Nationwide Publishing Pty Ltd trading as the Centralian Advocate v Furber, Rosie Furber & Ors [1984] FCA 94

Federal Court of Australia|1984-04-13|Before: Fitzgerald JJ, Muirhead J

vs Appeal against interim injunction restraining publication

of alleged defamatory newspaper article - whether case for leave to appeal "for special reasons" - application of established principles to particular facts not alone

justification for leave - possible defamatory view of article

republication of statements not dependent on adoption of

statements as assertions of fact or expressions of opinion -

potential readership of article properly considered -

triable case - available defences - balance of convenience

NATIONWIDE PUBLISHING PROPRIETARY LIMITED trading as THE CENTRALIAN ADVOCATE v. ROSIE FURBER, MICHAEL PAUL RICE, VERONICA MARY GOLDER, DAVIE HAYES, NANCY ANNE LYNCH

NATIONWIDE PUBLISHING PROPRIETARY LIMITED trading as THE CENTRALIA' ADVOCATE

IN THE FEDERAL COURT OF AUSTRALIA ) NORTHERN TERRITORY DISTRICT REGISTRY ) No. NTG 34 of 1983 GENERAL DIVISION )

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN ~ TERRITORY OF AUSTRALIA

NATIONWIDE PUBLISHING PROPRIETARY LIMITED trading as THE CENTRALIAN ADVOCATE

Appellant AND: ROSIE FURBER First Respondent AND: MICHAEL PAUL RICE Second Respondent AND: ' VERONICA MARY GOLDER Third Respondent AND: ' DAVIE HAYES Fourth Respondent AND:

CORAM: Toohey, McGregor and Fitzgerald JJ. DATE: 13 April 1984

in the Supreme Court of the Northern Territory at Alice Springs on 19 October 1983.

The appellant is the publisher of "The Centralian Advocate", a newspaper distributed in Alice Springs. On 22 April 1983, an article was published in the newspaper under the Heading "Lake Legal Action Plan". The article

referred to a controversy concerning a proposal by the

Northern Territory Government to construct a recreational

lake in the area of the 01d Telegraph Station at Alice

Springs. Reference was made in the article to a claim by Aboriginals as traditional owners of the area that it included a sacred site known as Welatyetherre. It was stated in the article that the traditional owners had set up camp on the site

and intended to stay there. One of the traditional owners was

identified as Rosie Ferber (called Furber in the title of the appeal),

a respondent to the appeal. The article included a photograph of

some Aboriginal women and children with the accompanying caption:

"""Pricilla Ferber and Phyllis Stephens hold the sacred objects. They are stones said to represent women's breasts. Traditional owner Rosie Ferber explains to the group of children the significance of the objects".

On the night of Saturdav 15 October 1983, the infant son and the brother of Rosie Ferber were tragically killed in a tent fire at the site.

On 18 October 1983 it became known to the Central Australian Aboriginal Legal Aid Service Inc. that the appellant proposed to publish an article concerning the tent fire in the newspaper on 20 October 1983. On 19 October a legal practitioner employed by the Legal Aid Service and others were permitted to peruse the proposed article and to make notes. At their request,

alterations were made to the proposed article. Initially

- a ee tt me nr eect Lan Rn marten ee es we ee -- a a ante

it was indicated that no attempt would be made to restrain publication of the altered article. However, at about 2 pm that day, the appellant was informed that an injunction

Late that afternoon, an application for an injunction was made to Muirhead J. in Chambers at Alice Springs. No writ had been issued. The application was made on the basis of an affidavit sworn by a legal practitioner employed by the Legal Aid Service. The affidavit named the appellant as defendant and Rosie Ferber Michael Paul Rice, Veronica Mary Golder, Nancy Anne Lynch, and Davie Hayes as plaintiffs. Those named as plaintiffs were said to be taking action on their own behalf and on behalf of "relations and traditional owners concerned with the matter of this application". Rosie Ferber and Michsel Rice were stated to be residents at the site and the other persons named as plaintiffs

A copy of a typescript of the proposed article was handed to Muirhead J. and referred to in argument although not marked as an exhibit. Copies of thé typescript have also been made available to this Court and treated by all parties as part of the record. Paragraph 8 of the affidavit was in

"8. That I have been informed by the applicant Davie Hayes who was born at Welatyetherre and is regarded as one of the most senior and knowledgeable Aboriginal men concerning the law pertaining to that area that the said comments are lies".

