Glanville v TCN Channel Nine Pty Ltd

Judgment 1HER HONOUR: These are proceedings for defamation arising out of the broadcast of the television program, A Current Affair, on Channel Nine. The hearing of the proceedings began before me yesterday and is listed for three weeks. This judgment determines an application by the fourth defendant to have the pleadings as against her struck out and the claim against her dismissed. I also now publish my reserved reasons for refusing the plaintiff's application for an adjournment yesterday.

Claim against the fourth defendant 2The fourth defendant is the well-known Australian businesswoman, Miss June Dally-Watkins. Miss Dally-Watkins is a former model who has for many years conducted the business of a modelling agency and finishing school. The plaintiff, Mr David Glanville, also conducts the business of a modelling agency, operating under the name "Boss Models". 3The programme broadcast on A Current Affair was introduced by the presenter as "a 12 month investigation" into Mr Glanville's business, accusing him of being a rogue agent who had set out to destroy Miss Dally-Watkins. 4The programme includes footage of comments made on camera by Miss Dally-Watkins. The total of her contribution is seven short statements, evidently made to a journalist. The statements represent only a small portion of the total broadcast. Other material making up the programme includes the opening remarks of the presenter, Ms Tracey Grimshaw, the commentary of the reporter, Ms Kate Donnison, footage of the reporter confronting the plaintiff and his responses, interviews with various models and another modelling agent and a variety of photographic images and other footage. 5Notwithstanding her limited contribution, the case pleaded against Miss Dally-Watkins seeks to hold her jointly liable (together with the proprietor of Channel Nine and the two journalists) as an original publisher of the whole of the programme. Paragraph 5 of the amended statement of claim filed 11 May 2012 states: On or about 26 March 2010 (and at other times) the defendants telecast for general reception the "A Current Affair" programme a recorded segment which was of and concerning the plaintiff and defamatory of him. A transcript of the words and images broadcast by the defendants is annexed hereto and marked "A". 6The particulars of publication appended to the statement of claim state: The "A Current Affair" programme were (sic) telecast by the first defendant, its employees, servants and agents, and by the second, third and fourth defendants, on the dates and times above mentioned on Channel Nine in Sydney and throughout the Channel Nine network associated television stations in the States and Territories of the Commonwealth either on the said day or subsequently. 7No other particulars have been provided to support the contention that Miss Dally-Watkins is jointly liable as an original publisher of the whole of the broadcast. 8The claim on that basis is problematic. I recently had occasion to consider the relevant principles in Dank v Whittaker (No 1) [2013] NSWSC 1062 at [22] to [26]. In that case, after considering a careful analysis of the relevant authorities provided by Mr Richardson of counsel (who appears as junior counsel for the media defendants in the present case), I accepted the proposition that liability as an original publisher is premised on the establishment of either control over the publishing process or some form of assent or approval given to the final form of the relevant publication. 9A person who consents to be interviewed by a journalist for the purpose of a broadcast will not ordinarily be taken to have had control over the preparation of the programme or indeed to have been given the opportunity to approve its final form. It is accordingly critical in a case where the plaintiff seeks to hold such a contributor jointly liable as an original publisher of the whole programme for the plaintiff to provide particulars of the facts, matters and circumstances relied upon in support of that claim. Whilst each case will of course turn on its own facts, absent particulars capable of establishing some measure of control or assent, the claim on that basis will be liable to be struck out: cf Dank (No 1) at [33]; Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415 at [3] to [37]. 10At the outset of the hearing yesterday, the solicitor for the fourth defendant contended that the claim as against her was liable to be struck out on that basis. It is regrettable that the point was not taken earlier. Mr Gillard, who appears for Miss Dally-Watkins, noted that the issue had been raised in correspondence. However, the correspondence did not squarely raise the point now taken. Some explanation is required. 11The plaintiff relies upon the following imputations alleged to have been conveyed by the broadcast (paragraph 6 of the amended statement of claim): (a)the plaintiff has set out to destroy the pioneer of the modelling business, June Dally-Watkins; (b)the plaintiff is ripping off young models; (c)the plaintiff is a convicted criminal; (d)the plaintiff preys on young beautiful women; (e)the plaintiff is by deliberate and improper conduct attempting to demolish Dallys Model Agency; (f)the plaintiff has been bullying June Dally-Watkins for the last four years; (g)the plaintiff is a conman; (h)the plaintiff takes advantage of aspiring young models by promising them the world and delivering nothing. 