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[2003] QSC 368
mixed. Helman J struck out paragraphs 19, 20 and 21 of the amended statement of claim as not capable of bearing the pleaded imputations of arson, reasonable suspicion, insurance fraud and related allegations...
Helman J held that a newspaper article reporting a house fire and police investigations did not, as a matter of law, convey imputations that the homeowners (the Favells) committed arson, were suspected of arson, or committed insurance fraud; the pleaded imputations alleging those meanings were struck out. However, particulars that the plaintiffs were told by others that readers understood the article to mean they had burned down their house were potentially admissible as evidence of hurt, and the defendants' challenge to those particulars failed (see [8], [11], [12]).
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The plaintiffs, Paul Joseph Favell and Diana Grace Favell, sued Queensland Newspapers Pty Ltd and journalist Jessica Lawrence for defamation arising from a Sunday Mail article reporting the destruction by fire of their New Farm home at 33 Griffith Street (see [2]). The article appeared on 19 January 2003 and described the fire, the time it began, damage, police comment that investigations were continuing, and neighbours' reactions; it quoted Mrs Favell speaking from Rome (see [2]).
No linked legislation citations have been extracted yet.
The plaintiffs' amended statement of claim (filed 2 July 2003) pleaded multiple imputations said to arise from the article. Those imputations, set out in paragraphs 19 to 21, ranged from plain allegations that the first or both plaintiffs caused the house to be burned down (arson), to suggestions of attempted insurance fraud and attempts to evade blame by being overseas (see [3]). Paragraph 57 pleaded particulars of hurt, including that friends, relatives and others had told the plaintiffs they and third parties understood the article to mean the plaintiffs had burned down their house (see [4]).
The defendants applied (amended application filed 12 August 2003) to strike out specified paragraphs and subparagraphs of the amended statement of claim, principally paragraphs 19, 20, 21 and parts of paragraph 57, and sought orders including seeking judgment under Uniform Civil Procedure Rules r 293(2) in relation to the imputations (see [1]).
Helman J heard argument and determined that as a matter of law many of the imputations were not capable of being conveyed by the article and therefore struck out paragraphs 19, 20 and 21 (see [11]). He rejected the defendants' challenge to certain particulars in paragraph 57, holding that such statements reporting third-party understandings may be admissible as evidence of hurt (see [12]). Further submissions were sought on final orders and costs (see [13]).
Helman J applied the established legal test for whether words are capable of bearing a defamatory meaning: a question of law judged by reference to the ordinary reasonable reader, rejecting strained or perverse interpretations, and focusing on the broad impression conveyed by the words (see [5]). He summarised the test as articulated in Jones v Skelton and the analysis in Farquhar v Bottom, emphasising the ordinary reasonable reader's capacity to read between the lines but also warning against over-elaboration beyond the broad impression (see [5]).
Applying that test to the article, Helman J found the article reported the fact of the fire and described the situational circumstances. It recorded a police officer from the arson investigation unit saying investigations were continuing and that 'all fires are treated as suspicious until otherwise disproved', language which, in context, properly refers to the possibility of deliberate human action but does not indicate any police focus on the plaintiffs (see [8]). The article also contained Mrs Favell's account about providing plans to immediate neighbours and their responses; nothing suggested police suspicions centred on the Favells. Helman J treated the article as reporting the start of a police inquiry, not its result (see [8]).
Helman J drew on Mirror Newspapers Ltd v Harrison for the proposition that a newspaper report which merely states the fact of arrest or charge is not capable of bearing the imputation of guilt; by analogy, a report that only records that an investigation is under way is a fortiori not capable of conveying that the subjects are guilty of the crime under investigation (see [8]). Because the broad impression conveyed by the article did not attribute arson, reasonable suspicion or insurance fraud to the plaintiffs, those imputations did not pass the legal threshold and were struck out (see [8]-[11]).
Regarding paragraph 57, Helman J followed authority (Hughes v Mirror Newspapers Ltd and Mirror Newspapers Ltd v Fitzpatrick) to the effect that statements made to a plaintiff reporting third parties' understandings may be admissible as evidence of hurt; accordingly the defendants' attack on those particulars failed (see [12]).
