Mirny v Network Ten Pty Limited

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List

20588/00 Svetlana MIRNY v NETWORK TEN PTY LIMITED Judgment

HER HONOUR : 1 By statement of claim filed on 1 November 2000 the plaintiff, Svetlana Mirny, has commenced proceedings against the defendant, Network Ten Pty Limited, claiming damages for defamatory imputations she alleges arise out of a telecast of 23 January 2000. As the plaintiff firstly frames her claim, the imputations arise out of the natural and ordinary meaning of the publication; additionally, (not alternatively, if the pleading is to be read strictly) she claims that the defamatory imputations are conveyed to persons in possession of certain extrinsic facts. 2 By notice of motion filed on 5 March 2001, the defendant seeks, inter alia, an order that each imputation pleaded by the plaintiff be struck out. The basis of the application is that the matter complained of is incapable of conveying any of the imputations pleaded, either in its natural and ordinary meaning, or in conjunction with the extrinsic facts identified. In respect of certain of the imputations, the defendant contends that, even if they are capable of being conveyed, they are not capable of defaming the plaintiff.

The matter complained of 3 A video tape of the telecast was played in court and a transcript of the words published together with a description of the accompanying film images, was provided. The item purported to be a news item, part of the evening news, and opened with film of St Mary's Cathedral in Sydney. The subject matter of the news item was the asserted popularity of marriages solemnised by civil celebrants at the expense of traditional church weddings. It reported that more than half of the marriages contracted in New South Wales in 2000 had been celebrated privately rather than in a church. Importantly, for present purposes, it featured a priest, saying: "There is a high divorce rate and people getting married a second or third time tend not to come for church weddings";

