Hardie v The Herald and Weekly Times Pty Limited [2014] VSC 232

Supreme Court of Victoria|2014-05-19|Before: DIXON J

DEFAMATION - Practice and procedure - Pleading - Whether material published capable of giving rise to plaintiff's pleaded imputations - Whether imputations capable of being defamatory.

1 The plaintiff, who is the proprietor of an entertainment venue in Shepparton called 'Club Rawhide', claims damages for defamation from the defendants. The first defendant is the publisher of the Herald Sun, and associated websites, and the second defendant, its employee, is an associate editor and the author of the material complained of. The first publication complained of was in the print edition of the Herald Sun of 16 May 2013. The second publication complained of was on the Herald Sun website on the same day. A republication of those publications is alleged to have occurred at a community information session in Shepparton on 18 February 2013. The second defendant appeared as a guest on a morning radio programme on 17 May 2013. His statements on that radio program are the third matter complained of.

2 For the purposes of this application, the imputations pleaded by the plaintiff as arising from these publications can be conveniently grouped. The Club Rawhide imputations are that -

(a) the plaintiff runs a venue (Club Rawhide) that is regularly attended by members of an outlaw motorcycle gang (Herald Sun print edition and website publications); and

(b) the plaintiff runs a venue (Club Rawhide) in which police give secret tip-offs to members of outlaw motorcycle gangs that hinder police investigations and frustrate search warrants (Herald Sun print edition and website publications)

(c) the plaintiff is a brothel madam; and

(d) the plaintiff runs a brothel at Club Rawhide in Shepparton (Herald Sun print edition and website publications and radio broadcast).

3 The defendant applies under R 23.02 of the Supreme Court (General Civil Procedure) Rules 2005 to strike out all pleaded imputations on the grounds that imputations (a), (b) and (d) are not defamatory of the plaintiff and imputations (c) and (d) are not capable of being conveyed from any of the publications alleged.

4 There was little dispute between the parties about the applicable principles, which can be shortly stated.[1]

(a) As Beach J noted in Franchise Central (Australia) Pty Ltd & Ors v Fairfax Media Publications Pty Ltd & Anor[2], many authorities have dealt with the rules relating to the pleading of imputations. His Honour identified the following four propositions from those authorities.

(i) Distinct meanings should be pleaded - and the test for distinctiveness is whether the evidence required to justify each meaning would be substantially different.

(ii) Distinct meanings should be distinctly pleaded - because of the potential for a rolled up plea to cause confusion.

(iii) An imputation must express the precise act or condition asserted of or attributed to the plaintiff or of which the plaintiff is charged.

(iv) An imputation should represent the final distillation of the alleged defamatory meaning.

(b) The principals to be applied when determining whether an imputation has been properly pleaded on the one hand, or is too vague and imprecise on the other hand, were discussed by Kaye J in Trkulja v Google Inc LLC & Anor.[3] His Honour said:

First, the question, whether an imputation has been properly pleaded, is to be determined as a matter of practical justice, rather than as an exercise of close semantic or linguistic refinement. Secondly, the question whether a particular imputation is sufficiently specific depends, essentially, on the context in which it is pleaded. In some publications, the allegation about a plaintiff may be so unspecific as to give rise only to the most general imputation. For example, a billboard alleging that a particular plaintiff is "corrupt" may, in an appropriate case, only give rise to an imputation pleaded in the most general form. On the other hand, and by contrast, a publication may, by its context, give rise to one or more possible meanings of a particular condition attributed to the plaintiff. In such a case, where the plaintiff pleads that the publication imputed that condition to him, the plaintiff is obliged to specify how and in what respects that condition is conveyed in the imputation.

(c) The principles for determining whether or not a matter complained of is capable of conveying particular imputations were summarised by Hunt J in Farquhar v Bottom[4]. His Honour said:

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. I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. 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 worldly affairs. 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 than that of the lawyer.

(d) The hypothetical ordinary reader was described by Kaye J in Soultanov v The Age Company Limited & Another[5]

The issue which I must determine on the defendants' summons is a question of law, namely, whether the article was reasonably capable of conveying the imputation, pleaded by the plaintiff, to the ordinary reasonable reader. The hypothetical "ordinary reasonable" reader has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in the light of his or her general knowledge and experience of worldly affairs. Such a reader is described by the law as someone who is not "avid for scandal" and who is neither "unusually suspicious nor unusually naïve". He (or she) does engage in a degree of loose thinking, and is understood to read between the lines. In particular, it is important to take into account that the ordinary reasonable reader is a lay person, and not a lawyer, and that his or her capacity for implication is much greater than that of a lawyer. On the other hand, as observed by Mason J in Mirror Newspapers Limited v Harrison, it is necessary to draw a distinction between the reader's understanding of what the article is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs and prejudices after reading the particular matter in question.

