MORGAN TSVANGIRAI v THE SPECIAL BROADCASTING SERVICE

T BLACKBURN (Defendant) RL WHYBURN & ASSOCIATES (Plaintiff) SOLICITORS : MINTER ELLISON (Defendant) CATCHWORDS : Pleading - statement of claim - "strike in" application - test for determining whether omitted portions should be pleaded - reasonably capable of materially altering complexion of imputation - "transient" television program LEGISLATION CITED : Supreme Court Act 1970 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Cinevest v Yirandi Productoins Ltd [2001] NSWCA 68 Gordon v Amalgamated Television Services Pty Ltd & Anor (1980) 2 NSWLR 410 Mularczyk v John Fairfax Publications Pty Ltd [2001} NSWCA 467 CASES CITED : Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46 Rainy v Bravo (1872) L.R. 4 P.C. 287 Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & Ors (1971) 1 NSWLR 472 Samra v Federal Capital Press [2002] NSWCA 93 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 DECISION : See paragraph 19

• 1 - DJL:1 [2002] NSWSC 532 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION list

THE SPECIAL BROADCASTING SERVICE (Defendant)

JUDGMENT (Pleading - statament of claim - "strike-in" application - test for determining whether omitted portions should be pleaded - reasonably capable of materially altering complesion of imputation - "transient" television programme) 1 The plaintiff commenced proceedings against the defendant by a Statement of Claim filed on 28 February 2002. In that pleading he states that he is the Leader of the Movement for Democratic Change the main opposition party in the Parliament of Zimbabwe. The plaintiff claims damages for defamation. 2 By paragraph 3 of the Statement of Claim, the plaintiff alleges that on or about 13 February 2002 the defendant published in its program "Dateline" the following words of and concerning him: "(T)onight we present evidence that the Opposition Leader has no intention of letting the electoral process take its course. Whilst parading his supposedly democratic credentials, Mr Tsvangirai has, in fact, been plotting to kill President Mugabe".

3 The plaintiff contends that that matter complained of carries the following imputation defamatory of him: "That he was guilty of the crime of conspiracy to murder Robert Mugabe, President of Zimbabwe". 4 To use the argot of the Defamation List, the defendant moves the Court for what is known as a "strike-in" order. 5 Exhibit A on the defendant's application is a transcript, admitted by consent, of what exhibit B (a video tape similarly admitted) discloses to have been a Dateline program of approximately 50 minutes in length. The material referred to above in paragraph 3 of the Statement of Claim can be identified as having been extracted from words spoken by Ms Jana Wendt introducing the report presented by Dateline's Mark Davis. 6 The order the defendant seeks is that the plaintiff plead the entirety of the Dateline program. The defendant argues that to take but two sentences from the entirety of that program (and from the introductory portion) and sue on an imputation claimed to arise from those two sentences, is impermissible. It is argued for the defendant that the effect of the matter complained of must be taken from the whole of what was published by the defendant, and that the defendant, in any event, is entitled to put the whole of the program before the jury and have that tribunal's view on whether matter additional to that pleaded by the plaintiff in fact materially alters or qualifies what is described as the "complexion" of the imputation. 7 The relevant principles are set out in Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd & Ors (1971) 1 NSWLR 472. The Court of Appeal upheld the order of the judge at first instance striking out 35 counts in a declaration. The defamatory material in each count was contained in an advertisement placed by the defendant which operated a used car business. The particular part of the advertisement relied on by the plaintiff was the passage under the heading "Warning" which the plaintiff claimed imputed to it that it was guilty of commercial dishonesty. There was a great deal of irrelevant material in the advertisements including photographs and descriptions of the motor vehicles available and passages dealing with the availability of finance. The Court of Appeal upheld the striking out of each of the 35 declarations on the basis that the additional matter could not in any way alter, qualify or otherwise affect the defamatory matter. The Court was of course concerned with the peculiar status enjoyed by pleadings in the very strict sense as applied before the enactment and operation of the Supreme Court Act 1970. Nonetheless Asprey JA at 477A, having considered the aspect just mentioned said: "If the alleged defamatory matter be contained within other written material, it is sufficient to set forth in the declaration the libellous passages only, provided that their meaning be clear and distinct. But, if the meaning of the passages taken singly is not clear or if the complexion of the imputation conveyed by the libellous passages is materially altered or qualified by other passages in the written material, the plaintiff must set out all of the passages in the written material which affect the sense of the alleged defamatory matter."

