Websters Australia Pty Ltd v Nationwide News Pty Ltd
[2003] NSWSC 322
•17 April 2003
CITATION: WEBSTERS AUSTRALIA PTY LTD v NATIONWIDE NEWS PTY LTD [2003] NSWSC 322 HEARING DATE(S): 14 April 2003 JUDGMENT DATE:
17 April 2003JUDGMENT OF: Levine J DECISION: 1. Imputation 4(b) is struck out.; 2. Imputations 4(a), (c), (d) and (e) are capable of being carried by the matter complained of and are capable of being defamatory.; 3. Within 14 days of today the defendant is to file its defence as to issues to be determined by the jury pursuant to s7A of the Defamation Act 1974.; 4. Pursuant to SCR Pt 31 r 2 I order the trial by jury of issues joined on the pleadings as provided for by s7A of the Defamation Act 1974.; 5. I place the action in the List to be called up for s7A jury trial. CATCHWORDS: Imputations - capacity - form PARTIES :
WEBSTERS AUSTRALIA PTY LTD
(Plaintiff)v
NATIONWIDE NEWS PTY LTD
(Defendant)
FILE NUMBER(S): SC 20502 OF 2002 COUNSEL: P Gray
D Sibtain
(Plaintiff)
(Defendant)SOLICITORS: Turner Whelan
Gallagher de Reszke
(Plaintiff)
(Defendant)
[2003] NSWSC 322
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LISTJUSTICE DAVID LEVINE
20502 OF 2002THURSDAY 17 APRIL 2003
JUDGMENT (Imputations – capacity – form)WEBSTERS AUSTRALIA PTY LTD
(Plaintiff)nationwide news pty ltdv
(Defendant)
1 The corporate plaintiff by a statement of claim filed on 4 November 2002 sues the defendant in respect of a publication in “The Australian” of 13 March 2002. The publication is such that it cannot practicably be reproduced with these reasons.
2 The material complained of was published over two pages. For present purposes it can be divided into three parts. The first is part is pictorial and is made up of a collage of photographic representations of persons, institutions, seals and relevantly, two photographs of the plaintiff’s establishment, one on each side of a photograph of a dry cleaning store. That collage bears the headline “Mail-order bachelors”. Beneath that first collage is the second component of the publication which has in its margins “The market for phony degrees is booming, writes Patrick Lawnham” and “Dippy diplomas: Fringe university business extends from unaccredited, but earned degrees like those through Webster’s, to email scams run from an office above a dry cleaners in suburban London”. There is no reference to the plaintiff in the second part of the published material. It deals with “degrees” described as “validated” issued in the field of the applicant’s choice by answering a questionnaire on the applicant’s “life experience”. These are the “life experience” degrees. Secondly, it appears to be dealing with what are described as “email scams” awarded in the name of several “universities” one of which has a mailing address above the dry cleaning establishment pictured in the collage. This part of the article is in fact over two pages of the newspaper. It is a part of the article which appears to pull no punches in exposing those two types of “phony degrees”, the “life experience” degree and the “email scam” degree. This part of the article (the second part) includes a paragraph which states:
- “While the purchase of fake degrees, or the actual degrees of phony universities, might appear victimless except for gullible or lazy employers, these operators usually imply jobs or promotion will follow. But people using fake qualifications are putting a time bomb in their CVs”.
(I interpolate a difficulty I have with the notion of an “actual” degree of a “phony” university).
3 This part of the article also extracts a statement from one John Bear, a US distance education expert, who says, “any degree should be evaluated on the quality of the work done to earn it, the credentials of the people who make that determination, and the legal authority of the school to award the degrees”. He is then reported as saying that the FBI used to institute proceedings for “diploma mills”.
4 The second page of the second part of the article bears the headline “Boom in phony degrees”.
5 The third part of the matter complained of bears the headline “Authorities plan crackdown on Clayton’s degrees”. It is in this part of the article that the plaintiff receives attention. The piece refers to New South Wales and Federal Governments having allowed a registered training organisation (which the reader could only understand to be Websters) to promote “unaccredited” degrees from a UK based organisation calling itself a university and for a period of at least two years “unhindered”. That “university”, Warnborough, is said to operate locally through an alliance with the plaintiff which is stated to be not only a detective and security agency but also a “registered training organisation”.
