Kyle Sandilands v Channel Seven Sydney Pty Limited

Kyle Sandilands - plaintiff PARTIES : Channel Seven Sydney Pty Limited - defendant

J S Wheelhouse SC - plaintiff T Blackburn SC/T D F Hughes - defendant COUNSEL :

Gilbert & Tobin - plaintiff Mallesons Stephen Jacques - defendant SOLICITORS :

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20288/05 Kyle Sandilands v Channel Seven Sydney Pty Limited JUDGMENT 1 His Honour: By notice of motion filed 28 November 2005 the defendant seeks orders under UCPR r 14.28 that the further amended statement of claim be struck out, and that the plaintiff be directed to plead as one publication the two publications presently pleaded separately together with another separate publication by the defendant of which he has not complained. Alternatively, it seeks an order that the plaintiff be directed to amend the further amended statement of claim by including an alternative count which pleads these three publications as one. 2 The plaintiff commenced proceedings against the defendant arising out of the broadcast of promotional material (the promotion) on 29 July 2005 and an item in its "Today Tonight" programme (the programme) on 1 August 2005 on commercial television station ATN Channel Seven for transmission throughout Australia. The transcript of each broadcast is contained in Schedules A and B respectively to the further amended statement of claim. 3 The promotion was in respect of a forthcoming programme which it described as a special investigation into rorts in the music industry in which the plaintiff and others were involved. It included footage of the plaintiff and his girlfriend and spoken references to them. Its duration was about 15 seconds. 4 The programme broadcast on 1 August 2005 reported on activities in the music industry by which singers and their songs are dishonestly promoted with the consequence that charts are manipulated. The plaintiff was featured prominently as a person directly involved in these activities, particularly in promoting his girlfriend's CD. The programme concluded with these words from the compere: "And Idol judge and DJ Kyle Sandilands told us that his girlfriend's song was played on rival networks and that he has no say in the play list of the radio station where he works. But I'm not sure how his comments fit with a tape in our possession where he publicly threatens to ban a music group from his radio network's play list. And we'll have that tape for you in part 2 of our special report tomorrow night". 5 The plaintiff claims separately against the defendant in respect of the promotion and the programme. The further amended statement of claim pleads imputations which, on 27 October 2005, I held should go to the jury for a 7A trial. 6 The imputations alleged to arise from the promotion are: "(a) the plaintiff engaged in rorts (that is, scams or cheating) in the Australian Music Industry (b) the plaintiff in promoting his girlfriend's music behaved dishonestly (c) the plaintiff cooked (that is, dishonestly manipulated) music industry charts". 7 The imputations alleged to arise from the programme are: "(a) the plaintiff engaged in rorts (that is, scams or cheating) in the Australian Music Industry (b) the plaintiff unfairly favoured his girlfriend over other Australian singers and musicians by deciding to play her music on his radio show (c) the plaintiff in promoting his girlfriend's music behaved dishonestly (d) the plaintiff is involved in the dishonest manipulation of music industry charts (e) the plaintiff is a liar in that he falsely denied that he had no say in the play list of the radio station where he works. (f) the plaintiff accepted payola (that is, bribes) for playing music on his radio show or (g) the plaintiff was a dishonest person willing to accept payola (that is, bribes) for playing music on his radio show". 8 On 2 August 2005 the defendant broadcast as part of its "Today Tonight" programme a segment concerning the plaintiff which followed up many of the issues the subject of the earlier programme. It is referred to as the second programme. A transcript is Annexure "A" to the notice of motion. Some idea of its flavour emerges from the opening words: "There's an old show business saying that any publicity is good publicity and in recent times Australian Idol judge and radio DJ Kyle Sandilands has certainly got people talking about him. His bullyboy tactics are well known. We came across Kyle in our investigation into the Australian music industry. We discovered how he actively promoted his live-in partner's single on his radio programme, a single which was produced on, you guessed it, his own record label and that has certainly raised conflict of interest issues that have touched a raw nerve as Glenn Connley reports". 9 The plaintiff has not sued upon this publication in these proceedings. 10 The defendant challenges the pleading. It seeks an order requiring the plaintiff to plead the three broadcasts as a single composite publication, alternatively to plead them as a single composite publication in the alternative to the present claims. 11 The defendant submitted that the broadcasts which the plaintiff has chosen to plead separately and the second programme, which has not been pleaded, should properly be taken to be a single publication and that it is unreasonable for the plaintiff not to have pleaded in this way. It was submitted that the promotion invited the viewer's attention to the programme which, in turn, invited attention to the second programme so that in effect, all three broadcasts were inseparably linked and qualified each other. It was put that in the circumstances the ordinary viewer might reasonably be expected to have seen and understood them as if they were one publication. 12 It was put that by failing to plead a composite publication the plaintiff has unreasonably excluded the content of the second programme which has the capacity to materially alter or qualify the sense of the matters presently complained of. It was submitted that it was not necessary for the defendant to establish that material in one publication must have been understood as materially altering or qualifying the complexion of the others, it being sufficient that it may have been so understood (Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 414; Ron Hodgson (Trading) Pty Ltd v Belverdere Motors (Hurstville) Pty Ltd (1971) 1 NSWLR 472, pp 476-477, 480). 13 The defendant referred to the statement of Hunt, J in Burrows v Knightley (1987) 10 NSWLR 651, pp 655: "Where the matter complained of contained in a newspaper refers to other material in the same newspaper, the plaintiff may be required to tender that other material in his case … provided that such other material is capable of affecting the sense of the matter complained ... Where there are two separate publications by the defendant, the plaintiff is entitled to (or may be obliged to) have them considered together in order to determine the sense in which either was understood, provided that they are sufficiently connected and identified with each other".

