Bass v McDonald & TCN Channel Nine Pty Ltd [2001] NSWSC 988 | Case summary

Judgment (No.6 - Reasons for directions to the jury) 1 His Honour: The plaintiff, Mr Bass, claimed damages for defamation in relation to a television programme. There was a separate trial as to the imputations allegedly conveyed and as to whether any such imputations were defamatory. 2 The plaintiff, an erstwhile building contractor, appeared in the programme, asserting, in effect, that, he had been subjected to victimisation by the BWIU. The state secretary of the union, Mr McDonald, was then shown in the programme, saying, in effect, that union was justified in taking action against the plaintiff because he was "a shonky operator". The moderator of the programme, Mr Munro, challenged Mr McDonald's explanation. 3 Counsel for the plaintiff, Mr Molomby, addressed first. It was a combined opening and closing address. The only evidence - the video recording of the programme and a transcript of it - was adduced during the address. In the course of his address, Mr Molomby said, as recorded (at Transcript 11), The question is not would the ordinary reasonable viewer believe these things as a result of seeing the programme. Would the ordinary reasonable viewer think they were true? The question is: would the ordinary reasonable viewer understand them as things that the programme is saying. To give you a simple example: it is possible to defame somebody in circumstances where nobody believes it when something very nasty is being said about them. For example, a clear, almost stupid, example: Mother Theresa is a child molester. Nobody in their right mind would believe it. You would think the person saying it is some sort of terminal lunatic. No one would believe it, but she can still bring a defamation case because it is a very nasty thing to say. It is said in that case in very direct terms. It is obviously the sort of thing that is potentially damaging to someone's reputation. It is not a question of whether the viewer believes it; it is a question of whether the viewer understands it as the message that is being given out - the meaning in that sense. 4 Counsel for the defendant, Mr McClintock, then addressed the jury. In the course of his address, he said, as recorded (at Transcript 30), If a viewer did not believe Mr McDonald and did not believe he was telling the truth, but believed what Mr Munro had said, and what Mr Bass had said, it is perfectly clear that that viewer would come down on the side of Mr Bass and against Mr McDonald. It is relevant who was believed in this program because differing points of view are put. . . . . . If a viewer believed Mr Bass and Mr Munro, these imputations will not be conveyed and the answer to the questions would be "No". … For them to succeed, they have to persuade you that the viewer would have believed what Mr McDonald was saying. . . . . . His Honour will tell you that you are bound to take account of the whole of the material. If there is a question in a program where you have got someone saying A and someone else saying A is wrong, you have to make up your mind what the viewer would have thought as a result. Did it say A or the opposite of A? . . . . . [T]aken overall, who do I really believe? And later, as recorded (at Transcript 36): The plaintiff wants you to accept that certain things are conveyed to the viewer. As I said to you, there are different points of view. On the one hand there is Mr Bass's point of view. If you ignore Mr McDonald, always said the scales would be heavily on the defendant side. If you thought Channel 9 was taking side with Mr Bass again the scales fall down on Channel 9 side, if you thought the viewer didn't know whether Mr Bass was saying that it was a vendetta, didn't know if Mr McDonald was saying the truth, if you didn't know or couldn't tell the scales. In fact, as I have said to you, my suggestion to you is that very strongly that you ought to take Mr Bass's side if you thought the viewer couldn't tell, and different points of view being put as media organisations do as responsible journalists, the plaintiff fails because it would mean the scales are, even the imputations would not have been conveyed because the viewer doesn't know whether they are or not. They don't know who is to be believed of the two sides. It is only you, if you believe the viewer. As I said members of the jury, in my submission to you, you fall very short on that because come down on Mr Bass's side, if you don't accept that proposition one thing I suggest you will accept is that the viewer would not have come to an adverse conclusion about Mr Bass because he would not have accepted Mr McDonald. That, members of the jury, is the burden of proof. As I said, members of the jury, the plaintiff must establish that to persuade you or must actually persuade you that those imputations were there and in relation to the second question and that they are defamatory. 