His Honour cited the early authority of Rainy v Bravo (1872) L.R. 4 P.C. 287 at pp 296-297. 8 In Gordon v Amalgamated Television Services Pty Ltd & Anor (1980) 2 NSWLR 410 the plaintiff selected part only of a Channel Seven telecast which contained the allegations to which he objected but omitted that part of the same broadcast which contained his denials and upon which the defendants sought to rely. Hunt J followed Ron Hodgson (Trading) Pty Ltd in holding as a matter of principle that where the publication sued on in defamation is in written form, the plaintiff is obliged to include within his pleadings every passage which materially alters or qualifies the complexion of the imputation complained of (at 413A). His Honour held that the justification for that rule is the principle that the effect of the matter complained of must be take from the whole of what was published (at 413B). His Honour went on to consider the application of that principle to what he described as "oral" publications, leaving aside the provision of the Broadcasting and Television Act, 1942 (Cth) s124 deeming radio and television broadcasts to be publications in a permanent form. His Honour said (at 413C-F): "Particularly in the case of radio and television publications, a plaintiff is entitled to submit to the jury that the reasonable listener or viewer, as the case may be, although deemed to have listened to the whole of what was broadcast, nevertheless, may not have devoted the same degree of concentration to it as he would have to a written document: Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n). In the case where there is a written document, of course, it is possible for the reader to consider or reread the whole document at leisure. Each case will, no doubt, depend upon its own circumstances, but it is easy to imagine a viewer missing the significance of a qualification or contradiction at the beginning or (perhaps less likely) at the end of a segment such as that complained of here. On the other hand, it is difficult to accept the existence of the reasonable listener or viewer who failed to comprehend a refutation in the sentence following that in which the charge was made or whose concentration selectively increased in relation to random passages between those which materially qualified the effect of those he comprehended. Notwithstanding the lack of unqualified application of that principle in the case of oral defamation, the rule remains that the capacity of the matter complained of to convey particular defamatory imputations of and concerning the plaintiff must be judged by what the ordinary reasonable viewer or listener of average intelligence would have understood from the broadcast as a whole. This is made clear by the judgment of the Court of Appeal in Morosi v Broadcasting Station 2GB Pty Ltd (16b). That judgment firmly refutes the suggestion that a plaintiff is entitled to succeed because some viewers, or listeners, might have left the room momentarily, or had their attention distracted by a current activity upon which they were then engaged, and thus missed the qualifying passages in the whole matter which was broadcast".

