appellant. Appeal allowed with costs. Orders of the Court of Appeal of Queensland made on 30 April 2004 set aside and, in lieu thereof, appeal to that Court allowed with costs, orders of Helman J made on 31...
Key principles
The question whether published words are capable of conveying a defamatory meaning is a question of law for the court to decide.
The ordinary reasonable reader does not apply legal rules of construction but reads between the lines in light of general knowledge and experience of worldly affairs, drawing...
A bare report that a person or premises is under investigation may not impute guilt, but where the report links the event to otherwise irrelevant suspicious circumstances that...
An article that gives prominence to a connection between a fire and a controversial development proposal, including motive, opportunity, inconsistent statements and neighbourhood...
Issues before the court
Whether the newspaper article was capable, as a matter of law, of conveying the three pleaded defamatory imputations that the appellants had...
Plain English Summary
A Brisbane newspaper ran a story about a expensive house burning down. The story repeatedly tied the fire to the owners' controversial plan to knock it down and build flats, quoted unhappy neighbours, and contrasted this with the wife's claim that the neighbours were fine with the plans. The High Court said an ordinary reader could understand the story as suggesting the owners probably started the fire to clear the site, that police suspected them, and that the wife was not truthful about the neighbours. The owners' defamation case can therefore continue on these meanings and the lower courts must reconsider the newspaper's application to throw those claims out.
AI-generated legal information, not legal advice. Zoe can make mistakes — check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,076 words · generated 24/04/2026
What happened
In early 2003 a large house on the Brisbane River at New Farm owned by barrister Paul Favell and his solicitor wife Diana was gutted by fire that started at 4 am. The family was overseas in Rome at the time. The house was the subject of a development application to replace it with a five-storey block of units, an application the article described in its opening paragraph as "controversial". The Sunday Mail published a prominently placed story the following day under the headline "Development Site Destroyed – Fire Guts Riverside Mansion". The article opened by linking the fire to the development application, reported that neighbours had planned a protest meeting against the proposal, quoted two neighbours expressing strong opposition and stating that the meeting would no longer proceed because "it's all gone", and contrasted those remarks with Mrs Favell's statement that the neighbours had been shown the plans and "were fine about it". Police comments that all fires are treated as suspicious until the contrary is proved were included, together with details that the house had security gates and a private river pontoon, that house-sitters had decided to stay elsewhere that night, and that the cause remained under investigation by the arson squad.
Cited legislation
No linked legislation citations have been extracted yet.
Paul and Diana Favell sued Queensland Newspapers Pty Ltd and the journalist for defamation. Their Amended Statement of Claim pleaded a large number of imputations in paragraphs 19, 20 and 21. The respondents applied to strike those paragraphs out under Uniform Civil Procedure Rules (Qld) r 171 on the ground that the article was incapable of conveying the three most serious imputations: (a) that the appellants had committed the crime of arson; (b) that they were reasonably suspected by the police of committing arson; and (c) that Mrs Favell had lied about neighbourhood reactions to the development. In the alternative, summary judgment was sought under r 293. Helman J struck out the paragraphs but declined to enter summary judgment, apparently contemplating re-pleading. The Court of Appeal of Queensland dismissed the Favells' appeal, although it accepted that an imputation of reasonable grounds to suspect that the Favells "may have been responsible" for the fire was capable of being conveyed. The High Court granted leave, heard the appeal, and unanimously allowed it. The joint reasons of Gleeson CJ, McHugh, Gummow and Heydon JJ (with which Kirby J agreed as to result) held that the article was capable of conveying all three pleaded imputations. The orders below were set aside and the respondents' strike-out application was remitted to a judge of the Supreme Court for further consideration in accordance with the High Court's reasons. Costs orders followed the event, with the costs of the first-instance hearing reserved.