5 At the conclusion of Mr McClintock's address, Mr Molomby sought a direction in accordance with a draft which was marked "3" for identification: DRAFT DIRECTION SOUGHT BY PLAINTIFF ON 18 OCTOBER 2001 There is something which Mr McClintock said in his address which I must correct. Mr McClintock said that Mr Molomby was wrong to say that it was not necessary for the ordinary reasonable viewer to believe that the imputations were true. Mr Molomby was not wrong. Everything he said on that point was correct. It was Mr McClintock who was wrong. He said: If the viewer did not know who was telling the truth as between Mr Bass or Mr McDonald, if you thought the viewer couldn't tell, and different points of view were being put, then the case would fail. That is wrong. If you thought the viewer did not know who was telling the truth, but saw the meanings, or the imputations, conveyed in the program, then the case would succeed. Mr McClintock also said in talking about putting the weight of each side's evidence and argument onto a set of scales, that: It's only if you thought the viewer would believe Mr McDonald that the scales would be pushed down in favour of Mr Bass. That too is wrong. It is not necessary, for the imputations to arise, that you find that the viewer would have believed Mr McDonald. It does not matter whether the viewer would have believed Mr McDonald or not. 6 Submissions were heard on the application in the absence of the jury. I said I would not rule on the question prior to my summing up but that my view on the legal question involved would be reflected in the summing up. 7 My direction to the jury on this point was as follows (at Summing Up 21/10/01 16): What is the significance of the principle that one has to have regard to the program has a whole? There are a number of ways, members of the jury, in which that can be done. For example, what is said elsewhere in the program may affect the meaning of what is said in the passage relied upon by a plaintiff. A word or a phrase may mean one thing in isolation but something else in the wider context of a program as a whole. But that is not this case. There is nothing in the rest of the program that gives a different meaning to the phrase 'shonky operator' than it would have if that phrase were used in isolation. In this case, the defendant relies on the program as a whole in a different way. The defendant says that the ordinary reasonable viewer would not have taken the program to convey that Mr Bass was a shonky operator, even though Mr McDonald said that in the program, because of other things in the program which were to the contrary. It is at this point that I have to give you the legal principle which governs that argument. The principle was formulated in the 19th century in relation to newspaper articles. It is expressed in terms of a publication suggesting a written publication. But the principle also applies in modern times to other media, such as television. The principle is this. If, in one part of the publication, something disreputable to the plaintiff is stated but that is removed by another part of the publication, it is said that the poison and the antidote must be taken together. I will elaborate on this but let me repeat that first. If, in one part of the publication something disreputable to the plaintiff is stated but that is removed by another part of the publication, it is said that the poison and the antidote must be taken to go. A clear illustration of that principle would be a newspaper report of something disparaging said about someone where the publication of such an article is obviously for the sole purpose of refuting what has been said about that person. If the report stood on its own, that is the earlier report which was disparaging and the reference to it in the article stood on its own, it would convey something disparaging about that person. But, if the whole tenor of the publication is to destroy the suggestion of wrongdoing, the publication does not convey the disparaging imputation. In that case, the illustration I have just given to you, the poisonous imputation is cancelled out by the antidote of the refutation. But that principle, members of the jury, only operates if the imputation that would have arisen from the disparaging statement standing alone is totally removed by what appears elsewhere in the publication. It is a question in each case whether the antidote is sufficient to remove the poison. If the reader or the viewer is left with nothing more than inconsistent assertions, neither of which overrides the other, the principle does not apply. The result is that one can have a television program where one part of it conveys a disparaging imputation and another part of it conveys the opposite imputation. In such a case, unless the ordinary reasonable viewer would understand the positive imputation as removing the negative one, the principle does not apply. The antidote must be a complete cure or the poison is left to do its work. It might not do as much damage because of the contrary imputation being there, but the disparaging imputation continues to be conveyed. That is the legal principle. But you might think it is equally a matter of commonsense. For relevant purposes, if a part of a program would be disparaging in isolation, the program carries that imputation, unless it is apparent that what the program as a whole is saying on that point is that the disparaging statement is wrong. I will repeat that. For relevant purposes, if part of a program would be disparaging in isolation, the program carries that imputation unless it is apparent that what the program as a whole is saying on that point is that the disparaging statement is wrong. 