Solicitors:
Mark O'Brien Legal (Plaintiffs)
News Corp Australia (Defendant)
File Number(s): 2016/1215342016/1215362016/121537
[2]
Judgment
HER HONOUR: Before the Court are three actions for defamation arising from the same publication in The Daily Telegraph. The article was published on 24 December 2015. It relates, broadly, to accusations made against the three plaintiffs, described in the article as "shark-loving greenie activists". The article appeared on the front page of the newspaper with the familiar two-inch headline, in this case "Sharkwits". In an action concerned with the meaning of words there is no need to mince them; the headline was plainly intended as a play on the derogatory term "fuckwits" (in reference to the plaintiffs). The smaller heading reads: "Greenies caught up in drum-line sabotage scandal".
The article reported suspicions that the three plaintiffs, who were clearly identified both by name and photograph, had been responsible for removing the baits from drum lines designed to catch sharks during the period leading up to the peak swimming season at New South Wales beaches over the Christmas holidays. The article reported that police had investigated concerns that the baits had been removed so as to prevent sharks being caught during that season and that the police had not proceeded to charge any of the three plaintiffs with any offence.
The article continued into a second page (at page 5 of the printed edition of the newspaper) with the headline "Off the hook!" and the subheading "Greenie shark luvvies are accused of taking the bait". It is there that the photograph of the three plaintiffs appears, digitally altered with an image of a large, aggressive-looking shark evidently attempting to board their rubber boat.
As the matter complained of is pleaded in the statement of claim, the plaintiffs also rely on an additional part of the newspaper (at page 28 of the printed edition), which is an editorial commenting on the main piece. The attention of the reader is invited to the editorial by an inset paragraph in bold lettering in the main article which states: "Removing drum line baits is the oceanic equivalent of lighting a bush fire; editorial page 28". On page 28 the editorial appears under the headline "Shark sabotage scandal", opening with a comparison between sharks and environmentalists in the following terms:
Sharks are basic unreasoning creatures that survive by use of massive strength. They are essentially brute force manifest in marine form. In some ways they are similar to extreme environmentalists who style themselves as shark protectors. Both species have limited and selfish aims that are satisfied by simple violence.
The editorial discusses the reports in the main article that baited drum lines intended to ward off shark attacks were "allegedly" tampered with off the State's North Coast. It offers a condemnation of any person who would interfere with the drum lines in that way, concluding with the following paragraphs:
"'I simply cannot comprehend the motives of any person who would stand in the way of the scientific trial of new technologies that may help improve bather safety while limiting the impacts on our precious marine environment', Mr Blair told the Daily Telegraph.
Well said. Removing drum lines bates is the oceanic equivalent of deliberately lighting a bush fire. Any perpetrators should be viewed as we do an arsonist.
The three proceedings are before the Court today for the first listing, as contemplated in the Defamation List Practice Note SC CL 4. Since they arise out of the same publication, the three matters were heard together. I might note in that context that the plaintiffs are represented by the same solicitor and the same counsel.
The defendants take objection to a number of the imputations pleaded in each statement of claim, which are in identical terms in each of the three proceedings. This judgment determines those objections.
The first imputation objected to is imputation (a):
(a) The plaintiff endangered the lives of swimmers and surfers by sabotaging shark drum lines.
It is convenient to consider one of the objections to that imputation together with the objections to two further imputations, (d) and (e), as follows:
(d) The plaintiff's actions in removing shark drum baits were so dangerous to human life that they were as bad as an arsonist who deliberately lights a bush fire.
(e) The plaintiff committed a crime by interfering with set fishing gear.
As to each of those three imputations, the objection was that the imputation is not reasonably capable of being conveyed by the matter complained of. Whilst it is accepted that the matter complained of is capable of conveying an imputation of suspicion of conduct on the part of the three plaintiffs, it was submitted that it is not capable of conveying any imputation to the effect that they in fact sabotaged the shark drum lines.
The objection invoked the well-known principles stated in the decision of the High Court in Mirror Newspapers Ltd v Harrison [1982] HCA 50; 149 CLR 293. In particular, Mr Lewis, who appears for the defendant, quoted the following passage of the judgment:
As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful o the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilty or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.
In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable of the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.
It may be accepted, as the Court said in those remarks, that a distinction must be drawn between what is conveyed by the words of the matter complained of and what a reader draws from his own beliefs and prejudices. In the present case, any gulf between suspicion and guilt is amply filled by the words of the matter complained of. I think that will be clear from the parts of the article I have set out above. But lest there be any doubt about my reasons for reaching this conclusion, I consider the matter complained of is plainly capable of suggesting that each of the three plaintiffs, although not charged by the police, had in fact sabotaged the shark bait lines in the manner suggested. As submitted by Ms Chrysanthou, if nothing else, that flows from the fact that the article was written after the point in time when police evidently determined not to charge the three plaintiffs, the thrust of the insinuation being that the plaintiffs had been let "off the hook" for something they in fact did.
Those reasons apply in respect of each of the three "guilt" imputations, which were argued together. The ruling is that imputations (a), (d) and (e) are capable of arising and, subject to the form objections, will go to the jury.
It is convenient next to deal with the form objection in respect of imputation (a). The defendants submitted that the term "sabotaging" is inherently imprecise. It was submitted that the plaintiffs could distil a clearer, more specific imputation, particularly since the article makes plain in the body of the relevant discussion that the manner in which the shark drum lines were allegedly sabotaged was by removal of the bait.
