Ten Group Pty Ltd v Cornes
[2012] SASCFC 99
•24 August 2012
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CORNES v THE TEN GROUP PTY LTD & ORS
[2012] SASCFC 99
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Blue)
24 August 2012
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT - WHERE INFERENCES OF FACT INVOLVED - WHERE FACTS NOT IN DISPUTE
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - INNUENDO - IMPUTATION
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION - IMMORAL CONDUCT
Appeal to the Full Court against a finding of a trial Judge that words broadcast on a radio segment on 28 June 2008 by a comedian were defamatory against the respondent – the impugned words led to the inference that the respondent had a sexual relationship with a footballer and had committed adultery.
The issues on appeal were whether the trial Judge was correct to find that the comedian’s comment was defamatory, whether the trial Judge should have found that the ordinary reasonable viewer would have understood the words to be a joke, and whether the judge erred in awarding indemnity costs to the respondent.
Held:
Kourakis CJ: appeal dismissed – the finding of the trial Judge that the impugned words were defamatory was sound – the natural and obvious meaning of the comedian’s words was that the respondent had sexual relations with the footballer and, for those who had knowledge of the respondent’s marriage, that she had committed adultery – the finding of that meaning was not strained, forced or unreasonable – the ordinary reasonable person would have so understood the impugned words notwithstanding the comedic context – the footballer’s defence of the respondent and himself did not cure the impugned words uttered by the comedian of their defamatory meaning in the face of the silence of the comedian himself – agree with Gray J that there was no fault with the Judge’s reasoning and conclusion in respect of the award of indemnity costs.
Gray J: appeal dismissed – the Judge did not err in his conclusion as to the meaning of the words uttered – the ordinary reasonable viewer, having regard to the context of the entire program and to the particular context of the interview with Mr Dew, would have understood the meaning of Mr Molloy’s words to be that the plaintiff had engaged in consensual sexual intercourse with Mr Dew – an ordinary reasonable viewer, aware that the plaintiff was married at the relevant time, would have understood that the plaintiff was unfaithful to her husband and that she committed adultery – the impugned words were defamatory and the Judge’s findings were appropriate – there was no fault with the Judge’s reasoning and conclusion in respect of the award of indemnity costs.
Blue J: appeal dismissed – the trial Judge did not err in his approach to assessing the meaning of the Molloy remark – assuming the single meaning rule applies in Australia, in circumstances in which a statement could be understood by ordinary reasonable viewers to have a meaning which is defamatory and could be understood to have an inconsistent meaning which is not defamatory, the statement will be defamatory if the meaning which is defamatory is predominant – if such a statement could and would be equally understood by ordinary reasonable viewers literally (in which case it is defamatory) and in jest (in which case it is not defamatory), the statement will be defamatory – here the statement was equivocal in this sense and hence defamatory – agree with Gray J that the trial Judge did not err in awarding solicitor and client costs to the plaintiff.
Defamation Act 2005 (SA) s 38, referred to.
Fox v Percy (2003) 214 CLR 118; Warren v Coombes (1979) 142 CLR 531; Jones v Hyde (1989) 63 ALJR 349, applied.
Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] QB 204; Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2011] QB 497; Berkoff v Burchill [1996] 4 All ER 1008; Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741; Charleston v Newsgroup Newspapers Ltd [1995] 2 AC 65; Dawes v News Ltd [1935] SASR 312; Donoghue v Hayes (1831) Exch of Pleas 265; Keogh v The Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577; Lewis v Daily Telegraph Ltd [1964] AC 234; Lord Townsend v Doctor Hughes (1676) 2 Mod 150; 86 ER 994; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Morgan v Odhams Press Ltd [1971] 2 All ER 1156; Murphy v Plasterers Society [1949] SASR 98; Naben v Miecock (1683) Skin 183; 90 ER 84; R v Shipley (1784) 4 Doug 73; 99 ER 774; Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500; Salmone v MacMillan Publishing Co Inc (1979) 97 MISC 2D 436; 411 NYS 2D 105; Savige v News Limited [1932] SASR 240; Sim v Stretch [1936] 2 All ER 1237; Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1; Slim v Daily Telegraph Ltd [1968] 2 QB 157; Stubbs Ltd v Russell [1913] AC 386; Triggs v Sun Printing and Publishing Association (1904) 179 NY 144; Darbyshire v Daily Examiner Pty Ltd (Unreported, Supreme Court of New South Wales, Levine J, 29 August 1997); Entienne Pty Ltd v Festival City Broadcasters Ltd (2001) 79 SASR 19; Abalos v Australian Postal Commission (1990) 171 CLR 167; Devries v Australian National Railways Commission (1993) 177 CLR 472; English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440, discussed.
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Baylis v Lawrence (1841) 11 Ad & E 920; 113 ER 661; Bury v Wright (1609) Yelv 126; 80 ER 85; Button v Heyward (1722) 8 Mod 24; 88 ER 18; Cassidy v Daily Mirror Newspapers Ltd (1929) 2 KB 331; Chakravarti v Advertiser Newspapers Ltd (1996) 65 SASR 527; Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296; Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564; Cox v Humphrey (1602) Cro Elliz 889; 78 ER 1113; E Hulton & Co v Jones [1910] AC 21; Farquhar v Bottom (1980) 2 NSWLR 380; Fray v Fray (1864) 17 CB (NS) 603; 144 ER 241; Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171; Harrison v Thornborough (1714) Gilb Cas 114; 93 ER 277; Hepburn v TCN Channel Nine Pty Ltd (1983) 2 NSWLR 682; Holland v Stoner (1612) Cro Jac 315; 79 ER 270; Hope v Bathurst City Council (1980) 144 CLR 1; Hough v London Express Newspaper Ltd (1940) 2 KB 507; John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291; John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190; Jones v Skelton (1963) 63 SR (NSW) 644; [1964] NSWR 485; Lewis v Walter (1616) Cro Jac 413; 79 ER 352; McGuiness v JT Publishing Australia Pty Ltd [1999] NSWSC 471; Peake v Pollard (1591) Cro Eliz 214; 78 ER 470; R v Horne (1777) 2 Cowper 672; 98 ER 1300; Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; Roberts v Camden (1807) 8 East 93; 103 ER 508; Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202; Slatyer v The Daily Telegraph Newspaper Co Ltd (1907) 7 (SR) (NSW) 488; Sturt v Blagg (1847) 10 QB 906; 116 ER 343; Wild v John Fairfax Publications Pty Ltd (Levine J, SCNSW, unreported, 8 August 1997); Woolnoth v Meadows (1804) 5 East 463; 102 ER 1148, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"ordinary reasonable person"
CORNES v THE TEN GROUP PTY LTD & ORS
[2012] SASCFC 99
Full Court: Kourakis CJ, Gray and Blue JJ
KOURAKIS CJ: The corporate appellants are related television broadcasters. The fourth appellant, Michael Molloy (Molloy), was at the relevant time a presenter on one of their weekly programs entitled ‘Before the Game.’ The program was hosted by a panel of presenters, which included professional sports commentators and comedians. The content of the program was based around the panel’s discussion of AFL football, interviews with AFL celebrities and other regular segments. The words that the trial Judge found to be defamatory were uttered by Molloy in an episode of Before the Game, which was broadcast live on 28 June 2008.
The respondent, Mrs Cornes, is a well known South Australian identity. Mrs Cornes wrote a prominent regular weekly column in Adelaide’s only Sunday newspaper from July 2004 to about April 2007. She was a candidate for a major political party in the May 2007 federal general election. Mrs Cornes has at all material times been married to the prominent South Australian football identity Mr Graham Cornes. The fact of their marriage is generally well known in South Australia and, as the trial Judge found, known by a substantial number of persons throughout Australia.
Molloy’s remark was uttered in the course of an interview with another prominent South Australian footballer, Stuart Dew (Dew). The passage is set out in context in the reasons of the trial Judge at paragraph [64] and at [76] in the reasons of Gray J. The trial Judge found that Molloy’s comment about Dew’s relationship with Mrs Cornes would have been understood by the ordinary reasonable viewer, with knowledge of her marriage to Graham Cornes, as meaning that she had committed adultery with Dew. It is against that finding that the appellants appeal.
This Court must approach the appeal in accordance with the principles of appellate review stated in Warren v Coombes.[1]The challenged factual finding of the trial Judge is purely a matter of inference from the undisputed contents of the broadcast, which is electronically recorded on a DVD received as an exhibit at trial. The trial Judge enjoyed no advantage over this appellate Court in making that factual finding. This Court, having viewed the exhibit, is in much the same position as the trial Judge. Such additional testimony as there was about the 28 June 2008 episode itself is not in dispute. The dispute about the general nature of the series of programs in which the episode was broadcast is, in my view, of no moment. In jurisdictions where defamation actions are tried by juries, their verdicts are accorded a great deal of deference. In my respectful opinion, that is appropriate because of the normative aspect of defamation judgments to which I refer in [50] below. However, because judges do not represent the community in the same way as juries do, judges hearing an appeal against a judgment given in a trial by judge alone are more free to substitute their own judgments for that of the trial judge.
[1] Warren v Coombes (1979) 142 CLR 531.
For reasons that I develop below, on the basis of my own viewing of the broadcast, independently of the trial Judge’s finding, I have concluded that his finding is sound. To put it in another way, in reaching my own conclusion that the statement of Molloy was defamatory, I have not accorded the finding of the trial Judge any weight. For that reason it is not necessary to consider the errors the appellants contend were made by the trial Judge in his approach to the determination of that meaning. Nonetheless, I have kept steadily in mind the exhortations in the authorities, which the appellants contend the trial Judge ignored, in determining the way that the ordinary viewer would have understood the words. I have been careful not to force a strained meaning on them. I have also eschewed suspicion, speculation and guess work and ignored the idiosyncratic beliefs that some viewers might have laboured.[2]
[2] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 per Mason J; Jones v Skelton [1964] NSWR 485 at 491– 492 per Lord Morris of Borth–Y–Gest; Channel Seven Adelaide Pty Ltd v S, DJ (2006) 94 SASR 296 at 301 – 303 [14]-[16] per Debelle J; and see generally Sands v Channel Seven Adelaide Pty Ltd [2010] SASC 202.
A Subjective Understanding of the Broadcast
I will commence my reasons by recording why, contrary to my conclusion about the understanding of the ordinary reasonable person, I subjectively understood the words uttered by Molloy to be a joke.
The salient feature of the first part of discussion is the evident confusion of the comedian Dave Hughes (Hughes) about Dew’s personal relationships. Hughes first mistakenly states that Dew ‘went out with a McLeod’s Daughter [actress]’ when, as it turned out, it was the plaintiff’s stepson, Chad Cornes, who had done so. That mistake was corrected by another commentator who explained that Dew’s romantic interest was with another actress, Teresa Palmer, who had not appeared on McLeod’s Daughters. Hughes then made yet another mistake when he suggested that Teresa Palmer fell in love with Dew because he kept and tended to a rose garden. That mistake was also corrected by another presenter who explained to Hughes, and the audience, that Dew’s rose garden was the subject of a column written by Mrs Cornes. That commentator went on to humorously rebuke Hughes for his errors with the words ‘okay, someone needs to help Hughesy with his research…’. Hughes then made yet another confused statement which led to the same commentator making another joke at Hughes’ expense by saying ‘can someone dial 000 because we need to help this segment out’. Another of the commentators then correctly explained that it was Mrs Cornes who had written in her column that she ‘loved [Dew] because [he] had a rose garden and that [he] talked about tending [to his] roses’. I understood Molloy’s comment which immediately followed, ‘and apparently you slept with her too’, to be yet another joke, at Hughes’ expense, to the effect that Hughes was so confused that he probably, and mistakenly, thought that Dew had had a sexual relationship with Nicole Cornes.
