Kenny v Australian Broadcasting Corporation

The Pleaded Case 19Mr Kenny's statement of claim pleads three imputations as having arisen from the broadcast of the programme on both free to air television and by its placement on the ABC's web site, namely: "(a) The Plaintiff is a pervert who had sexual intercourse with a dog. (b) The Plaintiff is a low, contemptible and disgusting person. (c) The Plaintiff's attacks on the ABC were so dishonourable and disgusting that he deserved to be compared to, and portrayed, as a person who has had sexual intercourse with a dog." 20In addition, the statement of claim pleads a "true innuendo" in that imputations (b) and (c) were also said to arise from the knowledge of the viewer or viewers of two extrinsic facts, namely, that "dog fucker" is supposedly a slang term meaning a "contemptible, disgusting, useless person", and that the plaintiff is a well known critic of the ABC.

Imputation (a) 21In defamation proceedings the question as to whether the publication complained of conveys to the ordinary reasonable reader or viewer a pleaded imputation and, if so, whether the imputation is defamatory is ultimately a question of fact for the tribunal of fact to determine. In most cases the tribunal of fact is a jury. Where a party such as the ABC applies to strike out an imputation they assume the burden of persuading the Court that the publication in question is not capable of conveying the imputation pleaded. This is a question of law. It is a question that is anterior to that which is posed to the jury (Jones v Skeleton [1964] NSWR 485 at 491; [1963] 3 All ER 952). 22Senior Counsel for the ABC, Mr R.G. McHugh SC, contended that imputation (a) is not capable of arising from the broadcast of the Hamster Wheel. He submitted that it would not be open to find that the ordinary reasonable viewer could possibly conclude that the segment actually conveyed that Mr Kenny had sexual intercourse with a dog. Mr McHugh SC submitted that, having regard to the generally satiric or comedic nature of the programme, the context in which the relevant image was displayed and the words that were spoken, namely, as response to Mr Kenny calling for cuts to the ABC, and the obviously fake nature of the photographs, the ordinary reasonable viewer could never have concluded that the segment was truly stating that Mr Kenny had acted as depicted in the image I have described. 23In his written submissions Mr McHugh SC referred to the judgment of the House of Lords in Charleston v News Group Newspapers Ltd [1995] 2 AC 65 ("Charleston"). In Charleston, a newspaper published an article which superimposed the plaintiffs' faces on near naked models in pornographic poses. The balance of the article made it clear that the photographs had been produced without the plaintiffs' consent. All of the relevant levels of the judicial system in the United Kingdom found that a defamatory imputation to the effect that the plaintiffs had willingly participated in the production of the photographs was not capable of being conveyed (see Charleston at 69C and 73B). Senior Counsel for Mr Kenny, Mr McClintock SC, submitted that Charleston is of no real assistance to the ABC as it is merely an illustration of the proposition that, in considering the position of the ordinary reasonable reader or viewer, the entirety of the publication must be considered. Mr McClintock contended that whereas in Charleston the alleged defamatory meaning was dispelled by a reading of the entirety of the article, in this case there is nothing in the broadcasted segment which dispels imputation (a). 24Mr McHugh SC derived more support, at least as an example, from the decision of Levine J in Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 ("Coleman"). In Coleman his Honour found, inter alia, that an imputation that a rugby league coach's mother was responsible for her son's team's "disastrous performance" in a particular season was not capable of being conveyed by an article which referred to the coach being abandoned as a child as the possible cause of the team's lack of success. His Honour regarded that matter as a clear case "where the ordinary reasonable reader would understand from reading the whole of the material that none of its contents were to be taken seriously" (at [22]). Thus Coleman is an example of a case where the literal meaning of a statement in a publication was not capable of being conveyed by it. 25Otherwise, the principles governing an application such as this were set out by Tobias JA in Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300 (at [19]ff). I will not repeat them save that the guiding aspect of this area of discourse is the reasonableness of the hypothetical viewer. 26In defence of imputation (a), Mr McClintock SC submitted that the broadcast had an element of seriousness given that the topic of the broadcast was the election result. I do not accept that. The show is clearly a comedy show from beginning to end. The topic was not the election, but the absurdity of the election coverage. Nevertheless, the essence of Mr McClintock's submission on this imputation is that the segment must be at least capable of meaning what it repeatedly states. Thus in his written outline Mr McClintock SC stated: "Having referred to the depiction of the plaintiff in the image, the caption which declares that the plaintiff is a 'dog fucker', the commentary which admits that the image shows the plaintiff 'strangling a dog while having sex with it' and the alleged viewer observation about 'sex with dogs', there can be no doubt that imputation (a) is capable of arising and of being defamatory." 