Bass v TCN Channel Nine Pty Ltd

Geoffrey Mitchell (1st Plaintiff) Li Hua Qian (2nd Plaintiff) PARTIES : Willemdra Pty Limited trading as Pets at Peace Bendigo (3rd Plaintiff) Channel Seven Sydney Pty Limited (1st Defendant) Seven Network (Operations) Limited (2nd Defendant) Jonathon Creek (3rd Defendant)

COUNSEL : Ms S T Chrysanthou/Mr P A Maddigan (Plaintiffs) Mr K P Smark SC (Defendants)

SOLICITORS : Kalantzis Lawyers (Plaintiffs) Mallesons Stephen Jaques (Defendants)

• 13 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20337/09 GEOFFREY MITCHELL v CHANNEL SEVEN SYDNEY PTY LIMITED

JUDGMENT 1 HER HONOUR: This is an action for defamation arising out of a report broadcast on the "Today Tonight" television program on Channel Seven. The plaintiffs have sued on three different versions of the report broadcast on separate dates in 2008. 2 There was some confusion as to the nature of the application before me. It was referred to in the submissions for the plaintiffs as an application for the determination of a separate question pursuant to rule 28.2 of the Uniform Civil Procedure Rules 2005. That may have been a reference to a different issue (subsequently resolved by the parties). It was not an accurate description of the application before me. 3 The proceedings were commenced by Statement of Claim filed on 21 July 2009. The defendants wrote to the plaintiffs objecting that some of the defamatory meanings sought to be relied upon by the plaintiffs in that pleading were not reasonably capable of being conveyed by the matters complained of. In addition, it was contended that some of them were bad in form. The matter was referred to me with the leave of the Defamation List Judge to hear and determine those objections, in accordance with the procedure contemplated in Practice Note SC CL 4 (the Practice Note refers to Part 67 Rule 12A of the Supreme Court Rules, which has now been repealed, but the practice of giving early notice of objections to imputations is still routinely followed in the Defamation List). 4 Following further correspondence between the parties, however, the plaintiffs served a proposed amended statement of claim seeking to sue on a fourth broadcast and making small changes to the defamatory meanings first pleaded. The defendants then provided a consolidated outline of their remaining objections by reference to the proposed amended pleading (which has not been filed). The argument nonetheless proceeded as if it were still the defendants' application. 5 The proceedings are governed by the Defamation Act 2005 and the defendants have given notice of their intention to elect for the proceedings to be tried by jury in accordance with s 21 of the Act. In such circumstances, the question whether the defamatory meanings relied upon by a plaintiff are reasonably capable of being conveyed by the matter complained of is a question of law to be determined by the Court, and that question is commonly determined as a separate question under rule 28.2 of the Uniform Civil Procedure Rules 2005: see eg Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 at [9]. 6 However, since the common approach of the parties in the present case was to address their argument to a form of pleading that has not been filed, there is no juridical basis for the decision of any separate question raised in respect of that document at this stage. In any event, whether the application is treated as the defendants' application to have the imputations taken from the jury or to have part of the pleading struck out under rule 14.28(1), or as an application by the plaintiffs for leave to amend, the same issues arise for the Court's determination. The test in each case is whether the imputation objected to is reasonably capable of being conveyed by the matter complained of. In Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, the High Court held: "Ultimately, the question is what a jury could properly make of it": at [17] per Gleeson CJ, McHugh, Gummow and Heydon JJ; (Kirby J agreeing "generally").

That was in the context of an application to have part of a pleading struck out under a rule in similar terms to rule 14.28(1) of the Uniform Civil Procedure Rules, but it has subsequently been applied as the test that is applicable where the issue of capacity is being decided as a separate question under rule 28.2: see eg Hayson at [10].

7 As to any imputation said to be bad in form, the test is whether the form of the imputation has a tendency to cause prejudice or embarrassment in the proceedings: Singleton v Ffrench (1986) 5 NSWLR 425 at 433 per McHugh JA.

The first matter complained of 8 The first matter complained of is alleged to have been broadcast on 31 July 2008. The story was introduced at the conclusion of Channel Seven News in the following terms: "Next, on Today Tonight the wealthy Sydney businessman cashing in on pet funerals in a painful sting for grieving families, that's coming up now with Anna."