However, my subjective understanding has an element of subtlety about it which, for the reasons given at [51]-[63] below should not be attributed to the ordinary reasonable viewer. The more obvious and direct meaning of the words was that found by the trial Judge.
In an attempt to better elucidate why I would not attribute to the ordinary reasonable viewer my understanding of Molloy’s joke, I will first say something about the nature and origins of the ordinary person who represents the fictitiously homogeneous public and who attributes to all statements but a single meaning.
Evolution of the Ordinary Man
Early Anglo-Saxon law punished defamatory words. After the Norman Conquest, manorial and other local courts continued to grant remedies for that wrongful conduct.[3] Actions could also be brought in Ecclesiastical Courts for defamatory words in matters that otherwise fell within their jurisdiction.[4] In medieval times, only a Magnate of the Realm could seek a remedy for injurious remarks in the Royal Courts of England.
[3] W S Holdsworth, A History of English Law (Methuen & Co, 3rd ed, 1923) Vol 8, 352–353.
[4] W S Holdsworth, A History of English Law (Methuen & Co, 3rd ed, 1923) Vol 8, 335.
Only at the commencement of the 16th Century did the common law courts recognise defamation as a tort and, in the words of Holdsworth, began ‘to compete with the Ecclesiastical Courts’.[5] The remedy of damages given by the common law courts was so popular that it led to a flood of litigation.[6] The Courts responded by introducing various control mechanisms. A very restrictive approach was taken to the categories of words on which the action could be brought. The words that a plaintiff allegedly uttered were construed strictly to see if they fell within an accepted category of wrongful words. Initially it was also necessary for the plaintiff to prove that the words had been spoken exactly as alleged in the pleadings but that rule was relaxed in the 18th Century.[7] Defamatory words were not taken to allege a crime unless the allegation included all of the elements of the crime as defined by the common law.[8] Words were not defamatory as a matter of law if a non-defamatory sense could be twisted out of them.[9] The defamatory words were examined as if they appeared on a writ or in a pleading and at that time the approach to pleadings was exceedingly technical.
[5] W S Holdsworth, A History of English Law (Methuen & Co, 3rd ed, 1923) Vol 8, 335.
[6] The popularity of the action that was also in part due to the active suppression of duelling by the Star Chamber: W S Holdsworth, A History of English Law (Methuen & Co, 3rd ed, 1923) Vol 5, 199–201.
[7] W S Holdsworth, A History of English Law (Methuen & Co, 3rd ed, 1923) Vol 8, 369.
[8] W S Holdsworth, A History of English Law (Methuen & Co, 3rd ed, 1923) Vol 8, 353 – 355.
[9] W S Holdsworth, A History of English Law (Methuen & Co, 3rd ed, 1923) Vol 8, 355.
The common law allowed for some greater flexibility in the case of ambiguous statements which, even though constructed literally did not have a defamatory meaning, might in a particular context be defamatory. The concept of innuendo was developed for those cases where the statement was capable of being defamatory, but where the words uttered did not describe the person or thing alluded to with sufficient clarity.[10] The Courts, however, insisted on a comprehensive pleading of the relevant context in which the words conveyed the alleged innuendo. The ambiguity in the spoken word had to be clearly articulated and the matters which removed that ambiguity also specifically pleaded. The pleading of those circumstances was referred to as the colloquium or prefatory averment.[11] From very early on, it was understood that innuendo may be founded on extrinsic facts, or arise because the words themselves were spoken ‘by way of allusion or reference’.[12] Different pleading rules applied depending on the nature of the innuendo.[13]
[10] W S Holdsworth, A History of English Law (Methuen & Co, 3rd ed, 1923) Vol 8, 368.
[11] W S Holdsworth, A History of English Law (Methuen & Co, 3rd ed, 1923) Vol 8, 369; Lewis v Daily Telegraph Ltd [1964] AC 234 at 278 per Lord Delvin.
[12] R v Horne (1777) 2 Cowper 672 at 682; 98 ER 1300 at 1306 per de Gray LCJ.
[13] Lewis v Daily Telegraph Ltd [1964] AC 234 at 278 per Lord Delvin.
By the close of the 19th century, a looser approach to the capacity of words to carry a defamatory meaning and the categories of imputation which were calculated to lower a person’s reputation in the estimation of ‘right minded’ members of the public, was adopted.[14]
[14] Fray v Fray (1864) 17 CB (NS) 603 at 605; 144 ER 241 at 242 per Erle CJ; Hailsham VC, Halsbury’s Laws of England (Butterworths, 2nd Ed, 1936) Vol 20, 398 [486].
Speaking generally, and leaving aside matters of defence, an action in defamation at the end of the 19th century comprised the following elements: the making of the statement, any extraneous circumstances amounting to a true innuendo, identification of the imputation, and acceptance that the imputation was defamatory. The first two elements were always questions of fact for the jury alone. The third element involved a contextual construction of the words and the fourth a decision as to whether the meaning was defamatory. The last two elements were originally treated as questions of law for the Judge. However, there was some uncertainty about the nature of the last two questions and the respective functions of the judge and jury during the 19th century because of legislative reform in the last part of the 18th century. That legislation required judges to, in effect, leave the last two questions to the jury by allowing them to return a general verdict but the idea that they remained questions of law for the judge persisted.
The origin of the modern approach to the ascertainment of meaning, and the respective roles of the judge and the jury in defamation actions, is generally traced back to Capital and Counties Bank Limited v Henty & Sons (Henty).[15] The defendant Henty was a brewer. Henty’s customers and tenants often paid by cheques drawn on the plaintiff Bank. Henty and the Bank fell into a dispute about the circumstances in which the Bank would cash those cheques. Henty sent a circular to its customers giving notice that it would not accept payment by cheques drawn on the Bank. After the circular was sent, there was a run on the Bank but the evidence did not establish the suspected causal link. The Bank brought an action in libel for damage to its trading reputation. The Bank had pleaded a true innuendo but no evidence was given in support of that pleading. A jury was unable to agree on whether the circular was libellous and no verdict was entered. An application was made, on the evidence given at the trial, to the Common Pleas Division of the High Court to enter judgment for the defendants. The Common Pleas Division refused the application. On appeal the Court of Appeal treated the case as if there had been no pleaded innuendo and as if the matter had come before them on demurrer. The Court of Appeal held that the circular was not libellous and gave judgment for the defendant.
[15] Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741.
That judgment was affirmed, by majority, in the House of Lords. Lord Selbourne LC, adopting the test of Wilde CJ in Sturt v Blagg,[16] stated the question to be whether there was a matter capable of being left to the jury: [17]
It is the duty of the Judge to say whether a publication is capable of the meaning ascribed to it by an innuendo; but when the Judge is satisfied of that, it must be left to the jury to say whether the publication has the meaning so ascribed to it.
Lord Selbourne LC answered the question of law in the negative. There was, therefore, no case to go to the jury and judgment had rightly been given for the Bank by the Divisional Court.
[16] Sturt v Blagg (1847) 10 QB 906 at 908; 116 ER 343 at 344 per Wilde CJ.
[17] Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741 at 750 per Lord Selbourne LC.
Lord Penzance, who dissented in the result, nonetheless appeared to follow Wilde CJ in Sturt v Blagg and to take a similar approach to Lord Selbourne LC on the question of the respective roles of judge and jury. He held that it was for the judge to decide ‘whether the publication is fairly capable of a construction which would make it libellous, and for the jury to say whether in fact that construction ought, under the circumstances to be attributed to it’.[18]
[18] Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741 at 759 per Lord Selbourne LC.
Lord Blackburn held that the observations of Wilde CJ were obiter because in Sturt v Blagg the Court, like the jury, held the view that the publication was libellous. Lord Blackburn traced the history of the functions of judge and jury in libel cases. He referred to the difference of opinion on that issue between Lord Mansfield and Willes J in R v Shipley.[19] R v Shipley was a criminal prosecution for libel in which the jury was persuaded by the Judge not to return a general verdict but only a special one that the defendant was guilty of publishing the pamphlet without finding ‘whether guilty of libel or not’. A motion for a new trial and for arrest of judgment was brought before the Court in banc. Lord Mansfield took the position that in the case of libel the jury’s verdict of guilty was always in the nature of a special verdict as to whether the words were published and the existence in fact of any pleaded innuendo. If a verdict was given for the plaintiff on those questions it was submitted to the Judge to determine whether or not, in law, the words were defamatory. On this approach the question of ‘libel or no libel’ was a pure question of law for the Judge. On the other hand, Willes J held that the Judge could not direct the jury to bring in a verdict of guilty and, if they were to acquit by general verdict, they were not liable to any sanction by way of attaint, fine or imprisonment. In effect, he held that the power of the jury to acquit generally could not be withdrawn by insisting, as the trial Judge had in R v Shipley, that they return a verdict confined to their finding as to publication.
[19] R v Shipley (1784) 4 Doug 73 at 164, 165, 174, 175; 99 ER 774 at 820, 821, 826, 827 per Lord Mansfield.
Lord Blackburn explained that the position of Willes J was in effect enacted by the Libel Act 1792 (UK) (Fox’s Act)[20], which provided that it was for a jury to determine whether a publication was libellous. The purpose of Fox’s Act was to afford some protection to freedom of speech at a time when democratic institutions in England were still in their infancy. It did so by giving the jury the power to bring in a general verdict of not guilty in libel prosecutions, as it was entitled to in other prosecutions. Not surprisingly, given the identity of the elements of libel in civil and criminal prosecutions, the position was transferred over to civil proceedings.[21]
[20] (UK) 32 Geo 3 c 60.
[21] See Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741 at 775 per Lord Blackburn. In Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 173–174 Lord Diplock explained the historical transfer of functions as follows:
The adjudicator, whose opinion as to the meaning of words is decisive for the purposes of libel, used to be the judge, and he was accustomed to the techniques of construction which lawyers employ to ascertain the ‘right’ meaning of words. But Fox's Libel Act in 1792 was to alter that. The Act itself dealt only with criminal libels in which the issue as to the meaning of words was less complex than in civil actions. In a criminal prosecution all that was necessary to determine was whether the words bore any meaning defamatory of the persons to whom they referred. It was not necessary to distinguish between one defamatory meaning and another. And so the effect of Fox's Act, which made the jury the adjudicators as to the meaning of words, could be accurately described as: ‘Libel or no libel is a question for the jury.’ A consequence of Fox's Act, however, was that the courts in course of time transferred from judge to jury the function of acting as adjudicator as to the meaning of words in civil actions for libel as well as in criminal prosecutions. But in this as in other forms of civil action, the jury as adjudicators were subject to judicial control. If the jury's decision as to the meaning of words could be demonstrated to be perverse, as for instance where the court was of opinion that no twelve reasonable men could have ascribed any defamatory meaning to the words, the court could set aside the verdict; or if a particular defamatory meaning submitted to the jury by the plaintiff as being the ‘right’ meaning was one which, in the judge's opinion, it would be perverse of the jury to accept, he could rule that the words were not capable of bearing that meaning and direct the jury to reject it (Lewis v. Daily Telegraph Ltd [[1964] A.C. 234]).