9 His Honour went on to consider the question of whether the principle in written defamation, that a defendant may force the plaintiff to plead the proper context in his Statement of Claim, applies equally in the case of oral defamation. Noting its non-application where there is a dispute as to what actually was said, his Honour went on (at 414B): "…I can see no reason why the principle in Rainy v Bravo as interpreted by the Court of Appeal in the Ron Hodgson case should not apply equally in oral as in written defamation. …I hold that the principle laid down in Rainy v Bravo and the Ron Hodgson case does apply equally in oral as in written defamation. In either case (again leaving aside the situation in which the plaintiff disputes what else was said), the defendant will be entitled at the trial to require the plaintiff to prove the full context, if that context affects the imputation complained of by the plaintiff". (at 414E) 10 His Honour went on to say (414G-415B): "I see no reason why it should not be a sufficient basis for an order to replead that the additional passages relied upon by the defendant may be understood by the ordinary reasonable reader as materially altering or qualifying the complexion of the plaintiff's imputation… Principle demands, however, that if a plaintiff is entitled to set out those passages from which the imputations of which he complains are capable of being conveyed, then the defendants should similarly be entitled to have set out those additional passages which are capable of materially altering or qualifying any such imputation. It is, in my view, unnecessary for a defendant to have to show that the additional passages must change the complexion of the imputation complained of". (emphasis added) 11 Although his Honour, in Gordon, was dealing with a television program, at that time the notion of "transient" publication had not entered the vocabulary at least of defamation law. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Hunt CJ at CL had occasion to remark upon the phenomenon of the transient publication although in the context of the application of the test of "reasonableness" to the question of capacity. His Honour said (165G-166C): "All of these considerations, and more, apply to matter published in a transient form - and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity: Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article ( Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420), and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413". 12 It is quite clear to me that the principle to which reference is made in Hodgson and Gordon applies to the "transient" publication on radio or television. The ordinary reasonable viewer is taken to have viewed the whole of the program with the variation in concentration to which his Honour refers in Marsden. The defendant is entitled to have pleaded by the plaintiff the proper context of the matter complained of as it may affect the complexion of any imputation pleaded. In a case involving a current affairs television program, in most cases one would anticipate that the whole of the relevant segment should thus be pleaded. If an issue arises as to whether the plaintiff has impermissibly omitted material from the publication (the whole of which the viewer is taken to have seen) the test to be applied is whether any of the omitted parts is reasonably capable of materially altering or qualifying the complexion of the plaintiff's imputation. It will be for the tribunal of fact - the jury - to determine whether any such material in fact has that effect. 13 In the instant case the plaintiff has pleaded but two sentences from the introductory remarks of Ms Wendt. Although the issue was not raised in the course of submissions, I take the view that this is akin to the plaintiff pleading only the headline to a printed article, a course which is proscribed on the basis of the same principle: World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 at 725. 14 For the plaintiff no submission was made that the principles outlined above do not apply. The fundamental submission advanced by Mr Molomby was that applying the test of whether or not the omitted material (virtually the whole of the program) is reasonably capable of materially altering or qualifying the complexion of the pleaded imputation, the answer would clearly be in the negative. In other words it was submitted that the balance of the program, on any reasonable viewing of it, does no more than reinforce from beginning to end that which has been extracted from its introduction. 15 For the defendant attention was drawn to sections of the lengthy report constituting the whole of the program (which the viewer is deemed to have seen) which contain information on the following subjects: the repression of opposition forces by elements allied to the government of Zimbabwe; excerpts from interviews with President Mugabe; lengthy segments about the effect of the government's policy of land seizures on a white farmer, Mr Ian Kay; denials by the plaintiff that he wanted to change the government in Zimbabwe by unconstitutional means and what is described as the equivocal nature of the video of the meeting in Montreal (where it is to be taken that the assassination of President Mugabe was proposed by the plaintiff). 16 Applying the test of whether or not the balance (virtually the whole) of the program is reasonably capable of having the effect referred to, I have come to the conclusion, on this capacity point, that it is. I must say however that it was not without some sense of reservation that I did come to that conclusion. When one applies the principle relating to reasonable capacity to materially alter the complexion of the pleaded imputation and applies also the principle that a viewer is taken to view the whole program, it would be an exceptionally rare case where a plaintiff safely can avoid pleading the whole of the published program. During the course of submissions I raised with Mr Molomby the question of why it was that the plaintiff did not in fact plead the whole of this program; Mr Molomby (who did not draft the pleading) was unable to assist otherwise than by asserting that if there is an available rare exceptional case, this was such a case. 17 A further proposition was sought to be advanced for the plaintiff to this effect: that so clear is it the case that the balance of the program only reinforces the introductory part founding the pleaded imputation, that a finding by the jury on the whole of that program that the pleaded imputation in fact was not conveyed would readily be upheld as "perverse" and thus it should now be held that the balance of the material need not be pleaded as it is not reasonably capable of altering the complexion of the pleaded imputation. (The Court of Appeal has dealt with the question of "perversity" in relation to both a jury finding that an imputation in fact was not conveyed or, if conveyed, was not defamatory in the following cases: Cinevest v Yirandi Productions Ltd [2001] NSWCA 68; Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467; Pavy v John Fairfax Publications Pty Ltd [2002] NSWCA 46; Sarma v Federal Capital Press [2002] NSWCA 93 and Rivkin v John Fairfax Publications Pty Ltd [2002] NSWCA 87). 18 I am unable to accept this proposition. This argument is concerned fundamentally with the identification of the publication said to give rise to the pleaded imputation and which itself will be the subject in due course of a jury's deliberations. This notion of "perversity" in my view cannot sensibly be applied to this preliminary question. 19 Accordingly I order:

1. Within 14 days the plaintiff is to file an Amended Statement of Claim pleading the whole of the program and appending to the Statement of Claim a transcript in the form of exhibit A on this application.
2. The plaintiff is to append to such Statement of Claim the particulars required by SCR Pt 67 r12 (e).
3. The plaintiff is to pay the defendant's costs.
4. The matter will be listed in the Registrar's Defamation Directions List on 12 July 2002.

Last Modified: 06/17/2002 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.