6 The third paragraph of the third part of the article says that Webster’s offers “certificate courses” which are accredited by the New South Wales Government. It goes on to say that it so offering, “raises the potential danger of a misperception that the degrees have local approval. Websters, however, denies this could happen, saying the two education streams are separate”. The article goes on to say “But the federal Government says it is stepping in”.
7 Pausing there, it appears from a reading of the whole of the third part of the matter complained of that the “two education streams” could be understood to be, first, the certificate courses accredited by the New South Wales Government provided by Websters on the one hand, and second, the unaccredited degrees from Warnborough promoted by Websters. The distinction is between the certificates and the degrees. The case (of Websters) according to the third part of the article has been referred to relevant New South Wales “accreditation authorities, “for information and action as appropriate””. A DEST spokesman is quoted as saying that It is the understanding of the Commonwealth that Websters is not accredited to offer higher education awards (that could be understood as higher than certificate courses) and that Warnborough University has not been authorised to operate in any Australian jurisdiction. The third part of the article then goes on to explain, or seeks to explain, that registered training organisations (of which Websters apparently is one) are “accredited” by the NSW Vocational Education and Training Accreditation Board.
8 The last mentioned segment could be understood as explaining that the legitimate operation of Websters’ certificate courses are legitimate because they have been accredited by that entity. These are courses, it can be understood, that are offered directly by Websters itself.
9 However, it is the degree courses which the article says Warnborough and Websters jointly offer that are the subject of question and, the article could be understood as stating that those degree courses are the ones that have been referred to authorities “for information and action” as appropriate.
10 The plaintiff is described as a Warnborough “learning centre”. It refers to Warnborough degrees being “handed out” by the Lord Mayor of Newcastle to 20 graduates in 2000. The article goes on to describe Warnborough as a “wannabe” university “in a category that lacks official recognition in most countries but offers some teaching and assessment in return for degrees”. Further, reference is made to Warnborough’s staff lists pointing to “moonlighting” or “freelance” academics as mentors.
11 This same third part of the article then deals with an entity known as “Greenwich” which is said to claim “accreditation” by virtue of a “much criticised authorising act of the Norfolk Island assembly”. Greenwich has been denied mainland recognition of its courses.
12 It must be acknowledged that the analysis that I have sought to make of the third part of the whole matter complained of has not easily been structured as there is potential for confusion as to what “accreditation” means and there appears to be no express statement as to whether it is compulsory, or merely required, or for what purpose or what sanction flows from its absence.
13 The plaintiff contends that the whole of the matter complained of carries the following imputations defamatory of it:
- 4(a) The Plaintiff offers phoney university degrees.
- (b) The Plaintiff offers worthless qualifications to students.
- (c) The Plaintiff engages in fraudulent business practices in connection with its educational courses.
- (d) The Plaintiff offers to students in Australia higher education degrees from Warnborough University in the UK without the accreditation required by education authorities.
- (e) The Plaintiff offers to students in Australia higher education degrees from Warnborough University in the UK knowing that the degrees are not recognised in Australia.
14 Pursuant to SCR Pt 31 r 2 the separate question of law as to capacity in relation to the imputations has been argued. The defendant also takes objections as to the form of the imputations.
15 As to imputation (a), “The Plaintiff offers phoney university degrees”, the defendant points to the various parts of the whole of the matter complained of especially the reference in what I have described as the second part, to the “life experience” and the “email” or “scam” or “counterfeit” degrees from allegedly mainstream universities. It is contended that there is no suggestion in the matter complained of that the university degrees offered by the plaintiff are “phony” or, as the Macquarie Dictionary defines it, “not genuine, spurious, counterfeit or bogus; fraudulent”. It is argued that, at its highest, the only message which is conveyed is that the plaintiff’s degrees are not accredited in Australia. It is acknowledged that the article states nothing about the consequences of the absence of accreditation, nor, it is contended is there an available implication that unaccredited degrees are “fake, counterfeit or bogus”.