Be that as it may, Lord Blackburn held that neither Fox’s Act nor the reasoning of Willes J derogated from the power of a judge to arrest a judgment in favour of a plaintiff or to direct an acquittal.
Lord Blackburn summarised the position after Fox’s Act to be that:[22]
If the defendant can get either the Court or the jury to be in his favour, he succeeds. The prosecutor, or plaintiff, cannot succeed unless he gets both the Court and the jury to decide for him.
[22] Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741 at 776 per Lord Blackburn.
Lord Blackburn’s position was that the function of the Judge was not merely to decide whether a jury might reasonably hold the statement to be defamatory[23] but to determine whether it was defamatory or not irrespective of the jury’s verdict. He rejected the proposition that the Court had only to decide whether the words were capable of conveying a defamatory meaning. The effect of Lord Blackburn’s approach was this. First the judge would determine whether there was a case to go to the jury. If he did leave the matter to the jury it might acquit whatever the Judge’s view as to the meaning might ultimately have been. But if the jury found the libel proved the Judge might still enter a verdict of not guilty. Lord Watson and Lord Bramwell appear to have taken the same view as Lord Blackburn.
[23] Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741 at 776 per Lord Blackburn.
In my view, once the functions of ascertainment of meaning and the effect of the imputation on reputation become proper matters for determination by a jury, they necessarily became questions of fact, as Lord Penzance explained in Henty. By the procedures of the common law, its judges can not usurp the jury’s responsibility to find the facts. The Judge’s power to arrest judgment, which would otherwise be given on a jury’s finding that the libel was established, could only be exercised for errors of law for which the writ of error would issue.[24] Moreover a jury finding that there was no libel could not be reversed by a motion for judgment by non obstante verdicto.[25]
[24] J Dixon and R Lush, Lush’s Practice of the Superior Courts of Common Law at Westminster (Butterworths, 3rd ed, 1856) Vol 2, 625; W Bagley, The new practice of the courts of law at Westminster (Maxwell, 1840) 429.
[25] Judgment could only be given for the plaintiff against the defendant against a jury verdict where the jury had acquitted the defendant on the grounds of a defence which was not open in law. J Dixon and R Lush, Lush’s Practice of the superior courts of common law at Westminster (Butterworths, 3rd ed, 1856) Vol 2, 628; W Bagley, The new practice of the courts of law at Westminster (Maxwell, 1840) 428.
As desirable as Lord Blackburn’s concern to maintain a defendant’s dual lines of defence, first the jury and then the judge, may have been, it was unsustainable in the long term given the entrenched division of functions between the common law judge and jury. When the right of appeal by way of rehearing became generally available, without the requirement to first bring a motion for arrest for judgment or for a new trial, the technical procedural question decided in Henty became largely otiose and the verdict of the jury, whether for or against the plaintiff, was accorded considerable deference. Early in the 20th century the Court of Appeal in England took the position that a verdict for the defendant should not be set aside on an appeal by way of rehearing conferred by the Judicature Acts,[26] unless it was manifestly unreasonable.
[26] Supreme Court of Judicature Act 1873 (UK) 39 & 37 Vict c 66; Supreme Court of Judicature Act 1875 (UK) 38 & 39 Vict c 77.
The approach of the Justices in Henty to the ascertainment of the meaning of the circular varied between what might be called a legal construction and a factual finding. Lord Blackburn said that the Court must be able to say ‘with reasonable certainty…that the tendency of the letter was to convey the libellous imputation’.[27] Indeed, Lord Blackburn referred to the rule, that it is ‘unreasonable’ to seize on a single ‘bad’ meaning where a number of ‘good’ interpretations of the words are available,[28] more as a matter of construction than as a reference to how the words were understood in the world outside of the courtroom. That rule reflects the in mitori senso principle.
[27] Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741 at 785 per Lord Blackburn.
[28] Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741 at 786 per Lord Blackburn. See also Lord Watson at 788 and Lord Bramwell at 790.
Lord Selbourne LC understood the test stated in the authorities on that question to be ‘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’.[29] Lord Watson held that the injurious imputation must ‘naturally and necessarily suggest itself to the mind of any person of average intelligence…’.[30] The approach of both Lord Selbourne LC and Lord Watson is consistent with older authority that the words must be ‘understood by the Court in the same sense as the rest of mankind would ordinarily understand them’.[31]
[29] Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741 at 745 per Lord Selbourne; See also Lord Penzance at 763.
[30] Capital and Counties Bank Limited v Henty & Sons (1882) 7 App Cas 741 at 788 per Lord Watson.
[31] Woolnoth v Meadows (1804) 5 East 463; 102 ER 1148; Hailsham VC, Halsbury’s Laws of England (Butterworths, 2nd Ed, 1936) Vol 20, 418 [505].
In Stubbs Ltd v Russell (Stubbs)[32] the modern demarcation of responsibility between judge and jury was clearly established. The defendant, Stubbs Ltd, published a weekly journal. In one edition it mistakenly included the plaintiff, Russell, in a list of persons against whom a default judgment had been recorded. Russell claimed that the entry represented that he was unable to pay his debts. In accordance with Scottish procedure, the trial Judge had ruled, on the pleadings and in advance of the hearing, that the words published were libellous and that the matter should be left to the jury. That decision was reversed in the House of Lords, where it was held that the words could not reasonably be understood to convey the imputation of insolvency.
[32] Stubbs Ltd v Russell [1913] AC 386 at 394 per Lord Kinnear. See also Lord Shaw.
Lord Kinnear described the ‘perfectly well settled’ roles of judge and jury as follows: [33]
Before a question of libel or slander is submitted to a jury the Court must be satisfied that the words complained of are capable of the defamatory meaning ascribed to them. That is a matter of law for the Court. If they are so, and also of a harmless meaning, it is a question of fact for a jury which meaning they did convey in the particular case. It is unnecessary to cite authorities, because they are many, but I take the doctrine as laid down by Lord Selborne in , where, after stating the general rule to the same effect as I have just stated it, the learned Lord adds: ‘If the judge, taking into account the manner and the occasion of the publication and all other facts which are properly in evidence, is not satisfied that the words are capable of the meaning ascribed to them, then it is not his duty to leave the question raised by the innuendo to the jury.
[33] Stubbs Ltd v Russell [1913] AC 386 at 393–394 per Lord Kinnear.
On the other hand, the test for identifying whether the words were defamatory had not fully settled into its modern form. In deciding whether the words were capable of the defamatory meaning Lord Shaw took what I would describe as an objective constructionist approach and said that it was wrong to reduce the test to ‘simply whether some people’ would attribute a defamatory meaning to the words:[34]
After much consideration, I am of opinion that this innuendo imports into the erroneous entry more than it can reasonably bear. For I think the test in these cases is this: Is the meaning sought to be attributed to the language alleged to be libelous one which is a reasonable, natural, or necessary interpretation of its terms? It is productive, in my humble judgment, of much error and mischief to make the test simply whether some people would put such and such a meaning upon the words, however strained or unlikely that construction may be. The interpretation to be put on language varies infinitely. It varies with the knowledge, the mental equipment, even the prejudices, of the reader or hearer; it varies - and very often greatly varies - with his temperament or his disposition, in which the elements, on the one hand, of generosity or justice, or, on the other, of mistrust, jealousy, or suspicion, may play their part. To permit, in the latter case, a strained and sinister interpretation, which is thus essentially unjust, to form a ground for reparation, would be, in truth, to grant reparation for a wrong which had never been committed.
[34] Stubbs Ltd v Russell [1913] AC 386 at 398 per Lord Shaw.
In Sim v Stretch,[35] Lord Atkin again stated the question for the Judge to be whether the words were capable of conveying a defamatory meaning. Lord Atkin also formulated the test for whether the imputation was defamatory by reference to its effect on ‘right thinking members of society’. Lord Atkin said:[36]
I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally? Assuming such to be the test of whether words are defamatory or not there is no dispute as to the relative function of the judge and jury, of law and fact. It is well settled that the judge must decide whether the words are capable of a defamatory meaning. That is a question of law: is there evidence of a tort? If they are capable, then the jury is to decide whether they are in fact defamatory.
[35] Sim v Stretch [1936] 2 All ER 1237.
[36] Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin. The exercise of this kind of control over juries in libel actions involved acknowledging that different men would not be unreasonable in ascribing different meanings to the same words. Hence the distinction between defamatory meanings which words are capable of bearing and the particular defamatory meaning which, for the purposes of the tort of libel, they bear. The decision as to defamatory meanings which words are capable of bearing is reserved to the judge, and for this reason, and no other, is called a question of law. The decision as to the particular defamatory meaning within that category which the words do bear is reserved to the jury, and for this reason, and no other, is called a question of fact.
At the turn of the century the correct approach to identifying the meaning of a published statement arose in Australia on an appeal against a judgment in favour of a plaintiff by a District Court judge sitting without a jury. In Slatyer v The Daily Telegraph Newspaper Co Ltd (Slatyer)[37] the High Court upheld the decision of the Supreme Court of New South Wales setting aside that judgment. The Supreme Court allowed the appeal, which lay on a question of law only, on the ground that the impugned newspaper article was not capable of conveying to a ‘sensible and fair minded reader’ the libellous imputation.[38] Street J explained that the ‘perverse minded or unreasonable reader’ must be ignored and the meaning of the ‘right minded reader of average intelligence could reasonably place upon the words’ preferred.[39] That test was approved by the High Court subject to a caveat about the political connotation of the phrase ‘right thinking’.[40] Slatyer is one of the earliest cases in which the ordinary person clearly emerged as the common law’s adjudicator of meaning.
[37] Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1.
[38] Slatyer v The Daily Telegraph Newspaper Co Ltd (1907) 7 (SR) (NSW) 488 at 504 per Street J.
[39] Slatyer v The Daily Telegraph Newspaper Co Ltd (1907) 7 (SR) (NSW) 488 at 504 per Street J.
[40] Slatyer v The Daily Telegraph Newspaper Co. Ltd. (1907) 6 CLR 1 at 7 per Griffith CJ.
In Keogh v The Incorporated Dental Hospital of Ireland (Keogh)[41] Lord O’Brien LCJ framed the question of whether or not a publication was libellous in terms of: [42]
What might be conveyed … to a reasonable, fair-minded man … and not what might be inferred from it by a man with a morbid or suspicious mind.
Lord O’Brien LCJ continued:[43]
Most certainly the so-called libel is not in itself necessarily defamatory; and, if the alleged libel, the impugned document, might convey to say two reasonable men different meanings – to one a defamatory meaning, to the other a non-defamatory meaning, Henty’s case decides that if a document is reasonably capable of an innocent or defamatory meaning, of a libellous or non-libellous meaning, the Judge should direct a verdict for the defendant.