Before this decision the governing principles were well-established and Helman J expressly relied on them: (i) the ordinary reasonable reader standard and rejection of strained meanings (Jones v Skelton; Farquhar v Bottom) and (ii) particular sensitivity to the mode of publication (book v newspaper) affecting reader attention and implication (Farquhar summary at [5]). Mirror Newspapers Ltd v Harrison supplied the specific principle that reporting an arrest or an investigation does not, without more, impute guilt (see [8]).
Helman J did not change the law; he applied these authorities to the facts and clarified their operation in the common factual scenario of a local newspaper reporting a house fire and the initial police response. The after-state is the practical confirmation that where a newspaper article reports a fire and records that police inquiries are continuing, without any hint of focussed suspicion, imputations of arson, reasonable suspicion or insurance fraud will often fail as a matter of law if the article contains nothing more (see [8]-[11]).
The judgment reinforces that the court will strike out pleadings where plaintiffs plead meanings that the ordinary reasonable reader would not draw from the words, emphasising the court's gatekeeping role in defamation pleadings (see [11]).
Paragraph 5 (legal test): "It is a question of law whether words complained of are capable of bearing an imputation ... determined by reference to the understanding of the ordinary reasonable reader ... It is the broad impression conveyed by the words that must be considered." Plain-English: The judge must decide, as a matter of law, what an average sensible reader would take away from the words; you must not exaggerate or contort the meaning.
Paragraph 8 (description of article): "The article reports the fact of, and the circumstances surrounding, the fire without comment, and records that an investigating police officer had said that investigations were proceeding and that all fires were treated as 'suspicious' until it could be demonstrated otherwise." Plain-English: The piece simply describes the fire and says police are looking into it; it does not accuse the owners of wrongdoing.
Paragraph 8 (analogy to Harrison): "A newspaper report that does no more than state that a person has been arrested and charged ... is not capable of bearing the imputation that he is guilty ... The article complained of ... reporting as it does the beginning and not the result of a police investigation, a fortiori could not be capable of bearing the imputation attributed to it." Plain-English: If merely reporting police action does not equal saying someone is guilty, then reporting that an inquiry is starting is even less apt to suggest guilt.
Paragraph 12 (admissibility of third-party reports): "Such statements may be admissible as evidence going to the plaintiff's hurt feelings. It follows that the defendants' challenge to paragraph 57 must fail." Plain-English: If people told the plaintiffs that others thought they burned their house, that evidence can be used to show the plaintiffs were hurt by the publication, so those particulars stay in the pleading.
A newspaper article reports an incident (for example, a fire) and records police saying investigations are ongoing or that the cause is being treated as 'suspicious' without further allegation or hint that specific individuals are under suspicion (see [2], [8]). In such cases, imputations alleging that the subject committed the crime will be vulnerable and may be struck out as incapable of being conveyed.
Articles that quote the subject's denial, neighbours' views, and police statements limited to procedural investigation language (not stating or implying suspect status) fit this precedent; the court will look to the broad impression and ask whether a reasonable reader would take away culpability (see [8]).
By contrast, fact patterns where the article contains additional language that points to police suspicion, undercover evidence, or explicit allegations of culpability would survive this threshold and would not be affected by this decision.
Particulars asserting that third parties told the plaintiff what others thought (reports of reputational talk around the community) will generally be admissible as evidence of hurt under the authorities cited and affirmed here (see [12]).
This decision itself is an application of established authority rather than a source of broad doctrinal change. Helman J expressly followed or relied upon leading authorities (Farquhar, Jones v Skelton, Mirror Newspapers Ltd v Harrison, Hughes v Mirror Newspapers Ltd, Mirror Newspapers Ltd v Fitzpatrick) in applying the ordinary reasonable reader test and in determining admissibility of certain particulars (see [5], [8], [12]). Subsequent courts assessing similar newspaper reports will weigh the broad impression in the way Helman J illustrated: focus on whether the article went beyond reporting an investigation to suggest guilt.
Practitioners should expect courts to strike out pleadings that allege criminality where the publication is confined to reporting the outset of an inquiry and contains no further material that could reasonably be read to accuse the plaintiff (the practical effect underlined in [8]-[11]).
