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[2003] VSC 239
procedural. The defendant's summons to strike out paragraph 9 of the plaintiff's Amended Statement of Claim was dismissed with costs ([56]).
The defendant argued that the broadcast only reported an allegation and a police investigation, so it could not mean that MacDonald had committed fraud. Bongiorno J rejected that argument at the pleading stage. The report described the alleged fraud in specific detail, and the words “it's alleged” and “allegedly” did not make the pleaded meaning legally impossible. The judge did not decide that listeners actually understood the broadcast to accuse MacDonald of fraud. That question was left for trial. The defendant's strike-out application was dismissed with costs.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,112 words · generated 01/10/2026
In MacDonald v 3AW Southern Cross Radio Pty Ltd [2003] VSC 239, Bongiorno J dealt with a procedural dispute about the meaning that a radio broadcast was capable of conveying. The ruling did not determine whether the broadcast was defamatory in fact, nor whether MacDonald would ultimately establish his claim. It concerned whether one pleaded imputation should remain in the statement of claim.
No linked legislation citations have been extracted yet.
The plaintiff, Brian James MacDonald, pleaded two publications by 3AW Southern Cross Radio Pty Ltd, broadcast on 30 September and 3 October 2002. The earlier publication was pleaded as material that identified MacDonald, but its role was not in issue on this application ([12]). The application concerned the 3 October broadcast.
That broadcast stated that the Major Fraud Squad was investigating the circumstances surrounding the sale of an expensive horse. It described an allegation that a director of a major Melbourne educational facility had paid $250,000 for the horse, that it died in transit from the United States, and that, after failing to insure it, the director allegedly arranged to transfer ownership to the educational facility to recover the money. The report also said the facility's representatives discovered the horse was dead when they went to collect it. The presenter referred to the account as an “excellent rumour” ([5]).
MacDonald pleaded that the words meant and were understood to mean that he “fraudulently sold a dead horse” to the educational facility of which he was a director, to obtain a $250,000 financial advantage ([12]). The defendant applied under RSC r 23.02 to strike out that paragraph. Its argument was that the broadcast reported an allegation and a police investigation, rather than accusing MacDonald of the fraud itself ([15]).
Bongiorno J dismissed the application with costs ([56]). The ruling therefore allowed the pleaded imputation to remain for the next stage of the litigation. It did not decide whether the imputation was the meaning actually conveyed to the audience.
The judge treated the question as one of capacity at the pleading stage. He stated that he had to decide not whether the words were capable of bearing a defamatory meaning in the abstract, but whether they were “arguably capable” of bearing the particular meaning pleaded ([53]). That distinction matters: a strike-out ruling tests whether a pleaded meaning can proceed, while leaving its ultimate factual determination to the trial.
The defendant relied on Lewis v Daily Telegraph Ltd and Mirror Newspapers Ltd v Harrison ([18]). As the judgment describes them, those authorities distinguish reporting an investigation, arrest or suspicion from asserting that the person concerned is guilty. The judge recognised that a report of a police inquiry does not automatically convey guilt. The question remains what an ordinary reasonable listener would understand from the publication in its context ([24], [30]).
The judge considered the detail of the 3AW broadcast to be significant. In his view, there was a “considerable and material difference” between a simple statement that an investigation was underway, such as the report considered in Lewis, and the detailed description of a serious fraud said to be under investigation in this case ([41]). The broadcast did not stop at saying that police were making inquiries. It recounted the alleged purchase, the horse's death, the alleged failure to insure it, and the alleged transfer of ownership to the educational facility.
That detail led the judge to treat the investigation as almost irrelevant to the particular imputation pleaded. His focus was on the substance of the alleged fraud recounted in the broadcast, not merely on the fact that police were investigating it ([44]). He also considered that if the words “it's alleged” and “allegedly” had not appeared, it would have been difficult to argue that the words could not carry the pleaded imputation ([47]).
Those qualifiers did not, in his view, settle the capacity question in the defendant's favour. In the context of this broadcast, they did not prevent the account from being capable of conveying the imputation that MacDonald had committed the fraud. The judge nevertheless reserved the ultimate question: whether the broadcast did convey that meaning was for the tribunal of fact at trial ([47]).
The ruling is therefore narrow. It does not establish that every report of an alleged crime, or every report of a police investigation, accuses the subject of guilt. It holds that this particular detailed account was not shown to be incapable of conveying the pleaded imputation at the strike-out stage.