[41] Keogh v The Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577.
[42] Keogh v The Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577 at 586 per O’Brien LCJ.
[43] Keogh v The Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577 at 586–587 per O’Brien LCJ.
Lord O’Brien LCJ held, as did Madden and Dodd JJ, that because the impugned document might have been reasonably understood to convey an innocent meaning the case was properly withdrawn from the jury. Madden J also emphasised the distinction between a readers understanding which is a reasonable interpretation of the words used and an inference drawn from the suspicious mind of the reader.[44]
[44] Keogh v The Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577 at 588 per Madden J.
The judgments in Keogh are an early acknowledgment that reasonable minds might differ on the meaning conveyed. The decision however adheres to the principle that a communication cannot, as a matter of law, be defamatory if both a defamatory and innocent interpretation of it might reasonably be made. That principle is based both on the in mitori senso principle and on a view of the relative functions of judge and jury, which is no longer accepted. Nonetheless, the decision in Keogh shows that the common law has long rejected the possibility that a communication might be found to be libellous if two reasonable fair minded persons take opposing views about the meaning it conveys. The common law does not allow for a finding against a defendant in cases in which one reasonable person takes a defamatory meaning and another reasonable person takes an innocent one. The procedural changes to which I have referred now place the question as one of fact. If the communication is capable of conveying a defamatory meaning it is for the tribunal of fact to determine whether it does so in fact. Moreover, the tribunal of fact is entitled to so conclude without concerning itself with the question of whether a different, but still reasonable and fair minded, person to the one it postulates might interpret the communication innocently.
Jury trials were abolished relatively early in South Australia. In Dawes v News Limited (Dawes)[45] Napier J, as he then was, cited the passage from the speech of Lord Kinnear in Stubbs on the respective functions of the Judge and the tribunal of fact, which I set out in paragraph [28] above and then continued:[46]
It seems to me that an article like this is published to the world at large. The interpretation put upon it ‘varies with the knowledge, the mental equipment even the prejudices of the reader; it varies – and very often greatly varies – with his temperament or his disposition, in which the elements, on the one hand of generosity or justice, or, on the other, of mistrust, jealousy or suspicion, may play their part. To permit, in the latter case, a strained and sinister interpretation, which is thus essentially unjust, to form a ground for reparation, would be, in truth, to grant reparation for a wrong which had never been committed’ (see per Lord Shaw (ibid.) at p. 398). But, on the other hand, to insist upon an innocent interpretation where any reasonable person could, and many reasonable people would, understand a sinister meaning is to refuse reparation for a wrong that has in fact been committed’. (cf. per Lord Kinnear in Grand Theatre etc. v. Outram & Co., [1909] Sess. Cas. 1018, at p. 1019).
Italics added
[45] Dawes v News Ltd [1935] SASR 312.
[46] [1935] SASR 312 at 317 per Napier J
Napier J approached the case in that way although he observed that that principle was not altogether consistent with other authority that suggested that a case could not go to the jury if it was capable of two meanings. Napier J posed for himself the question: [47]
Is the meaning ascribed to the article ‘a reasonable, natural, or necessary inference from the words used, regard being had to the occasion and the circumstances of their publication’?
[47] Dawes v News Ltd [1935] SASR 312 at 317 per Napier J.
In Murphy v Plasterers Society (Murphy)[48] Abbott J considered an action for defamation brought by building workers against a union claiming that they had been defamed by the union’s publication, which had described them as ‘scabs’. There was evidence that the word scab could have the limited meaning of someone who continued to work when his or her union or fellow workers had decided to strike. However, there was also evidence that a scab was a person who was disloyal to his working colleagues and in that sense was considered a most insulting term in the labour movement. There was evidence that it was the worst ‘stigma that could be applied to a man in trade union circles’. For the union it was put that workers and unionists who understood the word scab in that very insulting sense were only one section of the community and that the word did not have that defamatory meaning amongst ‘ordinary average right-minded’ people.
[48] Murphy v Plasterers Society [1949] SASR 98.
Abbott J referred to the approach set out by Napier J in Dawes and continued: [49]
I have in this case to discharge the functions of a jury, and as a juror, I am satisfied that the word ‘scab,’ apart altogether from its accepted meanings among trade unionists, is defamatory, and would be so understood by a substantial number of reasonable and fair minded people – indeed, probably by all who read it.
[49] Murphy v Plasterers Society [1949] SASR 98 at 106 per Abbott J. As to the modern view of imputations which affect a reputation only in one substantial section of the community and not another, see Hepburn v TCN Channel Nine Pty Ltd (1983) 2 NSWLR 682.
In giving reasons for and explaining their findings of fact, both Napier J and Abbott J had to grapple with the reality that the meaning attributed to the same words might vary from one section of the community to another, or even between individuals of differing temperaments. Both judges, but Napier J more explicitly than Abbott J, recognised that a judgment was called that balanced the risk of leaving a ‘wrong’ uncompensated against the risk of imposing a liability where no ‘wrong’ was committed.
Even though Napier J proposed finding for the plaintiff in Dawes where the defamatory meaning was ‘a reasonable, natural, or necessary inference from the words’ and Abbott J spoke of the understanding of ‘a substantial number of reasonable and fair minded people’, they both clearly proceeded on the basis that the meaning so identified was, for the purposes of the tort, the single meaning of the words. Too much should not be placed on the precise terms in which they posed the ultimate question because they were discharging the functions of both judge and jury. There was no suggestion in their reasons that damages would vary depending on whether the imputation was merely a reasonable meaning, or on whether all or merely a substantial number of all people so understood it. I also observe that the decisions of the Full Court of the Supreme Court of New South Wales and the High Court in Slatyer were not referred to in either Dawes or Murphy and the ordinary person test had not yet gained the currency in England that it has in modern times in Anglo-Australian defamation law.
Over the course of the 20th century the ordinary person became entrenched as the arbiter of meaning. In Cassidy v Daily Mirror Newspapers Ltd[50] and Hough v London Express Newspaper Ltd[51] the standard applied was the understanding of the reasonable person, but there was, at first, little elaboration of his or her attributes. It is the conception of the ordinary person in Lewis v Daily Telegraph Ltd[52] that is now universally regarded as the archetype.[53] Lord Reid explained that the ordinary person did not live in an ivory tower and was experienced in the ways of the world[54] but was not avid for scandal.[55] However, the ordinary person’s capacity for implication is greater than the lawyer’s.[56]
[50] Cassidy v Daily Mirror Newspapers Ltd (1929) 2 KB 331.
[51] Hough v London Express Newspaper Ltd (1940) 2 KB 507.
[52] Lewis v Daily Telegraph Ltd [1964] AC 234.
[53] Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 per Lord Reid.
[54] Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 per Lord Reid.
[55] Lewis v Daily Telegraph Ltd [1964] AC 234 at 260 per Lord Reid.
[56] Lewis v Daily Telegraph Ltd [1964] AC 234 at 278–280 per Lord Delvin. The ordinary person postulated for the purposes of construction in Lewis is probably an adaption of the ‘right thinking’, ‘ordinary decent folk’, of ‘fair average intelligence’, whose reaction to the imputation determined whether it had damaged the plaintiff’s reputation. See: Slatyer v The Daily Telegraph Newspaper Co. Ltd. (1907) 6 CLR 1 at 7 per Griffith CJ; Sim v Stretch [1936] 2 All ER 1237 at 1240 per Lord Atkin; Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172 per Jordan CJ.
In Entienne Pty Ltd v Festival City Broadcasters Pty Ltd[57] Olsson J (with whom Williams J concurred), after referring to Dawes and Murphy, held that the single meaning understood by the ordinary person test, articulated by Lord Diplock in Slim v Daily Telegraph Ltd,[58] did not represent the law in South Australia.[59] Olsson J also expressed the view that it was not the test that was applied by the House of Lords in Stubbs.[60] In my respectful opinion, Olsson J’s latter observation is probably right but that is only because the evolution of the question from one of construction determined by the judge as judge, to a finding of fact by the jury or judge sitting alone as the tribunal of fact, had not yet been fully worked out when Stubbs, Dawes and Murphy were decided. Nonetheless, it has always been accepted that a single meaning had to be identified.
[57] Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19.
[58] Slim v Daily Telegraph Ltd [1968] 2 QB 157 at 171 –173 per Lord Diplock.
[59] Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 at 26–27 [39]–[42] per Olsson J.
[60] Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 at 27 [40]–[41] per Olsson J.
My conclusion is that the Judge’s finding that Molloy’s words were defamatory is sound. The application of a ‘single meaning’ ordinary person test makes it unnecessary to comment further on the correctness of the decision in Entienne.
If it were accepted that the law imposed liability when some reasonable people would understand the words to be defamatory even though other reasonable people would not, the law would, as Lord Diplock explains in the following passages, be practically, if not also logically, impossible to apply where a jury had to fix a single monetary award because a number of mutually exclusive imputations causing different degrees of reputational harm might be found. It is hardly necessary to make the point that the common law could not develop differently in those jurisdictions that had abandoned trial by juries and most certainly could not apply differentially in those jurisdictions that retained both modes of trial. In Slim v Daily Telegraph Ltd, after explaining that the intention of the publisher was irrelevant, Lord Diplock continued:[61]
This would be rational enough if the purpose of the law of libel were to afford compensation to the citizen for the unjustifiable injury to his reputation actually caused by the publication of the words to those to whom they were communicated. But although in assessing damages the courts now accept this as the purpose of the civil action (see Rookes v Barnard and McCarey v Associated Newspapers Ltd. (No.2), we refuse to accept its logical corollary that the relevant question in determining liability for libel is: ‘What did those to whom the words were published actually understand them to mean?’ The best evidence of that would be the evidence of the persons to whom the words were actually published. Yet, save in exceptional cases where a ‘legal’ innuendo is relied on, it is not even permitted to ask a witness to whom the words were published: ‘What did you understand them to mean?’ What he did actually understand them to mean does not matter. This too might be rationalised on the ground that the publisher of the words ought to be responsible in law only for the injury caused to the plaintiff's reputation by those defamatory inferences which a reasonable man might draw from the words published, and the witness to whom the words were published may not have been reasonable in drawing the defamatory inferences which he in fact drew. But this rationalisation breaks down once it is conceded, as it has been by the House of Lords in Lewis v. Daily Telegraph that one man might be reasonable in drawing one defamatory inference from the words and another man might be reasonable in drawing another defamatory inference. Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicators at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is ‘the natural and ordinary meaning’ of words in an action for libel …
But the recognition that there may be more than one meaning which reasonable men might understand words to bear does not absolve the jury from the duty of deciding upon one of those meanings as being the only ‘natural and ordinary meaning’ of the words. Juries, in theory, must be unanimous upon every issue on which they have to adjudicate; and since the damages that they award must depend upon the defamatory meaning that they attribute to the words, they must all agree upon a single meaning as being the ‘right’ meaning. And so the unexpressed major premise, that any particular combination of words can bear but a single ‘natural and ordinary meaning’ which is ‘right,’ survived the transfer from judge to jury of the function of adjudicating upon the meaning of words in civil actions for libel. But where an action for libel is tried by a judge alone without a jury, it is he who has to arrive at a single ‘right’ meaning as ‘the natural and ordinary meaning’ of the words complained of; and with the concentration of functions in a single adjudicator, the need for his distinguishing between meanings which words are capable of bearing and the choice of the one ‘right’ meaning which they do bear disappears.