Paragraph 7 of the affidavit stated that the deponent had been informed and verily believed that, if the proposed article was published, it would "cause great distress in the Aboriginal

community in general and in particular to the inhabitants of

Welatyetherre and the traditional owners" on various

bases asserted by reference to a view as to the meaning

of the contents of the article. The source of the information

The article, which was to be accompanied by a photograph with the caption "This was the scene at Welatye-Therre

the tent fire on Saturday night", was in the following terms:

Two people killed in a tent fire may have died because of a 'spiritual payback', a woman claimed yesterday.

The woman, who did not wart to be named, said the three-year-old son and 22-year-old brother of Welatye-Therre traditional owner, Rosie Ferber, may have died on Saturday night because the site was so badly desecrated.

The woman is closely related to the traditional owners who camped in the Todd behind the Telegraph Station to try to stop the construction of a prop recreation lake on the site.

She said that under traditional law, if a site was desecrated the family would be 'severely punished'.

Michael Ferber, 3, and Acquinas John Rice Jambajimba, 21, died after a candle in their tent fell over, catching the tent alight.

According to police, several people were in the tent at the time.

They said the two who died were trapped in the back of the tent.

The woman said she had been fighting the desecration of the site since the campers moved out there, but only decided after the weekend to make it public.

The camp was a ceremonial spot where only women were allowed to go for short ceremonies and then they must leave, she sajd.

The site had been "desecrated to the limit' by having men around, heavy drinking, showing and photographing sacred stones and the fact that young girls had been handling the stones, she said.

Only mature women were allowed to handle them, she said.

It would have been enough if the women had visited the site, performed ceremonies and left again.

Aboriginal people would have come from all over Austral1a to support the women if the Government had tried to build a lake there, she said.

the idea of staying there by people who lacked understanding of the repercussions if the site

A spokeswoman for Welatye-Therre women's group supported these statements.

She said the fire could have been a 'spiritual payback'.

'Women are upset and depressed about what happened on the weekend.'

'They're not going to go back until probably next year. A new group of women will go.'

'Women only out there. No more men to live out there. Only women dance there.'

There are also unconfirmed reports that a delegation of women, including the Prime Minister's wife Hazel Hawke, several Labor women parliamentarians and journalists will be requested to cancel their visit to Alice Springs.

The women were due to arrive in a little more than a week to discuss with the traditional owners the significance of the site to all women in Australia.

A spokesman for the Minister for Aboriginal Affairs Clyde Holding said Mr Holding had not received a formal letter from the women requesting the delegation not to come. However, Mr Holding would abide by the wishes of the women, he said.

It is believed that alternative action to save the site is being planned by the Welatye-Therre women but details have not been finalised.

Police said there were no suspicious circumstances surrounding the fire."

The appellant and the respondents were each legally represented before Muirhead J. Both on that occasion and before this Court there was discussion concerning whether or not the application before his Honour was properly to be considered as ex parte notwithstanding the appellant's representative's attendance and participation in the

proceedings: cf. Pickwick International Inc (GB) Ltd v.

Multiple Sound Distributors Ltd (1972) 3 All E.R. 384.

The answer to that question is of no significance

There was much scope for criticism of the affidavit filed on behalf of the respondents, both as to its form and its contents. Perhaps a partial explanation might be found in the urgency of the

application. No comment was made by the appellant's

solicitor by way of objection or criticism. It may be that if

the appellant's solicitor had not been present, Muirhead J. would have expressed more concern than he did. If any question had been raised as to the state of the material, it might have been possible for the respondents to meet the problem by calling evidence. However, the proceedings were conducted on the basis of the affidavit. Perhaps it should be added that, in the course of their respective submissions, each of the lawyers made assertions of fact which were unsupported by evidence, including assertions with respect to matters going to the balance of convenience. It emerged that the newspaper containing the article had been printed and was en route to Alice Springs from Darwin and that 1t was expected to arrive at about 5.40 p.m. This was about the time of the hearing before Muirhead J.

