Community Radio Federation Ltd v Goja [1999] VSCA 72 - VSCA 1999 case summary — Zoe

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Community Radio Federation Ltd v Goja [1999] VSCA 72

[1999] VSCA 72

Court of Appeal (Vic)|1999-05-19|Before: TADGELL, ORMISTON and CHARLES, JJ.A.

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At a glance

Source facts

Court

Court of Appeal (Vic)

Decision date

1999-05-19

Before

TADGELL, ORMISTON and CHARLES, JJ.A.

Source

Original judgment source is linked above.

Judgment (40 paragraphs)

[1]

[1999] VSCA 72

[2]

DEFAMATION - Radio broadcast - Qualified privilege not made out - Whether defamatory imputations of and concerning plaintiffs - Compensatory damages awarded not excessive - Award of exemplary damages not appropriate.

[3]

The appellant complains of a judgment given against it in the County Court on 12 September 1997 awarding damages to the respondents for defamation. The appellant, a company limited by guarantee, operates from Fitzroy a so-called community radio station known as 3CR, the transmitter being at Collingwood. The allegedly defamatory material was broadcast by the appellant orally shortly before 6 a.m. on Saturday, 24 June 1995 in the course of a Croatian language programme called Radio Vukovar. The relevant segment of the programme took substantially the form of an interview of three men - Juric, Zgela and Stimac - by one Lasic, who was described as the presenter of the programme. There was evidence that two of these were Croatian born and it is perhaps permissible to infer that the other two were also of Croatian birth or were of Croatian descent. It was not in contest that the appellant was vicariously responsible for Lasic's conduct during the interview. He was not sued by the respondents but the three men whom he interviewed were defendants to the respondents' action, together with the appellant. Although the individual defendants also suffered judgment along with the appellant, they are not parties to this appeal.

[35]

As regards the defence of qualified privilege, it was contended by the appellant that the judge's reasons do not make clear the basis on which he rejected the defence. The appellant's preferred submission as I - not without some difficulty - understood it, was that his Honour had concluded that the broadcast did occur on an occasion of qualified privilege but that the appellant should not have the benefit of privilege because the broadcast was actuated by malice on the part of the appellant. It was submitted alternatively that, if the judge did not conclude that the broadcast took place on an occasion of qualified privilege, he should have done so, and that no malice was proved, and that in finding malice to the extent that he did, the judge had wrongly cast an onus on the appellant to disprove it. I acknowledge, with respect, that the learned judge's reasons are not perspicuously clear in demonstrating the basis on which he rejected the defence of qualified privilege; but reject it he undoubtedly did. There was much debate upon the appeal which amounted to an attempt on either side to interpret what his Honour said, or intended to convey, in his remarks on the subject. I do not find it necessary to make a choice between the various suggested nuances which the judge's remarks might be capable of bearing. I have no doubt at all that the defence of qualified privilege should have failed. If the appellant could show that it had a duty in the relevant sense to bring to the attention of sections of the public information of a certain kind, it could not show that there was a duty to convey information of a kind that was conveyed in this case. The relevant information was palpably false. It was, as it happens, admitted by both Zgela and Stimac in cross-examination that they did not believe that the Parish's property was to get into private hands. That evidence, in the case of Stimac, may be unfavourably contrasted with some of the remarks made by him in the course of the broadcast to which I have referred. It may be that Lasic was misled to some extent by the individual defendants but, remarkably, he was not called on behalf of the appellant to give evidence to say so, or give evidence on any other topic. He was not called at all. Neither he nor anyone else on behalf of the appellant gave any reason or justification of any kind for the making of the broadcast or its nature or its tone. There was, it is true, one witness called for the appellant, Miss Macarthur, who was the station manager. Her evidence, however, was of a general kind and said virtually nothing about the broadcast in question save that it took place at a certain time and that Lasic was the compere or presenter of the programme. A reading of the few pages of which the company's memorandum of association consisted, and with which Lasic was provided before the broadcast, would have revealed without any possible doubt that the purported complaints made by the individual defendants in the course of the broadcast about private ownership of Parish property were complete nonsense. Moreover, the provocative questions and references by Lasic to the use that might be made of the proposed liquor licence were, in my opinion, fatuous in the extreme. They show the broadcast, and its nature and intent, in a very poor light - a grubby piece of journalism designed to promote what Lasic himself described as a "hot topic". It does not seem to me to matter whether one refers to the nature and tone of the broadcast as demonstrating that it should be deprived of the protection of what might be an occasion of qualified privilege or an occasion that was not capable of being one of qualified privilege at all. We were referred to various authorities upon the nature of the defence of qualified privilege, but I content myself with what I have said to indicate that the defence rightly failed.

[36]

The second broad question that was debated before us was whether the judge erred in concluding, as he did, that the broadcast contained material concerning the respondents which was defamatory of them. The argument was, in essence, that the broadcast made no unfavourable imputation on the character or actions of the respondents or either of them. It was submitted that the judge failed to address what was a critical question, namely whether the naming of the directors in the broadcast, and in particular the respondents, indicated that the respondents did all that was pleaded by way of imputations against their character. We were referred to the early decision of the High Court in The Hall Gibbs Mercantile Agency Limited v. Dun [1910] HCA 66; (1910) 12 C.L.R. 84, especially at 91-92 in the judgment of Sir Samuel Griffith and at 102 in the judgment of Mr Justice O'Connor; and, amongst other authorities, to the decision of Mr Justice Begg in the Supreme Court of New South Wales in Dawson Bloodstock Agency Pty Ltd v. Mirror Newspapers Limited [1979] 1 N.S.W.L.R. 16 at 18. The principle exemplified in those decisions is clear enough. The appellant sought to apply it here by attempting again a painstakingly refined interpretation of the passage of the judge's reasons that I have already set out. Thus, an attempt was made to show by reference to the four meanings which the judge thought it clear that the remarks in the broadcast bore could not justify imputations of a kind pleaded by the respondents. It was submitted that in no case could the meanings affect the respondents by indicating that they did, or that they were affected in their character, by any of the things referred to. Thus, the submission was that it was not shown that the company had been formed (to use the judge's statement in the passive voice) by the respondents or either of them, nor was it shown that money was to fill the pockets (to use the judge's expression again) of the respondents or either of them, nor was it shown that complaints by the individual defendants were (again to use the judge's expression) "wiped off" by the respondents, nor could it be shown that what was being done to the extent that it was being done by "stealth" (to use again the judge's word) was the stealth of the respondents. I must say that I consider the attempt to construe the judge's four findings in that way rather misses the point: it overlooks the wood in favour of the trees. The County Court judge's reasons are to be treated as no more than that, reasons of a County Court judge given at the end of a trial and reserved only, I think, overnight. It is quite unproductive to seek to construe reasons of that kind as one would construe a will, a statute or, if I may respectfully say so, as one is sometimes asked to do in construing reasons of a superior court of authority. The judge was not purporting to express, as I understand him, giving what I consider a fair reading to his reasons, any point of principle. He was expressing findings of fact having heard the evidence. It seems to me that the burden of what his Honour was saying was that he was satisfied that the appellant had alleged against the respondents that they stood to receive the benefit of, or that they were party to, or that they caused the setting up of the company, in a concealed way to benefit themselves, among other directors. Looked at in that way, I am quite satisfied that the judge's remarks justified his finding that the comments in the broadcast were defamatory, and defamatory of the respondents as pleaded. I think the second point argued, as I have dealt with it, must fail.