The judgment presents the existing legal setting through its discussion of Lewis and Mirror Newspapers Ltd v Harrison. In Lewis, the publication was described as reporting that the Fraud Squad was inquiring into a company's affairs. The claimants argued that the words imputed fraud or dishonesty, but the courts distinguished an investigation from an assertion of guilt ([21], [24]). The judgment recounts the principle that suspicion and guilt are distinct concepts, while recognising that the publication's overall impression, rather than isolated words, must be considered ([24]).
In Harrison, the High Court considered a report that a man had been arrested and was expected to be charged. Mason J's passage, set out in the ruling, distinguishes what a publication communicates from conclusions readers may reach because of their own beliefs or prejudices ([30]). The judgment also records that questions were reserved in Harrison about what a report of arrest and charge might convey regarding the basis for suspicion ([41]).
Bongiorno J did not reject those authorities. Instead, he distinguished the present publication by its level of detail and by its description of the alleged fraudulent method. A report confined to the existence of an inquiry, arrest or charge may raise a different question from a broadcast that narrates the alleged conduct itself ([41], [44]).
The “after” state that can safely be identified from the supplied judgment is limited to the result of this ruling. It applied the distinction between suspicion and guilt in a way that allowed MacDonald's pleaded imputation to proceed, because the defendant had not established that the words were incapable of bearing it ([53], [56]). The supplied text contains no later decisions applying, limiting or disapproving MacDonald. It therefore does not establish how subsequent courts treated the ruling or whether they developed its reasoning.
At paragraph [41], the judge described the difference between a bare report of an investigation and this broadcast as “considerable and material”. In plain English, the report's detailed account mattered. The court was not treating the broadcast as merely announcing that police had opened an inquiry.
At paragraph [44], the judge said the investigation was “almost irrelevant to the imputation” MacDonald pleaded. That does not mean police investigations are generally irrelevant to defamation meaning. In context, the point was that the content describing the alleged transaction could itself be capable of conveying the pleaded accusation.
At paragraph [47], the judge held that the words “it's alleged” and “allegedly” had not “saved the passage” from being capable of conveying the imputation. Put simply, those qualifications did not make the pleaded meaning impossible at this stage. The ruling did not decide that the qualifications had no effect on the audience's understanding; it decided only that they did not defeat capacity.
Also at paragraph [47], the judge expressly said that whether the broadcast did convey the imputation would be a question for the tribunal of fact at trial. This is an important limit on the decision: capacity to bear a meaning is not the same as a finding that the publication actually bore that meaning.
At paragraph [50], the judge observed that describing a crime's method as alleged, when the source of the allegation is not identified, may resemble saying “they say” or repeating a rumour. He raised a possible connection with the “rumour” cases, including Watkin v Hall. The passage is framed as an observation, not as a separate determination of the rumour-law issue.
Finally, paragraph [53] states the applicable strike-out question: whether the pleaded words were “arguably capable” of bearing the meaning. In ordinary terms, the defendant needed to show more than that another interpretation was possible. The application failed because the court was not satisfied that the pleaded interpretation was unavailable as a matter of law.
The ruling is most directly relevant to a pleading dispute where a defendant argues that a publication reporting an allegation or investigation is legally incapable of accusing the plaintiff of the alleged conduct. Its reasoning is particularly pertinent where the publication contains specific details of the alleged wrongdoing, rather than merely stating that police are investigating, or that someone has been arrested or charged.
The features identified in the judgment include a broadcast report, a detailed account of an alleged fraud, the use of qualifiers such as “it's alleged” and “allegedly”, an unidentified source for the allegation, and a pleaded meaning of actual fraudulent conduct. The judge's reasoning also makes the surrounding context important: he contrasted the detailed account with the simpler publications discussed in Lewis and Harrison ([41]).
The decision should not be read as establishing that detail will always convert a report of suspicion into an accusation of guilt. Nor does it determine the meaning of every broadcast using the word “rumour”. The ruling addresses the arguable capacity of the particular words in the particular pleading. It leaves the audience's actual understanding to the tribunal of fact ([47], [53]).
A further relevant feature is procedural posture. This was an application to strike out a pleaded imputation under RSC r 23.02, not a trial determination of meaning. The judgment's reasoning is therefore tied to the relatively limited question before the court: whether the pleaded imputation was arguably available, not whether it had been proved.
The supplied judgment text does not contain any later judicial decisions discussing MacDonald, and it gives no subsequent treatment of the ruling. No conclusion about later adoption, qualification or rejection can be drawn from this source alone.
Within this judgment, Bongiorno J considered earlier authorities rather than later treatment of his own ruling. He discussed Lewis v Daily Telegraph Ltd and Mirror Newspapers Ltd v Harrison as authorities on the distinction between reporting suspicion and conveying guilt ([18], [24], [30]). He also referred to Watkin v Hall in considering whether the broadcast might be closer to a rumour case ([50]). These references explain the legal context in 2003; they are not evidence of how later courts treated MacDonald.
