• Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, applied.
• Slim v Daily Telegraph Ltd [1968] 2 QB 157;
• Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65;
• Berkoff v Burchill [1996] EWCA Civ 564; [1996] 4 All ER 1008, not followed.
• Stubbs Limited v Russell [1913] AC 386;
• Dawes v News Ltd [1935] SAStRp 56; (1935) SASR 312;
• Murphy & Ors v Plasterers Society & Ors [1949] SAStRp 4; (1949) SASR 98;
• Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293;
• Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664, discussed.
• Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348;
• E Hutton & Co v Jones [1910] AC 20;
• Farquhar v Bottom [1980] 2 NSWLR 380;
• Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632;
• World Host Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712;
• Grand Theatre etc v Outram & Co [1909] Sess Cas 1018;
• Aspro Travel Ltd & Ors v Owners Abroad Group PLC & Ors [1996] 1 WLR 132;
• Jones v Skelton [1963] 1 WLR 1362;
• Donoghue v Hayes (1831) Hayes Exch (Ir) 265;
• Glass v Perl [1928] TPD 264;
• Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1, 57 ALR 4th 520;
• Gatley on Libel and Slander, Ninth Edn par 3.31;
• Wild v John Fairfax Publications Pty Ltd (Levine J, 8 August 1997, unreported);
• McGuiness v J T Publishing Australia Pty Limited (Levine J, 21 May 1999, unreported);
• Darbyshir v Daily Examiner Pty Ltd (Levine J, 29 August 1997, unreported);
• Anderson v Mirror Newspapers Ltd (1986) 6 NSWLR 99, considered.

Counsel: MR C KOURAKIS QC - Solicitors: DUNCAN BASHEER HANNON

Counsel: MR A HARRIS QC WITH MR S LUMSDEN - Solicitors: THOMSON PLAYFORD

Judgment No. [2001] SASC 60

ENTIENNE PTY LTD and COSENZA v FESTIVAL CITY BROADCASTERS PTY LTD

[2001] SASC 60

1 This is an appeal by a plaintiff at first instance against the dismissal, by an Acting District Court Judge, of his claim against the respondent for damages for alleged defamation.

2 The claim was based upon words spoken by a fictitious character "Keefy" on 25 November 1998, during the radio broadcast of the 5AA breakfast session. The respondent is the owner and operator of radio station 5AA.

3 The learned trial judge found that certain words complained of had in fact been broadcast. However, he concluded that, having regard to the manner and context in which they were spoken, "a reasonable listener, with no knowledge of the type of program before and hearing it in full on this occasion and with a knowledge of Flash Gelataria of Hindley Street, would be fully aware that the whole program [was] intended to be and was a comic program of complete nonsense".

4 Whilst he accepted that the relevant published words led reasonable people, who knew the appellant, to the conclusion that they did refer to him, nevertheless the learned trial judge considered that, having regard to their language and context, they could not be regarded in law as capable of referring to the appellant. Thus both of the two tests postulated in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 371 ("Steele") had not been satisfied.

5 The relevant facts were not seriously in dispute.

6 The appellant Dominic Cosenza was, at the relevant time, the owner of a business known as "Flash Gelataria", which has been conducted in Hindley Street Adelaide since 1956. At one point it changed its location in that Street. It was well known for the quality of its coffee and its gelati. The appellant purchased the business in about 1992 and built up a good relationship with many quite regular customers. He was a person of good repute.

7 The evidence established that Cosenza was variously called "Mr Flash", "the Flashman", or other variations of that type of expression, by many of his customers and also by persons in other businesses close to him in Hindley Street. He would, on occasions, refer to himself as "Mr Flash/The Gelati Man". He is 53 years of age and was born and has always lived in Adelaide.

8 As at 25 November 1998, the 5AA breakfast program was conducted by a well known announcer Barry Ion, usually referred to as Bazz. It was run as a very lighthearted talk and music type show. The witness Odlum (who worked professionally under the name Jon Blake) had been incorporated into the breakfast show as a fictitious character known as "Keefy". Inter alia, he specialised in voice-over work and acting. He had developed a facility for impersonating real people, or creating fantasy personalities.