Reference was also made to the principles explained by Hunt, J at p 657: "In my opinion, the law may be stated in this way. Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the Statement of Claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add "true" innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation". 14 It was argued that consistently with these principles the defendant in similar circumstances is entitled to require the plaintiff to plead as one publication separate publications which are sufficiently identified and linked with each other. (Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107, para 53). 15 It is appropriate to refer to recent authorities which have considered principles relevant to the questions raised by the defendant. 16 In Phelps v Nationwide News Pty Ltd & Anor [2001] NSWSC 130 the plaintiff claimed against the defendants separately in respect of the publication in the "Weekend Australian" newspaper of matter which consisted of two parts. The first was a pointer on page 1 which referred to a "Full Report" on page 3. The second was the report itself. The plaintiff pleaded that each conveyed five imputations in identical terms. In the alternative the plaintiff pleaded the two matters as a single composite publication and alleged it conveyed the same imputations. The defendants moved to strike out the paragraphs in which the separate parts were pleaded. Simpson, J said: "10. The issue raises a question about the proper identification, or the boundaries, of "a publication" as distinct from separate publications. There is no rigid dividing line, no categoric test that can be applied to the determination of the boundaries. That is because the examples of publications that may be perceived either as a single entity or as multiple single entities are numerous. There will, no doubt, be many cases where reasonable minds might differ on the proper categorisation, and many where a reasonably minded person would recognise that either classification would be valid. In these cases, the plaintiff has the option as to the manner of pleading".