The ruling also cites Keays v Murdoch Magazines Ltd for the “arguably capable” formulation applied to the strike-out question ([53]). The judgment refers to authorities about the transitory nature of radio broadcasts as part of the plaintiff's submissions ([35]), but the extract does not record a distinct ruling applying those authorities to decide this application. Accordingly, this text supports identifying the authorities discussed in the ruling, but not tracing the later history of the case.
The first open question is what meaning the broadcast actually conveyed to its listeners. The judge expressly left that question to the tribunal of fact at trial ([47]). The ruling did not find that the ordinary reasonable listener understood the broadcast to accuse MacDonald of fraud.
Second, the ruling does not resolve how much weight a fact-finder should give to the phrases “it's alleged”, “allegedly” and “excellent rumour” when deciding actual meaning. It holds only that those expressions did not render the pleaded imputation incapable of arising at the strike-out stage ([5], [47]).
Third, the judgment does not determine whether the source or reliability of the allegation affected the meaning ultimately conveyed. At paragraph [50], the judge noted that the allegation's source was unidentified and discussed the possibility that the broadcast was peddling a rumour. That observation did not produce a separate conclusion on the rumour issue.
Fourth, the ruling does not set out a general measure for when a detailed report of suspected conduct crosses the line from reporting suspicion to conveying guilt. It identifies the difference between a simple report and the detailed account in this case, but the ultimate assessment remains contextual ([41], [47]).
Finally, this extract does not provide the trial outcome, any later appeal, or subsequent judicial treatment. Those matters cannot be supplied from this judgment text. The result established by the source is procedural: the defendant's application to strike out paragraph 9 was dismissed with costs ([56]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, get a qualified Australian lawyer to check it.
[2003] VSC 239
TORTS - Defamation - pleadings - whether imputation capable of arising from words pleaded - allegation or rumour - report of police investigation.
"Caller: Good Morning. The Major Fraud Squad is investigating the circumstances surrounding the sale of a very expensive horse. It's alleged a director of a major Melbourne educational facility paid $250,000 for the animal but discovered that it died en route from the US. Having failed to insure the animal, he allegedly arranged to transfer ownership of the horse over to the educational facility he works for to get his money back. The new owners claimed they went to collect their acquisition, which they had planned to use for a breeding program, but discovered it wasn't going to be much good.
Stevenson: On account of the fact that it was dead.
Stevenson: Dead horse, excellent rumour, excellent rumour. Thank you very, very much."
"To say that the Fraud Squad are making inquiries into a person's affairs is plainly a serious defamation, but it is less than an allegation that he has been fraudulent or convicted of fraud. The making of inquiries by the police may be the initial stage in criminal proceedings. But also it may be found at that stage that there is no offence and no case for a prosecution. A further and a different stage is reached when the person concerned is charged or tried. Again it may be found that he is innocent. The third and final stage is reached when guilt is established and there is a conviction. Those three stages in procedure are quite distinct and known to all."
In the House of Lords, Lord Reid invented a hypothetical conversation between someone who would have leapt to a conclusion that the plaintiffs in Lewis were guilty and someone whom he considered more balanced, more like the "ordinary man", who cautioned against jumping to such a conclusion. His Lordship emphasised that what the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression. In the case at hand he considered that such ordinary man would not infer guilt of fraud merely because an inquiry was on foot. He considered that the jury in Lewis had been misdirected in being permitted to consider whether the words complained of imputed guilt or not. Lord Jenkins, Lord Hodson and Lord Devlin concurred with Lord Reid in the result. Lord Devlin dealt with the matter as follows:[4]
"It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded."
"As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although we know that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted. In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have grounds for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. 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. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader."
Mr Houghton contends that a conclusion of guilt could only be reached by someone who heard the 3AW broadcast if he allowed his own beliefs and prejudices to colour the words which were actually spoken.
[7] Gordon v Amalgamated Television Services [1980] 2 NSWLR 410 at 413; Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1 at 92-3; TCN Channel 9 Pty Ltd & Ors v Mahony (1993) 32 NSWLR 397 at 400-1 and Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165, 166 and 172.
[9] Keays v Murdoch Magazines Ltd [1991] 1 WLR 1184 per Neill LJ at 1191.
MacDonald
3AW Southern Cross Radio Pty Ltd [2003] VSC 239
(1982) 149 CLR 293
(1993) 32 NSWLR 397
(1998) 43 NSWLR 158
The defendant's summons to strike out paragraph 9 of the plaintiff's Amended Statement of Claim was dismissed with costs ([56]).