(e) The test of defamatory matter was recently revisited by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton.[6] The test is whether the published matter is likely to lead an ordinary reasonable person, (might cause ordinary decent folk) to think the less of a plaintiff. The hypothetical audience - the referees of the issue of whether a person has been defamed - has been regarded as composed of ordinary reasonable people of ordinary intelligence, experience, and education, not avid for scandal, and fair-minded. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs. Any standards to be applied by the hypothetical referees to an assessment of the effect of imputations are those of the general community.

5 The defendants contended that the pleaded imputation did not attribute any act or condition to the plaintiff. To be defamatory of the plaintiff, something more than that she 'runs' the venue was needed, such as, she encourages immoral activity by running the venue, or encourages persons of immoral reputation into the venue. The pleaded imputation is capable of arising from the relevant publications, the defendants did not suggest otherwise. However, the defendants contended the publications were not defamatory of and concerning plaintiff as distinct from the plaintiff's business. The submission was cast in terms of whether the publications imputed 'blame worthiness' which I think misstates the test. The thrust of the submission was that to allege that outlaw bikie gang members, undesirables, attend venues cannot of itself be defamatory of the plaintiff because members of outlaw motor cycle gangs are members of the community who frequent places that are open to the public such as restaurants, cafes, bars, or cinemas.

6 I do not accept this submission. When the Radio 2UE test is properly applied and attention is directed away from a search for moral culpability or blameworthiness, the imputation can clearly be capable of being defamatory. I consider it open to a jury to reason that the pleaded imputation is likely to lead an ordinary reasonable person to think less of the plaintiff, as distinct from her business, when they bring their general knowledge and experience of worldly affairs to the question.

7 The use of the term 'immoral' in the submission is probably intended to draw the ordinary reasonable person away from the term 'outlaw' that is used in the pleaded imputation and in the publications. The act of the plaintiff that is identified is that of running a venue, and the character of that act which flavours the imputation is that the venue that she runs is patronised by members of an outlaw motorcycle gang, persons who a jury might think engage in activities that are outside of the law when it suits them, including at Club Rawhide. Immoral conduct or reputation is irrelevant, and the plaintiff's counsel ultimately stepped away from the use of that concept, which was referred to in the defendants' written submission. Activities that are outside of the law may be thought by members of the general community to include criminal conduct and that audience might be considered by a jury to think less of a person who runs a venue of that character, whether it be a restaurant, bar, cinema, or, a fortiori, a strip club.

8 I am not persuaded by the distinction that the defendant attempts to draw between the plaintiff and her business, as the plaintiff can allege and prove, as she does, that she has a business reputation. As the High Court said in Radio 2UE:[7]

The common law has for some time recognised that words may not only reflect adversely upon a person's private character, but may injure a person in his or her office, profession, business or trade. This may be so where the words reflect upon the person's fitness or ability to undertake what is necessary to that business, profession or trade. But in each case the injury spoken of is that to the person's reputation.

10 The second imputation is challenged on a similar basis. It is not defamatory to suggest that a person has innocently been caught up in any tip-offs and, as they are said to have been 'secret' tip-offs, how could the ordinary reasonable reader conclude that the plaintiff knew of, or could have done anything about, this activity. Again, the defendants contended that a further element needed to be pleaded - that the plaintiff knew of, or encouraged, the secret tip-offs - but that further element could not be drawn from the publications.

11 This submission confines the meaning of 'secret' in quite a limiting way, perhaps to enhance its appeal. As the word is used throughout the publications, it does not imply that the tip-offs were secret from the proprietor of, the venue. Rather, the suspected corrupt or improper relationships that were referred to between some police and members of outlaw motorcycle gangs were secret relationships. The imputation is not that the plaintiff was innocently caught up in the tip-off activity. Rather, as counsel for the plaintiff submitted, it is open to a jury to reason that the publications were saying that the manager and owner of that venue puts up with disreputable people meeting together. The plaintiff tolerates, and allows, such contact to continue and Club Rawhide is the kind of place where ordinary members of the community wouldn't want to go, not because it's a raunchy strip venue but because it's full of criminal bikies and corrupt police officers. The ordinary reasonable reader would think less of a venue operator when, as counsel submitted, there may be 'a violent criminal bikie gang member [sitting] on one side and a corrupt officer looking for secret tip-offs on the other'.

12 For the reasons that I have given in respect of imputation (a), I will not strike out this imputation.

13 The defendants contended that these imputations are not capable of arising from the publications. An earlier contention, that an extrinsic fact would need to be pleaded to support these imputations, was withdrawn. The defendants conceded that the word 'madam' is used in the first and second matters complained of, but suggested that there was just one use in a very long article. At the risk of taking the passage out of context, I will quote it.