Degree of granularity for reader inference: Helman J emphasised the broad impression test and rejected strained readings (see [5], [8]). But the decision leaves open fine-line questions about borderline language. For example, how much contextual hint or juxtaposition of quotations (neighbour comments, mention of security gates, insurance references) might tip the broad impression over into a defamatory meaning? That remains fact-sensitive.
Interaction of subsequent articles: The plaintiffs' pleading referred to two further articles (2 February and 9 February) not reproduced in the reasons (see [2]). Where subsequent publications add detail, the cumulative effect might alter capability. Helman J did not assess those later articles in these reasons, so the impact of follow-up reporting is not decided here.
Use of third-party reports as evidence of common reputation: Helman J accepted that reports to the plaintiff about what others said are admissible as evidence of hurt (see [12]). The precise limits on reliance on such hearsay-adjacent material, including required particularity and how it should be proved at trial, remain subject to usual rules of admissibility and proof and may require further judicial delineation.
Remedy where much but not all imputations are struck out: Helman J struck out the central imputations (19-21) but left paragraph 57 particulars standing and invited submissions about final orders and costs (see [11], [13]). The appropriate post-strike-out disposition in mixed outcomes, for example, scope of costs at interlocutory phase and whether striking out merits summary dismissal or recalibrated pleading, will turn on procedural posture and remains flexible.
In short, the judgment is a useful, fact-specific application of the ordinary reasonable reader test in the context of a local newspaper reporting an accident and police investigation. It reinforces that reporting the initiation of an inquiry is not enough, without more, to impute criminality; but it leaves open nuanced questions about borderline language, the cumulative effect of follow-up reporting, and evidential detail for hurt.
Gail Malone & Associates for the plaintiffs Thynne & Macartney for the defendants
[1] The plaintiffs in this action claim damages for defamation against the defendants, a newspaper publisher and a journalist. This is an amended application filed on
12 August 2003 on behalf of the defendants. The defendants seek orders that paragraphs 19, 20, and 21, and sub-paragraphs (a)(ii), (b)(ii), (b)(iii), (b)(iv), (b)(v), (c)(i), and (f)(ii) of paragraph 57 of the amended statement of claim filed on
2 July 2003 be struck out. No objection was taken to the determination of those issues on this application. The defendants seek a further order that judgment be entered for the defendants pursuant to rule 293(2) of the Uniform Civil Procedure Rules 1999 in relation to each imputation pleaded in paragraphs 19, 20, and 21 of the amended statement of claim.
[2] In paragraph 16 of the amended statement of claim the plaintiffs plead that on Sunday 19 January 2003 the first and second defendants published, or caused to be published, on p. 7 of the Sunday Mail newspaper an article referring to the destruction by fire of a house at 33 Griffith Street, New Farm, Brisbane. In paragraph 17 the article is set out:
DEVELOPMENT SITE DESTROYED - FIRE GUTS REIVERSIDE [sic] MANSION
A MULTIMILLION-dollar Brisbane home which is the subject of a controversial development application burned down early yesterday morning.
Owners of the house on the Brisbane River at New Farm, which has views across the city, had applied to build a five-storey block of units.
Barrister Paul Favell, his lawyer wife Diana and his three teenage children will return home from holiday in Rome to find the Griffith St home gutted.
Firefighters took almost two hours to extinguish the blaze which started about 4am yesterday morning and caused severe structural damage.
Speaking from Rome, a distressed Ms Favell told The Sunday Mail:
"We are devastated and we're just trying to get home as soon as possible.
We had some cousins house-sitting and we're just so glad they weren't in the house at the time".
Relatives arrived to see the multi-storey house - which has security gates and a private river pontoon and boat - gutted.
Mr Favell's sister, who did not wish to be identified, said: "I'm just in shock. The women who were house-sitting would usually have been home but they decided to stay somewhere else instead".
It is understood neighbours had planned a meeting to protest against the impending unit development.
Neighbour Margaret Morrisey said: "None of us are happy about the application."
The ambience of New Farm is being destroyed because of all these units going up".
Another neighbour, Peter Campbell, said about a dozen residents had planned to attend the meeting.
"People want to keep the character of the street and keep it the way it is" he said.
Asked whether the planned meeting would go ahead Mrs Morrisey said: "No, the meeting won't go ahead now. It's all gone."