12In February 2012, Mr Gillard wrote to the solicitor then acting for Mr Glanville contending that Miss Dally-Watkins "is only required to respond to the allegations arising from the imputations alleged at paragraphs 6(e) and (f)." To a degree, that contention misconceived the way in which the case had been pleaded. As already explained, the pleading sought to hold Miss Dally-Watkins jointly liable as an original publisher of the whole of the broadcast. If liability on that basis were established, Miss Dally-Watkins would be liable for all of the imputations that arose from the matter complained of, regardless of the limited content of her own contribution. Mr Gillard's instinct was nonetheless good. His letter no doubt sought to articulate the proposition that, in the absence of further particulars, the pleading did not disclose a viable claim of joint liability against Miss Dally-Watkins and that her liability should be confined to that which arose from the words spoken by her. 13In any event, the issue having been raised at the outset of the hearing, it is plainly preferable to determine it now rather than at the conclusion of a three-week hearing. 14Mr Glanville was unrepresented when the application was heard yesterday. A solicitor appeared for him with limited instructions directed mainly to obtaining an adjournment, which I refused. Following the refusal of the adjournment, the solicitor remained in court as an amicus curiae (with my leave and without opposition from any defendant). In the circumstances it was appropriate, in my view, to approach the application on the basis that Mr Glanville was unrepresented and was accordingly entitled to some assistance from the Court in explaining what was being put against him. 15Mr Glanville frankly acknowledged in that context that he does not seek to hold Miss Dally-Watkins liable as an original publisher of the whole of the broadcast. Indeed, he expressed some surprise that the claim had been pleaded in that way. The statement of claim was prepared at a time when Mr Glanville was legally represented. He evidently understood that Miss Dally-Watkins had been sued only for the words she said to the journalist. 16In that circumstance, I granted a short adjournment to allow Mr Glanville to reformulate his claim. I should record that I did so having reached the conclusion that, even leaving aside Mr Glanville's concession that he did not in fact seek to put the claim in the way in which it had been pleaded, it was liable to be struck out in any event in accordance with the principles outlined above. 17Mr Glanville returned after midday with the following proposed amended pleading against Miss Dally-Watkins: The fourth defendant on a date unknown to the plaintiff spoke to a reporter of the first defendant and it was a natural and probable consequence that the substance of the words would be republished on the program. The fourth defendant is jointly and severally liable for republication of the imputations: (a) (b) (e) (f) (g) contained in paragraph 6. 18It may be seen that the proposed amendment seeks to recast the claim as one based on the words said by Miss Dally-Watkins to the journalist (as the original publication) and the republication of those words in the broadcast. 19Before considering the proposed amendment, it is helpful to recall the principles relating to republication. Mr McClintock SC, who appears with Mr Richardson for the newspaper defendants, reminded me that I had occasion to summarise some of the relevant propositions in the case of Bracks v Smyth-Kirk [2008] NSWSC 930 at [26] to [33]: ...Mr Hale acknowledged the principle explained by Hunt J in Sims v Wran that, in respect of the repetition or republication of a libel, the plaintiff is put to an election in any claim against the original publisher. He may choose to sue only on the original publication, but seek to recover as a consequence of that original publication the damage he has suffered by reason of its repetition or republication. In that event, he is not suing on the republication as a separate publication, but is relying on it as damage caused by the original publication in accordance with the general principles relating to damages in tort: Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 at 183F. 27 As noted by Hunt J in Sims v Wran, if that is the intended course, the plaintiff is obliged to make his intention (to rely on the republication) clear in his statement of claim. His Honour cited Part 15 Rule 13 of the Supreme Court Rules 1970 as the foundation for that obligation. That rule has been repealed but replaced in identical terms by UCPR 14.14. It requires the plaintiff, in a statement of claim, to plead specifically any matter that, if not pleaded specifically, may take the defendant by surprise. 28 Alternatively, the plaintiff may sue the original publisher on the republication as a separate publication, that is, a separate civil wrong. If he chooses that course, he must plead each republication in the exact words as a separate paragraph to enable the defendant to plead to it whatever defence may be appropriate to that particular publication: Toomey at 182B; Sims v Wran at 320D. That is nothing more than an aspect of the obligation to plead the elements of each cause of action relied upon. 29 The issue whether the original publisher is liable as a publisher of the republication has traditionally been considered against the three principles stated in Speight v Gosnay (1891) 60 LJQB 231 at 232, namely, that the original publisher will be liable: a) where he authorised or intended the republication; b) where the person to whom the original publication was made was under a duty to repeat the statement; c) where the republication was the natural and probable result of the original publication. 30 A plaintiff who sues only on the original publication, relying on the republication as part of the damage caused rather than as a discrete cause of action, does not have to plead or establish those matters. What he has to establish is that, in accordance with the general principles relating to damages in tort, the republication was part of the damage caused by the original publication. 31 Where the republication is not in the same terms as the original publication, the question is whether the original publisher authorised the substance and the sting of the republication. If the original publisher merely provided some of the material used by another in the preparation of a defamatory piece, he will not be liable as a publisher of the later publication if, as a whole, it is different in sense and substance from the material he provided. 