Walter v West Australian Newspapers Ltd
[2005] WASC 235
•4 NOVEMBER 2005
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WALTER -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2005] WASC 235
CORAM: MASTER NEWNES
HEARD: 14 OCTOBER 2005
DELIVERED : 4 NOVEMBER 2005
FILE NO/S: CIV 2618 of 2004
BETWEEN: JULIAN ALAN WALTER
Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
First DefendantNEALE ROBERT PRIOR
Second Defendant
Catchwords:
Defamation - Application to strike out pleaded imputation - Statement of belief as to a matter - Whether capable of conveying imputation as to the fact of the matter - Whether there is "bane and antidote" - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr J D MacLaurin
First Defendant : Ms C Galati
Second Defendant : Ms C Galati
Solicitors:
Plaintiff: Clayton Utz
First Defendant : Edwards Wallace
Second Defendant : Edwards Wallace
Case(s) referred to in judgment(s):
Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
Chalmers v Payne (1835) 150 ER 67
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Gumina v Williams (No 1) (1990) 3 WAR 342
Jones v Skelton [1963] 1 WLR 1362
Kerr v Force (1826) 3 Cranch CC 8
Lewis v Daily Telegraph Ltd [1964] AC 234
Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418
Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669
Stubbs Ltd v Russell [1913] AC 386
Taylor v Jecks (1993) 10 WAR 309
Case(s) also cited:
Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Chan v Trevor [2004] WASC 53
Charleston v News Group Newspapers Ltd [1995] 2 AC 65
Cock v Hughes [2001] WASC 24
Emerson v Walker [1999] WASC 265
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Yoon Shin Lee v Bob Chae-Sang Cha [2005] NSWCA 279
MASTER NEWNES: This is an application by the defendants to strike out the defamatory imputation pleaded in pars 4 and 7 respectively of the statement of claim.
The first defendant is the proprietor and publisher of "The West Australian" newspaper and the second defendant is a journalist employed by the first defendant.
It is alleged in the statement of claim that, on or about 18 December 2003, the defendants published in "The West Australian" newspaper an article, under the heading "Buckeridge, Walter sling brickbats", which contained the following words:
"THE simmering row between construction mogul Len Buckeridge and his former business partner, Julian Walter, has erupted into tit‑for‑tat ligation [sic] over the carve‑up of their former building joint venture J‑Corp Pty Ltd.
Mr Buckeridge is pushing for a quick judgment in the WA Supreme Court after two of his private companies, including J‑Corp Pty Ltd itself, sued Mr Walter for about $700,000 last month over valuations of J‑Corp and its assets.
The companies are claiming to be owed the money as a deferred settlement payment of their carve‑up in July of J‑Corp that ended with Mr Buckeridge owning 100 per cent of J‑Corp and Mr Walter owning its Oswald, Rural Building Co and WA Country Builders brands.
In other developments, Mr Buckeridge has vowed to cut off the credit provided by his building materials operations for materials supplied to Mr Walter's new home building venture, JWH Group.
Mr Walter is hitting back with a defamation action in the WA Supreme Court, claiming his reputation was damaged in the in‑house newsletter of the mogul's flagship BGC Group.
In the newsletter, Mr Buckeridge described the buy‑out of J‑Corp as a very unpleasant business and gave his interpretation of what he described as an accountancy investigation. Mr Walter that his lawyers would lodge a writ against Mr Buckeridge for defamation today unless he retracted comments in the BGC Bulletin and apologised.
Mr Buckeridge vowed to fight, saying he would use truth as a defence to a defamation action.
Industry observers had been expecting a legal war in the wake of Mr Walter and Mr Buckeridge breaking up in July after 18 years together as joint owners of J‑Corp, which was WA's second biggest building group last year.
But until recent weeks, recently, ligation [sic] was confined to JWH suing J‑Corp over the former joint venture company advertising two home designs that Mr Walter claims went with him.
J‑Corp and Buckeridge‑controlled Kimpura Pty Ltd lodged a writ in the Supreme Court last month alleging they are owed $698,947 plus interest under a formula that was included in a deed governing the carve‑up of J‑Corp assets in July.
Mr Buckeridge told WestBusiness that the claim was based on figures complied [sic, compiled] by PricewaterhouseCoopers, which had been nominated by Mr Walter to carry out calculations for the deed.
'I think he doesn't want to pay because he hasn't got the money,' he said.