and, a little later: "Many people have a very casual approach to marriage. Our culture seems to encourage somewhat of a lack of commitment." 4 Contrasted with this were the reported views of civil celebrants, to the effect that greater flexibility and a more relaxed setting explained their growing popularity. 5 No mention was made of the plaintiff. However, the item was graphically illustrated, initially by the depiction of the Cathedral, and this was followed by footage of what appeared to be a very traditional wedding party, the bride dressed in a lavish white gown and attended by bridesmaids and a flower girl. These images came on the screen immediately after the first image of the priest, when he referred to the high divorce rate. Immediately after he was shown lamenting the modern "casual approach to marriage", film of a couple in fancy dress appeared on the screen. They appeared to be exchanging vows in a ceremony conducted by an Elvis Presley impersonator. 6 The telecast finished with the observation that church leaders insist that church weddings need not be elaborate or expensive. This statement was accompanied by further film of an undoubtedly elaborately and traditionally dressed bride. It was common ground that the traditional bride depicted both then and in the earlier footage was the plaintiff. 7 In the statement of claim the plaintiff pleads that the publication, in its natural and ordinary meaning, conveyed three imputations that defamed her. These were expressed as follows: 3(a) the plaintiff married with a lack of commitment to the marriage; 3(b) the plaintiff is irresponsible; 3(c) the plaintiff is antisocial because she does not take her marriage commitments as seriously as she should. 8 On the hearing of the defendant's notice of motion, counsel for the plaintiff abandoned reliance on the second of these imputations. 9 The plaintiff further claimed that, to recipients of the matter complained of in possession of certain identified extrinsic facts, it conveyed the same three allegedly defamatory imputations, plus an additional four, expressed as follows: 4(d) the plaintiff falsely pretended to be a devout member of the Jewish faith; 4(e) the plaintiff is not a worthy member of the Jewish faith because she was married by a celebrant in a park and not by a rabbi in a synagogue; 4(f) the plaintiff lied about her marital status; 4(g) the plaintiff entered into a marriage which she knew would not be recognised by other members of her faith. 10 Again, on the hearing, counsel for the plaintiff abandoned reliance on the imputation that the plaintiff was irresponsible. 11 The extrinsic facts were particularised as: (a) the plaintiff was a devout member of the Jewish faith; (b) the plaintiff told her prospective husband, friends, relatives and other persons that she was a devote (sic) member of the Jewish faith; (c) the plaintiff had told her prospective husband, friends, relatives and other persons that she was single and had not previously been married; (d) devout members of the Jewish faith are married in a formal ceremony conducted by a rabbi in a synagogue; (e) devout members of the Jewish faith do not get married in a casual manner by a marriage celebrant in a park; (f) devout members of the Jewish faith would not recognise a marriage between other devout members of the faith if it was conducted by a marriage celebrant in a park and not by a rabbi in a synagogue; (g) members of the Jewish faith take marriage seriously with a full commitment to their marriage obligations. 12 To begin with, counsel for the defendant made some general submissions about the extent (if any) to which the telecast, particularly those portions of it that could be described as critical of non-church weddings, could reasonably be taken to apply to the plaintiff. Inherent in some of these arguments was an assumption that the plaintiff's wedding party was used (and taken) to illustrate a traditional (church) wedding, while the fancy dress wedding illustrated the non conventional (civil) marriage. What was implicit in this argument was the assumption that traditional white weddings were church weddings, and that civil weddings were marked by less formal dress and trappings. If this assumption were valid, then the message conveyed by the telecast (at least in those passages attributed to the priest) would have been of approval of the plaintiff and her wedding and disapproval, even criticism, of the plainly irreverent couple depicted in the fancy dress. 13 But I do not think the assumption is valid. The commentary could not be construed as drawing the clear lines suggested. There is nothing in the telecast that suggested that all and only (or even most) brides dressed in conventional wedding finery, accompanied by conventional wedding attendants, take their vows in a church, and that brides who opt for a civil service comport themselves differently. Not only is that not suggested in the telecast; it is contrary to common knowledge and experience. A jury asked to decide whether imputations defamatory of the plaintiff were conveyed would be entitled to apply their general understanding of the world and of human affairs. Such a jury may well take the view that brides who opt for a civil ceremony frequently nevertheless adhere to the formalities of dress and trappings that are so commonly a feature of weddings of all kinds. The fact that the plaintiff's wedding party is depicted in formal traditional garb does not operate to deflect or allay any notion that the plaintiff married, not in a church, but in a civil ceremony. 14 It was also argued that even a viewer who took the images of the plaintiff to illustrate a modern, civil celebrant wedding, could not reasonably take the priest's comments to refer to her or her wedding party. This submission does not do justice to logical reasoning. If a reasonable viewer formed the opinion that the plaintiff's wedding was one of the non-church variety the subject of the priest's criticism, then the same viewer might conclude that the priest's criticisms attached to her. It would be open to a viewer to think that the item conveyed that those who chose a non-church wedding had "a very casual approach to marriage" and to "lack commitment", and that the plaintiff was representative of such people. Counsel for the defendant also argued that the priest's comments would be interpreted by reasonable viewers as a hypothesis explaining why so many opted for non traditional (meaning non-church) weddings, and that such a viewer would not expect the priest to know the couples depicted. 15 Again, in my view this overlooks the salient features of the way in which the telecast was presented. The focus of the commentary was on the growing popularity of non-church weddings and the corresponding decline in church weddings. The comments of the priest were undoubtedly critical of those who reject marriage sanctified in a church. For some reason the plaintiff's wedding was apparently chosen to illustrate the story. There is nothing to convey to the viewer that the plaintiff represented, not the "casual", commitment-lacking marriage, but the approved, committed, non-casual marriage. True it is, the dress of the irreverent couple apparently being married by an Elvis Presley impersonator contrasted with the formality of the plaintiff's wedding, but the words accompanying the images contained nothing to suggest that the "white wedding" represented a church-blessed union and the fancy dress couple represented the other end of the spectrum. 16 Another argument put on behalf of the defendant was that the ordinary reasonable viewer would be familiar with the practice of news broadcasters to illustrate stories with "generic footage" to bring life and entertainment to the story. The thrust of this submission was that the ordinary reasonable viewer would treat the depiction of the plaintiff as irrelevant to the story, or relevant only as illustrative of a wedding that was itself irrelevant. I can accept this no more than the defendant's earlier argument. I do not see why a viewer would take the view that the defendant merely plucked a piece of stray footage from its resources for the purpose of illustrating a story otherwise completely unconnected with the individuals depicted with the footage. In my view, it is far more likely that the ordinary reasonable viewer, with the well-known capacity for the loose thinking and jumping to conclusions, would consider that there was some point in the use of the footage, some basis for its selection, and some connection between the persons depicted and the news story. It is not to be forgotten that the present inquiry concerns not what the ordinary reasonable viewer did in fact think or might in fact have thought; it was what that person might reasonably have drawn from the telecast. 17 The defendant's general arguments are all rejected. I turn now to those specific matters directed to the individual imputations. Natural and ordinary meaning

Imputation 3(a): "the plaintiff married with a lack of commitment to the marriage."

Counsel for the defendant argued that the priest's reference to a "lack of commitment" was meant as: "a general commentary on an unspecified number of people who got married outside the church … the view of a beleaguered church, protesting about the lack of interest in church weddings". 18 That may well be so. But the fact is the defendant used film of the plaintiff's wedding to illustrate the comment. The juxtaposition of the comment with film of the plaintiff's wedding was capable of conveying to the ordinary reasonable viewer the imputation that the plaintiff was a person who fell within the category of people described by the priest. 19 Another criticism made of the imputation was that it is insufficiently precise, but I reject this also. It is quite clear and precise in its terms. 20 Finally, it was argued that the imputation is not capable of being defamatory and I also reject this proposition. In my view, even in modern society, prevailing mores are such that ordinary people expect commitment in marriage - certainly at the time the marriage is entered - and would frown upon a person who entered a marriage lacking that commitment. 21 Imputation (a) will therefore be allowed to stand.

