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[2004] QCA 135
Court of Appeal (Qld)
2004-04-30
McPherson and Jerrard JJA and Philippides JSeparate, reasons for judgment of each member of the Court, each concurring as to the, orders made
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Favell & Anor v Queensland Newspapers P/L & Anor [2004] QCA 135
PARTIES: PAUL JOSEPH FAVELL (first plaintiff/first appellant) DIANA GRACE FAVELL (second plaintiff/second appellant) v QUEENSLAND NEWSPAPERS PTY LTD ACN 009 661 778 (first defendant/first respondent) JESSICA LAWRENCE (second defendant/second respondent)
FILE NO/S: Appeal No 10737 of 2003 / SC No 4239 of 2003
DIVISION: Court of Appeal
PROCEEDING: Appeal from interlocutory decision
ORIGINATING COURT: Supreme Court at Brisbane
DELIVERED ON: 30 April 2004
DELIVERED AT: Brisbane
HEARING DATE: 22 March 2004
JUDGES: McPherson and Jerrard JJA and Philippides J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER: Appeal dismissedThat the appellants pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis
CATCHWORDS: DEFAMATION – ACTIONS FOR DEFAMATION – PLEADING – QUEENSLAND – where parts of statement of claim struck out – whether learned judge applied wrong test to determine whether pleadings should be struck out – where pleadings struck out on the basis that the words used in newspaper article were not capable of bearing the pleaded defamatory imputations to an ordinary reader – whether on a strike out application in defamation a General Steel test should also be applied – whether the proper test was incorrectly applied / Uniform Civil Procedure Rules 1999 (Qld) r 171, r 293 / Bik v Mirror Newspapers [1979] 2 NSWLR 679, considered / Fancourt v Mercantile Credits Limited (1983-1984) 154 CLR 87, cited / Farqhuar v Bottom [1980] 2 NSWLR 380, applied / General Steel Industries Inc v Commissioner for Railways & Ors (1964-1965) 112 CLR 125, considered / Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, disapproved / Murphy v Australian Consolidated Press Ltd (1969) 43 ALJR 212, considered / Robinson v Federal Capital Press Pty Ltd [1999] QSC 386; SC No 3073 of 1998, 24 December 1999, considered / Vasta v Queensland Newspapers Pty Ltd [1991] 2 Qd R 354 cited
COUNSEL: G Reynolds SC, with A R Philp SC and R J Anderson, for the appellants / R A Mulholland QC, with D C Spence, for the respondents
SOLICITORS: Gail Malone & Associates for the appellants / Thynne & Macartney for the respondents
McPHERSON JA: The question is whether the material published by the defendant is capable of giving rise to the defamatory imputations alleged. It falls to be determined according to the meaning which an ordinary reasonable reader of that material would place upon it. If the answer is that it is not so capable, then the pleading alleging the material to be defamatory is liable to be struck out as disclosing no cause of action.
Whether or not it ought to and will be struck out is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step whatever stage it falls to be taken.
That, in my opinion, was and is the case here. The learned judge considered and applied the relevant authorities. I do not consider that any of the criticisms of his Honour’s reasoning advanced on the appeal have been made good. Nor do I think that the statement that all fires are considered by the police to be suspicious until otherwise proved, and that the police are following all lines of inquiry, involves a defamatory imputation against the plaintiffs. On the contrary, it affirms that this fire is being treated like any or all others; that is, as being no more or less suspicious than the rest. Suffering a fire is a misfortune that anyone who owns a building may one day have to bear, and reporting its occurrence is not something that reflects adversely on the plaintiffs personally.
I agree generally with what Jerrard JA has written, and with his conclusion that the appeal should be dismissed with costs.