32 A plaintiff may, of course, also have a cause of action in respect of the republication against persons other than the original publisher. The principles relevant to identifying the range of people who may be responsible for a libel as a publisher were explained in Webb v Bloch. Liability may extend to a number of people including any person who intentionally lent his assistance to the existence of the publication for the purpose of its being published; or who concurred or showed his assent or approbation to it. It is on the basis of those principles that each of the author, editor and publisher of an article may be held liable for its publication. 33 Gatley on Libel and Slander (Ninth Edition) states at [6.30] that the principle that permits the plaintiff to sue the original publisher on the republication only as part of the damage caused by the original publication is "wider" than the principle permitting the plaintiff to sue on the republication as a separate cause of action, citing Slipper v BBC [1991] 1 QB 283. In that case the plaintiff was allowed to rely on the effect of newspaper reviews of a defamatory film as damage flowing from the broadcast of the film, where the differences between the film and the reviews were such that he could not have relied on the reviews as amounting to a republication of the film. That reflects the proposition that a plaintiff who sues only on the original publication need not be concerned with whether the repetition adheres to the sense and substance of the original publication, except to the extent that it bears on the question of causation of damage. 20It is not clear from the proposed amendment which of the courses identified by Hunt J in Sims v Wran has been elected by Mr Glanville. I have concluded that neither course can be permitted at this late stage. 21If it is now intended to sue on the original publication (the words said by Miss Dally-Watkins to the journalist) as the cause of action, there are two fundamental hurdles to the claim. The principal difficulty is that it may well be out of time. The proposed amendment would occasion real prejudice to the fourth defendant on that account, since she has lost the opportunity to test whether that is so. 22The broadcast was published on 26 March 2010. These proceedings were commenced on 24 March 2011, just two days short of the expiration of the limitation period for an action on that publication. 23Self-evidently, Miss Dally-Watkins spoke to the journalist before the programme went to air. That may have occurred on 26 March 2010 but it may have occurred earlier. Mr Glanville frankly acknowledged that he did not know when it occurred. Had the claim been pleaded as one in republication from the outset, the issue whether it was time barred could have been investigated and, in all probability, determined definitively. It is not possible for that to occur now, during the conduct of the trial. 24The second hurdle is that the proposed amendment does not plead the defamatory matter sued on (the words alleged to have been said by Miss Dally-Watkins). That is presumably because the plaintiff is unable to do so. That is a problem which cannot be cured. Mr McClintock informed the Court that the footage of the interview with Miss Dally-Watkins has not been kept by the first defendant - only extracts remain. Accordingly, any attempt to sue on the original publication as a cause of action would appear to be hopeless at this stage. 25The plaintiff's position is no stronger if it is intended to sue on the republication of those words (by means of the broadcast) as the cause of action. The principal impediment to that course is that it is not possible at this stage to test whether the first to third defendants republished the sense and substance of the words said by Miss Dally-Watkins. As noted in the extract from Bracks v Smyth-Kirk set out above, where the republication is not in the same terms as the original publication, the question is whether the original publisher authorised the substance and the sting of the republication. If the original publisher merely provided some of the material used by another in the preparation of a defamatory piece, he will not be liable as a publisher of the later publication if, as a whole, it is different in sense and substance from the material he provided. 26The prejudice of allowing the plaintiff to sue on the broadcast as a republication at this late stage is manifest, particularly where the footage of the whole of the interview is no longer available. To place Miss Dally-Watkins in the position of having to defend, without notice, the contention that the broadcast captured the sense and substance of words she said over three years ago (at least) and of which there evidently remains no complete record would be extremely unfair, in my view. 27Mr Glanville proposed alternatively that he might be permitted to sue only on the words said by Miss Dally-Watkins as they are reproduced in the broadcast (that is, to sue on the broadcast as the original publication but holding Miss Dally-Watkins liable for only her part of the broadcast and not relying on the parts contributed by others). That approach was rejected by Nicholas J in earlier proceedings instituted by Mr Bracks which led to my decision in Bracks v Smyth-Kirk: see Bracks v Denoon (Supreme Court of New South Wales, Nicholas J, 14 December 2006, unreported); summarised in Bracks v Smyth-Kirk at [6] to [8]. 28In those circumstances, I have concluded that the claim as presently pleaded against Miss Dally-Watkins is liable to be struck out and that the claim cannot be repleaded at this stage without undue prejudice to Miss Dally-Watkins. For those reasons, I ordered this morning that the pleadings as against her be struck out and that the proceedings against her be dismissed. I ordered that the plaintiff pay her costs of the proceedings.