Born Brands Pty Limited & Ors v Nine Network Australia Pty Ltd & Ors

Supreme Court of NSW|2011-06-16|Before: McCallum J

Judgment 1This is an action for defamation and injurious falsehood arising out of the broadcast of a report on Channel Nine television. The proceedings came before me in the Defamation List for determination of the defendants' objections to a number of the imputations sought to be relied upon by the plaintiffs and an application by the defendants for an order requiring the plaintiffs to provide further and better particulars of malice in respect of the claim in injurious falsehood.

Background 2The report concerned baby products described as "sleeping aids". The products in question may be described as specialised sleeping mats with foam sides for placement in a cot or bassinet, presumably designed to prevent a baby from rolling onto the side or front whilst asleep. It is widely accepted in the medical profession that the best sleeping position for a baby (from the point of view of reducing the risk of sudden infant death syndrome or "cot death") is for the baby to be placed on its back. 3The defendants' television report was introduced by the presenter, Ms Gardener (the third defendant) in the following terms: A baby product said to reduce the threat of Sudden Infant Death Syndrome is being withdrawn from sale in the United States and Britain but is still available here in Australia. It's feared the sleeping aid may be doing more harm than good. 4The corporate plaintiff is the distributor in Australia of a baby product called "Baby Wedge". Its product is distinctive in shape and because it is bright orange in colour. There can be no doubt that the report on Channel Nine assumed some similarity between the plaintiff's product, "Baby Wedge" and the product reported to have been withdrawn from sale in the United States and Britain. Following the introduction of the story by Ms Gardener, there is video footage of a woman carrying a baby into a bedroom and placing it on a "Baby Wedge" with the following voice-over: This is the type of product that's being used in Australia and raising alarm bells overseas. It's supposed to promote safe sleeping but in the US, it's been linked to twelve deaths since 1997. 5Following shopping-mall interviews with duly concerned Australian parents, the report returns to footage of the journalist (the second defendant), who says: The sleep aid is commonly used for babies under six months to stop them rolling onto their stomach but US Government agencies say the product can cause a child to suffocate. Australia's consumer watchdog, the ACCC, say it's not aware of any deaths from these devices locally, but discussions are underway with US authorities before any action is considered here. While the products are being pulled from shelves overseas, major Australian retailers say they haven't received any complaints. 6During those remarks, a variety of products is shown, including the plaintiff's product.

Capacity 7The defendants object to the following imputations pleaded by the plaintiffs on the ground that they are incapable of being conveyed by the broadcast: (a) The first plaintiff sold and offered for sale a baby product, known as "Baby Wedge", which had been subject to recall; (c) The first plaintiff sold and offered for sale a baby product, known as "Baby Wedge", which is supposed to promote safe sleeping but has been linked to twelve deaths in the United States. 8Similar imputations are pleaded in respect of the individual plaintiffs. The parties accepted that those imputations should abide my rulings as to imputations (a) and (c). 9It was submitted on behalf of the defendants that the article makes it clear that the products depicted (including the plaintiff's product) are not the actual product withdrawn from sale in the United States and Britain, but only products of the same kind. 10An imputation should not be struck out unless the allegation that it is conveyed by the matter complained of is manifestly groundless. In the present context, the determination of that issue requires consideration as to what reasonable persons could understand the programme to mean, bearing in mind that the ordinary reasonable viewer does not undertake the kind of close and punctilious analysis of the words used in a broadcast that might be undertaken by a lawyer with the benefit of a transcript. 11It is also necessary in that context to take into account the form of the publication. It is well recognised that audio-visual publications, being transitory and not susceptible to the leisurely analysis that is possible in the case of a printed article, are prone to convey meanings as a matter of impression. 12In the present case, it may be accepted upon careful analysis of the transcript of the matter complained of that the words used drew some distinction between the product withdrawn from sale overseas and the plaintiff's product depicted during the story. In my view, however, it cannot be concluded that the viewer could only understand the broadcast in that way. I am satisfied that a jury could reasonably understand the programme to identify the plaintiff's product as the product that had been withdrawn from sale overseas after being linked to twelve deaths. 13In reaching that conclusion, I have had regard to the words used in the introduction to the report, which refer to a baby product that is being withdrawn from sale in the United States and Britain but is still available here in Australia (my emphasis). There is other language in the report that is equally consistent with the understanding that the report is concerned with a single product. That is to be contrasted, of course, with the words "this is the type of product " spoken when the Baby Wedge is first shown, but ultimately I think the jury could properly understand the report to be referring to the Baby Wedge as a product that has been withdrawn overseas but not here. 14Accordingly, I am satisfied that imputations (a) and (c) and the equivalent imputations relating to the second and third plaintiffs should be permitted to go to the jury.