JERRARD JA: The appellants, who are lawyers, brought proceedings against the respondents asking for compensatory, aggravated, and exemplary damages for defamation. The appellants’ amended statement of claim pleads that on Sunday 19 January 2003 the second respondent published in the “Sunday Mail” Newspaper an article written by the second respondent defamatory of either both the appellants or of one or the other of them. On 11 August 2003 the respondents applied for orders that paragraphs 19, 20, and 21 of that amended statement of claim be struck out, and the learned trial judge who heard that application on 19 August 2003 so ordered on 31 October 2003. The judge dismissed applications that certain subparagraphs of paragraph 57 of that amended statement of claim be struck out, and a further application that judgment be entered for the respondent. The appellants, who were given leave to deliver a further amended statement of claim, have appealed the orders striking out those paragraphs 19, 20, and 21.
The Pleadings
The appellants’ pleadings recite in paragraph 17 thereof the entirety of the published article. The paragraph reads:
“17.The article contained the following words:
DEVELOPMENT SITE DESTROYED – FIRE GUTS RIVERSIDE 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-story block of units. Barrister Paul Favell, his lawyer wife Dianna and his three teenage children will return home from holiday in Rome to find the Griffith St home gutted.
Fire-fighters 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-story 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 fire-fighters.”
The appellants’ pleadings in the contested paragraphs are largely identical. Paragraph 19 reads as follows:
“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 burned;
(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 plaintiff 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;
(k)the first plaintiff is an arsonist;
(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.”
The pleaded paragraph 20 pleads the identical imputations, save that it is pleaded the words in the article in their natural and ordinary meaning meant and were understood to refer to the second plaintiff; and likewise in paragraph 21 the same imputations are pleaded, but in that paragraph it is contended that the words in the article referred to the first and second plaintiffs. Additionally, in paragraph 20, the imputations pleaded as conveyed in respect of the second plaintiff include, in paragraph 20(n), the imputation that:
“the second plaintiff lied about neighbourhood reactions to the proposed development of 33 Griffith Street.”
The learned judge accepted as valid a distinction suggested by senior counsel for the respondent 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. 19(i), 20(i), and 21(i) each plead that the words contained in the article in their natural and ordinary meaning meant, and were understood to mean, that the plaintiff or plaintiffs to whom those words referred was reasonably suspected by police of committing the crime of arson. 20(n) is the pleading contending the second plaintiff lied about neighbourhood reactions; as the learned judge accepted, and as indeed was accepted by Mr Reynolds SC for the appellants on the hearing of the appeal, all other pleaded imputations either allege or proceed upon the premise that the relevant plaintiff or plaintiffs were guilty of arson.
The judgment under appeal
The learned judge held that the article reported the fact of, and the circumstances surrounding, the fire without comment; that there was nothing in the article suggesting that the police enquiry was focused on Mr and Mrs Favell; that the overall effect of the article was to present the cause of the fire as a matter under investigation but at the same time an open question; and that a fair reading of the article showed it did not go beyond that. The judge concluded that the words complained of were not capable of bearing the imputations that Mr and Mrs Favell were, or one or other of them was, guilty of arson, and that the article was incapable of bearing the imputations pleaded in sub-paragraph (a) – (h) inclusive and (j) to (o) inclusive of paragraphs 19 and 21 in the statement of claim. The same applied to paragraph (a) to (h) inclusive, (j) to (m) inclusive, and (o) and (p) of paragraph 20.
Regarding the identically worded subparagraphs (i) of paragraph 19, 20, 21, and the imputation therein of reasonable suspicion by police of committing the crime of arson, the learned judge held that a fair reading of the article could not support that allegation. The judge considered the article went no further than recording that the fire was under investigation by the Arson Investigation Unit and that its cause was an open question, holding that nothing in the article suggested that Mr and Mrs Favell were suspects. Regarding paragraph 20(n) the judge held that “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 a 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 subparagraph”.