Imputation 3(c): "the plaintiff is antisocial because she does not take her marriage commitments as seriously as she should." 22 The criticism of this imputation repeats those made of imputation 3(a). So far as that concerns the asserted generality of the priest's comments, and lack of application to the plaintiff, it is again rejected. However, the criticism concerning lack of precision lies on much firmer ground. The word "antisocial" is a word of uncertain import and difficulties would undoubtedly arise in instructing a jury if it were to be left in its present form. It was also argued that the imputation as framed contains within it an unwarranted assumption of a causal connection between failing to take marriage commitment sufficiently seriously and being antisocial. I think this criticism is also warranted. Failure to accord sufficient weight to marriage vows does not equate with being antisocial. In any event, if the word "antisocial" is removed, it is difficult to see how the imputation differs in substance from imputation 3(a). 23 Imputation 3(c) will be struck out.

True innuendo 24 It is necessary now to consider the imputations said to be conveyed to viewers with knowledge of the extrinsic facts set out in paragraph 11 above. Imputations 4(a) and (c) are pleaded in the same terms as in the preceding paragraph. Imputation 4 (c) will be struck out for the reasons already given in relation to imputation 3(c). It is not enhanced, and the difficulties inherent in the way it is framed are not overcome, by the injection of knowledge of any or all of the extrinsic facts. 25 Since imputation 3 (a) is to go to the jury, it is probably not strictly necessary to deal with it as a true innuendo. However, as others may take a different view, it is convenient to consider whether, if it is not capable of being conveyed in the natural and ordinary meaning of the publication, it is capable of being conveyed in the alternative way pleaded. 26 I have concluded (after some hesitation) that a viewer with knowledge of the combination of extrinsic facts pleaded might draw the inference that the marriage in which the plaintiff was depicted was one to which she was not committed. The overall effect of the extrinsic facts particularised is that a committed Jewish marriage is solemnised formally in the synagogue; from that, the inference may also be drawn that a person of the Jewish faith marrying in a ceremony elsewhere was uncommitted to the marriage. I will not therefore, strike out imputation 4(a).

Imputation 4(d): "the plaintiff falsely pretended to be a devout member of the Jewish faith." 27 The criticism that was made of this imputation was that there was nothing in the telecast to identify any particular religion or denomination with which the bride was associated, and that, accordingly, no aspersions were cast upon the plaintiff. I reject this argument. The point is not that nothing in the telecast identified the plaintiff (or the bride there depicted) as Jewish: the point is that some viewers who knew the plaintiff also knew that she represented herself as a devout member of the Jewish religion and that fact, put together with the suggestion that her marriage took place outside the usual boundaries of a Jewish marriage ceremony, cast doubt upon the sincerity of her professed beliefs. The reasoning process imputed to the viewer with the relevant knowledge is:

(ii) devout Jews celebrate marriage in a particular fashion;

(ii) the plaintiff celebrated her marriage otherwise than in that particular fashion;

(iv) therefore the plaintiff's sincerity as to her religion is dubious. 28 Whether that reasoning process would have been engaged in by the ordinary reasonable viewer will eventually be a matter for the jury; it is, in my view, an available reasoning process. 29 I decline to strike out imputation 4(d).

Imputation 4(e): "the plaintiff is not a worthy member of the Jewish faith because she was married by a celebrant in a park and not by a rabbi in a synagogue."

Similar criticism was made of this imputation, and is rejected for the same reasons. In addition, it was submitted that the plaintiff's family and friends would have been aware that what was depicted was merely a photographic session and not the wedding itself. This also I reject. No doubt the plaintiff's circle of acquaintances is wider than those who were present at her wedding and who had relevant knowledge, that is, that what was on the film was the result of a photographic session and not part of the wedding event (if indeed it is the fact: there is no evidence, and nothing in the film, that tells the viewer that what is shown is a photographic session as distinct from part of the wedding ceremony). 31 Just as a viewer might adopt the reasoning process outlined in relation to imputation 4(d), so also might such a viewer draw the conclusion in imputation 4(e). 32 It was further argued that this imputation was not capable of being defamatory. In my opinion it is clearly so capable. 33 I decline to strike out imputation 4(e).

Imputation 4(f): "the plaintiff lied about her marital status." 34 It is difficult to see how this imputation relates to the words, or the words in combination with the images, published. The only relevant reference to marital status is that spoken by the priest, when he mentioned the high divorce rate and people marrying for a second or third time. Certainly there is no suggestion that all or even most non-church weddings are of people who have formerly been married. Divorcees remarrying are mentioned as examples of those who decline church marriage. 35 I agree with the submission made on behalf of the defendant that the interpretation proposed by the plaintiff is "strained, forced, and utterly unreasonable", 36 Imputation 4(f) will be struck out.

Imputation 4(g): "the plaintiff entered into a marriage which she knew would not be recognised by other members of her faith." 37 No real argument was directed to the question of the capacity of the matter complained of to convey the imputation, and I am satisfied that it is so capable. However, I accept the defendant's alternative argument that it is not capable of being defamatory. 38 Imputation 4(g) will be struck out. 39 Accordingly, the orders I make are:

imputations 3(c), 4(c), 4(f) and 4(g) are struck out.

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