Claim in injurious falsehood: particulars of malice 15Malice on the part of the defendant is an element of the tort of injurious falsehood. The defendants complain that the particulars of malice given by the plaintiffs in the present case are inadequate. Separately, the defendants complain of the plaintiffs' refusal to identify the discrete allegations made as to the malice of each individual defendant. In correspondence between the parties, the plaintiffs have refused to respond to requests by the defendants for further and better particulars. 16Two threshold issues were raised in argument. The first was whether the criteria for malice in injurious falsehood are the same as at common law for defamation. My attention was drawn in argument to the decision in Beechwood Homes (NSW) Pty Ltd v Camenzuli [2010] NSWSC 521. In that case, Harrison J stated (at [38]) that there is no difference between malice in injurious falsehood and defamation, citing Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388 at [61] per Gummow J. 17With great respect to Harrison J, I do not understand the remarks of Gummow J there cited to be authority for that proposition. That said, I see no reason in principle why the notion of "malice" should have a different meaning in the two different legal contexts. I think there is, however, some difference in the purpose or nature of the inquiry in each case. 18In the context of the law of defamation, malice is a matter that may be relied upon by the plaintiff in defeasance of a defence of qualified privilege. The protection of qualified privilege at common law arises on an occasion where one person has a duty or interest to make the statement and the recipient of the statement has a corresponding duty or interest to receive it: Adam v Ward [1917] AC 309 at 334 per Lord Atkinson. However, the protection is lost if the occasion is used for a purpose or motive foreign to the duty or interest in question. 19An analysis of the joint judgment of Gaudron, McHugh and Gummow JJ in Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 at [75] and following reveals that malice is to be understood as a state of mind that exists in the defendant (such as ill will, bias, prejudice or spite). However, the existence of any such state of mind will not in itself defeat the protection of an occasion of qualified privilege. The plaintiff must prove, in addition, that the malicious state of mind proved to have existed in fact actuated the making of the defamatory statement. The fact of a statement having been made with a malicious purpose or motive (being an improper purpose or motive) will defeat the protection that would otherwise arise from the existence of a relevant duty or interest to make the statement. 20The distinction drawn in the joint judgment in Roberts v Bass between improper motive and matters which are themselves evidence of a malicious state of mind (such as ill will, bias, prejudice or spite) prompted Hunt AJA in Gross v Weston [2007] NSWCA 1; (2007) 69 NSWLR 279 at [16] to suggest that, rather than asserting that the defendant was "actuated by malice" (a pleading practice expressly endorsed in the rules of court), a preferable plea in response to a defence of qualified privilege at common law would be to assert that the publication of the matter complained of was actuated by an improper motive (that is, a motive foreign to the duty or interest giving rise to the privileged occasion). 21There is no basis in reason or authority for lending a different understanding to the notion of "malice" in the context of the tort of injurious falsehood. It is to be understood, in each context, as an evil or harmful state of mind. 22However, it must be borne in mind that in either case the existence of such a state of mind will not be enough - it must also be shown that it was the malicious state of mind that actuated the making of the relevant statement. As I would perceive it, that is the point at which there may be a difference between the two torts, not so much in the criteria to be applied but in the application of those criteria. The recent emphasis on impropriety of motive in the jurisprudence relating to common law qualified privilege highlights the difference. 23In the case of the defence of qualified privilege in a defamation case, the propriety of the defendant's purpose in publishing the matter complained of is measured specifically and only by reference to the relevance of that purpose to the privileged occasion. In Australand Holdings Ltd v Transparency and Accountability Council Incorporated [2008] NSWSC 669 (at [156]), I said (perhaps unhelpfully) that the measure of impropriety of purpose in the context of the tort of injurious falsehood is more elusive. On further reflection, there may be some doubt as to what role propriety of purpose plays in the context of injurious falsehood, and perhaps it raises a false issue. The task in that context is to determine whether the relevant false statement was made with malice, that is, with an evil or harmful state of mind towards the plaintiff. 24The second threshold issue raised in argument in the present case is whether the plaintiff is required to specify what he alleges the defendants' motive or purpose was, or whether it is sufficient merely to allege impropriety of purpose. Mr Rasmussen, who appeared for the defendants, submitted that it is not necessary for the plaintiffs to specify a particular improper purpose, citing the decision of James J in Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210 at [77]. That case was decided before Gross v Weston , which I think stands as authority for the proposition (at least in the field of defamation) that, except where the plaintiff alleges that the defendant knew what he published was false (in which instance there can be no proper motive unless the defendant was under a legal duty to publish the matter complained of), the plaintiff is obliged to identify the improper motive on which he or she relies: per Hunt AJA at [55]; Handley and McColl JJA agreeing at [1] and [2] respectively. 25For the reasons I have endeavoured to explain, I doubt whether impropriety of purpose has the same relevance in respect of the tort of injurious falsehood. It is enough, in my view, for a plaintiff in a case of injurious falsehood to contend that the relevant statement was false and that it was published with malice. Accordingly, I do not think that the plaintiff is required to identify any specific improper purpose with which it is alleged the matter was published.