The test on a strike-out application in defamation
The judge accordingly ordered that paragraphs 19, 20 and 21 be struck out in their entirety. In this appeal the appellants contend the learned judge made significant errors, of which the first was the application of a wrong test to determine whether or not those paragraphs should be so struck out. It is apparent from the judge’s reasons that the learned judge considered the relevant question to be whether the published words were capable of bearing the pleaded imputations and that if not, the application to strike out should succeed.
The learned judge directed himself at some length in paragraph [5] of the judgment under appeal as to the correct test to apply when determining whether public words were capable of bearing the relevant imputations said to be defamatory of a plaintiff. It is appropriate to quote paragraph [5] in full. It reads:
“[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 WLR 1362, at p 1370; [1963] SR (NSW) 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) 149 CLR 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] AC 234, at p. 285 per Lord Devlin. In Farquhar v Bottom [1980] 2 NSWLR 380, at pp. 385-386, a case in which the words complained of were in a book, Hunt J summarised 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] SR (NSW) 644; 80 WN 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) 6 CLR 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 AC 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] AC 234, at p. 258]; Jones v Skelton [[1963] SR (NSW) 644; 80 WN 1061, at p. 650; pp. 1065, 1066]; Lang v Australian Consolidated Press Ltd [[1970] 2 NSWR 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 that that of the lawyer: Lewis v Daily Telegraph Ltd [[1964] AC 234, at p. 277]; Morgan v Odhams Press Ltd [[1971] 1 WLR 1239; [1971] 2 All ER 1156, at pp. 1245; 1163]; Lang v Australian Consolidated Press [[1970] 2 NSWR 408, at p. 412]; Middle East Airlines Airliban SAL v Sungravure Pty Ltd [[1974] 1 NSWLR 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 WLR 1239; [1971] 2 All ER 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 NSWLR 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 QB 340, at p 277]; Steele’s case [at p. 373]; Mirror Newspapers Ltd v World Hosts Pty Ltd [(1979) 53 ALJR 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 Henry & 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 KB 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 QB 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] AC 68 at pp. 72, 73]; Stubbs Ltd v Russell [[1913] AC 386, at p. 398]; Lewis v Daily Telegraph Ltd [[1963] 1 QB 340, at p. 259]; Murphy v Australian Consolidated Press Ltd [[1968] 3 NSWR 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] SR (NSW) 644; 80 WN 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.’ ”
The tests declared to be applicable by the learned judge, with the central proposition being that whether the published statement was capable of bearing the pleaded imputations was to be determined by reference to the understanding of the ordinary reasonable reader, rejecting any strained, forced, or utterly unreasonable interpretation, but acknowledging that that ordinary reasonable reader does read between the lines and is prone to engage in a certain amount of loose thinking, and that it is a broad impression conveyed by the words to such a reader which must be considered, were the tests that the appellant then invited the learned judge to apply. On the hearing of this appeal the respondents put before this court the appellants’ submissions in writing to the learned trial judge, and there is a great deal of similarity between those and paragraph [5] of the judgment. For example, the same paragraphs from Farquhar v Bottom are cited in each. Despite that, the appellants now complain that the learned judge ought to have applied a different test, not adverted to in that written submission.
Mr Reynolds SC submitted that the learned judge ought to have asked himself:
“Are the particulars of meaning so obviously untenable that it cannot possibly be argued that they are capable of being conveyed to an ordinary reasonable reader.”1
A direction in that form was described by Mr Reynolds SC as a General Steel2test overlaid upon the Farquhar v Bottom test. There is some authority for the proposition that on an application by a defendant in a proceeding for defamation to strike out a plaintiff’s pleading as incapable of conveying the pleaded imputations, a “summary judgment test” should be applied in the overlay manner submitted for by Mr Reynolds SC. That authority principally derives from judgments of Hunt CJ at Common Law in New South Wales. That learned judge had very extensive experience and unchallengeable expertise in defamation law. Even so, the principle upon which Mr Reynolds SC relies as applicable when a judge is hearing a strike out application in which it is asserted that a pleaded imputation is incapable of being conveyed to an ordinary reasonable reader, (namely that a General Steel test overlies all of those matters referred to in Farquhar v Bottom), has received very little enunciation in reported cases; and even in those the test suggested as applicable by Mr Reynolds SC was not actually enunciated, as distinct from the general principle.
