Korolak v Bauer Media Pty Ltd

The tests to apply for summary dismissal under UCPR r 28.4

1. There are two tests, each with a very high threshold, to apply to the defendant's application under UCPR rr 28.2 and 28.4.
2. The first relates to the circumstances in which courts will strike out an imputation on the basis that the matter complained of is not capable, at a threshold level, of conveying an imputation. The relevant principles are set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136], namely that the determination of capacity at the threshold level is "an exercise in generosity not parsimony", as well as being a "matter of impression… the impression is not of what the words mean but of what a jury could sensibly think they meant". That differs from the consideration of such issues at the trial.
3. The defendant's application is that no defamatory imputations are capable of being distilled at all. This is not a case where there is a challenge to the defamatory meaning of an imputation (Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at [6]), or a submission by the defendant that the antidote outweighs the bane; these are issues best left to the tribunal of fact, as both counsel acknowledge.
4. A high test applies in summary judgment applications on the basis of total absence of defamatory meaning. Only in the clearest cases would such an issue not go to the jury at trial: Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679n. Even at trial, the test to be applied, according to Herron CJ is the test in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. The extreme caution to be used when exercising the summary power is necessary because, as Herron CJ noted, a judge sitting alone should avoid "driving the plaintiff from the judgment seat". That is all the more the case in a capacity hearing where summary judgment is sought, and Bik v Mirror Newspapers Ltd must therefore be treated with caution.