Adequacy of the particulars provided 26Against that rather lengthy introduction, the determination of the present application is ultimately not difficult. 27The particulars of malice relied upon by the plaintiff are, relevantly, as follows: (a) gross recklessness or reckless indifference to the truth and falsity of the statements made in the interview...by reason of [the defendants], their servants and agents displaying images of the baby product Baby Wedge without any information that the Baby Wedge product was likely to be dangerous or unsafe to babies; (b) no proper, adequate or any enquiries as to whether Baby Wedge had been linked to any baby deaths or had been found to have been unsafe or dangerous to babies; (c) [the defendants] and each of them knew or should have known that by referring to Baby Wedge on the interview as telecast persons would stop buying and using Baby Wedge and thereby causing economic and financial loss to [the plaintiffs] as well as injury to reputation; (d) failure to contact [the plaintiffs] or any of them prior to publication and prior to the interview going to air in order to ascertain whether Baby Wedge was subject to a product recall and was associated with baby deaths or was otherwise considered dangerous or unsafe for babies; (e) [the defendants] by themselves, their servants and agents must have known...the statements made during the interview were false because they purchased or otherwise obtained the baby product "Baby Wedge" in Australia where it was on sale yet they used Baby Wedge as the prop to be shown to viewers. [The defendants] must have realised that Baby Wedge was not linked to the statements. 28In my view, particular (e) is liable to be struck out because it is argumentative and illogical. It asserts that the defendants must have known that the imputations were false because they had evidently obtained the baby product "Baby Wedge" in Australia where it was on sale. Presumably, the point sought to be made is that the defendants must have known that "Baby Wedge" had not been recalled from sale (since they were able to acquire it). However, the very point of the broadcast was that products of that kind, although withdrawn from sale overseas, were still available in Australia. Particular (e) is accordingly nonsensical and does not sustain the contention that the defendant's "must have known" that their statements were false. 29Leaving aside particular (e), none of the particulars allege knowledge of falsity. The particulars amount to allegations of recklessness (or reckless indifference to the truth or falsity of the statements made) and lack of inquiry. 30In Gross v Weston at [52], in the context of the law of qualified privilege, Hunt AJA summarised the relevant principles as follows: (1) Except where the defendant was under a legal duty to publish the matter complained of, the defendant's knowledge that it was false is ordinarily conclusive evidence that the publication was actuated by an improper motive. (2) Recklessness in the publication of the matter complained of does not establish knowledge of its falsity unless it amounts to wilful blindness on the part of the defendant which the law equates with knowledge. (3) Recklessness - when present with other evidence - may nevertheless be relevant to whether the defendant had an improper motive which actuated the publications. (4) If a plaintiff's case rises no higher than evidence that the defendant did not have a positive belief in the truth of what he published, there is no evidence that its publication was actuated by an improper motive. (5) The absence of a positive belief in the truth of what was published may nevertheless be relevant - with other evidence - to whether the defendant's improper motive actuated the publication, but it will not establish that fact by itself. (6) Where the plaintiff relies on the defendant's knowledge of the falsity of the matter complained of to establish an improper motive, it is unnecessary to identify that improper motive, as there can be no proper motive in those circumstances unless the defendant has a duty to publish the matter complained of. 31Mr Rasmussen submitted that, for the purpose of the tort of injurious falsehood, reckless indifference to the truth or falsity of the statements made will suffice to establish malice. There is some support for that view in a decision to which I was referred in argument of AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [33] to [36] per Brereton J. 32His Honour does not appear to have been taken to the decision of the Court of Appeal in Gross v Weston , which appears to suggest that, at least in the context of the law of defamation, reckless indifference to the truth or falsity of the statements made will not (on its own) establish that the defendant had an improper motive which actuated the publications. 33In any event, there may not necessarily be any inconsistency between the two decisions. As submitted by Mr Dawson on behalf of the defendants, Brereton J may be understood as having done no more than to dismiss the bare proposition that reckless indifference to the truth of what is published can never be enough to support an inference of improper motive (or malice). However, it does not follow that it is enough for a plaintiff to state a bare conclusion that recklessness was the relevant state of mind. As explained by Levine J in Harrigan v Jones [2000] NSWSC 814, the defendant is entitled to know the facts, matters and circumstances upon which the plaintiff relies in support of that conclusion (at [29]). A bare assertion of "gross recklessness or reckless indifference" (to the truth or falsity of the statements made) tells the defendants nothing as to the case they have to meet.