The principal authority relied on was the decision of Hunt J, as his Honour then was, in Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663. In that matter the learned judge held that the statement that “Mr Monte had been engaged for many years in industrial espionage” was not capable of conveying an imputation defamatory of the plaintiff3, but also held that he was required by the decision of the New South Wales Court of Appeal in Bik v Mirror Newspapers Ltd4 to apply a General Steel test when exercising summary jurisdiction in defamation actions. Applying that test, Hunt J held in Monte v Mirror Newspapers that he could be satisfied that that plaintiff’s claim was “so obviously untenable that it cannot possibly succeed” or be “manifestly groundless.”5 Hunt J held in Monte (at 675F) that application of the General Steel test as discussed in Bik’s case required him to be satisfied of something more than “merely that the matter complained of is not capable of defaming the plaintiff” and he was not so satisfied. I respectfully observe that when His Honour explained that lack of satisfaction as being “mainly because of the absence of any commonly accepted or understood meaning of the expression “industrial espionage” as used in the article complained of”6, that reasoning was arguably inconsistent with his earlier holding that it could not defame Mr Monte to describe him as having engaged in industrial espionage for many years.
I also respectfully observe that his Honour, while regarding himself as being bound by the decision in Bik’s case, considered the result of applying it was the wastefulness of what was doomed to be an unsuccessful trial7, and remarked that it did not appear to him from the judgments in the Court of Appeal in Bik’s case whether that court had considered the proposition that a trial judge, who would be required to rule whether a publication had the capacity to convey a pleaded or defamatory imputation to an ordinary reasonable reader, was in no better position than a judge hearing a summary application upon what would be exactly the same material to answer that question, it being one of law.
In Bik v Mirror Newspapers, an appeal from a decision that a plaintiff’s declaration be struck out as incapable of conveying a defamatory meaning, the judgment of Herron CJ, while reminding that the summary jurisdiction of the court was to be sparingly employed and citing General Steel Industries and the judgment of Barwick CJ therein, nevertheless expressed the firm conclusion that the learned primary judge was correct in the view that the declaration disclosed no cause of action,8 and held that:
“In order to determine whether the article is capable of defaming the plaintiff, the correct approach must be made…The question is what the words would convey to the ordinary man…What could an ordinary man infer from a fair reading of the article read as a whole?”9
None of the other judgments of the Court of Appeal in Bik expressed the test as Mr Reynolds SC did.
In Monte, Hunt J himself described that in Uren v John Fairfax & Sons Ltd10 the New South Wales Court of Appeal dismissed an appeal in which the primary judge had posed for himself the question “would it be open to a jury to hold that it was defamatory to allege (the matter complained of)”; and the leading judgment in the Court of Appeal expressed the opinion:
“His Honour was correct in his conclusion that the words of the article, in their natural and ordinary meaning, did not contain the imputation set out in paragraph 6, and he was correct in striking out paragraph 6.”11
Hunt J distinguished that decision on the ground that the matter there complained of was clearly incapable of defaming the plaintiff upon any test, and so it was unnecessary for the Court of Appeal expressly to consider the applicable test or the width of the summary jurisdiction; but the manner in which the test was expressed in Uren was consistent with the manner in which Herron CJ had expressed it in Bik i.e. with no added General Steel inhibition against concluding that words published were incapable of conveying a defamatory imputation.