Mr Buckeridge said BGC had difficulty being paid by JWH for building materials supplied since the carve‑up and would only supply Mr Walter's new group as a cash‑on‑delivery basis from next month.
But Mr Walter rejected claims by Mr Buckeridge that JWH had not paid BGC for building materials, saying his group had withheld some money recently because BGC was slow in paying rebates for bulk discount. He would no longer use BGC as a supplier if credit was cut.
Mr Walter said the Supreme Court action would be defended because the final accounts were based on valuations acceptable to BGC and involved changes to the underlying accounting policies at J‑Corp."
It is also pleaded that, on or about the same date, the defendants published the same words on the internet and the World Wide Web. The plaintiff sues on both the article in the newspaper and the publication on the internet and the World Wide Web, and pleads the same imputation in respect of each publication.
The plaintiff alleges that the words in their ordinary natural meaning meant and were understood to mean that "the plaintiff had not paid approximately $700,000 to J‑Corp Pty Ltd and Kimpura Pty Ltd which sum he was legally obliged to pay, because he did not have the money to do so".
The defendants say that the words complained of are not capable of conveying that imputation.
The principles to be applied on an application of this sort are well established. Imputations will be struck out at this stage if they are plainly incapable of being conveyed by the words complained of: Gumina v Williams(No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319.
The test to be applied in determining whether the defamatory imputations alleged are capable of being conveyed by the words complained of was discussed is the well‑known passage from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 ‑ 1371:
"In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and CountiesBank v George Henty & Sons [1882] 7 AC 741, 745 Lord Selborne LC said:
'The test, according to the authorities, is, 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.'
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063; [1963] 2 All ER 151 HL(E). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."
The person to whom it is alleged the words were spoken will be assumed to be a reasonable person, not unusually suspicious or unusually naive, nor avid for scandal. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Reid said, at 258:
"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of world affairs."
See Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 per Gleeson CJ, McHugh, Gummow and Heydon JJ at [9] to [11].
It was argued by the defendants' counsel that the statement attributed to Mr Buckeridge of his opinion as to the reason why the plaintiff had not paid the money, was just that, a statement of opinion, and as such was not capable of conveying an imputation that that reason was the fact.
It was further submitted on behalf of the defendants that, in any event, the imputation was not capable of being conveyed on a fair reading of the article as a whole. A reasonable reader would understand from a fair reading of the article that the plaintiff and Mr Buckeridge were simply engaged in "tit‑for‑tat litigation" where various claims and counterclaims were being made. A reasonable reader would not form a view, one way or the other, about the veracity of the claims being made by either party. In addition, the article contained the plaintiff's response to Mr Buckeridge's allegations, including the reason that the plaintiff has not paid the sum of $700,000 claimed and the basis on which he intends to defend the claim.
It was submitted on behalf of the plaintiff that the imputation plainly arose from the express statement, attributed to Mr Buckeridge in the words complained of, that "I think [the plaintiff] doesn't want to pay because he hasn't got the money". Counsel argued that the defendant's application was, in effect, based on a "bane and antidote" argument and as such it must fail.
The reference to "bane and antidote" is, of course, a reference to the metaphor used by Baron Alderson in Chalmers v Payne (1835) 150 ER 67 at 68, and refers to a situation where a publication conveys imputations defamatory of the plaintiff but where other parts of the publication completely negate those defamatory imputations, with the result that no reasonable reader would understand the publication as a whole in a sense defamatory of the plaintiff. What is involved in such a case is "essentially the weighing up and comparison of bane and antidote": Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at 419 per Samuels JA.
It was submitted on behalf of the plaintiff that for an antidote argument to be made out, the purported "antidote" must clearly and unequivocally refute and negate the defamatory imputation such that the article is rendered harmless to the plaintiff. An "antidote" argument is not made out simply because there is assertion and counter‑assertion, or the reader is presented with conflicting and even mutually exclusive contentions. Nor will the mere publication of a denial of the defamatory allegations by the party at whom they are directed be sufficient. In a case such as the present, once the defamatory assertion is made the defamatory imputation is conveyed unless, by reason of other things written or said in the publication, the imputation is eradicated. The purported "antidote" must clearly and comprehensively cover the defamatory allegation and negate it.