9 Essentially Odlum's role was as "Keefy the Weather Man". The concept was that he would do a nonsensical parody of Keith Martyn's weather segment which is broadcast on another station, although that fact may well not have been known to various listeners, as the evidence disclosed. Whilst the weather information provided would be correct, the presentation of it would normally be accompanied by some other, completely silly and fictitious skit, situation or discussion of a humorous type.

10 Odlum testified that he normally developed the skit on the day prior to its actual presentation. He did so in relation to what occurred on 25 November 1998. He told the learned trial judge that he decided that, as it was getting close to Christmas, he would pretend to send "Keefy" out on the street to interview people and ask them if they were doing their Christmas shopping. The concept was to be that the people "interviewed" would totally misunderstand the question asked and the whole situation would become what he described as a "shemozzle".

11 It was decided to base the skit in Hindley Street, because Odlum wanted to create a situation in which the mythical persons interviewed appeared to think that Keefy was asking about their purchase of supplies of drugs. He correctly considered that Hindley Street then had a general reputation for crime and drugs.

12 Odlum was adamant that, as at 25 November 1998, he did not know Cosenza, was not aware of the existence of the business known as "Flash Gelataria" and, in developing his skit, did not intend to refer to either.

13 He said that he conceived a mental image of referring to a "flash man" as a drug pedlar. This was to be, as he put it, a totally generic expression intended to relate, in his mind, to a mythical large African American man wearing a wide brimmed pink hat, fur coat and gold chains. He thought that he might have derived his inspiration from an American rap singer called "Grand Master Flash".

14 I take the learned trial judge to have accepted the general thrust of the evidence given by Odlum in the above regard, although that is, by no means, an answer to the appellant's claim (E Hutton & Co v Jones [1910] AC 20).

15 Having developed the comedy situation for use on 25 November 1998, Odlum recorded it at the studio just prior to its broadcast at about 7.20 am.

16 A transcript of what went to air is as follows:-

Now, its time for the weather in a word, by George, here's Keefy.

Yes. Now for the official weather, the one you really wait for, good morning, Keefy.

Hello there. Well, today, mostly sunny and a top of twenty-nine degrees. Yours was longer (laugh).

That's about eighty-four degrees Fahrenheit for our international visitors. Now the rainfall mostly in Queensland over the last twenty-four hours, around twenty millimetres; that's just under an inch for our international visitors. Now, the surface chart showing a lot of arrows going in a clockwise direction, which is why people think water goes down the plug hole the same way and they then use that as a ploy to get children to wash their hands after going to the toilet, which is why we grew up thinking water goes down the plug hole in a clockwise or is it anti-clockwise.

Anyway, toilet, for our international visitors, the can, the john, the crapper, or the convenience.

Now, yesterday, I went down to Hindley Street to conduct a survey to find out how many people have, indeed, completed their Christmas shopping:

Just wondering if you've done any Christmas shopping?

No, no. I mean your Chris ..., oh, it doesn't matter. If you've done any Christmas shopping as yet?

Mate, just over in the lane and ask for the flash man and he'll fix you right up.

Nah, mate, I don't do Christmas shoppin'. Nice microphone. Hi, mum.

Don't touch that, a very expensive piece of equipment, you shouldn't ...

Wait a minute, give that back. Stop thief, stop thief. Somebody stop that man, he's got my microphone.

So there we are. Christmas shopping not high on the priority list in Hindley Street yesterday, and if anyone tries to sell you a Neumann (ph sp) MD/42AX microphone, please contact your nearest police station.

So there it is, George, mostly sunny today, twenty-nine degrees the expected high. And now it's back to the desk, or for our international visitors, so long, take a hike, good-bye, screw you and the horse you rode in on.