As Hunt J also described in Monte, the approach taken in Uren by the New South Wales Court of Appeal was consistent with the approach both that court and the High Court took in Murphy v Australian Consolidated Press Ltd.12 In that case the defendant was successful in obtaining an order from a judge summarily striking out the plaintiff’s declaration, upon the ground the matter complained of was incapable of defaming the plaintiff. The New South Wales Court of Appeal by majority dismissed the plaintiff’s appeal, with Walsh JA expressing the view that the capacity of the matter complained of to defame the plaintiff was a question of law, which could be raised on an application to strike out the application. The plaintiff’s application to the High Court for special leave to appeal was refused.13 The ALJR report of the dismissal of the special leave application cites Barwick CJ, Taylor and Winder JJ as holding “….that the count of the plaintiff’s declaration clearly failed to disclose any cause of action; and that the matter complained of did not contain and was clearly not capable of being regarded as containing the necessary imputation - in other words, the matter alleged in the count was not capable of bearing a defamatory meaning within the meaning of s 5 of the (Defamation Act, 1958 (NSW)).” Even Barwick CJ did not consider it necessary to express a General Steel overlay, as argued for here.
The approach taken by Hunt J in Monte has been followed at least once in Queensland. In Vasta v Queensland Newspapers Pty Ltd14, Master Horton QC adopted and applied the remarks of Hunt J in Monte wherein His Honour held that he was required to be satisfied, when asking if the plaintiff’s claim was “so obviously untenable that it cannot possibly succeed” or “manifestly groundless”, of something more than merely that the matter complained of was not capable of defaming the plaintiff. In Robinson v Federal Capital Press of Australia Pty Ltd15, the late R Douglas J, on the hearing of an application to strike out pleaded imputations, held that each of those imputations was not capable of arising out of the published article, but gave the respondent the opportunity to amend his statement of claim. The learned judge explained this was because he was conscious of the fact that the jurisdiction to strike out was to be exercised with extreme caution, and only where the incapacity of the matter complained of was clearly demonstrated. He referred to General Steel Industries, and to both Monte v Mirror Newspapers and Vasta v Queensland Newspapers Pty Ltd. The approach taken by R Douglas J applies the same test to determine whether imputations are capable of arising as the learned trial judge did in these proceedings, and without any General Steel overlay. Instead, the caution to be exercised before striking out pleadings, required by the General Steel test, resulted in an opportunity to re-plead. I respectfully observe that that approach taken by R Douglas J, and also taken by the primary judge in these proceedings, does not assist the appellant in this case, and accords much more with the approach taken in the High Court in Murphy and on other occasions in New South Wales on strikeout applications in proceedings for defamation.
As R Douglas J observed in Robinson, s 18(2) of the Defamation Act 1889 (Qld) specifically provides that the question whether any matter alleged to be defamatory is or is not capable of bearing a defamatory meaning is a question of law. A judge hearing an application pursuant to Uniform Civil Procedure Rules (“UCPR”) 171 to strike out a pleading as disclosing no reasonable cause of action, on the ground of the incapacity of published material to bear a pleaded defamatory meaning or imputation, and who held (applying the tests quoted from Farquhar v Bottom (supra) and declared to be applied in these proceedings) that published material was incapable of conveying the pleaded imputations to an ordinary reasonable reader, would make an inconsistent ruling if the judge then declined to find that that part of the relevant pleading disclosed no reasonable cause of action. As was remarked by the presiding judge on this appeal,16 if a particular meaning is incapable of arising or being attached to the words complained of, it must in consequence be so obviously untenable that it cannot possibly succeed as or in a claim for damages for defamation. I add that judges in this State are not compelled to allow the wastefulness to occur of what is doomed to be an unsuccessful trial; UCPR 293 allows a court to give judgment for a defendant against a plaintiff for all or part of the plaintiff’s claim if satisfied that the plaintiff has no real prospects of succeeding on that claim or part thereof and there is no need for a trial of it. It has been suggested that rule could be understood to require meeting a test less stringent than the General Steel test; and that it evidences a change in philosophy from the propositions in Fancourt v Merchantile Credits Limited (1983-1984) 154 CLR 87 at 99.17
Finally, I respectfully observe that the test suggested by Mr Reynolds SC focuses upon the capacity of counsel to argue a proposition. It would be more consistent with the task a judge must perform if Mr Reynolds SC re-worded his test to ask “Are the particulars of meaning so obviously untenable that it cannot possibly be held that they are capable of being conveyed to an ordinary, reasonable reader?”, which is actually no different from asking whether the pleaded imputations are incapable of being conveyed to an ordinary reasonable reader by the published words. That is the test the learned judge was asked to apply and declared was being applied. That test, in the paragraph numbered [25] in the citation from Farquhar v Bottom (in the declaration therein that it is not enough that the matter complained of might be understood by some person or another in the sense contended for by the plaintiff, and that what must be considered is the sense in which the ordinary reasonable reader would understand it), is really at odds with the proposition propounded by Mr Reynolds SC. I am satisfied that whether considered as a matter of binding authority, or as one of the appropriate application of the UCPR, or as a matter of logic, the submission that the learned judge described the wrong test to apply must be rejected.