Why the court decided this way
The court began from the settled proposition, drawn from Jones v Skelton [1963] 1 WLR 1362 and cited at paragraph 4 of the joint reasons, that capacity to convey a defamatory meaning is a question of law. Once that threshold is passed, it is for the tribunal of fact to decide whether the meaning is in fact conveyed. The test is whether the words are capable of conveying the alleged imputation to ordinary reasonable readers. Those readers, as Lord Reid observed in Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 (quoted at paragraph 5), "do not live in an ivory tower" and are not bound by rules of legal construction. They read between the lines and draw implications more freely, especially when the implications are derogatory (Lord Devlin at 277 and 285, quoted at paragraphs 6–8).
The joint reasons emphasised that the article did far more than neutrally report a fire under investigation. Its "main thrust" (paragraph 2) was the connection between the destruction of the house and the controversial redevelopment proposal. The headline and first paragraph explicitly yoke the two subjects. Once that linkage is made, the prominence given to neighbourhood opposition, the motive it supplied, the appellants' absence, the unexplained absence of the house-sitters, the early-morning start, the security gates that would hinder unauthorised entry, and the direct contrast between Mrs Favell's statement and the neighbours' quoted indignation, supplied a factual platform from which a jury could conclude that the fire was no coincidence. A jury could reason that it would "put an incredible strain on human experience" (adopting the language of Plomp v The Queen (1963) 110 CLR 234 at 243, cited at paragraph 12) if the redevelopment proposal was not facilitated by the "fortuitous" fire.
On the first imputation (actual commission of arson), the court held that an article capable of conveying reasonable suspicion, when it also states and elaborates the grounds for that suspicion, can convey that the suspicion is well-founded. On the second (police suspicion), the court saw no material distinction between the pleaded imputation and the narrower one accepted by the Court of Appeal; once reasonable grounds for suspicion are conveyed, it is natural for a reader to infer that the police, who are investigating and have access to neighbourhood information, entertain that suspicion. On the third (lying), the stark contrast between Mrs Favell's assurance and the neighbours' statements, placed in an article whose central theme is the motive supplied by the controversial development, could convey that she was seeking to deflect attention from a motive for arson.
Kirby J's separate reasons reinforced the result while adding observations about the procedural burdens of defamation litigation. He regarded the primary judge and Court of Appeal as having engaged in "excessive refinement" (paragraph 14) and saw the High Court's intervention as correcting that tendency, which tends to favour media defendants and to discourage plaintiffs with legitimate claims.
Before and after state of the law
Before Favell the law was clear that capacity is a question of law and that the ordinary reasonable reader reads between the lines (Lewis v Daily Telegraph Ltd, Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293). It was also settled that a bare statement that a person is under investigation does not necessarily impute guilt, but that an account of surrounding circumstances pointing towards guilt may do so. What Favell clarified is the application of those principles to a story that intertwines a destructive event with a motive to bring that event about. The court rejected the notion that a newspaper can escape liability by merely reporting "facts" and police comments that an investigation is continuing when the selection, juxtaposition and emphasis of those facts invite a sinister inference.
After Favell trial judges must be slower to strike out imputations where reasonable minds could differ on capacity. The decision underscores that the "broad impression conveyed by the libel" (Lord Devlin) is what matters, not a lawyerly parsing of each sentence in isolation. It has reinforced the reluctance of appellate courts to uphold strike-outs unless the alleged meaning is truly untenable. The procedural observations of Kirby J, while obiter, have been cited in later cases as a warning against turning defamation actions into a "gauntlet of interlocutory proceedings".
Key passages with plain-English translation
Paragraph 2 of the joint reasons states: "One of the most obvious features of the article is the connection it makes between the destruction of the appellants' house and the existence of what is said to have been a controversial plan to redevelop the site. Although the article does not say so in terms, it appears that the redevelopment proposal involved demolition of the existing house. The article may be taken to imply that the destruction of the house by fire facilitated the redevelopment, and thwarted local opposition to it."
Plain English: The story does not expressly accuse anyone of arson, but its whole structure screams that the fire was convenient for the owners' development plans and removed the obstacle of local protest. That unspoken link is the heart of the defamation claim.