[61] [1968] 2 QB 157 at 172-175 per Lord Diplock
In Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd,[62] in the course of discussing the history of the single meaning rule in the tort of defamation Tugendhat J, in my view accurately described the balance effected by that rule:[63]
In my judgment the reason for the rule in defamation is to protect freedom of expression on the one hand, and the right to reputation on the other hand, striking a balance between the two. The rule is a control mechanism.
[62] Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] QB 204. I acknowledge that this decision was overturned on appeal in Ajinomoto Sweetners Europe SAS v Asda Stores Ltd [2010] EWCA Civ 609.
[63] Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] QB 204 at 213 per Tugendhat J.
Tugendhat J went on to observe that a departure from the single meaning rule: [64]
Would strike a balance more favourable to protection of reputation, and less to freedom of expression, than the existing rule. They would allow more successful claims in defamation.
[64] Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd [2010] QB 204 at 214 per Tugendhat J.
This Court cannot now countenance a departure from the single meaning rule. The social policy implications of any departure suggest that the matter is one for legislative, not judicial, amendment. The Parliament left the state of the law on this question undisturbed when it enacted the Defamation Act 2005 (SA).
The essential difficulty raised by the decisions that I have referred to is that a word or words may have a number of different meanings and that the context in which they are spoken will affect the meaning the words communicate. The meaning conveyed by ordinary non-technical words is essentially a question of fact.[65] Reasonable people may differ about the meaning conveyed. Moreover, the common law, as I earlier observed, allowed the plaintiff to plead a defamatory imputation made by ‘allusion or reference’ because ‘scandalmongers [will often] veil their meaning’.[66]
[65] See Hope v Bathurst City Council (1980) 144 CLR 1 at 8–9 per Mason J with whom Gibbs, Stephen, Murphy, and Aickin JJ agreed.
[66] Lewis v Daily Telegraph Ltd [1964] AC 234 at 278 per Lord Delvin.
If the tribunal of fact were directed to consider and allow for the eventuality that reasonable people might differ over the meaning conveyed, the reach of the law of defamation would substantially be changed. If a verdict for the plaintiff were required in the event of reasonable disagreement, the restriction on speech would be heavier than it is now. If a verdict in favour of the defendant were required in the event of disagreement, personal reputations would lose much of the protection the law now provides.
In cases where words can reasonably bear both an innocent and defamatory meaning there will be people in the community, as Lord Diplock recognised, that will understand the words in their defamatory sense and others who will not. The purpose of the legal fiction embodied in the ordinary person is not to paper over that reality but to allow a judgment to be made as to whether, in ambiguous circumstances, the plaintiff should be compensated for the words uttered or written. In effect, a normative judgment is required to balance the public interest in the freedom of speech with the public interest in the protection of personal reputations from unwarranted imputations. The understanding of the ordinary person, with the attributes now hallowed by a long line of authority, determines where that balance falls. The more inclined the ordinary person is to give words a scandalous meaning, the greater will be the restriction which the law imposes on freedom of speech. The more reserved and cautious the ordinary person is postulated to be, the more likely it is that persons who have had their reputations seriously tarnished will go uncompensated.
Molloy’s Remark – the Ordinary Person’s Understanding
The following is a useful summary of the attributes of the ordinary reasonable person:[67]
The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the published words.
The meaning of the words cannot be determined by evidence from the plaintiff or the defendant, but only by the interpretation reached through the ordinary reasonable person’s understanding of the words. In determining this issue, it is vital that the tribunal of fact focuses only on the publication complained of and puts out of its mind the evidence relating to other issues at the trial.
The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the publication in a fair and objective manner. The person is neither perverse nor suspicious nor ‘avid for scandal’. There is a limit of reasonableness, so that the ordinary reasonable person does not interpret the publications in a strained for forced or utterly unreasonable way.
The ordinary reasonable person does not live in an ivory tower, but approaches the interpretation of the publication in the light of the person’s general knowledge and experience of worldly affairs.
The ordinary reasonable person does not interpret the publication in a precise manner and does not formulate reasons for the meaning which is understood, but rather forms a general impression of the meaning from the words used. As a result, the ordinary reasonable person may imply meanings quite freely and will be prone to do so when the publication is derogatory. The interpretation is not approached in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable.
[67] P George, Defamation Law in Australia (Butterworths, 2006) 131.
In my view, the general knowledge referred to in that passage is a general knowledge of the ways of people and the world against which the words must be construed. It does not include esoteric information about previous episodes of Before the Game or the comedic reputation of the comedians who appeared in the 28 June 2008 episode. To include information of that nature would be to allow a defence which, in a sense, is the converse of the true innuendo that a plaintiff may rely on. But there is no real equivalence between the two. The gist of the plaintiff’s action is damage to reputation even if that damage be confined to a small section of the public with that esoteric knowledge. However, the question of how the persons with that constructive knowledge would understand the words remains an objective one. Only if every person, or for all practical purposes every viewer knew the facts, extraneous to the broadcast, denied it any defamatory meaning could it be said that the plaintiff’s reputation was not damaged. To take an extreme example, only if it was the fact, and everyone who heard Molloy’s remark knew, that Molloy always made false assertions of adultery could it be said that the plaintiff’s reputation had not been damaged. However, proof only that a substantial number of people had that knowledge leaves open the possibility that the plaintiff’s reputation was damaged amongst that section of the community who did not know of Molloy’s propensity. There is no reason to think that only people familiar with the comedians or the Before the Game program watched the episode on 28 June 2008, even though the proportion who had that knowledge may affect the quantum of damages. If there were no comedic elements in the episode itself it could hardly be a defence that the ordinary viewer would have understood Molloy’s comments as a joke because of his or her pre-existing knowledge that Molloy was a comedian.
Be that as it may, it is apparent from the content of the 28 June 2008 episode alone that the program had both a humorous and informative character. The general knowledge of the ordinary person does include his or her understanding of programs of this nature and the increasing use in modern times of comedians to make news and sports programs more interesting. The ordinary person would have understood from watching the 28 June episode that Molloy’s contribution was generally comedic. That contextual understanding of Molloy’s remark is not advanced by attributing to the ordinary person any more specific information about Molloy, the program or the other presenters.
It is convenient now to explain why I am satisfied that the ordinary person viewing the episode would have understood Molloy’s words in the defamatory sense.
First, I observe that the natural and obvious meaning of Molloy’s words, ‘and apparently you slept with her too’ spoken about Stuart Dew’s association with Mrs Cornes is that he had sexual relations with her and, therefore, for those who had knowledge of her marriage to Graham Cornes, that she had committed adultery. Obviously enough then, that meaning is not a strained, forced or unreasonable construction of the uttered words.
The ambiguity as to the meaning of the words arises only from the context of the episode and the particular segment in which they were uttered. Both the episode and segment undoubtedly had some comedic elements. However, both also contained a large measure of gossip in the sense of light talk and information, not necessarily derogatory, about football and its personalities. As I have explained, the elements of the tort of defamation require the tribunal of fact to determine the unitary common meaning conveyed by the uttered words. The choice in this case is between an understanding that the words meant what they said or that they meant the opposite of what they naturally conveyed, because they were a humorous jibe at Hughes.
Primarily for the following three reasons I am satisfied that the ordinary reasonable person would have understood the words to mean what they said and to be gossip about the nature of the association between Dew and Mrs Cornes.
First, I attribute to the ordinary member of the community a general knowledge of, and reasonably strong interest in, the personal affairs of both footballers and other celebrities. Whilst listening to the segment about Dew, the ordinary person would have had a keener ear for disclosures about his personal life than the comedic talents of Molloy.
Secondly, it is of some importance that comedy and gossip are not mutually exclusive in the context of broadcasts of this kind. The ordinary reasonable person would understand that a person who is gossiped about is often also made the butt of a joke.
Thirdly, Molloy’s jibe at Hughes fell very flat. The banter had moved on from Hughes’ ineptitude to Mrs Cornes’ eulogising article. In comedy timing is critical. The effect of Molloy’s mistiming of his remark is evidenced by the reaction of Molloy’s fellow presenters. In my view, the trial Judge correctly detected what he described as ‘the distinct change of mood that swept in when Molloy uttered the fateful words’.[68] The commentator Maher, and Dew himself, very quickly and strongly denied the literal meaning of the words. Evidence of the subjective understanding of a person who heard or read the subject words is not generally admissible. However, the reaction of Maher and Dew is relevant not because they appeared to understand Molloy’s remarks in a defamatory sense but because their reaction exposes the weakness of the comedic context on which the defendants so heavily rely to transform the natural meaning of Molloy’s words into their opposite.
[68] Cornes v The Ten Group Pty Ltd [2011] SASC 104 at [72] per Peek J.
Molloy’s silence in that respect is significant; he did not explain to Dew and his fellow panel members that his remark was a dig at Hughes. In my view, the quick disclaimers by Dew and Maher failed to provide an effective antidote. The ordinary person is likely to discount the remark of the other commentator because he may not have been ‘in the know’ or if he was, because he was trying to avoid embarrassment to Dew and Mrs Cornes. Nor would Dew’s own denial have been effective. As the Judge observed, the ordinary reasonable person is likely to think that Dew was ‘highly likely to deny it to protect the woman in question’.[69]
[69] Cornes v The Ten Group Pty Ltd [2011] SASC 104 at [70] per Peek J.
I acknowledge that on the question of ‘bane and antidote’, it is again important to keep in mind the distinction between the function of a judge in determining whether the impugned words are capable of defamatory meaning and the finding of fact as to whether that meaning was conveyed.[70] It is rare for an antidote to be so obviously effective that a judge would be justified in withdrawing the matter from the jury. As Gillooly observes:[71]
… the mere fact that denials accompanied the damaging accusations will not normally have this effect, since the ordinary reader may reasonably believe either set of conflicting assertions’.
However the finding of the Judge is that the antidote was not in fact effective. In my opinion he was right to so find.
[70] See Cornes v The Ten Group Pty Ltd [2011] SASC 104 at [68] per Peek J.
[71] M Gillooly, The Law of Defamation in Australia and New Zealand (Federation Press, 1998) 39. Compare Farquhar v Bottom (1980) 2 NSWLR 380 where Hunt J observed at 388:
There are cases, of course, in which the reputation is of such a nature that, taken as a whole, the matter complained of is incapable of conveying an 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.
It is more than a little disconcerting to hold that my subjective understanding of the broadcast is not that of the average fair minded, ordinary Australian. I also acknowledge that it might be said that the result in this case makes the comedian’s task more than a little challenging. However, I suspect that the difficulty in this case is a peculiar one that arises from the admixture of information and comedy in the format of the Before the Game program. To paraphrase Napier J in Dawes, to give defamatory pseudo-information a comedic construction when the ordinary person is more alive to its sinister meaning will deny the plaintiff reparation for the wrong he or she has suffered.
Conclusion
I would dismiss the appeal on the finding that the broadcast was defamatory. On the appeal against the costs I would dismiss the appeal for the reasons given by Gray J.