17 The evidence indicated that the skit would have been broadcast to about 40,000 listeners.

18 The appellant was unaware of the program and did not hear the relevant skit. However, he did, fairly rapidly, hear of it from some of his customers and became very upset.

19 Evidence was adduced to indicate that, at the relevant time, there had been considerable media publicity to suggest that illegal drug dealing did in fact occur in Hindley Street.

20 A variety of witnesses were called to establish the fact that either they heard some or all of the broadcast and took it as a suggestion that the appellant was involved in selling drugs at his premises; or that they heard other persons discussing the broadcast and placing that interpretation on it.

21 The appellant gave evidence that, following the broadcast, persons actually came to his premises asking for drugs. He also testified and led evidence that, subsequent to the broadcast, apparent members of the drug sub-culture took to congregating around his premises. However, this evidence appeared to relate to a time several months after the broadcast and was, to some extent, equivocal. It was, for example, potentially explicable by reference to drug selling activities known, by police, to be taking place in premises across from the Gelataria on Hindley Street. Therefore, it could not be of substantial significance for present purposes.

22 The learned trial judge recited that the only witness called for the appellant who heard the whole of the broadcast was his brother-in-law, who was a regular listener of 5AA and gave evidence "that he knew that it was not a real situation".

A. Basically the thing was something along the lines of an interview, and it's going down the lane and seeing the Flash Man. The funny part about it is that knowing the place, that there is a lane, there's a laneway right next to it, and when I heard it I thought 'Oh yeah, they must be talking about Don."

Q. When you heard the item and you identified them as talking about Don, did you understand the broadcaster as being tongue in cheek.

A. Yes, when I heard it I thought it would have been just one of those tongue-in-cheek sort of situation and passed it off that way, but I guess that was only because of the fact that I knew who the person, Don, being who he is, and being my brother-in-law, I would have known that he wasn't involved in anything, so that's how I - "

24 In response to questions asked by the learned trial judge, the brother-in-law said:-

"Q. Did you think that reference to that incident was real.

Q. Yes. Did you think he was talking about a real situation, although you couldn't believe it because you knew him.

A. I couldn't believe it because of the fact that I knew the character or the person that was being discussed at the time.

Q. But did you think they were making reference to Flash Gelateria [sic].

A. Whether they were making a reference to Flash Gelataria? Well, if you didn't know any better, well I guess you could draw that conclusion.

Q. What Mr Harris is asking you is, did you draw that conclusion.

25 After reviewing the evidence and the relevant authorities, the learned trial judge had this to say:-

"Having listened to the tape and regarding it as the whole of the publication and regarding the matter as a reasonable man as referred to in the above mentioned authorities I am satisfied that a reasonable listener, with no knowledge of the type of program before and hearing it in full on this occasion and with a knowledge of Flash Gelataria of Hindley Street, would be fully aware that the whole program intended to be and was a comic program of complete nonsense. The only part of the program which makes sense is the initial giving of the temperature."

26 In his statement of claim the appellant asserted that:-

"7.1 the business of Flash Gelateria [sic] was a long established business in the Hindley Street area and was associated in the minds of the general public or substantial portion of the general public with Hindley Street.

7.2 the second plaintiff was well known by a substantial sector of the public to have been the Manager of Flash Gelateria [sic] for a number of years.

7.3 the precinct of Hindley Street was known by the general public or a substantial sector of the general public to have been, for a number of years prior to 25 November 1998, the subject of adverse publicity arising from a down turn of business in the area, and from alleged occurrences of anti social and criminal behaviour including illicit drug use.

7.4 the business of the first plaintiff was often referred to as 'Flash'.

7.5 the second plaintiff was often referred to by customers and acquaintances by the names 'Flash', 'Mr Flash', 'Don Flash' and 'The Flash Man'.