Paragraph 8 quotes Lord Devlin: "A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done... They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded."
Plain English: If you keep talking about smoke and the reasons why people might have started the fire, readers will usually think you are really saying there is a fire. Newspapers cannot hide behind the word "suspicious" when they have supplied a detailed motive and opportunity.
Paragraph 12 lists seven circumstantial matters (motive, improved approval prospects without the existing building, unexplained absence of house-sitters, 4 am start, security gates, false impression created by Mrs Favell, and the family's overseas absence). It concludes that a jury could find it would "put an incredible strain on human experience" if the redevelopment was not helped by the fire.
Plain English: When you pile up all these suspicious coincidences, a jury is entitled to say "come on, this doesn't look like an accident".
Paragraph 15 (Kirby J): "Defamation procedure in Australia, including pre-trial applications of the kind that occurred in this case, have become unnecessarily complex... such 'excessive precision' is to be avoided".
Plain English: The endless pre-trial fights over exactly how to word each imputation are crippling legitimate claims and should be discouraged.
What fact patterns trigger this precedent
Favell is triggered when a publication links a harmful event (fire, accident, loss) to a motive that would be advanced by that event, supplies circumstantial details that point towards deliberate causation, and includes statements that can be read as inconsistent or evasive. Typical triggers include:
headlines or opening paragraphs that yoke the event and the motive ("Development Site Destroyed");
recital of neighbourhood or regulatory opposition that would be removed by the event;
details of security or access that make unauthorised causation improbable without the owner's involvement;
timing, absence of occupants, or other "opportunity" facts;
direct contrast between the plaintiff's reported statements and those of other witnesses on a matter relevant to motive;
police or official statements that the matter is "suspicious" or under investigation, especially when placed after the motive material.
The precedent applies with particular force to redevelopment or insurance cases where destruction of an existing structure removes an obstacle. It does not apply to a purely neutral chronological report that happens to mention both a fire and a development application without any linkage or emphasis. The key is whether the ordinary reader could see the publication as "talking at large about smoke" in a way that suggests fire.
How later courts have treated it
The joint reasons have been treated as authoritative on the capacity test and the proper approach to reading between the lines. Courts have cited the decision for the proposition that strike-out applications in defamation should be approached with "great caution" and should not succeed if reasonable minds could differ. The emphasis on the "broad impression" rather than meticulous linguistic analysis has been applied in cases involving insinuation by juxtaposition. Kirby J's observations on excessive interlocutory refinement have been referred to in case-management decisions as a reason to confine pleading disputes. The decision has been followed in preference to narrower readings by lower courts that had been inclined to parse each sentence in isolation. No subsequent decision has doubted the outcome or the principles stated in the joint reasons; later authority has reinforced rather than distinguished the approach to circumstantial motive material.
Still-open questions
The High Court left unresolved the precise form of the imputations that should ultimately go to trial; the remitter contemplates further argument about prolixity and alternative pleading. Whether a jury would ultimately find the imputations were in fact conveyed, and whether any defences (truth, honest opinion, qualified privilege) would succeed, remains for later determination. Kirby J's call to abandon the fiction of the ordinary reasonable reader has not been taken up in subsequent authority; courts continue to use the conventional formulation, leaving open whether a more functional analysis of judicial gate-keeping will emerge. The boundary between a report that is "capable" of conveying suspicion and one that is capable only of conveying guilt is still fact-sensitive and likely to generate further litigation. Finally, the interaction between the capacity principles in Favell and the statutory defences introduced or amended after 2005 (particularly the uniform Defamation Acts) remains to be fully worked through in appellate decisions.
Catchwords
Favell v Queensland Newspapers Pty Ltd
Judgment (68 paragraphs)
[1]
Set aside the orders of the Court of Appeal of the Supreme Court of Queensland made on 30 April 2004 and, in their place, order that the appeal to that Court be allowed with costs, the orders of Helman J made on 31 October 2003 be set aside, and that the application of the respondents be remitted to a judge of the Supreme Court of Queensland for further consideration in accordance with the reasons of this Court.