GRAY J.
The plaintiff and respondent, Nicole Joanne Cornes, following a trial in this Court, recovered judgment against four of five defendants for damages for defamation. This appeal is in respect of the finding of liability and an order for indemnity costs.
Network Ten (Melbourne) Pty Ltd, Network Ten (Adelaide) Pty Ltd, Network Ten (Perth) Pty Ltd and Michael Molloy are the four defendants who were found liable and who are the appellants. The first named defendant in the proceedings, the Ten Group Pty Ltd, recovered judgment against the plaintiff but with no order as to costs. The three corporate appellants are related television broadcasters who disseminated a programme entitled “Before the Game”. As a matter of convenience, from time to time in the course of these reasons I refer to these appellants as Network Ten. The remaining appellant, Mr Molloy, uttered words during the broadcast that are the subject of the within proceedings.
The Judge assessed damages at $85,000.00, interest at $8,000.00 and ordered that Network Ten and Mr Molloy pay the plaintiff’s costs on an indemnity basis. No party has complained about the assessment of damages or the allowance of interest.
Background
The background facts giving rise to the plaintiff’s claim may be summarised as follows. In October 1993, the plaintiff married Graham Studley Cornes, a well known Australian Football League player, coach and commentator. There was publicity about their relationship, their marriage and their married life.
From about July 2004, the plaintiff wrote a column in her own name in the newspaper, the Sunday Mail. This newspaper is widely read in South Australia and is the only paper published on Sundays in this State.
On 5 November 2006, the plaintiff’s column was entitled “Thank you Stuart, you’re a love”. It praised Stuart Dew, an Australian Football League player, for his decision to retire from football to be with the woman he loved, Teresa Palmer, a Hollywood actress. In the column, the plaintiff observed that Mr Dew was a good catch and that Ms Palmer was a lucky girl. The plaintiff remarked “I fell for Mr Dew when he told me how he tended his rose garden” and she praised his sensitivity, chivalry and masculinity. The plaintiff observed that Mr Dew had “always pulled the good-looking chicks” and described him and Ms Palmer as being “absolutely smitten with each other”. The column concluded with “[a]ll the best and thanks for the memories, Mr Darcy.” Mr Dew’s relationship with Ms Palmer subsequently ended.
In about April 2007, the plaintiff ceased writing the column. About a month later, she was a candidate for the Labor Party for the South Australian seat of Boothby in the Federal Election. During her campaign, the plaintiff and her marriage with Graham Cornes attracted further publicity. Her campaign was unsuccessful.
In the months prior to June 2008, Network Ten broadcast the television series “Before the Game” during the Australian Football League season. One programme forming part of the series was broadcast on 28 June 2008. The general format of the programme involved a panel discussion. The panel consisted of regular members. Several members had experience as comedians.
During the 28 June 2008 broadcast, discussion took place between panel members concerning matters of Australian Football League interest. At times, in the course of panel discussion, segments of film were shown with audible panel discussion taking place as background. An invited guest, Stuart Dew, joined the panel for the purpose of an interview.
The 28 June 2008 broadcast included serious discussion and comedy. The object of the programme appears to have been to inform and to entertain. Evidence suggested that a number of the comedy sequences were set pieces. However, it appears that at least some banter or repartee between panel members may have been unrehearsed.
At trial, a recording of the entire 28 June 2008 programme together with a part-transcript of a portion of the tape were received as evidence. Oral evidence was led from the plaintiff, Graham Cornes and the plaintiff’s step-brother, Wayne David Cornes. Documents, including correspondence and affidavits, were admitted. The defendants called one witness, Kevin Thomas Whyte.
It is convenient to immediately set out the relevant transcript from the programme. The words found to be defamatory are emboldened:
David Hughes: But now you’re single again, now aren’t you? Because you were in a high profile relationship over there in Adelaide?
Samantha Lane: Good segue.
Stuart Dew:In Adelaide every relationship is high profile.
David Hughes: You went out with a McLeod’s Daughter, didn’t you?
Stuart Dew:No, no that was Chad.
David Hughes: Oh, sorry…You went out with an actress, didn’t you?
Stuart Dew:Yeah, yeah, yeah.
Anthony Lehman: Hughesy, he didn’t want Chad to find out about that. No, it was Teresa Palmer, who is a very successful actress who Stewy was with and she wasn’t on McLeod’s Daughters…
Andrew Maher: You seem to know all about it.
Anthony Lehman: Well I was living in Adelaide as well, you know. It is hard to miss these things.
David Hughes: Well I did read, there was a story that she fell in love with you after you talked about having tended your rose garden. Is that true?
Anthony Lehman: Oh no, that was an article that Nicole Cornes wrote. Okay, someone needs to help Hughesy with his research. Okay.
David Hughes: Did you ever have a rose garden?
Mick Molloy: Let it go Hughesy, let it go.
Stuart Dew:Yeah I had a garden with roses.
David Hughes: Well you had a rose garden then.
Samantha Lane: Apparently, no, what he’s talking about, Nicole Cornes wrote an article…
David Hughes: [Sam] told me this story.
Anthony Lehman: Can someone dial 000 because we need to help this segment out.
Samantha Lane: No, Nicole Cornes wrote an article saying that she loved you because you had a rose garden and that you talked about tending your roses.
Mick Molloy: And apparently you slept with her, too.
Andrew Maher: No, that’s not true. That didn’t happen, no, no.
Stuart Dew:That’s definitely No.
David Hughes: Now let’s get back to footy alright.
Andrew Maher: No one here has got any idea what the hell we are talking about.
David Hughes: No look alright you joined Hawthorn at the end of last year and the first thing you did and I believe you Stewy – you went over to Kokoda and did the Kokoda trail and you carried a log up the Kokoda trail which is amazing and you know what your commitment to that log is extraordinary, so extraordinary have a look at the audience tonight.
Andrew Maher: What’s going on?
David Hughes: Have a look,…the log.
Samantha Lane: After that Kokoda trek you must think – did you think I am not going to be able to do this?
Stuart Dew:No, I loved that trip but the hardest part for me is flying on this little Plummet airways into Kokoda. I don’t like flying, I am a really bad flyer and that was, I actually wanted to walk 9 days to get to the start of it but for the boys, I didn’t like the plane at all.
Mick Molloy: I say Kokoda, it’s a bit of a change from a rose garden.
Stuart Dew:I took my clippers along and was just doing a little pruning along the way.
Mick Molloy: That was Stuart just doing a bit of pruning in the back garden. …
The plaintiff in an amended statement of claim pleaded three defamatory meanings of the words the subject of complaint: that the plaintiff, a married woman, committed adultery; that the plaintiff was unfaithful to her husband; and, that the plaintiff is a promiscuous woman. The plaintiff also pleaded the fact of her marriage to Graham Cornes.
Trial Judge’s Conclusions
The Judge made findings about the extent of publication and knowledge of the fact that the plaintiff was married. He found that the viewing audience for the programme on 28 June 2008 was 375,149 people comprising 77,811 people in Adelaide, 216,153 people in Melbourne and 81,185 people in Perth. There were also some viewers in regional areas.
The Judge found that, at the very least, 80 per cent of the viewers in Adelaide, 20 per cent of the viewers in Melbourne and 20 per cent of the viewers in Perth would have known or become aware at the time of the broadcast that the plaintiff had been married to Graham Cornes since the early 1990s. Therefore, the Judge found that there were more than 120,000 viewers who had the relevant knowledge.
The Judge proceeded on the basis that the entire programme “Before the Game” broadcast on 28 June 2008 provided relevant context, but did so with some reservation.[72] The Judge decided that the programme of 28 June 2008 had comedic elements, but was not devoted exclusively to comedy. His Honour took the view that there was a substantial amount of “informative material”[73] of particular interest to football followers. In this respect, his Honour referred to the example of the interview with Mr Dew. Although the Judge was prepared to treat the interview with Mr Dew in the context of the whole of the programme of 28 June 2008, the Judge concluded by rejecting a submission that the comedic nature of the rest of the programme was so pronounced that it made it clear that statements contained within informative segments such as the subject interview are to be understood as fantasy or as being devoid of meaning.
[72] The Judge’s hesitation is to be found in footnote 46 to his reasons for judgment where his Honour observed:
There may be a threshold difficulty with this submission. While I would accept that members of the studio audience on 28 June 2008 would take the interview in the context of the whole of the program, there may be a doubt as to whether that can or should be said of the much greater audience who watched the interview on television. However, I find it unnecessary to enter into, let alone resolve, that debate because I am able to decide the case in favour of the plaintiff on the basis of adopting the position contended for by the defendants and considering the interview in the context of the whole of the program.
[73] Cornes v The Ten Group Pty Ltd & Ors [2011] SASC 104, [42].
The Judge then considered as relevant context the whole of the Mr Dew interview which he subjected to the following analysis:[74]
Pausing here to take stock, up to the beginning of this portion of the interview, the discussion had been obviously factual, involving various items of information, no doubt of interest to football followers. The discussion then turns to a more personal aspect, the social life of Dew the person. This is a no less factual discussion, again no doubt of interest to football followers, but this time, perhaps of more general interest. One sees Hughes very deliberately ask Dew about a past sexual relationship. Initially, there purports to be some confusion as to the name of the woman but the facts are diligently pursued and she is specifically identified by her name, Teresa Palmer, and the fact that she is a very successful actress. There can be no doubt that what is being spoken of is a past sexual relationship between Dew and Ms Palmer. In that immediate context, the matter of the person who wrote the article about Dew and a rose garden is raised. That writer is clearly identified as the plaintiff by the female member of the panel, Ms Lane, who states: “Nicole Cornes wrote an article saying that she loved you because you had a rose garden and that you talked about tending your roses.” This is immediately followed by Molloy stating: “And apparently you slept with her too.”
It is to be noted that Dew’s social life was discussed as a separate topic within the interview and the discussion commenced with matters which were factual, namely the affair with the actress Ms Palmer and the fact that the plaintiff had written a story enthusing over Dew. It is obvious that the discussion of Dew’s private life is quite pointed: the actress, Ms Palmer, with whom Dew previously had a sexual relationship, is specifically named and there is no suggestion that that information might be wrong or open to any doubt. When Molloy states that Dew had sexual intercourse with the plaintiff by saying “And apparently you slept with her too”, I consider that the ordinary reasonable viewer would understand the “too” to refer back to Ms Palmer. I find that the ordinary reasonable viewer would understand this as a factual assertion by Molloy of two past sexual relationships involving Dew, namely one with Ms Palmer, which did occur as a matter of confirmed fact, and another with the plaintiff which is presented as fact by Molloy.
[74] Cornes v The Ten Group Pty Ltd & Ors [2011] SASC 104, [65]-[66].
The Judge rejected the contention that the ordinary reasonable viewer was to be “imbued with knowledge of the reputations or of the previous activities of persons appearing on [the] program of 28 June 2008”.[75] The Judge also rejected the contention that the context included prior publications of the programme “Before the Game”. The Judge was not prepared to make a finding that the ordinary reasonable viewer of the 28 June 2008 programme would have had knowledge of the format of earlier programs of “Before the Game”. The Judge in respect of these matters observed:[76]
[75] Cornes v The Ten Group Pty Ltd & Ors [2011] SASC 104, [56].