16 Subject to matters of form where applicable the arguments for and against the availability of an imputation such as (a) represent the nub of this dispute. For the defendant, on a capacity basis, a “separation”, as it were, is sought to be achieved between what I have described as the second and the third parts of the article. For the plaintiff Mr Gray, in his outline of submissions pursuant to Pr 67 r 12A, drew attention, amongst many other things, to the “Dippy diplomas” extract set out above and the “phony” degrees referred to just before the by-line of the whole piece of Patrick Lawnham. Notwithstanding the general subject matter of the article it would not be appropriate otherwise to comment upon the idiosyncratic spelling of “phony” by the author of that sub-headline.
17 In the end, for the plaintiff it is argued that the overwhelming overall impression is that the Warnborough degrees that are supposedly offered by Websters are phoney in the sense that they are not real or genuine but rather are spurious or bogus.
18 A reading of the whole of the piece could, by one person or another, be characterised as almost an “excruciating” exercise. Be that as it may, on a capacity basis I am not persuaded that this publication is incapable of bearing imputation (a).
19 Accordingly I hold that the matter complained of capable of bearing imputation (a) and that it is capable of being defamatory.
20 As to imputation (b), “The Plaintiff offers worthless qualifications to students”, the first point taken by Mr Sibtain for the defendant is that it does not differ in substance from imputation (a) and thus offends SCR Pt 67 r 11(3). I have difficulty understanding an argument against the proposition that r 11(3) has been infringed if the matter complained of is capable, as I have said it is, of conveying an imputation that the plaintiff offers “phony” university degrees whether by reason of accreditation, whatever that means, or something else within the matter complained of. A conclusion must be reached that to say that “degrees” is different from “qualifications” is meaningless in my respectful view, but to say that they are “phony” says no more, or nothing different to, that they are “worthless”.
21 I strike out imputation (b) by reason of it not differing in substance from imputation (a).
22 As to imputation (c), “The Plaintiff engages in fraudulent business practices in connection with its educational courses”, it is first contended for the defendant that it is deficient in form by reason of it not differing in substance from imputations (a) or (b). I am not persuaded of this proposition. When one considers the wording of the imputations, it is referring to business practices in connection with its courses rather than with the product of its courses.
23 It is argued that in any event the matter is incapable of conveying any notion of “fraud” or deceit or dishonesty. The defendant does draw attention to what is referred to as paragraph 32 of the matter complained of which refers to “the potential danger of a misperception that the degrees have approval”. The defendant does point out, and this is a strong point, that there is no suggestion that the plaintiff has endeavoured to promote that misperception; rather, the defendant points to the denial that this could occur by reason of the two education streams being separate. Again, reference is made to the absence of any information about what the consequences are of accreditation or the lack of it. Reference is made, of course, to the “case” being referred to the relevant New South Wales accreditation authority for information and action. There is no express statement as to why that course has been taken. Thus it is that in the end the defendant says really that a reader who would elicit a meaning as encapsulated in this imputation would not have the qualities of the ordinary reasonable reader, but would rather be one avid for scandal. Further, at its highest, this is a “suspicion” imputation.
24 The plaintiff relies upon the whole tenor of the matter complained of, it is accusatory, sensational and prosecutorial with a general flavour, as Mr Gray describes it, of a newspaper “lifting the lid” on scams and other unethical schemes being perpetrated on an unsuspecting public by unscrupulous operators. The expressions used such as “scams”, “fake”, “bogus”, “phony” and “Clayton’s” (the last being particularly pertinent as it is in the headline to the third part of the article dealing with the plaintiff) conjure an atmosphere “close to fraud”. In what, for the purpose of argument was described as paragraph 12 (in the second part), the following appears: “Why does higher education attract these growing numbers of fraudsters, and why does it matter?”