[2]
The costs of the proceedings before Helman J be left for the decision of the judge dealing with the amended application.
[3]
G O'L Reynolds SC with R J Anderson and J C Hewitt for the appellants (instructed by Gail Malone & Associates)
[4]
R A Mulholland QC with D C Spence for the respondents (instructed by Thynne & Macartney)
[5]
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
[6]
Defamation - Pleading and practice - Application for summary judgment or alternatively to strike out part of a pleading - Test to be applied - Whether matter published capable of conveying defamatory imputations.
[7]
GLEESON CJ, McHUGH, GUMMOW AND HEYDON JJ. The issue in this appeal is whether a newspaper article, published by the first respondent and written by the second respondent, was capable of bearing certain defamatory meanings. The article was published in The Sunday Mail, a newspaper with a wide circulation mainly in Queensland, on Sunday 19 January 2003. It was in the following terms:
[8]
"DEVELOPMENT SITE DESTROYED - FIRE GUTS RIVERSIDE MANSION
[9]
A MULTIMILLION-dollar Brisbane home which is the subject of a controversial development application burned down early yesterday morning.
[10]
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.
[11]
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.
[12]
Firefighters took almost two hours to extinguish the blaze which started about 4 am 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.'
[13]
Relatives arrived to see the multi-storey house - which has security gates and a private river pontoon and boat - gutted.
[14]
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.'
[15]
It is understood neighbours had planned a meeting to protest against the impending unit development.
[16]
Neighbour Margaret Morrisey said: 'None of us are happy about the application.
[17]
'The ambience of New Farm is being destroyed because of all these units going up.'
[18]
Another neighbour, Peter Campbell, said about a dozen residents had planned to attend the meeting.
[19]
'People want to keep the character of the street and keep it the way it is,' he said.
[20]
Asked whether the planned meeting would go ahead Mrs Morrisey said: 'No, the meeting won't go ahead now. It's all gone.'
[21]
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.'
[22]
Police said investigations into the cause of the fire were continuing.
[23]
Detective Senior Constable John Kilburn from the arson investigation unit said the cause of the fire was not known.
[24]
'All fires are treated as suspicious until otherwise disproved and we will follow all lines of inquiry,' he said.
[25]
A Queensland Fire and Rescue spokesman said security, the location of the house and debris had hindered firefighters."
[26]
One of the most obvious features of the article is the connection it makes between the destruction of the appellants' house and the existence of what is said to have been a controversial plan to redevelop the site. Although the article does not say so in terms, it appears that the redevelopment proposal involved demolition of the existing house. The article may be taken to imply that the destruction of the house by fire facilitated the redevelopment, and thwarted local opposition to it. The headline, and the first paragraph, link the two topics, and a substantial part of the article is devoted to the development proposal. It is that link that is at the centre of the appellants' case.
The appellants commenced proceedings for defamation in the Supreme Court of Queensland. An Amended Statement of Claim, in pars 19, 20 and 21, pleaded a large number of imputations, the differences between some of them being trivial. Not surprisingly, there were complaints about prolixity and a failure properly to distinguish between alternative imputations. Those complaints remain unresolved. The respondents' primary contention, addressed to the three most serious imputations pleaded, was that the words complained of were incapable of conveying the defamatory meanings alleged. Those three imputations are:
[27]
(b) the appellants were reasonably suspected by the police of committing the crime of arson; and
[28]
(c) the second appellant (Mrs Favell) lied about neighbourhood reactions to the proposed development of the Griffith Street property.