27The observations about the segment in this submission can be accepted but there are other matters to consider. As I have stated, the images in question were clearly concocted. The reasonable viewer would, in my opinion, undoubtedly have appreciated they are fakes and that it was intended by its presenters that the audience would know they were fakes. This is reinforced by that part of the segment that projected the relevant image onto the background of the Channel Nine programme that had previously been mocked in another segment. The other references to Mr Kenny's conduct are all made in the context of an obviously concocted image. 28Finally, in relation to imputation (a) the tone and context of the programme are critical. The programme was meant to be funny and its general topic was the election coverage. The reasonable viewer, in my view, could not possibly have considered that such a lightweight show as this would be the forum for exposing actual instances of bestiality. 29I considered this to be a clear instance where the literal meaning of what was said and depicted is not capable of being conveyed by the broadcast. Imputation (a) will be struck out.

Imputation (b) 30As noted, imputation (b) as pleaded is to the effect that the "plaintiff is a low, contemptible and disgusting person". After oral submissions were completed, Mr McClintock SC confirmed that the word "low" was not pressed. Even with that alteration, Mr McHugh SC nevertheless objected to the form of this imputation. He contended that it is a mere rhetorical statement that the plaintiff, Mr Kenny, had done something which warranted him being held in low regard. Otherwise, he contended that the imputation was too general. Mr McHugh SC further contended that the broadcast was incapable of reflecting adversely on Mr Kenny as to his general character or conduct, but was instead only referring to his conduct as a journalist. Lastly, in oral submissions Mr McHugh SC took issue with the phrase "low, contemptible and disgusting" as being too vague. As noted, Mr McClintock SC did not press the word "low". 31Before addressing these points, it is necessary to say something further about the "context" in which the offending image appears. Prior to its display on the screen two adverse points were made about Mr Kenny. First, the opening part of the segment suggests that, in a sense, he is boring. As I have discussed, the segment shows him talking and then switches back to two Sky News presenters who were distracted and not paying him any attention. Second, the segment appears to suggest he is something of an enemy of the ABC in that within one hour of the announcement of a change of Government he is already calling for cuts to the ABC's funding. 32However, the image that is has portrayed is, on any view, a massive exercise in ridicule that is vastly out of all proportion to that which precedes it. As Mr McClintock SC contended in oral submissions, it is an image that is likely to stay in the mind of the ordinary reasonable viewer long after the programme finished, and regardless of whether they found it funny or not. 33Bearing in mind that this matter is presently being approached at the level of whether the segment has the capacity to convey something rather than whether it did, the "context" in which the images are presented has its limits if that is meant to be confined to what immediately precedes the images being displayed. In terms of what the images might be capable of saying about the plaintiff as a person, the images and their accompanying words spoken are clearly capable of saying something far worse about Mr Kenny than merely expressing displeasure over his conduct as a journalist. 34There is nothing objectionable per se about the pleading of general imputations (Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682, at 687 per Hutley JA). A review of the cases reveals many instances where general imputations have been pleaded and litigated upon (see, for example, Harbour Radio Pty Ltd v Trad [2012] HCA 44; 247 CLR 31 at [1]; Hanson-Young v Bauer Media Ltd (No 2) [2013] NSWSC 2029 at [9] and [30] ("Hanson-Young No 2"); Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 at [2]). 35In oral submissions, Mr McHugh SC adverted to many of the practical difficulties that general imputations can present to the orderly running of a trial. No doubt he is correct, but that does not mean they are per se liable to be struck out. 36Further, Mr McHugh's related complaint that the imputation lacks the necessary precision is met by the point that the segment lacks it as well. Once it is accepted that the display of the images and accompanying words were grossly disproportionate to what had been discussed about Mr Kenny in the immediate part of the segment that preceded it then, in my view, it follows that the segment is capable of giving rise to a wide imputation to the effect that he is a contemptible person. It is not necessary to go further and specify in what respect he was contemptible as the programme does not descend to do that either (see Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 136 to 138 per Gleeson CJ). 37Further, I do not consider that it is obligatory to further refine the phrase "contemptible and disgusting person". As a practicable matter, I do not accept that a jury is going to be caused any real difficulty in attempting to determine what it means. For example, I see little prospect of a jury having some difficulty in determining whether the segment conveys that Mr Kenny was "contemptible" or "disgusting" on the one hand or "contemptible and disgusting" on the other. Further, I do not, at this point, envisage that a plea of justification or the like might conceivably create difficulties in dealing with the phrase "contemptible and disgusting". It is difficult to see how there can be any set of facts that would be identified in such a pleading that might result in the conclusion that Mr Kenny was "contemptible" but not "disgusting" or vice versa. 38I reject the ABC's challenge to imputation (b) as redrafted.