8.1 the business of the first plaintiff was involved in the sale of illegal drugs;

8.2 the second plaintiff was involved in the sale of illegal drugs;

8.3 the Hindley Street precinct was understood by the public or a substantial sector of the public to be an area known for the sale and use of illegal drugs;

8.4 the phrase 'to score' is a slang or colloquial expression commonly used by young persons and/or persons involved in or familiar with the drug culture to connote the procuring or purchase of drugs from a dealer.

8.5 The phrase 'to be fixed up' is a slang or colloquial expression commonly used by young persons and/or persons involved in or familiar with the drug culture to connote the supply by a dealer to a user of a drug.

'I almost scored yesterday' and 'Mate, just over in the lane and ask for the flash man and he'll fix you right up'

were thereby understood by a substantial sector of the public to refer to the criminal activity of the purchase of illegal drugs from a drug dealer."

27 The ultimate conclusion of the learned trial judge was that:-

"... the words complained of in their context do not have the meaning ascribed to them by the plaintiff."

28 The grounds of appeal relied on by the appellant are:-

"1. That the learned trial Judge erred in law in finding that the words complained of were not defamatory.

2. That the learned trial Judge erred in finding that the ordinary and reasonable listener would have been fully aware that the whole programme intended to be and was a comic programme of complete nonsense.

3. That to the extent that the learned trial Judge found that actual financial loss was an element required to be proved by the appellant to establish a cause of action he was in error.

4. That to the extent that the learned trial Judge treated republication by persons other than the respondent of the relevant words used by the respondent as being irrelevant or of no consequence, he was in error."

5. That the learned trial Judge should have held that the ordinary and reasonable listener would have concluded that the appellant was identified and that it was alleged that the appellant used and was involved in selling illicit drugs and hence had been and was guilty of serious criminal offences."

29 On the hearing of the appeal argument was directed only as to grounds 1, 2 and 5. Accordingly, these reasons will be similarly restricted.

30 A convenient commencement point for a consideration of the issues arising on the appeal is the judgment of Hunt J in Farquhar v Bottom [1980] 2 NSWLR 380 ("Farquhar")

31 The real crux of the appellant's case was that the words used in the presentation conveyed to those listening to the breakfast session that the Hindley Street precinct was an area notorious for the sale and use of illegal drugs and that the appellant was probably involved in dealing in such drugs.

32 It was therefore necessary for the learned trial judge to determine whether the words complained of (considered in the whole of their context) were capable of conveying that imputation to the ordinary, reasonable listener and, if so, whether the ordinary, reasonable listener would, in fact, have taken in the skit as conveying such imputation. It has never been disputed that, if both of those questions are to be answered in the affirmative, then the appellant had clearly been defamed.

33 In Farquhar, Hunt J stressed the points that:-

(2) The standard to be applied is that of the mythical ordinary, reasonable person of average intelligence; and

(3) The ordinary, reasonable person is a layman who does not live in an ivory tower and considers the relevant material in the light of his or her general knowledge and experience of worldly affairs.

34 It was common ground that the learned trial judge was correct when, in the context of the instant case, he approached his assessment on the basis that he had to view the situation from the perspective of a mythical reasonable listener who had no prior knowledge of the type of 5AA breakfast program in question, who heard the impugned segment in full and who did have a knowledge of the existence of the Flash Gelataria in Hindley Street.

35 To that I would add that such person would also be taken to know of the existence of the lane adjacent to the Gelataria and the general, notorious reputation of Hindley Street as a venue for illegal activity, specifically in relation to the dealing in illegal drugs.

36 That person is also to be taken as having listened to the whole of the "Keefy" segment (Cf Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 at 646. See also World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 at 725.)

37 The decided authorities also render it plain that, where words complained of are reasonably capable of either an innocent or a defamatory meaning, it is a question of fact. The fact finder is to determine in which of the alternative meanings they are to be understood.

38 In this regard where, as here, there is no relevant issue as to credit and it is a question as to what conclusion is fairly indicated by the established facts, the principle enunciated in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551 is apposite. In the words of the High Court:-

"Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation."