The role of the headline

1. The central issue in this argument is what to make of the first headline and whether it is capable of conveying, either by itself or as part of the matter complained of, any defamatory imputation. As is noted above, the plaintiff's argument is that, out of the more than 50 paragraphs, three main headings, two "boxed" quotes, three newspaper reproductions and three photographs, the imputations pleaded all arise from the front page heading (repeated in the contents page), with additional reliance upon one of the boxed quotes (about an earlier incident of violence by the plaintiff's brother).
2. As to capacity generally, Mr Rasmussen emphasised that the function of the court in determining the capacity of these imputations as being to set the outside boundaries of the possible ranges of meanings, and that this is an exercise in generosity and not parsimony (Corby at [133] - [136] per McColl JA). What Mr Rasmussen called the "salacious" nature of the publication meant that the wide degree of latitude given to the capacity to convey (Lewis v Daily Telegraph [1961] AC 234 at 374) should be interpreted with particular generosity in this case because of the importance of headlines.
3. As to the role of the headline, Mr Rasmussen submitted that an ordinary reasonable reader would emphasise the content of headlines when gaining a general impression, and would be prone to loose thinking as a result. This means that the role of a headline is such that it can overshadow meanings to the contrary in the text of the matter complained of: Chakravarti v The Advertiser Newspapers (1998) 193 CLR 519 at [134] ("Chakravarti") per Kirby J; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646 per Aicken J; see also Morgan v Odham's Press [1971] 1 WLR 1239 at 1245 and 1270.
4. Before considering Kirby J's statements in Chakravarti, I shall first summarise Charleston v News Group Newspapers Ltd [1995] 2 AC 65 ("Charleston v News Group Newspapers Ltd"), the decision which Kirby J stated (albeit obiter) should not be followed in Australia.
5. In Charleston v News Group Newspapers Ltd, there were a series of headlines, some of which contained potentially defamatory meanings. These were: "Strewth! What's Harold up to with our Madge?"; an outline map of Australia bearing the words "Censored down under"; "Porn Shocker for Neighbours stars"; "Soap studs: Harold and Madge's faces are added to porn actors' bodies in a scene from the game" and "Ramsay rave: 'Madge' in kinky leather gear"). These were illustrated by photographs of the plaintiffs' faces superimposed on near-naked bodies of models engaged in pornographic poses, with the caption "Victims: Ian and Anne.". The text of the publication contained expressions of outrage about the pornographic computer game which had been used to superimpose the faces of individuals without their knowledge or consent upon the bodies of others.
6. The plaintiffs in Charleston v News Group Newspapers Ltd agreed that the antidote in the article (and some of the headlines) was sufficient to neutralise any bane in the headlines and photographs. The issue for determination (on a summary judgment basis) was whether the headlines could be severed as a separate publication, on the basis that the headlines alone could permit, to the limited number of readers who only read the headlines, a defamatory meaning to be conveyed.
7. The House of Lords upheld the decisions of the primary judge and of the English Court of Appeal that the publications were incapable of being severed to give rise to what was effectively a separate publication, rejecting a proposition that "the prominent headline, or as here the headlines plus photographs, may found a claim in libel in isolation from its related text, because some readers only read headlines" (per Lord Bridge of Harwich at 73).
8. This reasoning was attacked by Kirby J in Chakravarti v Advertiser Newspapers Ltd: "Their Lordships upheld the decisions of the primary judge and of the English Court of Appeal, sustaining the publisher's objection that the publications were incapable of being defamatory. They rejected the proposition that "the prominent headline, or as here the headlines plus photographs, may found a claim in libel in isolation from its related text, because some readers only read headlines". They declared that such reasoning was "unacceptable". Respectfully, I cannot agree with their Lordships' opinion. In my view it ignores the realities of the way in which ordinary people receive, and are intended to receive, communications of this kind. It ignores changes in media technology and presentation. It removes remedies from people whose reputation may be greatly damaged by casual or superficial perception of such publications. And it overlooks the purpose of defamation law which is to provide redress when reputations are damaged in fact, not to reserve remedies to those cases only where detailed and thorough analysis of the matter complained of has been undertaken. I agree with the criticisms which have been voiced about Charleston. Many people, including not a few judges and jurors, do not look beyond headlines and photographs. If this is the environment in which reputations may be harmed, it would be contrary to the purposes of the law of defamation to withhold redress from cases where harm was held to be done. To the extent that dicta in Charleston or other cases suggest that the courts should attribute to the recipients of matter published in the mass media a close and careful attention to the entirety of the item published, I would not follow that opinion. I would not adopt its reasoning as part of the common law of Australia. To do so would be to defy common experience and, if I may say so, common sense." [Citations omitted]
9. Kirby J went on to note the importance of graphics, photographs and other visual lures designed to attract the reader into reading an article either in traditional print media or online.
10. Kirby J's obiter statements as to the ability of persons to read headlines without reading more have been treated with a degree of caution, not only within the sphere of defamation actions but also in relation to other areas of the law, such as contempt of court (see, for example The Herald & Weekly Times v A-G [2001] VSCA 152 at [25]). In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 [17] ("Favell v Queensland Newspapers Pty Ltd"), the High Court confirmed that the ordinary reasonable reader not only considers the publication as a whole but considers the context as well. The ordinary reasonable reader, especially of a salacious (or simply colourful) publication, will give considerable weight to conspicuous headlines or captions: John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at [26]-[27]; Mirror Newspapers Ltd v World Hosts Pty Ltd at 646. However, in so doing, that reader will not be avid for scandal: Lewis v Daily Telegraph Ltd (259-260); John Fairfax Publications Pty Ltd v Rivkin at [26]. The issue determined by the House of Lords in Charleston v News Group Newspapers Ltd - namely that there is no separate cause of action for a defamation claim based on the limited number of readers who only read headlines - is unarguably correct.
11. Although in a trial context, the capacity of a headline to convey imputations also arose in Hockey v Fairfax Media Publications Pty Ltd, where the plaintiff brought proceedings for publications headed "Treasurer for Sale" or "Treasurer Hockey for Sale". White J noted McHugh J's comments in relation to the impact of headlines in John Fairfax Publications Pty Ltd v Rivkin at [26] as follows: "[26] … A reasonable reader considers the publication as a whole. Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning. The reasonable reader considers the context as well as the words alleged to be defamatory. If "[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together." But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article." (Citations omitted)
12. White J went on to state that in Mirror Newspapers Ltd v World Hosts Pty Ltd at 646 Aickin J noted that the emphasis by way of headline or other method given by a publisher is not to be ignored, and that "[t]o say that consideration must be given to the publication as a whole does not mean that the court must give equal significance to each part of the publication" (Hockey v Fairfax Media Publications Pty Ltd at [71]). That is the highest that submissions about headings may be put.
13. White J was determining the issue of capacity in a trial context, not in relation to a threshold challenge to capacity, in circumstances where there was a "bane and antidote" argument. White J's comments, like those of Kirby J in Chakravarti, are essentially of value as to the degree of attention paid by the ordinary reasonable reader when reading the whole of the matter complained of.