A doctrine of transferred malice? 34The defendants' second complaint is that the plaintiffs have refused to differentiate as between the malice of each defendant. The plaintiffs contend that there is no need to do so because the defendants are joint tortfeasors and, accordingly, the malice of any one defendant infects the others. 35In Bass v TCN Channel Nine Pty Ltd [2003] NSWCA 118; (2003) 60 NSWLR 251, Handley JA said (at [77]) that there is no doctrine of transferred malice in the law of defamation apart from the ordinary principles of vicarious liability, citing Dougherty v Chandler (1946) 46 SR (NSW) 370 and Egger v Viscount Chelmsford [1965] 1 QB 248 (CA). 36The parties reminded me that I applied that principle in Ray Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982 at [27] to [28]. Mr Rasmussen submitted that my decision in Chesterton is wrong in that respect (acknowledging that I am in good company in that Handley JA, so it was submitted, was also wrong in Bass ). Mr Rasmussen submitted that the decision of the High Court in Webb v Block (1928) 41 CLR 331 is authority for a contrary proposition and has never been overruled. Having appeared as junior counsel in Bass, Mr Rasmussen assured me that the Court in that case was not taken to Webb v Block . 37Whether or not I was wrong in Chesterton to apply the statement of Handley JA in Bass as to whether there is a doctrine of transferred malice in the law of defamation is a question for another day. It seems to me that, in the context of the tort of injurious falsehood, where malice is an element of the tort (rather than a matter in defeasance of a defence), different considerations apply. It makes no sense in that context to refer to the defendants as "joint tortfeasors". None of the defendants is a tortfeasor unless the elements of the tort can be established against him or her. It would seem to follow that the plaintiff in an action for injurious falsehood must prove malice on the part of each individual defendant. 38Even if I am wrong in that analysis, I see no vice in requiring the plaintiffs to provide separate particulars as to each defendant (in case I am right). 39For those reasons, I give the following ruling and make the following order: (1) Each of the imputations relied upon by the plaintiffs may go to the jury. (2) I direct that the plaintiffs provide further and better particulars of malice in accordance with these reasons within fourteen days.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2011

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