Asked about the reaction from neighbours to the application for development on the property Ms Favell said: `We provided copies of the plans to both neighbours and they were fine about it'
Police said investigations into the cause of the fire were continuing.
Detective Senior Constable John Kilburn from the arson investigation unit said the cause of the fire was not known.
"All fires are treated as suspicious until otherwise disproved and we will follow all lines of inquiry" he said.
A Queensland Fire and Rescue spokesman said security, the location of the house and debris had hindered firefighters.
There were two further articles in the Sunday Mail referred to in the amended statement of claim: one on 2 February 2003 (`the second article') and the other on
9 February 2003 (`the third article'). It is not necessary for me to reproduce them here.
[3] In paragraphs 19, 20, and 21 of the amended statement of claim the imputations relied upon by the plaintiffs were set out:
19. The words contained in the article in their natural and ordinary meaning meant, and were understood to mean:
(a) the first plaintiff caused his house to be burned down;
(b) the first plaintiff caused the house owned by the first and second plaintiffs to be burned down;
(c) the first plaintiff caused contents of the house at 33 Griffith Street owned by others to be burnt;
(d) the first plaintiff caused the contents of the house at 33 Griffith Street to be burnt;
(e) the first plaintiff caused his house to be burned down so as to thwart opposition to an application to develop 33 Griffith Street;
(f) the first plaintiff caused the house owned by the first and second plaintiffs to be burned down so as to thwart opposition to an application to develop 33 Griffith Street;
(g) the first plaintiff caused his house to be burned down in order to make ineffective any opposition to its removal from 33 Griffith Street;
(h) the first plaintiff caused the house owned by the first and second plaintiffs to be burned down in order to make ineffective any opposition to its removal from 33 Griffith Street;
(i) the first plaintiff was reasonably suspected by police of committing the crime of arson;
(j) the first plaintiff committed the crime of arson;
(l) the first plaintiff attempted to avoid blame for the burning of his house by being away from Australia at the time of the fire;
(m) the first plaintiff attempted to avoid blame for the burning of the first and second plaintiffs' house by being away from Australia at the time of the fire;
(n) the first plaintiff caused his house to be burned down to unlawfully benefit from an insurance claim over the house and its contents;
(o) the first plaintiff caused the first and second plaintiffs' house to be burned down to unlawfully benefit from an insurance claim over the house and its contents.
20. Further, the words contained in the article in their natural and ordinary meaning meant and were understood to mean:
(a) the second plaintiff caused her house to be burned down;
(b) the second plaintiff caused the house owned by the first and second plaintiffs to be burned down;
(c) the second plaintiff caused the contents of the house at 33 Griffith Street owned by the [sic] others to be burnt;
(d) the second plaintiff caused the contents of the house at 33 Griffith Street to be burnt;
(e) the second plaintiff caused her house to be burned down so as to thwart opposition to an application to develop 33 Griffith Street;
(f) the second plaintiff caused the house owned by the first and second plaintiffs to be burned down so as to thwart opposition to an application to develop 33 Griffith Street;
(g) the second plaintiff caused her house to be burned down in order to make ineffective any opposition to its removal from 33 Griffith Street;
(h) the second plaintiff caused the house owned by the first and second plaintiffs to be burned down in order to make ineffective any opposition to its removal from 33 Griffith Street;
(i) the second plaintiff was reasonably suspected by police of committing the crime of arson;
(j) the second plaintiff committed the crime of arson;
(l) the second plaintiff attempted to avoid blame for the burning of her house by being away from Australia at the time of the fire;
(m) the second plaintiff attempted to avoid blame for the burning of the first and second plaintiffs' house by being away from Australia at the time of the fire;
(n) the second plaintiff lied about neighbourhood reactions to the proposed development of 33 Griffith Street;
(o) the second plaintiff caused her house to be burned down to unlawfully benefit from an insurance claim over the house and its contents;
(p) the second plaintiff caused the first and second plaintiffs' house to be burned down to unlawfully benefit form an insurance claim over the house and its contents.
