anything beyond a mere allegation. The statement was incapable of conveying the imputation that he was guilty of behaving in such a manner and could not be sustained.
He again relied on the decision of the High Court in Mirror Newspapers Ltd v Harrison arguing that the relevant paragraph should be construed in the context of paragraphs that appeared further on in the article referring to a number of formal processes that had to be undertaken before any decisions could be made by the Australian Sports Commission and then proceeding to list potential penalties.
As Mr Littlemore points out, the apparent flaw in that argument is that the reference to trafficking appears to have no other relevance other than to suggest that the respondent may well have engaged in such conduct. Having again considered the matter in the context of the entire article, it seems to me that there is a real issue as to whether in fact that imputation was conveyed, but that is a question which I am not required to resolve. The question with which I am concerned is simply whether it is capable of conveying such an imputation.
As mentioned earlier, a wide degree of latitude will be attributed to the capacity of the ordinary reasonable member of society to draw adverse imputations where the language employed has been imprecise or ambiguous or loose. Having regard to that concept, I have ultimately concluded that it would be open to a tribunal of fact to find as a matter of fact that the imputation had been conveyed.
The third imputation ,that the respondent, an Olympic athlete, was a drug cheat, seems to me have been clearly capable of being conveyed by the article in question. There are a combination of statements which, in my view, lead to that conclusion:
· the headline, “Olympian ‘imported prohibited drugs’”;
· the explanation that the drug in question helps stimulate muscle growth and strength and is a prohibited peptide hormone under the Olympic Movement Anti-Doping Code;
· the suggestion that the respondent could face suspension for importing the performance enhancing drugs;
· the statement that Customs had seized three boxes of 40 tablets of anterior pituitary peptides;
· the statement that under the Australian Sports Commission’s anti-doping policy it is an offence for an athlete to be knowingly involved in trafficking;
· the statement that the performance enhancing drugs were a prohibited import and that the respondent had been warned of that by Customs;
· the suggestion that the importation of performance enhancing drugs was illegal;
· the statement that the respondent had never been positively tested for using a banned substance;
· the statement that there is no accurate test for the use of growth hormones;
· the statement that there was no test available to determine the difference between the natural and synthetic substances; and
· the statement that the hormone helps build muscle and speeds up recovery after training.
It seems to me to be quite open to a tribunal of fact to draw the inference that the article was imputing to this man the importation of an illegal performance enhancing drug for the purpose of enabling him to cheat in his chosen sport by gaining a drug induced advantage that would not be available to his competitors and that should not properly have been available to him.
Mr Connell also submitted that this pleading was poor in form, in that the term “drug cheat” was not sufficiently clear. Hence, he submitted the pleading should, in any event, be struck out as being embarrassing. I am unable to accept that submission. In my view the pleading is sufficiently clear and, in any event, if there is any doubt about the precise ambit of the pleading it can be readily cured by a short request for further and better particulars.
The fourth imputation is, as Mr Littlemore conceded, really related to the possible consequences of the conduct alleged in the earlier imputations. In addressing this particular imputation Mr Connell relied upon the decision of Hunt J in Morris v Newcastle Newspapers (1985) 1 NSWLR 260 and, in particular, upon the passage at 272 where his Honour characterised a somewhat similar plea as a “rhetorical flourish” because it did not differ in substance from the earlier imputations. His Honour proceeded to strike out the imputation on the basis that it had been expressed with insufficient precision and that, insofar as the article might have been capable of conveying such an imputation, it did not differ in substance from that which was to be repleaded in place of an earlier imputation.
I accept that there may be circumstances in which the appearance in an article of a statement as to consequences may be relevant to a claim for defamation. One example may be drawn from a situation where somebody alleges that a person has been guilty of misconduct that falls into a particular category, but where the description of the conduct in question is not sufficiently precise to enable the ordinary reader to really form an adequate view of its gravity. In that event, if it were to be followed by a further statement to the effect that the person faced imprisonment or some other grave sanction, that might cast light upon the nature of the imputation earlier conveyed.
In the present case, it seems to me that the fourth imputation effectively adds nothing to the imputations to which I have previously referred, and I am of the opinion that it does not plead with sufficient precision any conduct on the part of the respondent capable of conveying a defamatory imputation. In any event, since it adds nothing to the earlier imputations I order that that imputation be struck out.
The second article was published in The Canberra Times on 24 April 2003. The article is published under the heading “I’m clean: Rendell vows to fight on”. It proceeds to contain a series of statements by the respondent denying the allegations. Nonetheless, the statement of claim alleges that the article contained two imputations; first, that he was guilty of the criminal offence of importing prohibited drugs into Australia, and second, that he had falsely claimed his wife gave certain of his personal documents to the Australian Institute of Sport.