Was the proper test actually applied?
The appellants’ second substantive argument was that while the learned judge cited the “incapacity” test, it was not actually applied. The complaint made was that the primary judge gave the judge’s own reading of the matter complained of, and did not focus at all on the possible readings of it. Mr Reynolds SC explained that this submission meant that all the implications and insinuations which he submitted were capable of being conveyed to an ordinary reasonable reader were not described by the judge in the reasons for judgment; and that a judge hearing such an application needed to look at each “implication, inference, or innuendo” capable of arising from the matter complained of,18 and focus on those implications and inferences in minute detail and how each is capable of operating “in synergy”. Only then would the judge have considered whether the pleaded imputations were capable of being conveyed to an ordinary reasonable reader. Presumably, the judge carrying out that task could expect assistance from the plaintiff.
Mr Reynolds SC also submitted that the learned judge was in error in this proceeding in referring to “a fair reading” of the article, when, it was submitted, the judge ought to have asked whether “the only reasonable reading” of the article would fail to convey the imputation. Criticism was also made of the learned judge for stating “there is nothing in the article suggesting….”, whereas the judge ought to have considered whether there was anything in the article capable of suggesting the pleaded imputation. Equally the judge was said to be in error in referring to “the overall effect of the article”, whereas the judge ought to have considered whether the “only way this article can be read overall is” in the sense the judge had suggested.
With all due respect, these appear quibbles about the manner in which the learned judge’s reasons are expressed rather than evidence that the judge failed to apply the tests described by the judge at considerable length in the reasons for judgment. To be fair to Mr Reynolds SC, he did describe those matters as “indications” that the judge had been deflected from the appropriate task. I do not consider they are.
Mr Reynolds SC relied far more upon the argument which he developed at length, namely that the learned judge had failed to consider in the necessary minute detail the implications and inferences capable of being drawn from the article. These were described by Mr Reynolds on the appeal in the appropriate detail as the following implications and inferences, submitted to be easily capable of arising or being suggested to the ordinary reasonable reader:
that the police suspected arson;
that that suspicion is held by a Senior Detective Constable in the Arson Investigation Unit;
that that suspicion has not been disproved;
that the police were inquiring into the Favells;
that the Favells had a motive for arson, namely to eliminate their neighbours opposition to their development application;
that Mrs Favell lied when she was challenged in relation to her motives for committing arson;
that the fire was an inside job, it being lit by persons who could get access to the interior and could get through the security, which was tight and so tight that it hindered the fire-fighters in getting access to the property;
that the two wealthy lawyers who were being investigated by the police had a suspiciously perfect alibi;
that the fire had occurred in conjunction with a set of extraordinary circumstances, namely that the relatives of the owners who had been given the job of minding the house had for some un-stated reason happened to be staying somewhere else on that particular night;
that Mrs Favell’s sister did not wish to be associated with what had occurred, she having stated that she did not “wish to be identified”;
that the only people mentioned in the article as potential suspects or who were guilty of arson were Mr and Mrs Favell.