8 After my summing up of the plaintiff's case, the jury was allowed a fifteen minute break, during which time I asked counsel, in the absence of the jury, to raise anything they wished. Mr McClintock said, as recorded (at Summing Up 19/10/01 21): I would ask your Honour to redirect the jury in relation to what your Honour said to them in relation to when your Honour said if the viewer is left with inconsistent assertions the principle does not apply. Your Honour has, in fact, elevated to a question of law what is in fact is always a question of fact. With great respect, that direction is not correct. There is no authority that has ever said that if there are two inconsistent assertions the imputation must be conveyed. It is always a matter for the jury to make the decision. That was the reason why, for example, in R Z Mines , Hunt J presented two inconsistent assertions, said to the jury, one being the denial by my then client, the other being the defamatory imputation. He said: If you do interpret paragraph 12 in that way, nevertheless, you are left with an assertion by the newspaper and counter assertion by the company leaving the ordinary reasonable reader to judge for himself which is correct. The publication - it goes on. I ask your Honour to direct the jury in the same way Hunt J did, so that if they are told this assertion and counter assertion it is up to the reasonable reader to make the decision whether the imputation is conveyed, and to withdraw from the jury what your Honour said to them on that point. I say that with respect. While, of course, it's true, as I said to the jury, and, indeed your Honour said to the jury, we are responsible for what Mr McDonald said. The way your Honour left it to them, at least on the last occasion your Honour mentioned that, the second occasion, might conceivably be misleading. We are responsible for what Mr McDonald said and for what Mr Bass said and Mr Munro said. Your Honour earlier on gave the direction in relation to us relying upon the whole program. I ask your Honour to direct the jury, yes, we are responsible for what Mr McDonald said, we are equally responsible for what Mr Bass and Mr Munro said, and all of those things have to be taken into account in determining whether the meaning is conveyed. 9 I declined to accede to this request. Resuming my summing up, I reviewed the points made by Mr McClintock in his address which were, in my opinion, available to support the defendant's case. I then said (at Summing Up 21/10/01 26): Before I move to Mr McClintock's argument, I have to say that, in some respects, the way in which he sought to use the points I have mentioned did not accord with legal principle and must be disregarded. It is not enough for the program to have presented two sides of the story and leave it to the viewer to decide which is correct, let alone expect that the viewer will decide which is correct. Nor is it a question of which of the protagonists in the program the ordinary reasonable viewer would have believed. Still less is it the case that the plaintiff cannot succeed unless Mr McDonald would have been believed. It is a question of whether the ordinary reasonable viewer would have understood the program as conveying the alleged imputations against Mr Bass. It is not a question of whether the ordinary reasonable viewer would have been persuaded that the alleged imputations were true. To the extent that Mr McClintock put the defendant's case that way, you will have to disregard what he said. But that does not have any effect, one way or the other, on the argument that is available. That is the argument which I have outlined to you. Being available is, of course, not the same thing as being right. That is a matter for your consideration as, indeed, is every argument advanced in favour of one side or the other. 10 At the conclusion of my summing up, in the absence of the jury, Mr McClintock said, as recorded (at Summing Up 21/10/01 37), I just ask your Honour to withdraw that part of your summing-up which followed the introductory words in which your Honour said that some of the things I said did not accord to principle. In the course of that part of your Honour's summing-up, your Honour said, again it wasn't enough for the program to present two sides of the story. I am entitled to say it wasn't a question which it should be believed, it wasn't a case which Mr McDonald should be believed. In my submission, what is taken away from the jury is a factual question. It was a question if they didn't believe Mr McDonald, the imputation could not be conveyed. It is an argument about fact. Your Honour has elevated a factual argument into a converse of my factual argument into a question of law which, in my respectful submission, it is not. Also, may I say, it is in the circumstances when my submissions were open to me to put, on behalf of my client, it does injustice to my client's case to tell the jury that what I said did not accord with the principle. Those are my submissions, your Honour. 11 I declined to accede to this submission. 12 Mr McClintock asked me to give reasons for my opinion concerning the legal question involved, as reflected in my summing up. Those reasons now follow. 13 What is the law when a publication contains an alleged imputation and, in another part, a contradiction of that imputation? It is said that the publication must be taken as a whole, but what does that mean? 14 In Chalmers v Payne (1835) 150 ER 67, Baron Alderson said (at 68): [T]he question here is, whether the matter be slanderous or not, which is a question for the jury, who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff's character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together. [Emphasis added].