Counsel for the plaintiff submitted that the fact there were competing allegations by the plaintiff and Mr Buckeridge as to the reason the money had not been paid was not sufficient to eradicate the imputation conveyed. He argued that in this instance nothing in the article had clearly negated the defamatory imputation such that the article was rendered harmless to the plaintiff. The "antidote" relied upon was simply a somewhat nebulous and confusing statement attributed to the plaintiff in the final paragraph of the article.
I should say that counsel for the defendants disavowed any reliance on a bane and antidote argument, putting the defendants' case on the basis that when the article was read as a whole it was simply not arguably capable of conveying the imputation alleged. Among other things, counsel for the defendants did not accept there was any bane for which an antidote was required.
It seems to me that while what might be called the "bane and antidote" cases may be of some assistance, such categorisation must not distract attention from the real issue on the application, namely, whether the article when read as a whole is arguably capable of conveying the imputation alleged.
There are obviously cases where, although an imputation arises, the refutation contained within the matter complained of is of such a nature that, taken as a whole, the matter complained of is incapable of conveying the imputation refuted, such as where the imputation arises by way of inference only and the words complained of contain an express disclaimer of any intention to convey such an imputation: Stubbs Ltd v Russell [1913] AC 386; or where the matter complained of contains statements of fact entirely destructive of the entire basis on which the imputation relies, such as Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 where the whole tenor of the article was to inform the reader that the plaintiff had been cleared of earlier allegations that he had designed a faulty crane that had caused a fatal accident.
But as Glass JA pointed out in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 674, except in the rare case where the refutation so exactly matches the accusation there can be no question for the jury, the proper tribunal for determining whether the antidote has overcome the bane is the jury (or in this State, the trial judge, if the case is tried without a jury).
The question then is whether in this case the imputation pleaded by the plaintiff is arguably capable of being conveyed by the words complained of, read as a whole. In my view it is.
I do not accept the plaintiff's argument that the imputation is incapable of being conveyed because the statement attributed to Mr Buckeridge is expressed only as a statement of belief. A statement by X that he believes Y has engaged in discreditable conduct will generally convey the imputation that Y has engaged in that conduct, and it can only be justified by proving that Y has engaged in the conduct, not simply that X believed he had. In that respect, Gatley on Libel and Slander 10th Ed, 2004 [at pars 3.26 and 11.4] refers to the following passage from Kerr v Force (1826) 3 Cranch CC 8 at 24, "If I say of a man that I believe that he committed murder, I cannot justify by saying and proving that I did believe it. I can only justify by proving the fact of the murder."
Of course, whether in any particular case a statement of belief is capable of conveying an imputation of the fact must ultimately depend upon the effect of the words complained of as a whole. It is therefore necessary to read the statement attributed to Mr Buckeridge in the context of the article as a whole. When so read I am not persuaded that the statement is incapable of conveying the imputation pleaded.
I also do not accept it is plain that a reasonable reader would understand the article to mean no more than there had simply been an exchange of untested allegations passing back and forth between Mr Buckeridge and the plaintiff, about which the reader could form no view at all. The fact that the litigation between the plaintiff and Mr Buckeridge is described as "tit‑for‑tat litigation" does not seem to me to be necessarily inconsistent with an understanding by a reader that the plaintiff has failed to pay the claim because the plaintiff does not have the money to do so. In the context, the reference to "tit‑for‑tat litigation" is capable of being understood simply as a reference to litigation that is being commenced by the parties on a "blow by blow" basis. It does not necessarily say anything else about the circumstances or merit of the litigation in question.
In my view, whether or not the article would be regarded by a reasonable reader as referring to nothing more than such an exchange of untested allegations to which no credence could be attached is an issue of fact for trial. In that connection, it would, for instance, be for the tribunal of fact to weigh up what (if any) significance a reader would give to the statement in the article, immediately preceding the statement of belief attributed to Mr Buckeridge, that the claim against the plaintiff is based on figures compiled by accountants nominated by the plaintiff to carry out calculations for the deed governing the carve‑up of their former joint business interests.
It is the case that the article contains a statement attributed to the plaintiff as to the basis upon which the claim for the $700,000 would be defended, and therefore implicitly a denial of any charge that that sum had not been paid because the plaintiff could not afford to pay it. But what effect that, possibly somewhat vague, statement might have on the mind of a reasonable reader is a matter that I think can only properly be determined at the trial of the action.
I am not, therefore, satisfied that, on a fair reading of the words complained of, it is plain they are incapable of conveying to a reasonable reader the imputation pleaded. Accordingly, I would dismiss the application.
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