21. Further the words contained in the article in their natural and ordinary meaning meant and were understood to mean:
(a) the first and second plaintiffs caused the first plaintiff's house to be burned down;
(b) the first and second plaintiffs caused the house owned by the first and second plaintiffs to be burned down;
(c) the first and second plaintiffs caused the contents of the house at 33 Griffith Street owned by others to be burnt;
(d) the first and second plaintiffs caused the contents of the house at 33 Griffith Street to be burnt;
(e) the first and second plaintiffs caused the first plaintiff's house to be burned down so as to thwart opposition to an application to develop 33 Griffith Street;
(f) the first and second plaintiffs caused the house owned by them to be burned down so as to thwart opposition to an application to develop 33 Griffith Street;
(g) the first and second plaintiffs caused the first plaintiff's house to be burned down in order to make ineffective any opposition to its removal from 33 Griffith Street;
(h) the first and second plaintiffs caused the house owned by them to be burned down in order to make ineffective any opposition to its removal from 33 Griffith Street;
(i) the first and second plaintiffs were reasonably suspected by police of committing the crime of arson;
(j) the first and second plaintiffs committed the crime of arson;
(l) the first and second plaintiffs sought to avoid blame for the burning of the first plaintiff's house by being away from Australia at the time of the fire;
(m) the first and second plaintiffs sought to avoid blame for the burning of their house by being away from Australia at the time of the fire;
(n) the first and second plaintiffs caused the house owned by the first plaintiff to be burned down to unlawfully benefit from an insurance claim over the house and its contents;
(o) the first and second plaintiffs caused the house owned by them to be burned down to unlawfully benefit from an insurance claim over the house and its contents.
[4] In paragraph 57 of the amended statement of claim the plaintiffs allege that they have been hurt by the matters set out in the amended statement of claim. The relevant parts of that paragraph are as follows:
57. The first and second plaintiffs have been hurt by the matters set out herein and the knowledge that the defamatory matter referred to herein has continued to be a matter of public discussion.
(a) subsequent to the publication of the article, the first and second plaintiffs were hurt by:
(ii) their being told by friends, relatives, barristers, solicitors and acquaintances that people who read the article had understood it to mean that the first plaintiff or the first and second plaintiffs had burned down their house;
(b) subsequent to the publication of the second article the first and second plaintiffs were further hurt by:
(ii) their being told by friends, relatives, barristers, solicitors and acquaintances that people were still saying that the first plaintiff or the first and second plaintiffs had burned down their house;
(iii) their being told by their children they were being told their parents had burned down their house;
(iv) their being told by the first plaintiff's mother that she had been questioned by people who understood the article to mean the first or first and second plaintiffs had burned down their house;
(v) their being told by their eldest son that he had been asked `how is the insurance fraud going?'
(c) subsequent to the publication of the third article the first and second plaintiffs were further hurt by:
(i) their being told that a Judge had understood the article to mean that the first and second plaintiffs had burned down their house;
(f) since the publication of the article the first and second plaintiffs have continued to be hurt by:
(ii) their remaining the subject of talk and ridicule about the suggestion they burned down their house.
[5] It is a question of law whether words complained of are capable of bearing an imputation relied on by a plaintiff: Jones v. Skelton [1963] 1 W.L.R. 1362, at
p. 1370; [1963] S.R. (N.S.W.) 644, at p.650. Whether a statement is capable of bearing an imputation defamatory of a plaintiff must be determined by reference to the understanding of the ordinary reasonable reader, drawing on his or her knowledge and experience of human affairs: Mirror Newspapers Ltd v. Harrison [1982] HCA 50; (1982) 149 C.L.R. 293, at p. 301 per Mason J. It is the broad impression conveyed by the words that must be considered: Lewis v. Daily Telegraph Ltd [1964] A.C. 234, at p. 285 per Lord Devlin. In Farquhar v. Bottom [1980] 2 N.S.W.L.R. 380, at pp. 385-386, a case in which the words complained of were in a book, Hunt J. summarized the tests that must be applied:
(21) In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v. Skelton [[1963] S.R. (N.S.W.) 644; 80 W.N. 1061, at p. 650; pp. 1065, 1066]. I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v. Daily Telegraph Newspaper Co Ltd [(1908) [1908] HCA 22; 6 C.L.R. 1, at p. 7]; who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v. Incorporated Dental Hospital of Ireland [(1910) 2 Ir. R. 577, at p. 586]; nor avid for scandal: Lewis v. Daily Telegraph Ltd [[1964] 1 A.C. 234, at p. 260].