39 On the hearing of the appeal some debate arose concerning the proper approach to be adopted, having regard to what fell from Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157 ("Slim") at 171-173, as approved by Lord Bridge in Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65 at 71-72. In Slim at 173, Lord Diplock said:-

"... Where, as in the present case, words are published to the millions of readers of a popular newspaper, the chances are that if the words are reasonably capable of being understood as bearing more than one meaning, some readers will have understood as bearing more than one meaning, some readers will have understood them as bearing one of those meanings and some will have understood them as bearing others of those meanings. But none of this matters. What does matter is what the adjudicator at the trial thinks is the one and only meaning that the readers as reasonable men should have collectively understood the words to bear. That is 'the natural and ordinary meaning' of words in an action for libel."

40 This was not a formulation which commended itself to the House of Lords in Stubbs Limited v Russell ("Stubbs") [1913] AC 386, which simply posed the test "Is the meaning sought to be attributed to the language alleged to be libellous one which is a reasonable, natural or necessary interpretation of its terms?" ie it need not be the only meaning, which is a natural and ordinary meaning.

41 The "Stubbs" test was applied by Napier J, as he then was, in Dawes v News Ltd [1935] SAStRp 56; (1935) SASR 312 at 317 and Abbott J in Murphy & Ors v Plasterers Society & Ors [1949] SAStRp 4; (1949) SASR 98 at 106. In the former case Napier J went on to comment that to insist upon an innocent interpretation where any reasonable person could, and many reasonable people would, understand a sinister meaning is to refuse reparation for a wrong that has in fact been committed. In that regard he adverted to Grand Theatre etc v Outram & Co [1909] Sess Cas 1018 at 1019.

42 With respect, it seems to me that the dictum of Lord Diplock is not in accord with the stream of authority which has been applied in this State and is not to be preferred to it.

43 I do not consider that such a conclusion is in conflict with what fell from Mason J in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301. He there made the point that it is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff, because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff.

44 His comments were, of course, made in the particular context then under consideration. The issue which arose was as to whether a newspaper article which merely reported the fact that a person had been arrested and charged with a criminal offence was capable of bearing the imputation that he was guilty, or probably guilty, of that offence.

45 Mason J, as he then was, preceded his dictum above paraphrased by saying:-

"In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices."

The learned judge was plainly focusing on the difference between the potential reaction of the mythical reasonable reader of the article, with the relevant characteristics, and the fact that some readers might well let their personal prejudices reign supreme.

46 This is not to detract from the general process of reasoning which I have above espoused, which, as it seems to me, is exemplified in the dictum of Schiemann LJ in Aspro Travel Ltd & Ors v Owners Abroad Group PLC & Ors [1996] 1 WLR 132 at 137, adopting as it does, the speech of Lord Morris in Jones v Skelton [1963] 1 WLR 1362 at 1370-1371.

47 Given the concepts emerging from the authorities, as above discussed, it becomes necessary to reflect specifically on the approach proper to be adopted to publications which are intended to be by way of jest.

48 In my opinion, the effect of the relevant authorities is accurately summarised in Gatley on Libel and Slander, Ninth Edn at par 3.31 in these terms:-

"... The fact that words are intended by way of jest does not of itself prevent them being actionable for it is not the intention of the publisher that matters but the interpretation that would be put upon the words by the reasonable listener (and the same clearly applies to written words and other forms of publication such as cartoons). If he would understand them as made in jest they are not actionable, but 'if a man in jest conveys a serious imputation, he jests at his peril'. So where the defendant said, as a joke, that the plaintiff had been detected taking dead bodies out of a churchyard and fined, and the judge directed the jury that if they believed the words to have been spoken jocularly they should find for the defendant, a verdict for the defendant was set aside, for there was no evidence that the persons who heard the words understood them in a jocular sense, and the jury might have inferred from the judge's direction that they had to decide the meaning in which the defendant intended the words to be understood, and not the meaning in which the words would in fact be understood by those who heard them. 'The principle is clear, that a person shall not be allowed to murder another's reputation in jest. But if words be so spoken that it is obvious to every bystander that only a jest is meant, no injury is done, and consequently no action would lie'. 'The whole question is, whether the jocularity was in the mind of the defendant alone, or was shared by the bystanders'."