Imputation (c) 39As noted, imputation (c) is to the effect that "the plaintiff's attacks on the ABC were so dishonourable and disgusting that he deserved to be compared to, and portrayed as, a person who has sexual intercourse with a dog". 40Mr McHugh SC raised three points in relation to imputation (c). 41First, insofar as the imputation uses the word "portrayed" he contended that the imputation suffered from the same vice that I had found with imputation (a). I confess to having difficulty understanding this point. In any event, during argument Mr McClintock SC confirmed that the word "portrayed" was a reference to the presentation of an image of the kind in question, that is, "portrayed" meant "depicted". In those circumstances, I see no ambiguity or other vice in the use of the word "portrayed". 42Second, Mr McHugh SC took issue with the combination of "compared to" and "portrayed as". Mr McHugh SC contended the imputation was ambiguous in that these phrases have different meanings and thus the imputation presents distinct alternatives. Mr McClintock SC responded by proposing to split the imputation. If the balance of the imputation survives, then Mr Kenny should be granted leave to split it as Mr McClintock SC foreshadowed, but only by pleading these matters in the alternative. 43The third point was the real focus of Mr McHugh SC's attack on imputation (c). Stripped of the alleged ambiguity, Mr McHugh SC contended the imputation did not truly allege any conduct or condition of Mr Kenny. Although the imputation refers to Mr Kenny's attack on the ABC, Mr McHugh SC submitted correctly that to simply state someone attacked the ABC was not defamatory. Mr McHugh SC contended the balance of the imputation is merely a rhetorical assertion that the plaintiff deserved to be compared to something. He contended that the words "dishonestly", "disgusting" and "deserved to be" were merely words that stated what one should think about Mr Kenny's attacks on the ABC, but they did not identify any defamatory act or condition of Mr Kenny. 44In their written submissions both parties made reference to the judgments of McCallum J in Hanson-Young v Bauer Media Limited [2013] NSWSC 1306 ("Hanson-Young No 1") and Hanson-Young No 2. Those proceedings arose out of the publication of an article in a magazine that used images of the plaintiff's head superimposed onto the body of a young woman. The terms of the article are described in some detail in Hanson-Young No 1, at [3]. Broadly, the pasting of the plaintiff's face on the body of a younger woman was inserted as part of some salacious display. It was accompanied by some text which in some manner or other sought to connect the plaintiff's stance on asylum seekers with her presentation in a bikini or lingerie. The plaintiff was a politician. 45In Hanson-Young No 1, McCallum J reviewed various judgments concerning an attempt to plead defamatory imputations arising out of the articles that ridiculed a plaintiff. Her Honour concluded (at [32]): "Without purporting to be exhaustive, the authorities relied upon by [counsel for the defendant] confirm the correctness of two principles relevant to the determination of the present issue: (a) a publication plainly intended as a joke will not necessarily be incapable of being defamatory on that account; (b) a rhetorical imputation, that is, one which merely appeals to rhetoric without identifying any act or condition allegedly attributed to the plaintiff by the article, will be liable to be struck out as being bad in form." 46In relation to the first principle, her Honour noted in Hanson-Young No 1 at [34] the difficulty that can arise in identifying some act or condition of the plaintiff that is conveyed by a publication that ridicules the plaintiff. In Hanson-Young No 1 her Honour addressed a series of cases involving ridicule which at first glance appear to allow for an exception to the requirement that an imputation specify some act or condition of the plaintiff in order to be defamatory (Hanson-Young No 1 at [35]ff). 