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.[8]

14 The defendants submitted that the most common and generally understood use of the word 'madam' is as a title for a female, as are the titles Ms, Mrs, Miss or Ma'am, the last example being the shortened version of madam. The difference between madam and Ms or Miss is that madam is usually reserved for an older woman and a woman who is in a position of authority. An obvious and common use of the word in modern speech is 'Madam Chairperson'. The defendants submitted that the obvious and natural meaning of the word is that Madam Black Mercedes is a reference to the person who runs Club Rawhide, who is an older woman in a position of authority. It was said that the reference could have been to Ms Black Mercedes, or Miss Black Mercedes, if an 18 year old stripper ran the venue. The author of the article was, in the defendants' submission, trying to be a little bit colourful by providing a nickname. The defendants submitted that a reference to the owner of a business or the person who runs a business as a madam is not sufficient to draw an imputation from the ordinary reasonable reader that that person is the madam of a brothel. Further, it is made clear throughout the publications that every reference to Club Rawhide is a reference to a strip club or a raunchy strip venue. The ordinary reasonable reader would not conclude that all strippers are prostitutes.

15 The reference to 'nickname' exposes the flaw in this submission. It is plainly open to, and a matter for, a jury to determine the sense in which the word 'madam' has been used. The defendants concede, as they must,[9] that in its ordinary and natural use 'madam' can refer to a brothel owner. Moreover, the title was apparently used to give a 'nickname' of 'Madam Black Mercedes' to the plaintiff. Context is relevant. The venue is not a restaurant. The ordinary reasonable reader, fair minded, worldly, and informed might not conclude that all strippers are prostitutes, but might conclude that some prostitutes are strippers, or that brothel owners, more than chairpersons, drive black Mercedes cars.

16 Whether there is, as the defendants contended, a big distinction between being the madam of the brothel and being the proprietor of a strip club, of such magnitude that the ordinary reasonable reader would not conflate those two things just because of a single use of the word 'madam', is a matter that can be determined by a jury to the standards of the general community. I do not accept that a failure to recognise that distinction should characterise the ordinary reasonable reader as being avid for scandal or morally biased.

17 The defendants emphasised contextual aspects of the publications that the ordinary reasonable reader would use to draw a distinction between the nature of the activities at a pole dancing club and activities at a brothel, because that reader would read between the lines using general knowledge and experience of worldly affairs. The layout of the publications, the use of photographs that show women in naked silhouettes, pole dancing and the activities described as 'raunchy' are factual matters for assessment for a jury.

18 I suggested to counsel that the distinction between a brothel and a strip club may be much finer than the distinction between a brothel and a Country Women's Association hall, in respect of which counsel's contention about the thinking of the ordinary reasonable reader would be unarguably correct. Counsel conceded that in the ordinary reasonable reader's mind the leap from strip club to brothel may be small, but submitted that it is a leap requiring impermissible avidity to scandal and a reliance on prejudice. I disagree.

19 Finally, the brothel madam imputations also draw on the third matter complained of, the publication in the radio broadcast, in which the second defendant appears to be offering an apology after being contacted by the plaintiff following the print publication. I set out some extracts from the transcript of that publication that demonstrate that the brothel imputations are capable of being found to be defamatory.

Rule: I've got another apology, from Madam Rawhide.

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

Rule: from Club Rawhide ...

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

Presenter: It's a strip club.

Rule: It's a strip club - it's a respectable strip club

...

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

Presenter: Rawhide?

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

Presenter: Madam something else? Was she Madam Black Mercedes in your story?

Rule: But we're going to correct that ...

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

Rule: Nor [sic] much

...

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

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

Rule: A Black Mercedes

...

Rule; You know that is a tradition in our business, we do that ... 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'aam [sic], 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 happy.

[Stifled laughter]

Rule: ... So first thing was the Madam bit and we sorted that out, and she said, as for the 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] ... and from here on in, we will know her as Mrs Black Beamer. [laughter]

20 The defendants contended that the ordinary reasonable listener would understand that there was no serious, real, or imputed allegation made in the published articles that the plaintiff is the owner of a brothel. I do not accept this submission. The reasonable listener can read between the lines and a jury could reason that the heavy handed humour, and the innuendo it carried, used in the radio broadcast showed that the 'nickname' was being used in the articles to say that the plaintiff is a brothel madam. The second defendant's explanation for that nickname was, presumably, what the plaintiff unhappily 'swallowed'.

21 The summons will be dismissed, and subject to any further submission from counsel, will be dismissed with costs. The parties may submit a consent minute for costs and further directions if these matters can be negotiated. The summons for directions is adjourned to 30 May 2014 when I will deal with any outstanding matters.

[1] In doing so, I am drawing on what Beach J said in Franchise Central (Australia) Pty Ltd & Ors v Fairfax Media Publications Pty Ltd & Anor [2011] VSC 379, at [20] and following.

[4] [1980] 2 NSWLR 380, at 385-6 (citations omitted).

[5] [2009] VSC 145; (2009) 23 VR 182, at [11] (citations omitted).

[7] Ibid, at 468 [10] (citation omitted)

[8] Paragraph 45 of the article 'Rats winning race' as appearing on p4 of the Herald Sun print edition.

Court (General Civil Procedure) Rules 2005

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