Hardie v H&WT & Anor [2016] VSCA 103

Hardie v H&WT & Anor [2016] VSCA 103 - VSCA 2016 case summary — Zoe

[29]

Not just any old outlaws - The Outlaws, one of the oldest 'one percenter' biker clubs around. They have two local chapters - one in Shepparton and one across the river at Kyabram. The whisper is these bands of brothers disagree on the issue of manufacturing and selling drugs.

They certainly have no objections to the local strip joint, Club Rawhide, set up in an industrial building next to a car yard overlooking the railway line.

It's around the corner from two of Shep's biggest pubs - and the police station, which is handy if members need to attend in either professional or pleasure-seeking capacity.

Police were called there late on the night of December 7, because a prominent local footballer and his mates were filmed punching and 'stomping' some other rocket surgeons, in a brawl a magistrate called 'extreme violence' when he sentenced them this month.

They appealed and got bail. If they lose, they will go inside. This would interfere with the local hero's footy career but it might not do any harm to membership of his other club, which happens to be The Outlaws.

In a case spookily like the cult television series Sons of Anarchy, it turns out the local hero and his dad are both in the biker club.

In fact, he was excused attending a football coaching camp last season because he had a prior social engagement with The Outlaws.

It was an invitation he couldn't refuse.

Of course, it's good that police arrested the bikies and brawlers so efficiently at Club Rawhide. Madam Black Mercedes, who runs the place, will be grateful.

It's unlikely our 'hero' will hold too many grudges, as The Outlaws and a few country police officers seem to have a healthy mutual respect. Locals suggest Rawhide is a convenient common ground for the two groups to unwind after a hard day at the office. As drinkers do the world over, they probably talk shop and swap business cards and phone numbers.

That might or might not explain why so many police raids around the Goulburn Valley have drawn blanks in recent times.

A former local detective has heard that at least eight search warrants have resulted in police finding no guns, no drugs and, sometimes, nobody home. When the law came knocking, The Outlaws were outdoors. In one case, huge cannabis plants vanished overnight.

Suspicious minds have pointed investigators toward a person who allegedly got a heads-up from a superior that Taskforce Eagle was circling.

Whether Eagles dare wreck the chummy Club Rawhide ambience is yet to be seen.[6]

[41]

SECOND RESPONDENT: I've got another apology, from Madam Rawhide

EM: We've got a second edition, Madam Rawhide, ok

SECOND RESPONDENT: From Club Rawhide ...

LD: That's the northern town that Andrew was on the front page of the paper talking about.

ALL: It's a strip club

SECOND RESPONDENT: It's a strip club - it's a respectable strip club.

...

EM: Let's take some news, and when we come back, I want to hear about Madam -

MM: Rawhide?

SECOND RESPONDENT: Well from Club Rawhide. She's Madam something else.

EM: Madam something else? Was she Madam Black Mercedes in our story?

SECOND RESPONDENT: But we're going to correct that ...

EM: Ah.

MM: Do you do anything other than apologise for stuff you say in your articles?

SECOND RESPONDENT: Not much.

[Laughter]

...

SECOND RESPONDENT: I had a call yesterday from the proprietor of Club Rawhide, who is a lady.

EM: Mhmm.

SECOND RESPONDENT: And she was referred to in the story as 'Madam Black Mercedes'. I know her actual birth name but I thought 'Madam Black Mercedes' sort of caught the situation, because I was told that at some point she used to own ...

EM: You've become the new Lou Richards ... you just bestow nicknames on people.

SECOND RESPONDENT: ... A Black Mercedes.

LD: Ed prefers Madam Lexus.

SECOND RESPONDENT: You know that is a tradition in our business, we do that. We should go through it one day, all the nicknames that we have. Madam Black Mercedes has called and she said: [In growly voice]: 'I'm not um, Madam Black Mercedes'. And she said 'I'm not a madam'. And I said, 'M'amm, I meant that in a most respectful way, as people do when they talk about the Queen. In no other connotation.' So she swallowed that but she's not that happy.

[Stifled Laughter]

EM: As a professional communicator, you're having trouble getting your meanings in your writings across at the moment aren't you?

SECOND RESPONDENT: Well, I am or I aren't. I'm not sure Ed, maybe I'm getting them through too well. So first thing was the Madam bit and we sorted that out, and she said, as for Black Mercedes, I used to have a Black Mercedes, and then she explained to me that she no longer does. So I'm here to apologise about that, to the proprietor of Club Rawhide, which is a family friendly strip venue ...