[76] Cornes v The Ten Group Pty Ltd & Ors [2011] SASC 104, [47].
Although the point was an obvious one, it was rightly emphasised in cross-examination that there was simply no evidence that the members of the audience of Before the Game (let alone the particular audience of the edition of 28 June 2008) were in any way familiar with the work or reputations of the persons Hughes, Lehman or Molloy. Representative passages in the cross-examination of Whyte appear thus:
Q:But you’re not aware of any research or audience research that shows a commonality of audience between Mr Lehmann’s past radio work and the Channel Ten audience for Before the Game?
A: No, I don’t have any specific research.
…
Q:Is there any basis on which you can say, with any authority, that the audience for Before the Game on 26 June 2008 was a common audience with any of those comedians in anything else they’d done.
A:If the question is ‘Is there a piece of specific research that I can point to’, then no, there’s not a piece of specific research that I can point to.
…
Q: You referred to the film Cracker Jack and – is it Boy Town?
A: Boy Town, yes.
Q:You have no idea of any commonality between the audiences for those films, whatever they were, and the audience for 28 June 2008 of Before the Game, do you?
A: If we’re referring to research again, no, I don’t.
[Footnote omitted.]
In Charleston v News Group Newspapers Ltd,[154] the “News of the World” published an article under the headline “Struth! What’s Harold up to with our Madge?” Below the headline was a photograph in which the faces of the actors who played the parts of Harold and Madge Bishop in Neighbours were superimposed onto the near naked bodies of porn actors in a sexual position. The caption under the photograph and the text of the article made it clear that this was the case and that the subject matter of the article was a computer game which made the superimposition.
[154] [1995] 2 AC 65.
Lord Bridge (Lords Goff, Jauncey and Mustill agreeing) decided the case on the basis that the meaning of the article was to be construed having regard to the article as a whole and not purely by reference to the headline and photograph. On that basis, it was clear that the article was not defamatory. However, Lord Bridge went on to address the plaintiffs’ argument that a significant number of readers would in fact not have troubled to read further beyond the headlines and the photograph. He said:
At first blush this argument has considerable attractions, but I believe that it falls foul of two principles which are basic to the law of libel. The first is that, where no legal innuendo is alleged to arise from extrinsic circumstances known to some readers, the “natural and ordinary meaning” to be ascribed to the words of an allegedly defamatory publication is the meaning, including any inferential meaning, which the words would convey to the mind of the ordinary, reasonable, fair-minded reader. This proposition is too well established to require citation of authority. The second principle, which is perhaps a corollary of the first, is that, although a combination of words may in fact convey different meanings to the minds of different readers, the jury in a libel action, applying the criterion which the first principle dictates, is required to determine the single meaning which the publication conveyed to the notional reasonable reader and to base its verdict and any award of damages on the assumption that this was the one sense in which all readers would have understood it. The origins and implications of the second principle are the subject of a characteristically penetrating analysis in the judgment of Diplock LJ in Slim v Daily Telegraph Ltd. [155]
[155] Ibid at 71-72.
In Ajinomoto Sweeteners Europe SAS v Asda Stores Ltd, [156] while recognising that it was bound by the decision of the House of Lords in Charleston, the Court of Appeal was highly critical of the “single meaning rule” and declined to extend it to the tort of injurious falsehood. Sedley LJ (Sir Scott Baker LJ agreeing) said:
[156] [2011] QB 497.
In my judgment … the rule itself is anomalous, frequently otiose and, where not otiose, unjust.
The anomaly is very nearly common ground. With the help of counsel's scholarship we have seen how a pragmatic practice became elevated into a rule of law and has remained in place without any enduring rationale. It is frequently otiose, as counsel's own experience testifies, because in the great majority of defamation cases the choice between libel and no libel, by the time the case goes to a verdict, is an either-or choice.
But where it is capable of being applied, as it is in the present claim, the rule is productive of injustice.…
For these reasons I would hold that the single meaning rule is not to be imported into the tort of malicious falsehood. [157]
and Rimmer LJ said:
The common law has not yet determined whether the single meaning rule in defamation has any place in the economic tort of malicious falsehood. …
Tugendhat J [having] held that … the single meaning rule should apply as much in malicious falsehood as in defamation, he decided that meaning D was that single meaning, a conclusion requiring the removal of meaning B from further consideration and spelling the end of the claim.
That conclusion is said by the claimant to be unprincipled and unjust. The single meaning rule in defamation is the product of an accident of history resulting in a fiction that assumes that the reasonable man will understand a particular statement in only one way - its supposed single natural and ordinary meaning. Like most legal fictions, it is artificial and has something of the absurd about it. …
…
… Mr Caldecott submitted that there are good policy reasons for doing so, [i.e. applying the single meaning rule to the tort of malicious falsehood] and Sedley LJ has summarised them. Cogent though Mr Caldecott's submissions were, they did not persuade me. At their heart lies the assertion that the single meaning rule in defamation achieves a fair balance between the claimant's right to protection against defamatory publications and the defendant's right to freedom of speech. …
If the single meaning rule does achieve a fair balance in defamation law between the parties' competing interests, that would appear to be the result of luck rather than judgment; and how the measure of such claimed fairness might be assessed may anyway be questionable. The application of the rule can also be said to carry with it the potential for swinging the balance unfairly against one party or the other, resulting in no compensation in cases when fairness might suggest that some should be due, or in over-compensation in others. …. If the single meaning rule did not exist, I doubt if any modern court would invent it, either for defamation or any other tort. If the resolution of the present claim has to be forced into the artificial straitjacket of that rule, it will, I consider, carry with it the potential for the production of an injustice. The court ought only to risk the suffering by the claimant of such injustice if there are compelling policy reasons why the single meaning rule, itself an anomaly, ought to prevail in malicious falsehood claims as in defamation. I am not persuaded that there are any sufficient such reasons…[158]
[157] Ibid at [31]-[33] and [35].
[158] Ibid at [38], [39]-[40], [42], [43].
The meaning of the “single meaning rule”
In both Slim and Charleston, the decision in the case did not turn on application of the single meaning rule and the judgments did not explore its relationship with the general principles indentified above or discuss how the “single meaning” is discerned.
The following principles are clear.
1.The third general principle referred to at [158] above that the special knowledge of a segment of the audience can be taken into account as background against which the meaning of the words is assessed (true innuendo) is regarded as co-existing with the single meaning rule. It follows that published words can have two (or more) (even inconsistent) meanings to different classes of audience members and the plaintiff will succeed if one only of those meanings is defamatory, provided that the difference(s) only arise due to special knowledge of one (or more) class(es) of that audience. It is serendipitous what special knowledge a class of the audience may have. In these special circumstances, the plaintiff succeeds on a secondary meaning regardless of how obscure or improbable it might otherwise be but for the special knowledge. The third general principle is too well established to be discarded as inconsistent with the single meaning rule.
2.The fourth general principle referred to at [159] above that a plaintiff is entitled to allege and prove “a duality of meanings and impressions, not necessarily exclusive of one another”[159] is regarded as co-existing with the single meaning rule. An example is the present case, in which the trial Judge found that the Molloy remark simultaneously meant (to viewers who knew that she had been married since the early 1990s) that Mrs Cornes was unfaithful and that she was adulterous. It follows that published words can have two (or more) meanings to audience members and the plaintiff will succeed if one only of those meanings is defamatory, provided that the meanings are apparent to the same audience members.
3.The single meaning rule precludes a plaintiff succeeding merely because a substantial number or proportion of ordinary reasonable members in the audience would have understood the words to have a meaning which is defamatory. As Diplock LJ observed in Slim at the beginning of the passage quoted at [187] above, this is not because the words in reality have a single meaning to the relevant audience but rather because the law adopts a process which selects between real world alternative meanings (which selection is the result of, and informed by, policy and principle).
[159] John Fairfax Publications Pty Ltd v Gacic (2007) 230 CLR 291 at [192]-[194] per Callinan and Heydon JJ.
The formulation of the single meaning rule in Slim and Charleston does not identify how the “single meaning” which is ultimately arrived at is selected amongst competing meanings. If one meaning, which is defamatory, is assessed by the trier of fact as the predominant meaning to ordinary reasonable viewers, it follows logically that the defamatory meaning should then be deemed to be the “single meaning” for the purposes of the single meaning rule. Conversely, if one meaning, which is not defamatory, is assessed by the trier of fact as the predominant meaning to ordinary reasonable viewers, it follows logically that the non-defamatory meaning should then be deemed to be the “single meaning” for the purposes of the single meaning rule. This approach addresses ambiguous words in accordance with and implementation of the single meaning rule. It does this without adopting a fiction that the words had a single meaning in the real world in the first place.[160]
[160] The identification of this approach still leaves to be articulated the criteria for assessing the predominant meaning (quantitative and/or qualitative), but it is not necessary to further consider the criteria here.
The application of the single meaning rule in the manner identified in the previous paragraph addresses ambiguous words but ex hypothesis does not address equivocal words. The position in respect of the latter is illustrated by analogy. How would one determine the single meaning of the Rubin vase? Is it a vase? Is it two women in silhouette? If hypothetically the two women were depicted in a manner which was defamatory of someone, would that be defamation? How would one determine the single meaning of the Necker cube? Is it a cube facing down to the left? Is it a cube facing up to the right?
Where published words are truly equivocal, the single meaning rule as formulated in Slim and Charleston does not provide an answer whether the defendant is liable in defamation. It is necessary to have regard to the considerations of policy and principle which gave birth to the single meaning rule in the first place to answer that question. Those considerations plainly indicate that the defendant is liable in those circumstances. If a defendant makes a statement which can and will be equally understood to have a meaning which is defamatory (as well as one which is not defamatory), the defendant is as much a wrongdoer as if the words are ambiguous and the defamatory meaning is predominant. Similarly, the plaintiff suffers injury to his or her reputation in circumstances not materially distinguishable from those in which the words are ambiguous and the defamatory meaning is predominant.
There is nothing in the judgments in Slim and Charleston which is inconsistent with the application of the single meaning rule in ambiguous and equivocal cases in the manner set out in [194] and [196] above. On the contrary, such application implements, and gives flesh to the bones of, the single meaning rule in a manner which accords with policy, principle and earlier decided cases.
Cases involving jest
In Donoghue v Hayes,[161] the defendant said in a marketplace of the plaintiff:
He was detected in taking dead bodies out of the churchyard. He was in confinement, and fined £20 for stealing and sending dead bodies to England.
[161] (1831) Exch of Pleas 265.
The issue was whether the words were to be taken literally or jocularly. The trial Judge directed the jury that, if they believed the words to have been spoken jocularly, they should find for the defendant, but if they believed they were spoken maliciously, they should find for the plaintiff. On appeal, the verdict for the plaintiff was set aside because the jury may have misunderstood the test to be the subjective intent of the defendant rather than the understanding of the listeners. The Court framed the test in cases involving words said to be in jest. Joy CB said:
The principle is clear, that a person shall not be allowed to murder another’s reputation in jest. But if words be so spoken that it is obvious to every bystander that only a jest is meant; no injury is done, and consequently, no action would lie.[162]
and Smith B said:
If a man in jest conveys a serious imputation, he jests at his peril.[163]
[162] Ibid 266.