(22) This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldy [sic] affairs: Lewis v. Daily Telegraph Ltd [[1964] A.C. 234, at p. 258]; Jones v. Skelton [[1963] S.R. (N.S.W.) 644; 80 W.N. 1061, at p. 650; pp. 1065, 1066]; Lang v. Australian Consolidated Press Ltd [[1970] 2 N.S.W.R. 408, at p. 412]; It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v. Daily Telegraph Ltd [[1964] A.C. 234, at p.277]; Morgan v. Odhams Press Ltd [[1971 1 W.L.R. 1239; [1971] 2 All E.R. 1156, at pp. 1245; 1163]; Lang v. Australian Consolidated Press [[1970] 2 N.S.W.R. 408, at p. 412]; Middle East Airlines Airliban SAL v. Sungravure Pty Ltd [[1974] 1 N.S.W.L.R. 323, at p.340].
(23) In what might be described as `newspaper' cases (of which this present case is not one), further questions may arise as to the care with which the ordinary reasonable reader would have read a sensational article, and as to the degree of analytical attention he would apply to it; Morgan's case [Morgan v. Odhams Press Ltd [1971] 1 W.L.R. 1239; [1971] 2 All E.R. 1156, at pp. 1254, 1269; 1170, 1184]; and as to the degree of accuracy he might have expected of that article [Morgan's case at pp. 1270; 1184]; Steele v. Mirror Newspapers Ltd [[1974] 2 N.S.W.L.R. 348, at p. 373]. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Morgan's case [at pp. 1245; 1163], following Lewis v. Daily Telegraph Ltd [[1963] 1 Q.B. 340, at p. 277]; Steele's case [at p. 373]; Mirror Newspapers Ltd v. World Hosts Pty Ltd [(1979) [1979] HCA 3; 53 A.L.J.R. 243 at p. 246]; Parker v. John Fairfax & Sons Ltd [Court of Appeal, 30th May, 1980, unreported].
(24) The mode or manner of publication is a material fact in determining what imputation is conveyed: Henty's case [Capital and Counties Bank Ltd v. George Henty & Sons (1882) 7 App Cas 741, at pp. 744, 771]; English and Scottish Co-operative Properties Mortgage and Investment Society Ltd v. Odhams Press Ltd [[1940] 1 K.B. 440, at pp. 452, 453]. One assumes that the reader of a book would read it with more care than he would a newspaper. In both the `newspaper' and in other cases, there is also a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: Lewis v. Daily Telegraph Ltd [[1963] 1 Q.B. 340, at p. 374].
(25) Finally, it is not enough to say that, by some person or another, the matter complained of might be understood in the sense contended for by the plaintiff. What must be considered is the sense in which the ordinary reasonable reader would understand it: Nevill v. Fine Art and General Insurance Co Ltd [[1897] A.C. 68, at pp. 72, 73]; Stubbs Ltd v. Russell [[1913] A.C. 386, at p. 398]; Lewis v. Daily Telegraph Ltd [[1963] 1 Q.B. 340, at p. 259]; Murphy v. Australian Consolidated Press Ltd [[1968] 3 N.S.W.R. 200, at p. 204].
(26) Although stated in the context of an action for negligence, the function of the Court in determining whether there is a case to go to the jury, which function is common to all cases tried with a jury: Jones v. Skelton [[1963] S.R. (N.S.W.) 644; 80 W.N. 1061, at pp. 656; 1070] is well stated in Prosser's `Handbook of the Law of Torts', 4th ed (1971) at p. 208, as follows: `The most common statement is that if men of reasonable intelligence may differ as to the conclusion to be drawn, the issue must be left to the jury; otherwise it is for the court.'
[6] The argument concerning paragraphs 19, 20, and 21 relied on by the defendants was that there were three grounds upon which those paragraphs should be struck out: first, that the words complained of are incapable of conveying the defamatory meanings alleged; secondly, prolixity; and thirdly, the failure to plead alternative imputations as such.
[7] In advancing the first part of the argument for the defendants Mr Mulholland Q.C. drew a distinction between the imputations pleaded in paragraphs 19(i), 20(i) and (n), and 21(i) on the one hand, and the remaining pleaded imputations on the other. That division was I think the result of a valid analysis of those paragraphs because the latter imputations either allege, or proceed upon the premiss of, guilt of arson, whereas the former do not.