So much is established by authorities such as Donoghue v Hayes (1831) Hayes Exch (Ir) R 265 at 266 and Glass v Perl [1928] TPD 264. (See also the review of relevant American authorities in 57 ALR 4th 520.)

49 Mr Kourakis, of senior counsel for the appellate, did not seek to run away from the general proposition that if the words published would necessarily have been understood by the mythical reasonable person as mere jest, then no action would lie. However, his contention was that, where the very foundation of an attempt at humour was the promotion of a clear underlying assumption of alleged truth which was defamatory (or that the ordinary listener might reasonably consider that to be the case), then it availed a defendant nothing to assert that the publication complained of was no more than comic nonsense. (Cf the reasoning of Gibbs J (as he then was) in Sungravure Pty Ltd v Middle East Airlines Airliban S.A.L. [1975] HCA 6; (1975) 134 CLR 1 at 8.)

50 He submitted that, in the instant case, the listener was necessarily being invited to accept the underlying assumptions that:-

(1) Hindley Street was a precinct in which there was considerable drug dealing; and

(2) the "flash man" was involved in that activity.

51 (I pause to comment that it was never seriously suggested that the mythical ordinary listener, with the requisite background knowledge) would do other than link the expression "flash man" with the appellant).

52 I proceed to consider this matter against the background that the Full Court has had the advantage of listening to an audio tape of the Keefy skit, as it went to air.

53 There can be no doubt that the general presentation was intended to be (and manifestly constituted) a comic, nonsensical, spoof, given that the weather information was supplied as being genuine and clearly intended to be accepted as such.

54 I entertain no doubt that the mythical ordinary listener would have accepted that presentation with that general realisation.

55 However, in my view, there is also not the slightest doubt that that listener, possessing the background information to be attributed to such person, would have construed the references to "scored" and "fix you up" as being referable to the illicit drug trade. Indeed, it was the specific intention of Odlum that they should do so.

56 Equally, it seems to me to be beyond question that the whole skit depended, for its efficacy, not only on the conveyance of such an understanding, but also an acceptance, by the listener, of the underlying assumptions contended for by Mr Kourakis QC. Thus, the real sting in the skit was that the listener was invited to accept and (unless, like the appellant's brother-in-law, he or she knew him well) would accept that the fundamental premise of the presentation was that, in an area notorious for drug pushing, the appellant was probably a person engaged in that type of activity, from whom one could "score". This is particularly so having regard to the reference to the lane and the very pointed use of the quite unique identifier "flash man".

57 In short, I consider that this is a classic example of the type of situation, albeit inadvertent, adverted to in Donoghue v Hayes. The evidence which was led at trial at least established that, notwithstanding the jocular setting of the skit, persons did in fact make the underlying assumptions above referred to.

58 In arriving at the foregoing conclusion I by no means ignore a comment in footnote 93 to par 3.31 of Gatley, in which the learned author suggests that, in contemporary times, there may be a need to adopt a more robust attitude to humorous and satirical radio and television broadcasting than has been the case hitherto. Nevertheless, as is pointed out, this does not mean that a defendant can or should escape liability if the effect of the publication is to expose a plaintiff to widespread potential harm.

59 It was the submission of Mr Harris, of senior counsel for the respondent, that this was a classic situation of the type referred to in Berkoff v Burchill [1996] EWCA Civ 564; [1996] 4 All ER 1008 at 1018 and the learned trial judge rightly so concluded - "Many a true word is spoken in jest. Many a false one too. But chaff and banter are not defamatory, and even serious imputations are not actionable if no one would take them to be meant seriously.".