("Bane" is an antique word for poison). 15 I cite the following passage from Gatley on Libel and Slander, 9th ed (Sweet & Maxwell: London, 1998) at [3.29]: (1) The standard is still that of the ordinary reader, and he may not notice curative words tucked away in the publication or in another publication to which he is referred. "Whether the text of a newspaper article will, in any particular case, be sufficient to neutralise the defamatory implication of a prominent headline will sometimes be a nicely balanced question for the jury to decide and will depend not only on the nature of the libel which the headline conveys and the language of the text which is relied on to neutralise it but also on the manner in which the whole of the relevant material is set out and presented". (2) It will be a question in each case whether the antidote is sufficient to offset the bane; the mere presence of a denial of a defamatory charge does not necessarily prevent the article being defamatory for the reader may be left in the position of having to choose between inconsistent assertions. 16 The quotation in subpara (1) is from Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 74, per Lord Nicholls. The authorities cited for subpara (2) include Farquhar v Bottom [1980] 2 NSWLR 380. In that case, Hunt J said: I was argued on behalf of the defendants to construe the matter complained of as a whole, and to conclude that the bane created by the author's assertion had been outweighed by the antidote of the defendant's denial: Chalmers v Payne (1835) 2 Cr M & R 156. The mere presence of a denial of a defamatory charge does not make the matter complained of as a whole incapable, nevertheless, of conveying the defamatory imputation so denied for, in such a situation, the reader is presented with two conflicting, assertions, with the choice of accepting either: Savige v News Ltd [1932] SASR 240; Hopman v Mirror Newspapers Ltd [1961] SR (NSW) 631. There are cases, of course, in which the refutation is of such a nature that, taken as a whole, the matter complained of is incapable of conveying the imputation refuted, for example, where the imputation arises by may of inference only, and the matter complained of itself contains an express disclaimer of any intention to convey such an imputation: Stubbs Ltd v Russell [1913] AC 386; or where the refutation consists of a statement of fact destructive of the entire basis upon which the imputation relies: Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679. But such cases are comparatively rare: Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418. 17 In Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418, Samuels JA, with whom Moffit P and Hutley JA agreed, said (at 419 [6]): I do not doubt that there are occasions when a publication which seeks to refute a calumny which it expressly states may be held incapable of conveying any defamatory meaning … In the ordinary case, the material to be examined consists of the words of the publication in their natural and ordinary meaning … which may or may not support an imputation of a defamatory kind. But in a case such as this the material already contains a defamatory imputation; and the inquiry is whether that effect is overcome by contextual matter of an emollient kind so as to eradicate the hurt and render the whole publication harmless. [Emphasis added]. 18 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 was a case where the alleged imputation was removed. Herron CJ's approach embodied and applied the relevant principle (at 682): Mr Bik was completely cleared. Finally the Minister stated, so the article reveals, that he found nothing to indicate that Mr Bik was responsible in any way for the unfortunate fatality. How can it be held, in the sense in which ordinary persons, or in which I myself, out of court, would understand these words, can there be, in this article read as a whole, any meanings that are capable of a defamatory meaning?…It cannot be so held. . . . . . The whole tenor of the article is to inform the reader that Mr Bik was wholly cleared, and no fair-minded reader could imply that Mr Bik bore any responsibility for the fatality. He would read that an injustice had been done by having for eight years wrongful acts attributed to him, and now he has been cleared of it. So far from being defamatory, the article is laudatory of the plaintiff. 19 As recorded above, Mr McClintock relied on what was said by Hunt J in his summing up in R Z Mines (Newcastle) Pty Ltd & Anor v Newcastle Newspapers Pty Ltd & Anor (Supreme Court, 14 November 1994, unreported) (at 37-8): [N]evertheless you are left with an assertion by the newspaper and a counter-assertion by the company, leaving it to the ordinary reasonable reader to judge for himself which is correct.

Bass v McDonald & TCN Channel Nine Pty Ltd

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Judgment (10 paragraphs)

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