The interaction of the first headline with the balance of the publication and context

1. The first headline and the boxed content are only part of the headings, photographs and layout, all of which were referred to by Kirby J in Chakravarti as being of importance to the loose-thinking reader. Additionally, as the High Court noted in Favell v Queensland Newspapers Pty Ltd, context, and of course content, are important.
2. I make the following observations as to these features in the matter complained of: 1. The other headings and photographs: Only the first of the headings (and a boxed subheading) is relied upon as capable of giving rise to the imputations pleaded. That requires the ordinary reasonable reader to ignore not only the two other headings (a difficult step to take, as these are the headings for the text of the matter complained of) but also all the photographs. Mr Rasmussen acknowledges that anyone who just read the heading on the front cover or index would not know who the plaintiff was, which means they must read the plaintiff's name on page 6 directly under the third subheading ("How could he do something so unthinkably evil?"). This becomes an exercise in selective reading, to the point of absurdity. 2. The context: Mr Rasmussen submits that this is a "tell all" story with hooks to excite the reader into reading it, of which the first heading is the main one. However, the principal message contained in that context is that the plaintiff's "tell-all story" is about the murder of her mother by "the brother from hell" and the anguish that caused her, with the genre-driven happy ending of the plaintiff coming to terms with her grief, complete with photographs of the plaintiff's husband and baby. The context militates against defamatory meanings about the plaintiff arising. 3. Layout: The plaintiff is named on page 6 directly under the heading "How could he do something so unthinkably evil?" as well as photographed grief-stricken at her mother's funeral and (twice) with her new husband and baby, with captions to the effect that her baby has helped her to heal from this experience. It is revealed from the first that the plaintiff is telling her own story and that story is her outrage at what her brother did. None of this could support defamatory meanings arising. 4. Narrative structure: Where the matter complained of is a story, the power of the narrative structure (especially in a "happy ending" story illustrated with photographs) is significant, in that it aids the ordinary reasonable reader to identify the relevant protagonists - who is the hero, who is the villain, and what the message or theme of the story is. The message likely to be taken away by the ordinary reasonable reader, even from the headings, is that the plaintiff is writing about her grief and anger that her brother "unthinkably" murdered their mother out of "jealousy". The plaintiff's role is as the heroine, not a wrongdoer. 5. The rest of the matter complained of: Mr Rasmussen acknowledges that the rest of the matter complained of is incapable of conveying imputations defamatory of the plaintiff.
3. When the above factors are also taken into account, the importance attributed to the first headline by Mr Rasmussen in conveying any imputation capable of defamatory meaning by reason of any asserted ambiguity of meaning can be seen to be misplaced.
4. The body of the text could not make the meaning of "help" in this headline clearer. The plaintiff's status as a law student (who later changes career and becomes a happy wife and mother) is central to the narrative structure, and thus to the imputations pleaded. This is of particular relevance when determining what to make from the word "help" in the first heading. From the opening words of the story, we are told that the plaintiff's fateful last meal with her mother and brother is part of a rare visit home by the plaintiff who is studying law. She is told of the murder by the university dean and her response to the shock of the murder is to pour herself into her studies as a distraction. In this context, the circumstances in which the plaintiff's grandparents plead with her to help her brother, saying "You're a lawyer" and "he needs you" (paragraph 24) are not buried in an unremarkable and small paragraph as claimed by Mr Rasmussen, but part of the main (and repeated) thread of the narrative and thus highly significant to the meanings in the matter complained of. This is underlined by the revulsion the plaintiff expresses not only in relation to this request, but to her distress when she graduated without her mother and was unable to work as a lawyer because she "couldn't face another courtroom" after the murder trial.
5. Having made these preliminary observations, I next consider the imputations pleaded. The parties dealt with them in two groups, so I propose to do the same.

Imputations 4(a) and 4(b)