[29]
The respondents pursued that contention in an interlocutory application heard by Helman J. The orders sought in the application were, relevantly, twofold. First, the respondents sought an order that pars 19, 20 and 21 of the Amended Statement of Claim be struck out. This application was made under r 171 of the Uniform Civil Procedure Rules (Q), which empowers the court to strike out a pleading or part of a pleading which discloses no reasonable cause of action. Additionally, the respondents sought an order under r 293(2), which empowers the court to give summary judgment for a defendant if satisfied that no reasonable cause of action is disclosed. The first part of the application was successful; the second failed. Helman J struck out pars 19, 20 and 21, but did not enter summary judgment against the appellants. It appears to be common ground that he contemplated that the appellants would re-plead. This reflects a view that there may have been some defamatory imputations conveyed by the article, but not those pleaded, and, in particular, not any of the three imputations set out above.
The appellants appealed to the Court of Appeal of Queensland[1]. The appeal was heard by McPherson and Jerrard JJA and Philippides J, and was dismissed. However, the Court of Appeal considered that an imputation similar to that set out in (b) above was capable of being conveyed. Jerrard JA, with whom the other members of the Court of Appeal agreed, concluded that the article was "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." No doubt it was contemplated that, subject to any challenge to the decision of the Court of Appeal, that imputation would appear in any re-pleading of the case. It will be necessary to return to the question whether there is any difference in substance between imputation (b) as framed by the appellants, and the imputation framed by Jerrard JA.
Bearing in mind the dual nature of the application to Helman J, seeking both a striking out of certain paragraphs in the Amended Statement of Claim, and the entry of summary judgment for the respondents, on the ground that the pleading disclosed no reasonable cause of action, the question for decision was whether the material published was capable of giving rise to the defamatory imputations alleged. In the Court of Appeal, McPherson JA correctly said:
[30]
"Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] 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 [at] whatever stage it falls to be taken."
[31]
Helman J's reasoning was less favourable to the appellants than that of the Court of Appeal. His main reason for rejecting imputations (a) and (b) (in the sense of concluding that the article was not capable of conveying those meanings) was that "[t]he 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." He said that "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."
With respect to the learned judge, this reasoning is factually erroneous. The article does not simply report the fire without comment. On the contrary, the main thrust of the article is to link the fire with the contentious development proposal. What could have been the relevance of the development proposal to the story about the fire? The development proposal was not just an interesting background fact. The headline makes clear the point of the story: "Development site destroyed". The first paragraph repeats that emphasis. The article does not simply give an account of the fire "without comment". And if, by "the circumstances surrounding" the fire, Helman J had in mind the development proposal and the surrounding controversy in the neighbourhood, an ordinary reasonable reader might well ask why that was given such prominence. If the fact of the fire and the fact of the controversial development proposal were merely coincidental, and not causally related, then no inference of wrongdoing would follow. Newspapers can, and do, report coincidences. On the other hand, if the two were not just coincidental, but there was a connection, there was at least a possible inference that the connection was sinister.
In Jones v Skelton[2], the Privy Council said:
[32]
"It is well settled that the question as to whether words which are complained of are capable of conveying a defamatory meaning is a question of law, and is therefore one calling for decision by the Court. If the words are so capable then it is a question for the jury to decide as to whether the words do, in fact, convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the Court will reject those meanings which can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation ... The test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."
[33]
In determining what reasonable persons could understand the words complained of to mean, the Court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd[3]:
[34]
"The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs."
[35]
Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd[4], that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said:[5]
[36]
"It is not ... correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded."
[37]
A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt[6]. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that point towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance. At this preliminary stage of the proceedings, the respondents have not yet had an opportunity to indicate why it was considered relevant to the story about the fire to link it with the development application. For that matter, the occasion has not yet arisen for a jury to decide what meanings the article would convey. We are concerned only with the anterior question of what the article is capable of conveying.