47In Hanson-Young No 2 her Honour returned to the topic. Her Honour addressed the tension between that line of authority and the terms of the Defamation Act 2005 (NSW) which appear to require the pleading of an imputation that connotes an act or condition of the plaintiff that is defamatory (Hanson-Young No 2 at [13]ff). Ultimately but with some hesitation her Honour rejected a challenge to an imputation that pleaded that the plaintiff in that case "is a joke" (Hanson-Young No 2 at [24] to [25]). 48Of present relevance is that her Honour also rejected a challenge to an imputation to the effect that the article in question conveyed that the plaintiff "by reason of her asylum-seeker stance has justifiably exposed herself to the ridicule of the defendant" (Hanson-Young No 2 at [29]). Her Honour noted that in Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 Levine J rejected a challenge to an imputation that referred to the plaintiff as "justifiably exposing himself to ridicule". 49Hanson-Young No 2 illustrates that there is nothing per se objectionable in a ridicule type case in formulating an imputation in terms that some aspect of the plaintiff's conduct was such that it warranted or justified their portrayal in an offensive manner. No doubt in some cases such an imputation will fail to provide the necessary level of precision required for pleading the conduct or condition of the plaintiff. However, consistent with the discussion in Drummoyne, in some cases such imputations will suffice if the alleged defamer has left the matter hanging. This is more likely to be so in the case of extreme ridicule where the defamer does not delve into the detail as to why the plaintiff should be depicted in a humiliating way, although the implication is that there is something about them or their conduct which means that they deserve it. 50I have already described the discussion in the segment of Mr Kenny's attacks on the ABC that immediately preceded the display of the offending image. I have also described how the image was such a massively disproportionate response to that conduct that it is capable of conveying that Mr Kenny is, in a general sense, a contemptible and disgusting person. Equally, the juxtaposition of his attacks on the ABC with that image and the accompanying dialogue is also capable of conveying that there is something about his conduct in attacking the ABC which was so appalling that it warranted that response, even if the reason why is not further specified. 51In a case such as this, imputation (c) does state something about Mr Kenny's conduct or condition and also provides the best particularisation that can reasonably be expected. The fact that further particulars cannot be provided flows from the very nature of the extreme ridicule involved. Consistent with Drummoyne, no further particularisation is required. 52As I stated, imputation (c) will need to be split. Otherwise I reject the ABC challenge to imputation (c). To reflect this I will strike out the words "and portrayed as" and grant leave to Mr Kenny to include an alternative imputation.

Orders 53Accordingly, the Court orders that: (1) Imputation (a) in the statement of claim be struck out. (2)The words "and portrayed as" in imputation (c) be struck out. (3)The plaintiff be granted leave to file and serve an amended statement of claim including an alternative to imputation (c) in a manner consistent with this judgment. [The parties addressed on the orders as to leave and costs.] 54Further, the Court orders that: (4)The plaintiff file and serve an Amended Statement of Claim within seven days. 55In respect of costs, Mr McClintock SC seeks an order that the costs be his client's costs in the cause. There was a mixed degree of success for both parties. On the question of costs, ultimately, whether this particular stoush is important or not will really not be known until the proceedings have concluded. In my view, the appropriate order is that the costs of this application be both parties' costs in the cause. I so order.

Amendments 10 March 2014 - Substitute "conduct" for "counsel" in last line of Catchwords. Amended paragraphs: Catchwords 13 March 2014 - Correct representation for the First, Second and Third Defendants. Amended paragraphs: Cover sheet - Representation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 March 2014