The first of the imputations is said to have arisen substantially because of two statements:
· first that “Athletics Australia had announced yesterday that it was investigating the seizure of human growth hormone allegedly imported by Canberra’s Olympic hammer thrower, Stuart Rendell, in 1999” and had warned that it had a zero policy on drugs in sport; and
· second that Athletics Australia said that it had received information about the importation of substances by a person involved in athletics, and that the matter was currently being investigated by Athletics Australia under the terms of the relevant anti-drug policy in force at the time.
Mr Littlemore submitted that these statements involved repeating the first imputation that the respondent had imported prohibited drugs and reinforcing it with an assertion that Athletics Australia was aware of evidence of importation by the respondent, who was, of course, the only person involved in athletics to whom the words could possibly have referred.
Mr Littlemore relied upon the principle that whenever denials of an allegation are printed, the relevant question is whether the otherwise defamatory statement embodied in the allegation has been rendered non-defamatory because, as the earlier cases say, the ‘bane’ has been neutralised by the ‘antidote’. That is a long-standing test: see for example, Chalmers v Payne (1835) 150 ER 67, and in particular the remarks of Baron Alderson at 68.
More recently in Bass v McDonald & TCN Channel Nine Pty Ltd (No 6) [2001] NSWSC 988, Sperling J cited a passage from Gatley on Libel and Slander, 9th ed (Sweet & Maxwell: London, 1988) at [3.29].
It will be a question in each case whether the antidote is sufficient to offset the bane. The mere presence of a denial of a defamatory charge does not necessarily prevent the article being defamatory for the reader may be left in the position of having to choose between inconsistent assertions.
His Honour went on to cite the decision of Hunt J in Farquhar v Bottom [1980] 2 NSWLR 380, where Hunt J said:
There are cases, of course, in which the refutation is of such a nature that, taken as a whole, the matter complained of is incapable of conveying the imputation refuted, for example, where the imputation arises by way of inference only, and the matter complained of itself contains an express disclaimer of any intention to convey such an imputation: Stubbs Ltd v Russell [1913] AC 386; or where the refutation consists of a statement of fact destructive of the entire basis upon which the imputation relies. Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679.
His Honour added, “but such cases are comparatively rare” and referred to Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418.
The present case, it seems to me, is somewhat close to the border because there is no clear statement that what was involved amounted to a criminal offence. However it followed the earlier article and referred in the opening sentence to an announcement by Athletics Australia that had been mentioned in the earlier article. Furthermore, the second article itself referred to the importation of human growth hormone and its seizure. I think that when the whole of the article is read together, it is capable of conveying such an imputation.
In my opinion the article was clearly capable of conveying the second imputation that the respondent had falsely claimed that his wife gave certain of his personal documents to the Australian Institute of Sport. The article included the statement attributed to the respondent that “My personal records from my home, after separating from my wife [Gayelene Clews] were delivered to the AIS for their action”. That statement was followed, albeit after the interposition of two further paragraphs, with the words “Rendell and Ms Clews parted last year.” and the assertion:
“It is not correct [that she gave the seizure documents to the AIS psychology department] and I have no interest in getting caught up in this,” Ms Clews said. “All I will say is that what he said is untrue . . .”
As Mr Connell pointed out, any assertion by Ms Clews to the effect that she had not delivered documents to the psychology department would not have involved any contradiction of the statement attributed to the respondent because he had merely said that the documents were delivered but had not indicated who had delivered them. However, that argument does not seem to me to really answer the problem posed by the words attributed to Ms Clews. Her words included the statement that “what he said is untrue”. That statement would only have referred to his statement about the delivery of the documents. Furthermore, it followed a statement suggesting that he had alleged that she had given the documents to the AIS.
I order the defendant/applicant to pay the plaintiff/respondent’s costs of the motion.
I order that the action be referred to the Registrar so that a timetable can be prepared in the event that the parties are unable to agree on one.
I grant the applicant liberty to amend the Notice of Motion in terms of the document handed up and signed by Mr Clynes and dated 26 November 2003.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 4 December 2003
Counsel for the plaintiff/respondent: Mr S Littlemore QC with Mr C Everson
Solicitor for the plaintiff/respondent: Saunders and Company
Counsel for the defendant/applicant: Mr B Connell
Solicitor for the defendant/applicant: Minter Ellison
Date of hearing: 26 November 2003
Date of order: 26 November 2003
Date of reasons for ruling: 4 December 2003
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