Approaching the task as suggested, I do not accept that the implications numbered 1, 2, 3, 4, 6, and 10 were capable of arising. I agree that number 5 is capable of being conveyed, number 7 if the fire was deliberately lit, number 8 if the word “suspiciously” is omitted, number 9 if one replaced the word “extraordinary” with the word “suspicious”, and number 11 if the words “or who were guilty of arson” are omitted. I consider the article is capable of conveying to an ordinary reasonable reader the imputation that there are reasonable grounds for suspecting that the Favells may have been responsible for causing the fire to happen, because of their apparent motive and the circumstances in which the fire occurred. I do not agree that it is capable of conveying that the Favells in fact did cause arson to occur. Nor do I consider that it is capable of conveying that either plaintiff was reasonably suspected by police of committing arson, although that conclusion may seem inconsistent. This is because I accept the submission of Mr Mulholland QC, Senior Counsel for the respondents, that what the article would convey to the ordinary reasonable reader is that the police are investigating, as they always do. I do not consider the article capable of conveying that particular suspicions were held by the investigating (or any other) police about this particular fire. Instead, the attributed and un-attributed quotations of statements made by police officers about this fire are not capable of conveying anything but a studied neutrality to an ordinary reasonable reader. That neutrality, doubtless based on experience, is well explained by those portions of the plaintiffs’ pleadings in paragraphs 37 and 43 thereof, in which the plaintiff pleaded later publications by the first defendant describing the result of police investigations as being that the cause of the fire was an electrical fault with nothing suspicious found and with foul play being ruled out, accompanied by a published acknowledgment that any imputations that the Favells were responsible for the fire would have been totally unfounded, and a denial that any such suggestions were intended.
The pleaded imputation of lying
The third major submission on the appeal was that the learned judge erred in holding that the article was incapable of conveying that the second plaintiff had lied about neighbourhood reactions to the proposed development. The specific implications and inferences submitted as capable of being conveyed to an ordinary reasonable reader, and which the learned judge ought to have identified in the required minute examination of the article, were:
that Mrs Favell’s reference to both neighbours was a reference to all the neighbours, including the immediate neighbours;
that in the reference to both neighbours Mrs Favell was talking about neighbours generally;
that Mrs Favell’s statement about both neighbours being “fine” about the development was inconsistent with the assertions in the article that neighbours were unhappy;
that Mrs Favell deliberately attempted to create a false impression by her answer;
that she had a motive to lie namely to deflect suspicion from herself and her husband.
I do not agree the article is capable of conveying as implications those described in numbers 1, 2, 4 and 5. I consider the submissions made by Mr Reynolds SC were largely predicated on the proposition that in the context of the article, the reference by Mrs Favell to “both” neighbours would be understood as a misleading or dishonest reference to a greater number of neighbours than two, which greater number were known to Mrs Favell to be unhappy about the proposed development. The learned primary judge held otherwise. Accepting as I do the submission by Mr Reynolds SC that the learned judge ought to have described the task being undertaken as deciding what was capable of being conveyed to an ordinary reasonable reader, I still agree with the conclusion drawn by the primary judge that the article is not capable of conveying the imputation that Mrs Favell lied. What I consider is capable of being conveyed to an ordinary reasonable reader is that the Favells restricted dissemination of the plans to the immediate neighbours, who did not convey any objection about those plans to them.