[163] Ibid 266.
In Salomone v Macmillan Publishing Co Inc,[164] Greenfield J said:
If, taken in context, it is unmistakably clear that a statement otherwise libellous is set forth in jest, is unambiguously jocular, and would be regarded by all who read it as good‑natured fun, then it cannot be said that the reputation of a person mentioned can be so undermined as to support a cause of action for libel.
(Citations omitted)
and in Triggs v Sun Printing and Publishing Association[165] Martin J said:
“[Jest is not justification], unless it is perfectly manifest from the language employed that it could in no respect be regarded as an attack upon the reputation or business of the person to whom it is related.”
[164] (1979) 97 MISC 2D 346 at 350; 411 NYS 2D 105 at 109.
[165] (1904) 179 NY 144 at 155.
In Berkoff v Burchill,[166] Millett LJ said:
Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no-one would take them to be meant seriously.
[166] [1996] 4 All ER 1008 at 1018.
The decision in Donoghue v Hayes has been cited with approval in various cases.[167]
[167] See, for example, Wild v John Fairfax Publications Pty Ltd (Levine J, SCNSW, unreported, 8 August 1997); McGuiness v JT Publishing Australia Pty Ltd [1999] NSWSC 471 at [7] per Levine J; Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19 at [48] per Olsson J (Duggan J and Williams J agreeing); Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 at [22] per Levine J.
Whatever may be the position in relation to equivocal statements generally, these authorities suggest that, if a person utters words which could and would be equally understood literally or in jest by ordinary reasonable viewers and so understood are defamatory, the person will be liable in defamation.
The decision of this Court in Entienne
In Entienne Pty Ltd v Festival City Broadcasters Pty Ltd,[168] the defendant operated radio station 5AA. Its breakfast show incorporated a weather segment by “Keefy” which provided accurate weather information in a humorous parody of another station’s weather report. During one segment, Keefy pretended to interview people in Hindley Street about their Christmas shopping. The ostensibly fictional interviewees misunderstood and thought they were being asked about obtaining drugs. When asked if he had done his Christmas shopping, one fictional interviewee replied “just over in the lane and ask for the flash man and he’ll fix you right up”. Unbeknown to Keefy, Flash Gelataria was located on the corner of a lane and Hindley Street and the plaintiff was known as “the flash man”.
[168] (2001) 79 SASR 19.
The plaintiff sued the radio station, contending that listeners who knew his moniker as “the flash man” would have understood “the flash man” to refer to him and therefore that he was a drug dealer. The defence of the radio station was that listeners would understand that the segment was humorous, the “flash man” was a fictional drug dealer and the statement was said in jest. The trial Judge dismissed the action on the basis that a reasonable listener would be fully aware that the program was a “comic program of complete nonsense”.
Entienne involved an example of an equivocal statement which understood literally was defamatory and understood in jest was not.
On appeal, Olsson J (Williams J agreeing and Duggan J agreeing and adding some additional comments) said:
On the hearing of the appeal some debate arose considering the proper approach to be adopted, having regard to what fell from Diplock LJ in Slim v Daily Telegraph Ltd, as approved by Lord Bridge in Charleston v Newsgroup Newspapers Ltd. In Slim, Lord Diplock said [Olsson J then quoted part of the passage quoted at [187] above].
This was not a formulation which commended itself to the House of Lords in Stubbs v Russell, which simply posed the test: “Is the meaning sought to be attributed to the language alleged to be libellous one which is a reasonable, natural or necessary interpretation of its terms?” That is, it need not be the only meaning, which is a natural and ordinary meaning.
The Stubbs test was applied by Napier J, as he then was, in Dawes v News Ltd and Abbott J in Murphy v Plasterers Society. In the former case Napier J went on to comment that to insist upon an innocent interpretation where any reasonable person could, and many reasonable people would, understand a sinister meaning is to refuse reparation for a wrong that has in fact been committed….
With respect, it seems to me that the dictum of Lord Diplock is not in accord with the stream of authority which has been applied in this State and is not to be preferred to it…
Given the concepts emerging from the authorities, as above discussed, it becomes necessary to reflect specifically on the approach to be adopted to publications which are intended to be by way of jest.
In my opinion, the effect of the relevant authorities is accurately summarised in Gatley on “Libel and Slander” (9th ed, 1998) at par 3.31 in these terms:
“… The fact that words are intended by way of jest does not of itself prevent them being actionable for it is not the intention of the publisher that matters but the interpretation that would be put upon the words by the reasonable listener (and the same clearly applies to written words and other forms of publication such as cartoons). If he would understand them as made in jest they are not actionable, but ‘if a man in jest conveys a serious imputation, he jests at his peril’. … ‘The principle is clear, that a person shall not be allowed to murder another’s reputation in jest. But if words be so spoken that it is obvious to every bystander that only a jest is meant, no injury is done, and consequently no action would lie’. ‘The whole question is, whether the jocularity was in the mind of the defendant alone, or was shared by the bystanders’”.
So much is established by authorities such as Donoghue v Hayes and Glass v Perl. (See also the review of relevant American authorities in 57 ALR 4th 520.) [169]
(Citations omitted)
[169] Ibid at [39]-[42] and [47]-[48].
Authority in the High Court
The appellants contend that the decision in Entienne should not be followed by this Court because it was contrary to earlier binding High Court authority. The High Court addressed the objective test in defamation in two cases within the space of eight months in 1982.
In Readers’ Digest Services Pty Ltd v Lamb,[170] the plaintiff sued the publisher of “Great Cases of Scotland Yard” for imputing that he had exploited a tragedy befalling an old friend to secure a sensational story. The trial Judge admitted evidence from a newspaper proprietor, editor and the respondent journalist on the issue of damages as to the impact of the defamatory imputation upon the plaintiff’s reputation among journalists. The High Court held that the evidence was rightly admitted on the issue of damages and was inadmissible on the issue of the defamatory nature of the article and that the trial Judge correctly directed the jury on liability by making no reference to that evidence. In the course of his reasons, Brennan J (Gibbs CJ, Stephen J and Wilson J agreeing) said:
Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees – Lord Selborne’s reasonable men (Capital and Counties Bank v Henty) or Lord Atkin’s right‑thinking members of society generally (Sim v Stretch) or Lord Reid’s ordinary men not avid for scandal (Lewis v Daily Telegraph Ltd) – would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to charge the defamatory character of that imputation, being a standard common to society generally.[171]
(Citations omitted)
[170] (1982) 150 CLR 500.
[171] Ibid 505-506. This passage was cited with approval by French CJ, Gummow, Kiefel and Bell JJ in Radio 2UE Sydney Pty Ltd v Chesterton(2009) 238 CLR 460 at [7] in the context of determining whether a given meaning is defamatory.
In Mirror Newspapers Ltd v Harrison,[172] the “Daily Mirror” reported the arrest and imminent charging of the plaintiff for bashing a Member of Parliament. The plaintiff sued, claiming that the article imputed that he was guilty of the bashing. The High Court held that the article was not capable of being understood as meaning that the plaintiff was guilty of (as opposed to had been charged with) the offence. In the course of his reasons, Mason J (Gibbs CJ, Wilson J and Brennan J relevantly agreeing) said:
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 a person charged is acquitted.
In this situation the reader will view the plaintiff with suspicion, concluding that here 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 prejudice. 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 knowledge and experience of human 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. …
It is necessary to repeat the remarks of Holroyd Pearce LJ in Lewis …:
“When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean. But when words with a precise and well‑known meaning are used without the addition of any expressions which could impart some other flavour to them, it is not fair to twist them from their normal sense”.[173]
(Citations omitted)
[172] (1982) 149 CLR 293.
[173] Ibid 300-301, 302.
This Court in Entienne referred to the judgment of the High Court in Harrison and concluded that the High Court was not adopting the single meaning rule and that Harrison was decided on a different basis altogether.[174] However, the Court did not refer to the earlier decision of the High Court in Lamb.
[174] (2001) 79 SASR 19 at [43]-[45].
In Lamb, Brennan J referred to hypothetical referees being taken to have “a uniform view of the meaning of the language used”. Given Brennan J’s use of the plural terms (“referees”, “reasonable men”, etc), his reference to the three cases cited which established the uniform characteristics of hypothetical referees, the absence of any reference to Diplock LJ’s judgment in Slim, and the absence of any reference by the similarly constituted High Court in the later case of Lamb to the judgments in Slim or Harrison or to a single meaning rule, it is possible that Brennan J was referring to the uniform characteristics of ordinary reasonable readers as opposed to the single meaning rule.
However, I am inclined to the view that Brennan J in Lamb was adopting the approach which had earlier been formulated by Diplock LJ in Slim and which was then or has since become known as the single meaning rule. While a final conclusion on this question should await a case in which it is necessary to decide it, [175] I proceed on the assumption that the High Court has decided that the single meaning rule applies generally in Australia and consider the position in a case of ambiguity or equivocality on that basis. The High Court in Lamb did not identify how the single meaning rule is applied to ambiguous or equivocal words.
[175] As it entails holding that a previous decision of this Court is wrong and as it is not necessary to decide the question to resolve this appeal.
Application of the single meaning rule to ambiguous and equivocal statements
I concluded at [194] to [196] above that the implementation of the single meaning rule in cases of ambiguity involves assessing which meaning is predominant and, where it is concluded that each meaning is equally open and neither is predominant, the words are defamatory if one of those meanings is defamatory.
The decision of this Court in Etienne can be rationalised with the existence of the single meaning rule in Australia on the basis that the single meaning rule applies in this way to ambiguous and equivocal statements. In particular, it appears that in Etienne this Court took the view that an understanding of Keefy’s skit that it was not to be taken literally (the understanding found by the trial Judge) was not predominant and the contrary understanding was equally open to ordinary reasonable listeners. On that basis, the radio station was found liable in defamation.
As observed at [197] and [213] above, there is nothing in the formulation of the single meaning rule in Slim or Charleston or in the judgment of the High Court in Lamb which is inconsistent with that conclusion.
If I am wrong in this conclusion, the decision in Etienne (and the earlier authorities cited at [198] to [202] above) are authority for the proposition that, in the special circumstances in which an equivocal statement is made which understood literally is defamatory and understood in jest is not, the statement is defamatory. There is good reason for such an approach because, if a person in jest conveys equally a serious imputation to ordinary reasonable readers, he or she jests at his or her peril.[176]
[176] A modified version of Smith B’s proposition in Donoghue v Hayes quoted at [199] above.
Application to the facts
I concluded at [150] to [154] above that the Molloy remark was an equivocal statement which would have been understood by some ordinary reasonable viewers literally, in which case it is defamatory, and by other ordinary reasonable viewers as being in jest, in which case it is not defamatory, the two understandings are mutually inconsistent and there is no basis to assess one as predominant.
The application of the principles at [215] or alternatively [217] above to that finding results in the conclusion that the Molloy remark was defamatory and the appeal challenging the trial Judge’s finding on liability should be dismissed.
Costs
On the issue of costs, I agree with Gray J.
Conclusion
I would dismiss the appeal.
17
1