(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
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Ten Group Pty Ltd v Cornes [2012] SASCFC 99
Case
[2012] SASCFC 99
Decision Date
CaseChat Overview and Summary
This case involved an appeal to the Full Court of South Australia by Network Ten and Michael Molloy against a finding of defamation made by a trial judge. The defamation claim arose from words broadcast on a radio segment on 28 June 2008 by a comedian, which the trial judge found conveyed an imputation that the respondent, Nicole Joanne Cornes, had a sexual relationship with a footballer and had committed adultery.
The primary legal issues before the Full Court were whether the broadcast was capable of being defamatory of the respondent, and whether the trial judge's finding of liability was correct. The court was also required to consider an appeal against an order for indemnity costs.
The Full Court dismissed the appeal against the finding of defamation. The court reasoned that while the broadcast contained elements of comedy, the ordinary, fair-minded viewer would have understood the imputation of an extramarital affair. The court acknowledged the challenge of distinguishing between comedic intent and defamatory meaning, particularly in a program that mixed information with humour, but ultimately concluded that the comedic construction did not negate the sinister meaning that could be inferred by the ordinary viewer, thus denying the plaintiff reparation for the wrong suffered. The appeal against the costs order was also dismissed.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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. 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.