The Court of Appeal considered that the article was capable of conveying an imputation similar to (b). There are two differences that were explained by Jerrard JA. First, the imputation framed by Jerrard JA was that there were reasonable grounds for suspecting that "the Favells may have been responsible for causing the fire to happen", as distinct from reasonable grounds for suspecting that the Favells caused arson to occur. The distinction is elusive. Under the criminal law of Queensland, a person who procures another to burn down a house is guilty of arson[7]. Secondly, Jerrard JA, while accepting a possible imputation of reasonable grounds for suspicion, did not consider that the article could convey the meaning that such suspicion was entertained by the police. Yet the article says that the police treat all fire as suspicious. Once it is accepted that the article could convey that there were reasonable grounds for suspicion, why could not a reader conclude that the police were aware of those grounds, and entertained that suspicion? If the police are investigating a fire, and there are reasonable grounds for suspicion, and those grounds relate to a neighbourhood controversy that the police would be likely to have found out about, it would be natural for the police to be suspicious. There is no convincing reason to prefer the imputation accepted by Jerrard JA to imputation (b) above.
[38]
(1) the appellants wished to build a five-storey block of units and knew that the development would be strongly opposed by residents of the surrounding neighbourhood;
[39]
(2) the prospect of getting approval for building the units would be improved if there were no existing building on the site;
[40]
(3) the absence from the premises of relatives of the appellants who were supposed to be minding the house was unexplained;
[41]
(5) the security gates at the premises made it unlikely that, if the fire was deliberately started, the person or persons responsible could have gained access to the premises without the assistance of the appellants or their agents;
[42]
(6) the second appellant had attempted to create the false impression that the development was not controversial; and
[43]
(7) the appellants were absent overseas when their house was burnt down.
[44]
When all these matters are taken into account, a jury could reasonably conclude that "it would put an incredible strain on human experience"[8] if the appellants' proposal to redevelop their property was not facilitated by the fortuitous occurrence of a fire.
[45]
As to the third suggested imputation, there is an apparent inconsistency between what the second appellant was reported to have said ("We provided copies [of the development plans] to both neighbours and they were fine about it") and what the neighbour Margaret Morrisey said ("None of us are happy about the application"). The second appellant's bland assurance that the neighbours "were fine about" the development is presented by way of contrast with general disapproval and indignation on the part of the neighbours. There is also a possible suggestion that, in a context where she was attempting to deflect attention from the development proposal, the second appellant was seeking to mislead. The development proposal was categorically stated, in the first paragraph, to be "controversial". It seems highly improbable that the second appellant would have been unaware of the controversy. The unhappiness of all the neighbours was a substantial theme of the article.
Each alleged imputation is to be considered in the context of the entire article. A report that the second appellant gave an account of neighbourhood reaction to the development proposal different from that of her neighbours, if it stood alone, might mean no more than that there were two different points of view. However, when that report appears in the context of an account of a suspicious fire, the grounds for suspicion being based on the development proposal, a different impression may be created. Ultimately, the question is what a jury could properly make of it. In Lewis v Daily Telegraph Ltd[9], Lord Reid said:
[46]
"Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question."
[47]
The matter published was capable of conveying all three of the imputations set out above. There remain, however, other unresolved issues about the form of the pleading. This Court should make the following orders. The appeal is allowed with costs. The orders of the Court of Appeal of Queensland made on 30 April 2004 should be set aside. In their place, it should be ordered that the appeal to that Court be allowed with costs, that the orders of Helman J of 31 October 2003 be set aside, and that the application of the respondents be remitted to a judge of the Supreme Court of Queensland for further consideration in accordance with the reasons of this Court. The costs of the proceedings before Helman J should be left for the decision of the judge dealing with such amended application.
KIRBY J. I agree with the conclusion expressed in the reasons of Gleeson CJ, McHugh, Gummow and Heydon JJ ("the joint reasons"). The matter complained of in these proceedings was capable of conveying each of the three imputations explained in the joint reasons[10]. I agree generally with the reasons of my colleagues and I concur in the orders proposed.