1. Each of these imputations suffers from the same fatal difficulty. If the ordinary reasonable reader does construe any ambiguity in the heading "My jealous brother KILLED OUR MUM… and asked ME to help him" in the way advocated by Mr Rasmussen, how can his asking the plaintiff "to help him" impute any defamatory meaning as to her character?
2. Mr Rasmussen submits that the mere fact that the plaintiff was asked to perform such an act indicates that she must be the sort of person likely to perform it. To adopt the language of McCallum J in Sharp v Harbour Radio Pty Ltd [2015] NSWSC 1536 at [9], this is, in the language of earlier jurisprudence in this field, a case of an "inference upon an inference", namely an imputation only capable of arising by reason of missing steps between the matter complained of and the imputation conveyed.
3. While there is no absolute rule precluding an inference upon an inference having the capacity to convey a defamatory imputation, the "ultimate question to be asked is whether the ordinary, reasonable person would treat the pleaded meaning as capable of being conveyed by the matter about which complaint is made" (Rayney v Pan Macmillan Australia Pty Ltd [2014] WASC 129 at [35]).
4. The fact that a person is asked to help with the commission of a crime is not, without more, capable of conveying an imputation of an act or condition of a defamatory nature.
5. That is all the more the case because of the language of the heading. First, the brother committing the murder is described as motivated by being "jealous" (a state of mind which could not impute any wrongdoing to the plaintiff). The use of the phrase "our mum" and the degree of outrage conveyed by the use of the word "ME" in capital letters in the headline (although not on the index page) make the plaintiff's disgust at his request for her help evident.
6. For these reasons, not even the portions of the matter complained of relied upon by Mr Rasmussen can give rise to these imputations. Nor can the material in the box (to the effect that the plaintiff knew her brother had hurt her mother) overcome these hurdles.
7. The lack of defamatory meaning of this headline is further reinforced by the storyline of the matter complained of, which underlines that the plaintiff is the good child who has gone to university to study law while her "nothing but trouble" brother has fallen in with a bad crowd. I accept Mrs Barnett's submission that the ordinary reasonable reader would understand that the "help" referred to was her grandparents' pleading with her to help her brother at his trial, because: "You're a lawyer. He needs you." (paragraph 24)
8. I was not addressed as to whether any of the three boxed newspaper clipping headings (the third of which includes the word "helper") assisted in the conveying of any meaning. I am, however, satisfied that the ordinary reasonable reader who considers the whole of the matter complained of, giving additional weight to headings in the manner advocated by Mr Rasmussen, would not consider that these newspaper headlines add anything to the capacity of any of the imputations pleaded; if anything, they convey a meaning to the contrary.
9. Each of imputations 4(a) and 4(b) involves such "strained processes" of reasoning (Woodward v Australian Broadcasting Corporation (Supreme Court of New South Wales, Levine J, 27 June 1996)) that neither is capable of arising. Each should accordingly be struck out.

Imputations 4(c) and 4(d)

1. Imputation 4(c) is an attempt to capture a sting of the plaintiff knowing about a proposed killing of her mother, or of being asked for subsequent help with the murder, and to treat that knowledge as amounting to her being an accessory.
2. For the same reasons set out above, I am satisfied that this imputation also fails the capacity test. The imputation as pleaded requires the ordinary reasonable reader to draw too many inferences, inferences which are contradicted by the words "jealous" and the capital letters for "ME" in the first heading.
3. As to capacity of the headline to take on any meaning from the rest of the matter complained of, the crime was "unthinkable" and the language of all three headings (as well as the text) both show not only no foreknowledge, but that no help was given in the commission or concealment of the crime. I have already set out the passages which indicate the actual "help" the plaintiff was asked for.
4. The context of the story (namely the narrative's structure of suffering and healing), the role of the law student plaintiff in the narrative structure and the contents' message of overwhelming grief and loss render this imputation incapable of arising from the whole of the matter complained of. No loose-thinking reader, even putting the worst connotation on "asked me for help" and the boxed subheading that the plaintiff "knew" her brother had previously hurt their mother physically, could come to the conclusion that this imputation arises.
5. Imputations 4(d) is even more hopeless, in that the highest even the first headline puts the allegation against the plaintiff is that her brother asked her to help (which, from the tone of the heading, clearly was not given). The first headline makes it clear that she is indignant at such a request (by the use in capital letters for "ME") and that the brother's motivation for the crime is his own jealousy. That does not make her a criminal, let alone a serious criminal. Nor is any such imputation capable of arising from the whole of the matter complained of, even by a loose-thinking reader concentrating on the headlines.
6. Imputations 4(c) and 4(d) are each not capable of being conveyed. Each should be struck out.

The orders to make

1. Mrs Barnett submits that the statement of claim should not be dismissed, but that judgment should be entered for the defendants pursuant to UCPR r 28.4, in view of the inability of the matter complained of to convey any imputations defamatory of the plaintiff.
2. As noted above, no submissions to the contrary were put by Mr Rasmussen. No leave is sought to replead any of the imputations in order to avoid the entry of summary judgment (cf International Financing and Investment Pty Ltd v Kent (Supreme Court of Western Australia, Bredmeyer M, 8 May 1997)).
3. I accept Mrs Barnett's submissions that this is one of those rare cases where no defamatory meaning of any kind is capable of arising. Accordingly I have entered judgment for the defendant.
4. The parties have asked for liberty to apply as to the appropriate costs orders.

Orders 1. Statement of claim dismissed; judgment for the defendant pursuant to UCPR r 28.4(2)(a). 2. Liberty to apply in relation to costs, such liberty to be exercised in 28 days. SCHEDULE - Matter Complained Of (2.17 MB, pdf)

Amendments 10 June 2016 - Paragraph 12 - Grammatical error 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: 10 June 2016