9 The subject of the story was an allegation that a pet cremation business had been dumping dead animals in the bush. The journalist identifed "Pets at Peace" as the business in question. The plaintiffs in these proceedings are two individuals depicted in the programs, Mr Geoffrey Mitchell and Ms Li Hua Qian, and a company, Willemdra Pty Limited trading as "Pets at Peace Bendigo". 10 The first imputation required to be considered in the present application (set out in paragraph 7(a) of the proposed amended statement of claim) is: "That [Mr Mitchell] was dishonest in that he charged customers to cremate their pets and instead deliberately dumped those dead pets in bushland." 11 Mr Smark SC, who appeared for the defendants, submitted that it is made "crystal clear" in the broadcast that the pet cremation business in question was conducted by a company and that there is no reference to Mr Mitchell (as opposed to the company) being paid or charging customers for anything. I do not agree.

12 As noted above, the story was introduced as one that concerned "the wealthy Sydney businessman cashing in on pet funerals". The scene for the story is set with segments of footage depicting a woman who had paid her local vet to have her elderly pet put down and disposed of. The journalist states that the vet employed "contractor Pets at Peace" to collect and cremate the animals, but that the bodies were found dumped in central Victoria. 13 The journalist then states: "In an attempt to get some answers we went to the Pets at Peace Head Office in Bendigo." The next footage depicts the journalist approaching Mr Mitchell in an office, stating: "My name is Jonathon Creek. I was looking for Geoff. I want to talk to you about your business practices. And the fact that you've been dumping dogs in the bush." 14 Later, the journalist states: "The business is a franchise founded and run by this man Geoff Mitchell, his wife Lily and his son". 15 Although none of those passages explicitly refers to any "charging" by Mr Mitchell personally, I think it is reasonably arguable that the ordinary reasonable viewer would understand that to be the allegation made. The only mention of a "company" as the entity conducting the relevant business comes from a man identified as "the head of the RSPCA", who states, towards the conclusion of the story: "It is a matter of respect. This company has trashed that respect". The terms used in the broadcast itself are, variously "contractor Pets at Peace" (Item 13 of Schedule A), "Pets at Peace Head Office in Bendigo" (Item 15), "the business is a franchise" (Item 18) and "the Bendigo franchisee" (Item 38). 16 I accept, as submitted by Ms Chrysanthou, who appeared for the plaintiffs, that the overall effect is to point to the conduct of the individuals. I doubt whether the ordinary reasonable viewer would stop to consider which legal entity was in fact charging the fees for the cremation services. I am satisfied that imputation 7(a) is reasonably capable of being conveyed by the matter complained of. 17 The same arguments were put in respect of imputations 7(c), 9(a) (said to arise from the second matter complained of) and 11(b), 11(g) and 11(l) (said to arise from the third matter complained of). No different argument was put based on any difference between the broadcasts. For the reasons identified above, I am satisfied that each of those imputations is reasonably capable of being conveyed by the relevant matter complained of. 18 The next imputation required to be considered is imputation 7(b): "That [Mr Mitchell] is a liar in that he lied to Today Tonight about what happened to the dead pets." 19 In support of that imputation, the plaintiffs rely in particular on a segment of the program where the journalist states: "In a letter of apology, Geoff Mitchell relies on a familiar story to explain what must have happened that 'Baxter' [a dog] accidentally fell out of the van being driven by his wife Lily almost word for word the same story that Magda received." 20 Notwithstanding the structure of that sentence, I accept that the reference to Lily would be taken as a reference to Mr Mitchell's wife, not Baxter's. There is then footage of Baxter's owner (identified earlier as "mother of three Maria Hammond") saying: "When we heard there were other stories exactly the same as ours the same supposed accident with the door opening we were incredibly suspicious." 21 The journalist continues: "And Geoff's account of events seems to have holes in it. He was not even on the trips in question - his wife Lily was driving the van alone." 22 There is then a segment from the unscheduled interview between the journalist and Mr Mitchell which shows the following exchange: "Mr Mitchell: The pets fell from the vehicle by mistake. I'm telling you this. Jonathon Creek: What your wife's telling you this. Were you there? Mr Mitchell: No I wasn't there." 23 The plaintiffs also rely on a later segment of the program in which the journalist says to Mr Mitchell: "In all due respect Sir, I think it's time you stopped making excuses for your wife and her behaviour." 24 In my view, the overall impact of those passages is reasonably capable of conveying the meaning to the ordinary reasonable viewer that Mr Mitchell was not innocently repeating what he had been told by his wife, but that he was lying to protect her. I am satisfied that imputation 7(b) could properly be found to be conveyed. 25 The next imputation sought to be struck out is imputation 7(e): "That [Li Hua Qian] assaulted Jonathon Creek by threatening him with a tray of hot ashes." 26 That imputation is alleged to arise from a segment of the broadcast which shows Li Hua Qian walking towards the camera holding a tray of ashes (presumably dog remains). The voice-over of the journalist states: "Maybe this is why Lily is so upset; upset enough to threaten us with a hot tray of dog remains straight from the industrial furnace." The sound track returns to Li Hua Qian who says: "Look at it, look at it, what's this one? Show everyone, what's this one?" and the journalist saying to her: "Now you're being ridiculous." 27 The defendants' complaint in respect of that imputation is that the term "assaulted", in its ordinary and non-technical meaning, involves hitting someone. 28 Ms Chrysanthou submitted that the ordinary reasonable viewer would watch the thousands of Law & Order and other shows and would "surely" know what an assault is. She submitted that it is not a specialised term. I do not think I should have regard to the hypothetical viewing habits of the hypothetical ordinary reasonable viewer: cf Favell at [23]-[25] per Kirby J. 29 The vice of the use of the term "assaulted" in an imputation, in my view, is that it is capable of having different meanings. Ms Chrysanthou submitted that, if there is any issue as to what meaning is relied upon by the plaintiffs, it has been defined within the imputation itself. She submitted that the plaintiff is required to capture the defamatory sting of the matter complained of and that the sting complained of in this imputation is that there was an assault in that form (namely, by threatening the journalist with a tray of red hot ashes). The difficulty is that the additional words used to convey the specific sense in which the word is used in this case disclose that it is used in its technical legal meaning, rather than the ordinary meaning of a physical attack. For that reason, I think the inclusion of the term "assaulted" (as a natural meaning rather than a true innuendo) is embarrassing and an imputation should not go to the jury in that form. I would grant leave to the plaintiffs to amend that imputation so as to omit that term.