[48]
My approach to this appeal is affected by the considerations explained by me in Drummoyne Municipal Council v Australian Broadcasting Corporation[11]. Defamation procedure in Australia, including pre-trial applications of the kind that occurred in this case, have become unnecessarily complex[12]:
[49]
"A plaintiff who alleges that it has been defamed must run a gauntlet of interlocutory proceedings ... which … are illustrated by the numerous skirmishes in Hepburn[13], the repeated reports of other cases and the proceedings in the instant case. The result may be satisfactory to most lawyers who specialise in [defamation law]. It cannot but be discouraging to a plaintiff with a legitimate complaint forced into a system of interlocutory hearings which may occasionally even be used to exhaust or discourage those on the receiving end of defamation … [This] is a risk inherent in what Hutley JA[14] rightly called the 'search for excessive precision in pleading in defamation actions' … [S]uch 'excessive precision' is to be avoided".
[50]
In considering the imputations pleaded alongside the matter complained of, it is important that courts, deciding issues such as the present, should keep in mind the practical burdens and consequences that flow from excessive refinement in such matters. They should remember that the tribunal established by law (whether a jury or a judge) to decide claims in defamation will normally have a large capacity of its own to deal with far-fetched and remote imputations in a commonsense way. It is a mistake to consider that this capacity is confined to the practice court and appellate judges, stimulated by imaginative pleaders "armed with a bank of dictionaries and a Thesaurus"[15].
A reflection on this consideration confirms my support for the conclusion reached in the joint reasons. Those reasons correct what I take to have been an approach of excessive refinement on the part of the primary judge and of the Queensland Court of Appeal. Such an approach, in such matters, is to be discouraged. Overwhelmingly, it favours one side, namely defendants. It exhausts the means of the plaintiffs, including those with just claims. It delays the trial. And it undermines the utility of the tort of defamation as a practical means for defending respect in our society for the reputation of others[16]. For ordinary Australians, suing a media defendant in defamation is a very risky way of vindicating wrong to one's good name. Usually, it is only the foolhardy who try. Part of the reason is the resulting trial by interlocutory ordeal. If the remedy of defamation is to be fair to both sides, courts must do something to discourage, or minimise, such impediments.
[51]
This observation is relevant to the only reservation that I feel concerning the reasoning of the other members of this Court. In the conventional way, their Honours have invoked the fiction of the "ordinary reasonable reader"[17] to reinforce the conclusion which they have reached. The resort to this fiction has led appellate courts to define, and refine, the "ordinary reader" whom the judges have in mind. This has led, in turn, to almost ludicrous elaborations concerned with where the notional "reasonable, ordinary reader" lives (it is not in an ivory tower[18]) and how he (only recently has a female reader been postulated) will approach the hypothetical task. Older formulae have it that the reader is "the ordinary good and worthy subject of the King"[19]. Others, more recent, emphasise the ordinariness of the reader[20] or a capacity for what is called "right-thinking"[21] (whatever that may be). The reader (or listener or viewer) is a person of fair, average intelligence[22], who is neither perverse, nor morbid or suspicious of mind[23]. However, the "ordinary reasonable reader" is a layman, not a lawyer, with a capacity for implication that is much greater than that of a lawyer[24]. United States authority conceives of the reader as a disembodied member of the "respectable" community generally, as distinct from a member of any sub-group[25]. The list is nearly endless.
It would be preferable to drop this fiction altogether. Judges should not hide behind their pretended reliance on the fictitious reasonable recipient of the alleged defamatory material, attributing to such a person the outcome that the judges actually determine for themselves. Appellate judges and judges in the practice list working under their supervision, should acknowledge candidly the reserve function that judges perform in our legal system in rejecting pleaded imputations that are not reasonably arguable by reference to the matter complained of. If the third party fiction were dropped, it is likely that a new formulation would emerge to explain more precisely and accurately the considerations according to which one imputation is accepted and goes to the tribunal of fact for its decision, and why another is not, so that that tribunal is spared the necessity of considering it. Or why one imputation is held defamatory and another is not.