[8] The article reports the fact of, and the circumstances surrounding, the fire without comment, and records that an investigating police officer had said that investigations were proceeding and that all fires were treated as `suspicious' until it could be demonstrated otherwise. There is nothing in the article suggesting that the police enquiry was focussed on Mr and Mrs Favell. The word `suspicious' in this context may properly be understood to refer to the result of a deliberate human act. The overall effect of the article is to present the cause of the fire as a matter under investigation but at the same time an open question. A fair reading of it shows that it does not go beyond that. In Mirror Newspapers Ltd v. Harrison it was held that a newspaper report that does no more than state that a person has been arrested and charged with a criminal offence is not capable of bearing the imputation that he is guilty, or probably guilty, of that offence. The article complained of by
Mr and Mrs Favell, reporting as it does the beginning and not the result of a police investigation, a fortiori could not be capable of bearing the imputation attributed to it. Because it is the broad impression conveyed by the words complained of that must be considered it is difficult to elaborate one's reasons beyond saying that the broad impression does or does not show that the words pass the threshold test: in this case they do not, in my view. I am conscious of the caveat in the last part of the passage of Hunt J.'s reasons for judgment in Farquhar v. Bottom I have quoted, but, giving that admonition full weight, I nevertheless conclude that the words are not capable of bearing the imputations that Mr and Mrs Favell were, or one or other of them was, guilty of arson. I therefore conclude that the following sub-paragraphs are not capable of bearing the imputations attributed to them in the amended statement of claim: the sub-paragraphs (a) to (h) inclusive and (j) to (o) inclusive of paragraphs 19 and 21; and sub-paragraphs (a) to (h) inclusive, (j) to (m) inclusive, and (o) and (p) of paragraph 20.
[9] In the sub-paragraphs (i) of paragraphs 19, 20 and 21 there is alleged an imputation of reasonable suspicion. A fair reading of the article cannot support that allegation. As I have indicated already, the article goes no further than recording that the fire was under investigation by the arson investigation unit and that its cause was an open question. There is in the article nothing that suggests that Mr and Mrs Favell were suspects - the reference to their absence in Rome rather suggesting the contrary. I therefore conclude that those sub-paragraphs are not capable of conveying the defamatory meanings attributed to them.
[10] That leaves sub-paragraph (n) of paragraph 20. As I read the article it goes no further than recording Mrs Favell's account of her dealings with the immediate neighbours, and the reference to other neighbours appears to be reference to neighbours other than the immediate neighbours. Accordingly I conclude that the words complained of are not capable of bearing the imputation attributed to them in that sub-paragraph.
[11] It follows from what I have said that paragraphs 19, 20 and 21 of the amended statement of claim should be struck out. It is not necessary that I consider the second and third grounds of the challenge to those paragraphs.
[12] The argument advanced for the defendants concerning the sub-paragraphs of paragraph 57 of the amended statement of claim to which I have referred came down to one based on the asserted inadmissibility of evidence of statements made to a plaintiff in a defamation action by someone who reports statements made by third persons. As Hunt J. demonstrated however, in Hughes v. Mirror Newspapers Ltd (1985) 3 N.S.W.L.R. 504 at p. 511, accepting the analysis of Priestly J.A. in
Mirror Newspapers Ltd v. Fitzpatrick [1984] 1 N.S.W.L.R 643 at p. 665, such statements may be admissible as evidence going to the plaintiff's hurt feelings. It follows that the defendants' challenge to paragraph 57 must fail.
[13] I shall invite further submissions on the orders to be made in disposing of this application and costs.
Farquhar v. Bottom [1980] 2 N.S.W.L.R. 380 Hughes
Mirror Newspapers Ltd
Helman J struck out paragraphs 19, 20 and 21 of the amended statement of claim as not capable of bearing the pleaded imputations of arson, reasonable suspicion, insurance fraud and related allegations (see [11]). The defendants' challenge to specified sub-paragraphs of paragraph 57 alleging particulars of hurt was rejected and those particulars were held not inadmissible (see [12]). Further submissions were invited on final orders and costs (see [13]).