Counsel for the respondents submitted to Muirhead J. that the article was defamatory and that it

could "hardly be suggested that this is in any way a fair

comment ...". The solicitor for the appellant stated that

he had instructions to oppose the application, giving

as his grounds that "such an injunction would impinge on freedom of speech and freedom of the press, and ... there is nothing defamatory or illegal in what is proposed to be published". By way of elaboration of

the second ground, he made submissions as to the meaning

Statements made by Muirhead J. reveal that he was aware of 'the inconvenience and probable loss which would be occasioned to the appellant and that he was aware of the need for the press to be able to publish "fair reports of such matters". But, in his Honour's view, the article contained a suggestion that the respondent Rosie Ferber (and perhaps others) were responsible for the two deaths, which he quite correctly regarded as a most serious defamation. He further considered that the consequences of

such a defamation "would be (irremediable) insofar as

Counsel for the respondents requested that the injunction be granted until further order rather than a fixed date, and discussion on that question ensued. That

discussion must be seen in the context of two factors. Any

injunction would have effectively prevented the particular publication proposed, that is 1n the newspaper to be published on the following day. In a sense then, once there was an injunction at all, there was little remaining urgency. Further, the Judge and lawyers involved would have been aware of the Supreme Court's other commitments and their personal availability. The result of the discussion was a decision to grant the injunction until further order and to fix a date about a fortnight away

(31 October 1983) as a date upon which the appellant

could request the dissolution of the injunction. The solicitor for the appellant described that arrangement

There was also discussion concerning whether or not a writ was required; the solicitor for the appellant did not participate. No mention was made by anyone of an undertaking as to damages. The order finally signed by Muirhead J., which accords with his statements during the hearing, enjoined the appellant "until further order from publishing and distributing the article in the form exhibited ... or in a form whicn contains or may be reasonably interpreted to contain the same innuendos". It was an ordér expressed in very wide terms indeed but no criticism was made by the appellsnt on that score. The signed order also provided for the adjournment of the hearing of the respondents! application

returnable at the same time, seeking a discharge of the injunction and an order for "damages and costs". Both sides filed affidavits. The proceedings were adjourned on a number of occasions at the appellant's request and neither application has been heard. Any party may still bring the application on for hearing. Recently the respondents issued a writ and delivered a statement of claim; as well they have offered an undertaking as to damages, to be effective retrospectively to the date the injunction was granted. This offer was repeated before this Court. It should be made the subject of a 'formal undertaking in the

Instead of proceeding with its motion or otherwise contesting the continued existence of the injunction, or seeking to have the respondents required to give an undertaking as to damages, the appellant decided to appeal, even though the time for appeal had expired. It applied for an extension of time to appeal.

No extension of time was granted but it was given leave

to appeal. Although it acknowledged that the article had

"lost its newsworthiness to a large measure", the appellant

the Supreme Court for an extension of time to appeal,

it was made clear by the appellant that its concern

was not to contest on the merits whether at that time there should be an injunction in existence. Rather it wished to establish that, on the material before him, Muirhead J.

had erred in what were asserted to be a number of important matters of principle concerning "the appropriateness of granting an injunction to restrain

Leave to appeal was granted and the appedl was instituted on 22 November 1983. Grounds of appeal were included with respect to alleged non-disclosure of Material facts (which was abandoned as an appeal point at the hearing before this Court) and with respect to the absence of a writ and an undertaking as to damages. As already indicated, those matters were substantially resolved prior to the hearing of the appeal. No criticism was made of the form of the order except thar it should have been for a fixed short period. That submission overlooked the manner in which the proceedings were conducted before Muirhead J. The ground which the Court permitted to be argued fully was the

remaining ground which was that Muirhead J. had erred:

"(c) in granting injunctive relief without first satisfying himself:

(i) that the respondents had a triable case; (ii) that damages would not be an adequate remedy to the respondents in the event the publication was defamatory; (iii) that the appellant did not have a defence

(d) in granting injunctive relief without first considering where in all the circumstances of the matter the balance of convenience lay".