and: "14. It is to be observed that Hunt J described the course adopted by the plaintiff in Burrows as " acceptable ". He did not hold that it was mandatory, or that it was the only acceptable mode of pleading in the circumstances which then pertained". 17 After referring to Burrows and other cases Her Honour said: "21. The above review of the cases drawn to my attention illustrates the diversity of the circumstances which might give rise to considerations of whether separate but related publications should properly be regarded as one. Related publications may be distinct items contained in a single edition of, for example, a newspaper ( Rakimov , Lucas ); or may be contained in successive daily or weekly (or other) editions of the same publication ( Burrows ). No doubt many other situations will arise. One example that comes to mind is the publication of a news item illustrated by a photograph, or a cartoon. Others are episodic items, broadcast on radio or telecast, separated by advertisements or by unrelated segments. 22. Individual circumstances will dictate whether a particular pleading will be permitted to stand. However, it is to be borne in mind that, subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen, it is generally for the plaintiff to select the manner in which he/she/it wishes to present a case. It is only if the plaintiff's selection of the mode of pleading is untenable for one of those reasons that it will be struck out. By this I mean that where, for example, a plaintiff elects to proceed as though a number of individual parts of the matter complained of together amount to a composite publication, it is only if that approach is not reasonably open, or creates unfairness of such a degree as to constitute an abuse of process, that the pleading will be struck out. Similarly, where the plaintiff elects to proceed as though each were a separate publication, it is only where that view is not reasonably open (or where unfairness amounting to abuse of process would result) that that pleading will be struck out. Within those boundaries, a plaintiff is entitled to mark out the playing field. … 30. All of this would suggest that the two items could properly be seen as a single publication. But that does not end the matter for present purposes. It is only if that is the only view reasonably open that it would be appropriate to interfere with the way the plaintiff has elected to fashion her case. 31. The plaintiff argued that identification of the publication is a jury question: see Defamation Act 1974, s7A(3). I do not accept that this is so. The matters assigned to a jury for determination are whether the imputation(s) pleaded is or are conveyed, and if so, whether it is or they are defamatory. It is implicit in this that the jury will also decide any contested issue of publication; that is, whether the defendant in fact published the matter complained of. But this does not require the jury to determine the limits of "the matter complained of". Delineation of "the matter complained of" is, in the first instance, quintessentially a matter for the plaintiff. But the question whether the matter of which the plaintiff complains is reasonably capable of being pleaded as a single matter, or is such that it can only properly be pleaded as multiple publications, is a pleading question and is not, accordingly, to be determined by a jury. 32. The difficulty I now have is whether, while recognising that all the tests I have mentioned would point to the reading of the two items together, the pleading in the way selected by the plaintiff is so untenable, or so unfair, as to permit or warrant the striking out of the pleadings of the two items separately. I perceive no significant unfairness. No real difficulty can arise in the pleading of defences where the imputations pleaded are identical and the accusations contained in the items are, in substance, identical. Any questions of damages will be examined in the light of the publication or publications as a whole". 18 In Phelps (paras 22-30) Her Honour upheld the right of a plaintiff to frame his action as he chooses subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen (Ron Hodgson p 480). Phelps was approved in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 (paras 54-56) and in The Age Corporation Ltd v Beran [2005] NSWCA 289 (paras 40-41). 19 In The Age Corporation Hodgson, JA said: "41 In my opinion, McColl JA endorsed Phelps , but held that the relationship between the two parts published in The Sydney Morning Herald was such that, not only could the two parts properly be seen as a single publication, but that this was the only view reasonably open. McColl JA held in effect that this was not one of those cases, referred to at [10] in Phelps , where reasonably-minded people could consider either classification, that is as a single entity or as a number of entities, to be valid. 42 There may be cases where reasonably-minded people could consider either classification valid, so that it is prima facie open for a plaintiff to plead the parts as individual publications, and also plead their combination as a publication, but nevertheless where this should not be permitted because it introduces confusion and complexities into the case wholly unwarranted by any advantage to the plaintiff, and thus can be considered embarrassing. It is possible that this was the approach taken by Adams J in the Plaintiff's case against John Fairfax, and that McColl JA endorsed this as a further reason for dismissing the appeal. 43 The question then is, is the material as published in The Age such that the only view reasonably open is that this was one publication? In my opinion, plainly not. No part of the second section of The Age material appeared on page 1; and the first section on page 1 did not indicate that what was on page 13 was to be read together with what was on page 1 as part of the same whole. There were none of the indications of unity of the two sections displayed in The Sydney Morning Herald material and referred to earlier. Reasonable readers could well read what appeared on page 1 of The Age and not read what appeared on page 13. In my opinion, this was a case where reasonably-minded people could regard the two sections as separate publications, and could also regard them as part of a whole: that is, they could regard both possible classifications as being valid". 20 In order to succeed on its strike out application on the ground of unreasonableness, the defendant must establish that not only could the three broadcasts properly be seen as a single publication, but that this is the only view reasonably open (Phelps para 30, The Age para 41). This is another way of saying that it must establish that the plaintiff's claims as pleaded are so obviously untenable that they cannot possibly succeed or that they are manifestly unarguable (General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, p 129). 21 Entrenched in the law of defamation is the principle that each publication of defamatory matter constitutes a new and separate tort for which a plaintiff could sue, and gives rise to a separate cause of action (Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, paras 27, 124, 197). As each separate communication of defamatory matter is actionable, attention is necessarily directed to identifying the occasion on which the publisher made the communication and committed the tort of defamation. The tort will be complete when, by the communication of defamatory matter in comprehensible form to another, damage to reputation is done Gutnick (para 44). 22 As stated in Phelps (para 24) the answer to the question whether related matter published on different occasions should be regarded as one or as a composite involves assessment of the particular facts and circumstances in each case. Where the publications are transient in nature, such as radio and television broadcasts, significant weight will ordinarily be given to the intervals between them, to the context of other matter in which each was presented, and to the commonality or diversity of their content. The question should usually be resolved by taking a common sense approach to the evidence. 23 It follows that questions of imputations or meanings will not arise until the content of the matter complained of in each case has been determined. A "strike in" order which requires the plaintiff to plead the whole of the publication is ordinarily available to the defendant only where a viewing (reading or listening) of the whole is capable of altering or qualifying a defamatory meaning claimed to be conveyed by the part which the plaintiff has chosen to plead. Gordon and Ron Hodgson do not assist in defining the scope and content of a publication claimed to contain a libel. Their relevance is to the issue of the meaning of the matter found to have been published. 24 In this case each broadcast is of and concerning the plaintiff. The vital question is whether the only view reasonably open is that the promotion, the programme, and the second programme constituted one publication. Unlike a newspaper case in which a number of related articles are published in the one edition, this is not a case in which there are difficulties of delineation. The differences between the occasion and content of each broadcast are self-evident from a viewing of each, and from the transcripts. Each is discrete although related, and each is arguably defamatory of the plaintiff. In my opinion each broadcast is separate and distinct from the other and is separately actionable at the suit of the plaintiff. That it may have been acceptable in this case (a question I do not decide) for the plaintiff to plead either the two chosen, or all three, broadcasts as one (Burrows) does not mean that it was unreasonable for him not to do so. The plaintiff elected to sue on the first and second broadcasts, and not on the third. In my opinion there is nothing unreasonable about that. Conclusion 25 The defendant has failed to show that the three broadcasts can only be properly pleaded as a single publication, and that the only view reasonably open is that they constituted one publication. The promotion and the programme afford the plaintiff separate causes of action and it is, therefore, eminently reasonable for him to plead them as he has. 26 The orders of the court are:

(1) The defendant's notice of motion filed 28 November 2005 is dismissed.

(2) The defendant to pay the plaintiff's costs.

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.