Behind the verbiage of the judicial formulae conventionally used lies a notion related to the respective functions of the judge deciding the acceptability and adequacy of pleadings and the judge or jury deciding the substance of the wrong of which a plaintiff complains[26]. When such activities are subjected to a functional analysis, the inadequacies of the current incantations emerge in a stark light.
[52]
Approaching the matters argued in this appeal in the presently accepted (and defective) way, the conclusion stated in the joint reasons is the correct one. I therefore agree in the orders there proposed.
[1964] NSWR 485 at 491; [1963] 1 WLR 1362 at 1370-1371; [1963] 3 All ER 952 at 958. ↑
[55]
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. ↑
[56]
Referring to Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682; Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386. ↑
[57]
Referring to Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 692. ↑
[58]
This is a purpose recognised by international human rights law as a necessary and justifiable derogation from rights to freedom of expression: see International Covenant on Civil and Political Rights, Art 19(3)(a), [1980] ATS 23; cf Joseph, Schultz and Castan, The International Covenant on Civil and Political Rights: Cases, Material and Commentary, 2nd ed (2004) at 541 [18.40]-[18.41]. ↑
[59]
Joint reasons at [5], citing the reasons of the Court of Appeal. ↑
[60]
Lewis v Daily Telegraph Ltd [1964] AC 234 at 258; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 412. ↑
[61]
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 at 88. ↑
[62]
Sim v Stretch [1936] 2 All ER 1237 at 1240; Tolley v J S Fry & Sons Ltd [1930] 1 KB 467 at 479. ↑
[63]
Slatyer v The Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7. ↑
[64]
Keogh v Incorporated Dental Hospital of Ireland [1910] 2 IR 577 at 586. ↑
[65]
Lewis v Daily Telegraph Ltd [1964] AC 234 at 277; Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 at 412. ↑
[66]
Gatley on Libel and Slander, 10th ed (2004) at 42-43 [2.12]. ↑
[67]
cf Naxakis v Western General Hospital (1999) 197 CLR 269 at 291-294 [61]-[68]. ↑
[68]
cf Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 169-170. ↑
Parties
Applicant/Plaintiff:
Favell
Respondent/Defendant:
Queensland Newspapers Pty Ltd
Cases Cited (7)
[2004] QCA 135
(1982) 149 CLR 293
(1963) 110 CLR 234
(1990) 21 NSWLR 135
(1908) 6 CLR 1
(1999) 197 CLR 269
(1997) 189 CLR 146
AI Analysis
Outcomeappellant
Disposition:
Appeal allowed with costs. Orders of the Court of Appeal of Queensland made on 30 April 2004 set aside and, in lieu thereof, appeal to that Court allowed with costs, orders of Helman J made on 31 October 2003 set aside, and the respondents' application remitted to a judge of the Supreme Court of Queensland for further consideration in accordance with the reasons of this Court. Costs before Helman J reserved to the judge dealing with the amended application.
As to imputation (a), an article which is capable of conveying the meaning that there are reasonable grounds for suspicion of arson, and which also states and elaborates those grounds, taking as the introduction to an account of the fire the existence of the controversial development proposal, and developing the story by giving the neighbours' point of view, could reasonably be found by a jury to convey that the suspicion is well-founded and that the suspects are guilty. An article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire.
Thus, a jury could reasonably conclude that several of the following grounds pointed to the fire being deliberately lit and that it was more likely than not that the appellants were responsible for it because they had a motive for destroying the existing building:
Because the parties to this appeal presented their arguments by reference to the conventional formulation, this is not the occasion to explore a different approach. However, generally speaking, the law is moving away from fictions and in the direction of substance and reality[27]. Acknowledging that the formulations of the imputation will have differing significance for the cause of action in defamation in different Australian jurisdictions[28], in a proper case, a new explanation for judicial decisions on such questions should emerge. It would abandon fictions and face squarely the purpose of pleading imputations in defamation, and of sometimes disallowing them.