The critical innuendo which I consider is capable of being conveyed, namely that reasonable grounds exist for suspecting the Favells may have ultimately been responsible for causing the destruction of those premises, is of course an imputation capable of defaming both plaintiffs. This was recognised in Lewis v Daily Telegraph Ltd.19 That defamatory imputation might be differently defended from an imputation that the plaintiffs had committed arson.20 Mr Reynolds SC submitted that the article was capable of conveying to the ordinary reasonable reader that the suspicion the police held about the Favells, which he contended the article was capable of conveying, was a well founded one; and relying then on the remarks of Mason J in Mirror Newspapers v Harrison at 303 that a suggestion a charge was well founded carried the further imputation of guilt, submitted that that would convert the imputation which I consider the article is capable of conveying into an imputation of the actual commission of arson. With all due respect, an imputation that there are reasonable grounds for suspecting that arson has been caused is not an imputation that any person has been charged with arson and that that charge is well founded.
Accordingly, I would uphold the decision of the learned primary judge, although perhaps on different grounds. That learned judge did not describe either the imputation or implications which that judge considered the article was capable of conveying to an ordinary reasonable reader, and was not actually invited to in the written submissions of the plaintiff. I respectfully observe that following the path submitted by Mr Reynolds SC to be necessary (examining all the implications in minute detail) does not seem to identify with any greater accuracy whether or not a particular pleaded imputation is capable of arising.
I would dismiss the appeal and order that the appellants pay the respondents’ costs of and incidental to the appeal to be assessed on the standard basis.
PHILIPPIDES J: I agree for the reasons stated by Jerrard JA that the contention that the learned trial judge applied the wrong test in determining the strike out application is not made out. Nor do I consider that the other grounds of appeal are made out. In that regard, I adopt the reasons for judgment of Jerrard JA and the additional reasons of McPherson JA. I agree with the order proposed.
Transcript pages 5 and 6 ↩
See General Steel Industries Inc v Commissioner for Railways NSW and Ors (1964-1965) 112 CLR 125 at 129 ↩
At page 667 F and 668 A-B ↩
[1979] 2 NSWLR 679 (n) ↩
Tests approved as applicable by Barwick CJ in General Steel Industries when a court is deciding if a plaintiff’s lack of a cause of action is clearly demonstrated, and accordingly whether the court should exercise its sparingly employed jurisdiction to terminate the action summarily ↩
Monte v Mirror Newspapers at 675 F-676 A ↩
Monte at p 675D ↩
At 680 F ↩
At 681 E-G ↩
NSW Court of Appeal, 16 July 1979, unreported ↩
Monte at p 675 A-B ↩
(1967) 89 WN (Pt 1) NSW 165 ↩
Reported in (1969) 43 ALJR 212 as a note
Favell & Anor
Queensland Newspapers P/L & Anor [2004] QCA 135
(1969) 43 ALJR 212
(1982) 149 CLR 293
[1991] 2 Qd R 354 ↩
[1999] QSC 386, unreported decision of Douglas J given 24 December 1999 ↩
At transcript page 10 ↩
See Queensland University of Technology v Project Constructions (AUST) Pty Ltd in Liq [2002] QCA 224; [2003] 1 Qd R 259 at [7]; Bernstrom v NBA [2002] QCA 231, [2003] 1 Qd R 469 at [35] – [38]; Khatri v Wilson [2003] QCA 188; Chesterman J has expressed a contrary view in Prizmic v Meadowcroft Pty Ltd [2003] QCA 533 and in Gray v Morris [2004] QCA 5 ↩
This submission appears at transcript 14 and 32. Although no specific authority was cited, the submission gains support from the observation of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 280, cited by Herron CJ in Bik at 681, that when determining the natural and ordinary meaning of words for the purposes of defamation, there must be added to the implications which a court is prepared to make as a matter of construction all such insinuations and innuendos as could reasonably be read into them by the ordinary reader. ↩
At 258 (judgment of Lord Reid); 265 and 266 (judgment of Lord Morris); 270 (judgment of Lord Hobson); and 283 (judgment of Devlin) ↩
This was recognised in each of those judgments in Lewis v Daily Telegraph and remarked upon by Mason J (as he then was) in Mirror Newspapers v Harrison (1981-1982) 149 CLR 293 at 302 ↩