60 True it was that the learned trial judge did express that view. However, I am driven to the opinion that, in so doing, he adopted a somewhat simplistic approach and overlooked consideration of the impact of the factual assumptions that necessarily underpinned the comical elements of the skit. He thereby fell into error. The broadcast was, indeed, defamatory of the appellant.

61 I would, accordingly, allow the appeal, set aside the judgment appealed against and substitute for it judgment in favour of the appellant for damages to be assessed; and that the respondent pay the costs of the trial and of this appeal. I would also remit the action to the District Court for assessment by the learned Acting District Court Judge or, if he is no longer available, another Judge of that Court.

62 DUGGAN J. I agree that this appeal should be allowed for the reasons given by Olsson J. I also agree with the orders proposed by Olsson J. I add the following comments of my own.

63 The learned trial judge found that a reasonable listener would have realised that the segment complained of was "a comic program of complete nonsense" and that, as such, it could not be regarded as defamatory of the appellant. The correctness of this assessment was the main issue agitated on the hearing of the appeal.

64 The attitude of the courts to claims that words were spoken or written in jest and therefore bore no defamatory meaning is apparent from a number of cases in the United Kingdom (see eg Donoghue v Hayes (1931) Hayes Exch (Ir) 265 and Berkoff v Burchill [1996] EWCA Civ 564; [1996] 4 All ER 1008) and in Australia (Wild v John Fairfax Publications Pty Ltd (Levine J, 8 August 1997, unreported), McGuiness v J T Publishing Australia Pty Limited (Levine J, 21 May 1999, unreported) and Darbyshir v Daily Examiner Pty Ltd (Levine J, 29 August 1997, unreported).

65 A useful starting point for considering this issue is the comment by Hunt J in Anderson v Mirror Newspapers Ltd (1986) 6 NSWLR 99 at 108 that:

"The fact that a defamatory statement was intended by the defendant as no more than a joke is no answer to an action for defamation unless that statement was understood by those to whom it was published as having been so intended."

66 In Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 at 667 Hunt J repeated this principle and drew attention to the important distinction between what the defendant in fact intended and what intention should be inferred from what he or she said. The latter consideration is that which is important in determining whether the statement is actionable. E Hutton and Co v Jones [1910] AC 20 at 24, 26. The emphasis is on the capacity of the published or broadcast material and how it would have impacted on the ordinary reasonable reader or listener.

67 It is obvious in the present case that the intention of Mr Odlum was to present a "skit" which he did not intend to be taken seriously. However, as Levine J said in Darbyshir v Daily Examiner Pty Ltd at 4:

"...the argument that the matter complained of could only be taken as a joke or merely as 'humorous' can only succeed if the Court could be persuaded that the joke is benign and that notwithstanding that it could be understood to be a joke, the matter complained of is otherwise incapable of imputing some disparagement of the plaintiff as arising from the 'joke' or is incapable of holding the plaintiff up to ridicule."

Underlying this statement of the law are the observations of Smith, B in Donoghue v Hayes at 260:

"If a man in jest conveys a serious imputation, he jests at his peril."

68 The difficulty for the respondent in the present case is that Mr Odlum's segment was built on a substratum of fact. The interview which included the reference to drugs was set in Hindley Street because, as Mr Odlum volunteered in evidence -

"Hindley Street, whether you like it or not, has a reputation for that."

And whether or not Mr Odlum had any knowledge of the plaintiff, he referred to "the flashman", one of the names by which the appellant is known. The interview itself was clearly a parody but, it is my view that the parody conveyed a serious imputation. It incorporated factual material. The line between the factual material and that which was fanciful may have been clear in Mr Odlum's mind. However, considered as a whole, the segment was such that the ordinary reasonable listener would have understood it to convey the imputation that the appellant, known as "the flashman" or "Mr Flash", was a dealer in drugs.

69 WILLIAMS J I agree that this appeal should be allowed for the reasons given by Olsson J.