The third matter complained of 30 The remaining objections relate to the third matter complained of, which is alleged to have been broadcast on the Today Tonight program on Boxing Day in 2008. The program was introduced by the presenter in the following terms: "Now to the who's who of conmen and rip-off merchants who have deliberately set out to deceive and take advantage of innocent consumers. They've all been caught doing the wrong thing and many are still in business. Tonight, the advice from authorities around the country - avoid these people at all costs." 31 What followed was a collection of stories, presumably drawn from other Today Tonight programs broadcast throughout the year. The first was a story about an orthodontist touching female patients and making sexual comments and inappropriate advances to them. The second was a condensed version of the story about the plaintiffs. There were nine further stories. They may not have presented a complete catalogue of human villainy, but that appears to have been the broad theme. 32 Imputation 11(c) is: "That [Mr Mitchell] is such a despicable person that authorities around the country advise that he should be avoided at all costs." 33 Li Hua Qian relies on an identical imputation (paragraph 11(h)). 34 The defendants make two complaints in respect of an imputation in those terms. First, it was submitted that the program does not convey the notion that Mr Mitchell is "despicable", but that he has "been caught doing the wrong thing". It was submitted that it was the bad conduct, and not the despicable character of the plaintiff, which was said to be the basis of the advice from authorities. That is one interpretation of the program, but not, in my view, the only reasonable interpretation of it. In my view, a jury could properly conclude that the program, viewed as a whole, would convey to the ordinary reasonable reader the meaning that each of the plaintiffs is a despicable person. 35 The defendant's second complaint focuses on the inclusion of the phrase "authorities around the country". The defendants submitted, in my view correctly, that the ordinary reasonable viewer could only understand that notion to be distributive, with some authorities so advising in relation to some of the persons featured in the broadcast but no person featured being the subject of advice from all of the relevant authorities. I do not think the program is reasonably capable of conveying the meaning that, of all the people depicted in the footage collected, the plaintiffs in these proceedings had been singled out for attention from authorities around the country. For that reason, I am satisfied that imputations 11(c) and 11(h) should not go to the jury in their present form but the problem can easily be cured. 36 The next imputation objected to by the defendants is 11(e): "That [Mr Mitchell] has conducted himself in such a manner as to be classed amongst murderous war criminals, vexatious litigants, conmen and an orthodontist that sexually harassed patients." 37 Li Hua Qian relies on an identical meaning in imputation 11(j). The vice of that imputation is that it is, as submitted by Mr Smark, rhetorical. The imputation is couched in terms calculated to persuade the jury that the broadcast said something really bad about the plaintiffs, without identifying what. It fails to identify the sting of the charge. Further, I accept, as submitted by Mr Smark, that the ordinary reasonable viewer would not understand the broadcast to allege a specific link between the misdeeds charged against other people featured in the program and the plaintiffs. The most obvious common attribute of the people depicted in the footage collected is that each of them has been confronted for an unscheduled interview by a Channel Seven journalist with camera crew in tow. 38 In my view, the imputation is embarrassing because it is impossible to understand what it means. An imputation in that form should not go to the jury. 39 The next imputation to be considered is 11(i), which is: "That [Li Hua Qian] engages in dishonest business practices in that she promises to cremate pets and instead deliberately dumps those dead pets in bushland." 40 The defendants submitted that there is no link in the program between the second plaintiff and any "business practices or promises". I think that complaint takes an unduly literal approach. I accept that the segment of the story included in the third matter complained of is an edited version of the first matter complained of and that there are fewer scenes depicting the second plaintiff. On that basis, the link between her and the dishonest business practices portrayed is weaker than in respect of Mr Mitchell. In my view, however, the strength of the link is a question for the jury. Inferentially, there is in my view enough in the edited segment to suggest participation by the second plaintiff in the conduct with which the first plaintiff is clearly confronted. 