[Laughter]

[80]

Club Rawhide is described as a 'raunchy strip venue' in the news article and as 'the local strip joint' in the colour piece. There is no other reference to anything with a sexual connotation in the text of the articles. The articles are about police corruption. They are not about sex.

The word 'madam' is both an honorific and a name given to a female manager of a brothel. As an honorific, it is now somewhat archaic and is rarely used.

The evidence was that there certainly were people who interpreted the colour piece as asserting that Mrs Hardie was conducting a brothel at Club Rawhide. Mr Rule himself was sufficiently concerned by that possible connotation to see the need to correct it after Mrs Hardie rang him about it, and he attempted to do so, albeit ineffectively. The fact that some people interpreted what was said that way is not the relevant issue, however. Evidence is not admissible on the question of meaning.

Mason J (as he then was) observed in Mirror Newspapers Ltd v Harrison:

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 to the plaintiff.[24]

Club Rawhide offers entertainment of a very sexually explicit nature. The nature of the entertainment offered is such that Mrs Hardie has gone to considerable lengths to regulate the behaviour of the women who provide the entertainment, inside and outside the club, and the behaviour of the patrons who seek out that form of entertainment. All of the evidence before me indicated that Mrs Hardie conducts this business in a professional manner. The very nature of the business, however, means that the risk of prostitution occurring is inevitably present. That is why Mrs Hardie adopts strict rules and practices in relation to it. That is also why it would take little to excite in some readers a belief that prostitution was occurring. Some readers would hold beliefs and prejudices about strip clubs which mean they would adopt that conclusion.

Some people did conclude that Club Rawhide was a brothel and that Mrs Hardie was a brothel madam because Mr Rule referred to her as 'Madam Black Mercedes'. But that does not mean that the ordinary reasonable person reading the news article and the colour piece would understand what was being said as being that Mrs Hardie was herself a brothel madam.

I do not consider imputation (c) to be the single meaning which should be adopted. In my view, it is not an approximate centre point in the range of possible meanings and it is not the dominant meaning, notwithstanding that some persons, perhaps many persons, may have interpreted it in that way. My reasons for this conclusion are as follows.

(a) The news article and the colour piece are not about sex. No reference is made to the form of entertainment offered or the activities of the women who provide entertainment at the club.

(b) Although the term 'madam' is a term which can apply to the female manager of a brothel, that is not its only use. The use of this somewhat archaic honorific in the course of an article written in a sardonic tone would not, in my view, be reasonably interpreted as a serious statement that the person who 'ran' Club Rawhide was in fact the manager of a brothel.

(c) A conclusion that Mrs Hardie was the manager of a brothel could only be drawn if the reader was prepared to read into the use of the expression considerations which do not arise out of the text of the article but arise instead out of beliefs or prejudices the reader holds in relation to strip clubs of this kind and the people who run them.

The focus of the defendants' case in relation to this imputation was that what was said did not convey it. It was not suggested that it was justified. The submissions made on qualified privilege did not address it. My conclusion is that imputation (c) was not conveyed.[25]

[103]

There are two wellestablished principles that apply where a claim is made for aggravated damages. The first is the oftcited dictum of Lord Esher MR in Praed v Graham where his Lordship said -

'The jury in assessing damages are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in court during the trial.'

Secondly, the conduct of the publisher must meet the description of what the High Court said in Triggell v Pheeney concerning aggravation.

' ... as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.'

(Emphases added).

The misconduct justifying aggravated damages may be because of lack of bona fides or it was improper or it was unjustifiable. The damages usually are confined to the distress element in the award.

I respectfully adopt the statement of the law by Brennan J in Carson v John Fairfax & Sons Ltd where his Honour said -

'Damages may be aggravated ... by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendants from the time of publication until verdict (including conduct of the trial, ... ) is relevant. In Broome v Cassell and Co Lord Reid, speaking of the bracket with which any sum could be regarded as not unreasonable compensation said:

"It has long been recognised that in determining what sum within that bracket should be awarded, the jury, or other tribunal, is entitled to have regard to the conduct of the defendant. He may have behaved in a high handed, malicious insulting or oppressive manner in committing the tort or he or his counsel may at the trial have aggravated the injury by what they there said. That would justify going to the top of the bracket and awarding as damages the largest sum that could fairly be regarded as compensation".'

The amount awarded for aggravated damages is not a discrete head of damages. The tribunal determining the compensatory damages includes the amount for aggravated damages in the sum awarded.[37]

At a glance

Court

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Judgment (160 paragraphs)

Parties

Cases Cited (10)