Ms Chrysanthou submitted that it is perfectly open to a plaintiff to plead a general or broader imputation in addition to a specific imputation, provided each is reasonably capable of arising. As it was put by Ms Chrysanthou, a plaintiff is entitled "to Maisel himself" (a reference to the decision of the English Court of Appeal in Maisel v Financial Times Limited [1915] 3 KB 336 in which it was held that, the plaintiff having sued on an imputation charging a general allegation, in that case "that his character and reputation were such that he was likely to misappropriate funds of companies with which he was connected", evidence of acts showing a general tendency to be dishonest, including acts that had occurred after the date of publication, was admissible to prove a defence of justification to that imputation).
Here, the plaintiffs have chosen to sue on a broad imputation as well as a more specific imputation. A separate point raised by the objection was that the term "sabotaging" is of unclear meaning. I think, however, that this is a case in which the plaintiff is entitled to use that term in the imputation, since it is the term used more than once in the matter complained of (particularly since it is the term that appears in large print on the front page of the newspaper).
I reject the objection as to form; it follows that imputation (a) will go to the jury.
Imputations (b) and (c) each arise from the opening paragraphs of the editorial. They are:
(b) That the plaintiff used violence to advance his or her selfish aims.
(c) That the plaintiff is prepared to use violence to advance his or her selfish aims.
The first objection in each case was on the grounds of capacity. As to the imputation which imputes each plaintiff with using violence, the defendants submitted that no such complaint or allegation is made anywhere in the matter complained of. Similarly, in respect of the imputation of preparedness to use violence, it was submitted that the matter complained of makes no such imputation in terms.
The editorial, in the passages to which I have referred, draws a comparison between the alleged brute strength of sharks and the conduct of extreme environmentalists. There can be little doubt, in my view, having regard to the terms of the teaser, that the editorial referred, or is at least is capable of being read to refer, to the three plaintiffs, not just "extreme environmentalists" in general. It plainly attributes them with the qualities attributed to sharks by the author of the editorial. In my view, that impression is reinforced by the contention that both species, that is sharks and environmentalists, have limited and selfish aims "that are satisfied by simple violence".
The capacity objection should be rejected.
Separately, as to imputation (b), it was submitted that the term "selfish aims" is too broad and is imprecise. In my view, the imprecision reflects the lack of clarity in the matter complained of itself (in particular, the tenuous comparison between the sharks and environmentalists). I do not think this is a case in which it is appropriate to force the plaintiffs to attempt to distil the sense of the views expressed by the author of the editorial with any greater precision.
A separate objection to imputation (b) is that the imputation is hypothetical and rhetorical. That objection was characterised in the defendant's submissions as a capacity objection. It might equally be understood to be a form objection. In any event, it is necessary to grapple with the proposition.
Mr Lewis, who appears for the defendants, relied on the decision of Nicholas J in Morten Christiansen v Fairfax Media Publications Pty Limited & Ors [2012] NSWSC 1258. In that case, his Honour considered an imputation "that the plaintiff may have so conducted himself to warrant him being dismissed as a manager of the Star in that he may have possessed pornographic material and forwarded it to another employee". In such a case, the proposition that the imputation is hypothetical may readily be understood. The imputation was rejected on that basis.
I do not understand the imputation that each plaintiff "is prepared to use violence" to entail an attribution that is hypothetical. I would understand those words to attribute an existing condition to each plaintiff; namely, that he or she is a person prepared to resort to violence, as opposed to being a person not prepared to resort to violence. The occasion for resorting to violence or not entails a degree of the hypothetical, I accept; that is, one would only see the quality of being prepared to resort to violence or not upon certain circumstances eventuating. I am nonetheless persuaded that the current form of the imputation does with adequate specificity attribute an existing present condition.
The plaintiffs, in this context, relied on the discussion of objections on the grounds that an imputation is rhetorical in Viney v TCN Channel Nine [2006] NSWSC 1273 per Simpson J, as her Honour then was. Her Honour there made the point that it had become a habit of defendants to object to imputations on the grounds of their being rhetorical in circumstances where that term was not given any specific meaning. Simpson J said:
"In my opinion, the time has come for defendants' counsel to bury the practice of attacking imputations pleaded by plaintiffs on the basis that they are rhetorical; alternatively, to specify precisely what they mean by the epithet. Otherwise, the complaint is, itself, mere rhetoric."
There is some force in those remarks.
I should, in that context, refer to my own two decisions in Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 and Hanson-Young (No 2) [2013] NSWSC 2029 where I upheld objections by defendants on the grounds that the imputations were rhetorical. The way in which I understood the term to be used in those objections was that the imputations entailed an invitation or exhortation to a certain conclusion, namely that the plaintiff "should be shunned and avoided", where that rhetorical exhortation added nothing to a separate non-contentious imputation. That is not the vice complained of here.
In my view, an imputation which attributes a person with an existing preparedness to act in a particular discreditable way is not rhetorical either in the sense in which I used that expression in the Hanson-Young decisions or, as I would understand it, in a hypothetical sense. The objection to form on that ground should be rejected.
For those reasons, the defendant's objections are rejected.
I direct the parties to bring in short minutes with a view to fixing a timetable for a second listing.
I order the defendant to pay each plaintiff's costs.
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Decision last updated: 22 June 2016