41 The final imputation challenged by the defendants is 11(k), which is: "That the third plaintiff [the company] is a shonky business in that it has deliberately set out to deceive and take advantage of consumers." 42 Mr Smark submitted that this imputation is bad in form for imprecision because of its use of the slang term "shonky", which is not used in the broadcast itself. Ms Chrysanthou submitted that "shonky" has become an ordinary English word. Whether the term "shonky" is slang or has become an ordinary English word, the critical question is whether the plaintiffs have identified the particular interpretation of that adjective for which they contend: Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 at [5] per Hunt AJA. In that case, the jury found that the matter complained of conveyed an imputation that "the plaintiff was a shonky operator" and found further that the imputation was true. The form of the imputation was accordingly not in issue in the Court of Appeal, but Hunt AJA in any event took the opportunity to make the following remarks: "5. The plaintiff pleaded a number of imputations, of which only two remain relevant: 1.The plaintiff was a shonky operator. 2.The plaintiff could not be relied upon to pay his employees money due to them. He did not identify in the first of those imputations the particular interpretation of the adjective "shonky" for which he contended, as he should have: Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [118]-[132]). It could hardly be suggested that the word had or has any longstanding settled meaning. The noun "shonk" was originally understood as an offensive racial slur but, by the late 19th Century, the adjective "shonky" came to be interpreted as mean or money-grubbing: A Dictionary of Slang and Unconventional English , Eric Partridge (5th Edn, 1961), which is said to have related to words and expressions in use before the first World War: The Penguin Dictionary of Historical Slang, Partridge (1972), "Note on this Edition". In the seventh edition of Partridge's Dictionary of Slang and Unconventional English (1970), the definition of the adjective "shonky" remained constant. A Concise Dictionary of Slang and Unconventional English (1988), based on the eighth edition of Partridge's Dictionary (1984), defined the adjective "shonky" as a nickname for a stingy or miserly person. 6. Over the years the meaning has widened. The first edition of the Macquarie Dictionary (1981) defined the adjective "shonky" as something or someone of dubious integrity or honesty. The Dictionary of Australian Colloquialisms , Wilkes (2nd Edn, 1985), defined the adjective "shonky" as deceptive, unreliable, unsound; it gave as illustrations its use in Australian newspapers in 1978 describing the activities of the disgraced former US President, Richard ("Tricky Dicky") Nixon, and in 1981 in relation to dealers in real estate. The Australian National Dictionary , published by the Oxford University Press in 1988, defined the adjective "shonky" as unreliable, unsound, dishonest or out of sorts. The Macquarie Dictionary of New Words (1990) defined the noun "shonk" as a dishonest person. The Dinkum Dictionary , Johansen (Revised Edn, 1991), defined the adjective "shonky" as underhand, illegal, illicit, crooked. The current (2005) edition of the Macquarie Dictionary defines the noun "shonk" as a person of dubious integrity or honesty, a dishonest person. 7. It is safe, therefore, to assume that the allegation made by Mr McDonald against the plaintiff could well have been understood in 1990 as one of dishonesty. The plaintiff himself said in cross-examination that it meant that he was a dishonest person or a liar. Counsel for the defendant told the jury in his final address "Shonky means he's dishonest", without any objection. This is clearly how the trial had proceeded." 43 The judgment does not record whether or not the word "shonky" was used in the matter complained of. In any event, I think what emerges from his Honour's remarks is that the use of the term "shonky" is not in itself objectionable, provided that the imputation identifies the interpretation contended for and that is one of the meanings of the term. 44 I have some doubt as to whether the imputation has been refined as well as it could be, having regard to those principles, but I think the meaning contended for is tolerably clear and on that basis I do not think the third plaintiff should be prevented from relying on such an imputation if it wishes to do so. 45 I will hear the parties as to costs. 46 The order I propose is that the plaintiffs have leave to file an amended statement of claim in accordance with these reasons within 14 days. **********

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