[1988] HCA 68
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
[2013] HCA 18
Office of the Children's Guardian v CFW [2016] NSWSC 1406
Sullivan v Civil Aviation Safety Authority [2014] 322 ALR 581
Source
Original judgment source is linked above.
Catchwords
[2014] HCA 26
M v M (1988) 166 CLR 69[1988] HCA 68
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332[2013] HCA 18
Office of the Children's Guardian v CFW [2016] NSWSC 1406
Sullivan v Civil Aviation Safety Authority [2014] 322 ALR 581
Judgment (2 paragraphs)
[1]
Judgment
HER HONOUR: These are proceedings for defamation commenced by a company, Auslotus Pty Limited, and its two directors arising out of a broadcast on the Special Broadcasting Service. The statement of claim pleads a number of republications of the original broadcast but for today's purposes it was sufficient to have regard to the original broadcast.
In accordance with the requirements of the Defamation List Practice Note, the defendant has brought forward for argument today a number of objections to the form of the pleading. This judgment determines those objections.
In summary, the broadcast addressed the topic of massage parlours operating in truth as brothels and offering illegal sex services understand the guise of traditional massage. A number of persons were interviewed on the broadcast and spoke to the dangers of sexual services being offered in those circumstances, with particular focus on the lack of regulation where such services are offered in secret. In particular, there was reference to unsafe sex practices and the risk of employees of the massage parlours being taken advantage of. The broadcast uses strong language, including referring to the risk of employees of the massage parlour being "sex slaves" and references to "human trafficking".
The plaintiffs have pleaded a number of imputations, each (as I understand the pleading) alleged to be conveyed in respect of both the company and its two directors.
The defendants have objected to a number of imputations on the grounds that they are not reasonably capable of being conveyed by the matters explained of. Separately, there is a discrete dispute in respect of the capacity of the matter complained of to defame the company in one particular respect.
The first objection is to imputation (b), which is "the plaintiffs put their clients' lives at risk in that they operate an illegal brothel disguised as a Thai massage parlour without observing the required health and safety protocols and laws", and imputation (e), which is "the plaintiffs put their employees' lives at risk by requiring them to provide unprotected sex services".
Ms Barnett, who appears for the defendant, submitted that the capacity of the matter complained of to convey those imputations could be determined by reference to a short point which is that, whereas in the 1980s it was widely understood that unprotected sex exposed persons to the risk of developing AIDS, which was then fatal, in modern times it is widely known that medical advances have resulted in treatment ordinarily being available for persons who contract the HIV virus, with the result that AIDS is "no longer regarded as a death sentence". On that basis, she submitted that the broadcast is not reasonably capable of conveying either of the imputations which impute the plaintiffs with having put lives at risk.
Mr Richardson, who appears for the plaintiffs, submitted, first, that there is ample reference in the matter complained of to unsafe sex practices. He took the Court to example of those references. He submitted that, while it may be accepted that a person with full access to medical treatment might have a good prognosis after contracting the HIV virus, it is still broadly understood that sexually transmitted diseases may, without treatment, be fatal. He further submitted that AIDS is not the only concern in that context, referring also to syphilis and the understanding that the incidence of cancer is increased by sexual practices.
Separately, Mr Richardson noted that the broadcast is concerned with migrants placed in circumstances of vulnerability through their employment in what is represented as an aspect of the sex industry. He noted the vulnerability of such employees and, in particular, the prospect that they may not have ready access to medical services otherwise available in Australia.
In my view, while the imputation is certainly pitched high, the question whether exposure to unsafe sex practices exposes the lives of either the clients or the employees of the parlours to risk is a matter that should properly be determined by the jury. I do not think I can, on a preliminary basis, determine that the ordinary reasonable reader would not perceive there to be a risk in that respect. It is a matter properly determined by the tribunal more familiar with current community knowledge and standards. The objection to those imputations is rejected.
The next objection is to imputation (c) which is "the plaintiffs force their employees to provide illegal sex services by threats of violence". Ms Barnett noted that imputation (d) imputes the plaintiffs with actually physically and sexually assaulting their employees to force them to provide sex services. She acknowledged that the matter complained of is at least capable of conveying that imputation. She submitted, however, that there is nothing in the article which conveys the different notion of forcing conduct by threat of violence.
Mr Richardson drew my attention in particular to paragraphs 12 and 22 of the matter complained of as annexed to the statement of claim. Paragraph 12 quotes the founder of a group called 'Brothel Busters' saying: "The illegal ones are havens for tax and welfare fraudsters, pedlars of unsafe sex practices, illegal immigrants and sex slaves". Mr Richardson focused in particular on the term "sex slaves". Paragraph 22 quotes Senior Sergeant Richard Farrelly referring in particular to "human trafficking indicators within the massage industry itself".
Mr Richardson submitted that a program which bandies about terms like "sex slaves" and "human trafficking" is readily capable of conveying the notion of threats of violence. In my view there is force in that submission and it is an issue which I must properly leave to the jury. The challenge to imputation (c) on that basis is rejected.
Separately, it was submitted as to imputation (c) that it could not be conveyed in respect of the company, as a company cannot threaten or carry out violence. Again, comparison was drawn with imputation (d) which imputes the plaintiffs with physical and sexual assault. The defendants took an objection to that imputation in the case of the company on the basis that a company cannot physically and sexually assault an employee. The plaintiff accepted the force of that argument and has agreed not to press that imputation in respect of the first plaintiff.
Mr Richardson argued, however, that a company can issue a threat to force an employee to do certain things, albeit in circumstances where it cannot in fact carry out the threat. Thus the distinction drawn on the part of the first plaintiff between the imputations (c) and (d) is that, while a company does not have arms and legs with which it can carry out any physical assault, it does have a voice (through its officers) and so can issue threats of violence. That is a matter which might be argued one way or the other. At this preliminary stage of the proceedings I am not persuaded that the plaintiff's contention that imputation (c) is conveyed in respect of the corporate plaintiff is untenable. It may be an issue that could or should be revisited by the trial judge depending on the way in which the context put to the imputations during the trial comes out. At the present moment I am not persuaded that it is an untenable pleading and I decline to strike out that imputation.
For those reasons the defendant's objections are rejected. I order the defendant to pay the plaintiffs' costs of today's argument.
[2]
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Decision last updated: 30 October 2018