25 There does not of course have to be an express statement, to put it very simply, to the effect that Websters is asserting that all that it offers by way of the degree courses for which it is a learning centre for Warnborough are genuine, accredited and recognised, knowing that they are not and charging therefor. A matter complained of does not of course have to expressly state such a quality or conduct.
26 In the end I have come to the view that this is a “minds might differ” imputation; it is a finely arguable matter but one which in the end that should be determined by the jury in the light of submissions put to it by both sides as to the whole of the matter complained of, its language, tenor and import.
27 I hold that imputation (c) is capable of arising and capable of being defamatory.
28 As to imputation (d), “The Plaintiff offers to students in Australia higher education degrees from Warnborough University in the UK without the accreditation required by education authorities”, the plaintiff argues that it is one of lesser severity than (a), (b) and (c) in respect of which, in effect, the defendant argues that it does not differ in substance. The real problem with it is the last component, “without the accreditation required by education authorities”. It is tolerably clear from what I have described as the third part of the article that the question of “accreditation”, or, more specifically, the lack of it, attends that part of the plaintiff’s business (other than the “certificates”) for which it is a learning centre for Warnborough degrees. Again, it has to be remarked that the consequences of the absence of accreditation are not addressed in the article. For the defendant it is argued that one can readily conceive of a broad range of qualifications from eminent universities throughout the world, which, for some unexplained but wholly justifiable reason, do not receive local accreditation. This may be so. Equally, the defendant argues that there is nothing in the matter complained of that says that accreditation is “mandatory”. There is nothing to suggest that it is illegal to provide an unaccredited degree. The matter, it is argued for the defendant, is silent.
29 This is an extremely difficult imputation but its non-availability as a matter of capacity is not so clear as to warrant its being taken from the jury. Again, it is a fine point but one in respect of which, for the purposes of capacity (and no doubt for the purposes of much attention before the jury), what I will describe as “the whole tenor” of the matter complained of plays in the former a sufficient part and in the latter will no doubt play a great part.
30 Imputation (d) I find to be capable of being carried by the matter complained of and capable of being defamatory.
31 As to imputation (e), “The Plaintiff offers to students in Australia higher education degrees from Warnborough University in the UK knowing that the degrees are not recognised in Australia”, the defendant takes the point that the word “recognised” is a “weasel word”. It is said to be capable of a number of meanings and in its passive voice it is not clear by whom the recognition (or absence thereof) is provided. The notion of “recognition” is itself broad an imprecise. The problem with this submission of course is that the word is used in the matter complained of. That need not necessarily be determinative of whether the word is a “weasel word”, but in the instant case it is used in a sufficiently succinct way. Reference is made in one paragraph of the third part of the matter complained of to Warnborough being capable of being described as a “wannabe university” in a category that lacks “official recognition in most counties” and further, in relation to Greenwich, that it has been denied “mainland recognition” of its courses. I am persuaded by the submission for the plaintiff that the absence of recognition does differ in substance from the absence of accreditation. The use of the word “recognition” or the phrase “official recognition” the reader could take to involve a wider and more general, more fundamental or more serious defect or shortcoming than the mere lack of accreditation.
32 To the extent that the defendant argues any question of capacity to defame, this must be an issue for the jury founded at least in the imputation containing the attribution to Websters of knowledge of offering foreign degrees that are not recognised.
33 Generally, for the same reasons in respect of imputation (d) I hold imputation (e) capable of being carried by the matter complained of and capable of being defamatory.
34 The orders are:
1. Imputation 4(b) is struck out.
2. Imputations 4(a), (c), (d) and (e) are capable of being carried by the matter complained of and are capable of being defamatory.
3. Within 14 days of today the defendant is to file its defence as to issues to be determined by the jury pursuant to s7A of the Defamation Act 1974.
4. Pursuant to SCR Pt 31 r 2 I order the trial by jury of issues joined on the pleadings as provided for by s7A of the Defamation Act 1974.
5. I place the action in the List to be called up for s7A jury trial.
6. The defendant is to pay the plaintiff’s costs.
Last Modified: 04/22/2003
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