We have set out the background in some detail. The matter can otherwise be disposed of quite briefly and we think it preferable to do so for it would be inappropriate for this Court to make unnecessary observations on the available material which may have an influence on the conduct or outcome of the trial. The much more extensive argument presented to this Court on behalf of the appellant concerning what are asserted to be important questions of principle persuade us that this was not a case for leave to appeal. Order 52 Rule 15 of the Federal Court Rules authorises leave to appeal at any time "for special reasons". A case which involves the application of established principles to particular facts does not for that reason alone justify leave to appeal even if it is wished to assert that the wrong conclusion was reached, particularly when the decision is of temporary operation only. Further, we find it difficult to imagine material less suitable for the determination of important questions of principle. However, it is unnecessary to consider whether

the leave to appeal should be set aside. We are of the

opinion that, in any event, the appeal should be dismissed.

It is a possible view of the statements of the unnamed woman "closely related to the traditional owners" and perhaps also the statements of the unnamed "spokeswoman for Welatye-Therre women's group" taken in the context of the whole article, that 1t was asserted that by their desecration of the site those camping there may have been responsible for the deaths which occurred in the tent fire. We find it unnecessary to consider what, if any other meanings, either or both

the statements may have conveyed. Further, we find it

unnecessary to consider possible problems in relation to

the identification of the plaintiffs other than Rosie Ferber

as persons defamed. It is a_possible view of the statements of one or both of the women referred to in the article that Rosie Ferber

was or might have been a participant in desecration of the

site which caused or might have caused a "spiritual pay back"

resulting in the death of her son and brother. Even

if that were not a meaning which might have been conveyed by the article itself to the public generally, it was a possible meaning of the scatements to any reader with special knowledge of facts which would serve to identify Rosie Ferber, including perhaps the earlier article which the appellant had published in April. It was for Muirhead J. to assess the strength of the possibility

or probability of a finding at the trial that the statements of one or both of the women referred to in

the article conveyed the meaning to whichwe have referred.

If the statements of the women referred to in the article bore a meaning such as we have mentioned, wefind it difficult to see how the statements could be defensible either as true statements of fact or as fair comment. No reference was made to such a possibility before Muirhead J. It was for him to assess the prospects of such an exercise being attempted and, if attempted, the prospects of its success. Having

regard to what would be involved, it is not suprising that he

did not refer to the issues likely to be raised by any defence. Contrary to what seemed at times to be the argument of the

appellant, the appellant's liability in defamation for the

of the statements as assertions of fact or expressions

Finally, the submission that no reader of the article would attach any credence to the statements in the article struck us as without merit. Even if it may in some cases be correct to regard an allegation which is sufficiently outlandish as incapable

of a defamatory meaning (cf Loukas v. Young (1968) 3 NSWR 549 -

witchcraft), the article which the appellant proposed to

publish itself sought to establish the authority of the women

whose statements were referred to and the credibility

The potential readership of the article was properly

to be considered as encompassing both Aboriginals and non~Aboriginals. Comments of Muirhead J. plainly reveal

The principles with respect to the grant of interlocutory injunctions are well established. There is a most useful review of the authorities by Hunt J.

in Church of Scientology of California Incorporated v.

Reader's Digest Services Pty Ltd (1980) 1 NSWLR 344.

Exchange Ltd (1982) 2 All E.R. 701. We see no reason

to doubt that the decision to grant an injunction conformed to the principles to be derived from those authorities. We have not overlooked the question of

from the consequences of a publication, which he was sufficiently satisfied contained an indefensible serious defamation, over the commercial interests of the appellant

In any event, that and other issues were matters for him and not for unrestricted rédetermination by this Court. That is not to say that in an appropriate case the grant of an interim or interlocutory injunction cannot

be reviewed on appeal. However, there are well established

principles which guide and control the appellate

There were aspects of the orders made which were unsatisfactory. Perhaps this is understandable when regard is had to the circumstances. Wehave given consideration to whether the Court should vary the injunction or even set it aside, leaving the plaintiffs to reapply for an interlocutory injunction if thought necessary. However, in view of the appellant's present attitude to the publication of the article, that would only ogcasion unnecessary expense. Most of the unsatisfactory aspects have already been attended to and others are either of no remaining practical consequence or are in the course

I certify that this and the fifteen preceding pages are a true copy of the Reasons for Judgment of his Honour Mr. Justice Toohey and his

NORTHERN TERRITORY DISTRICT REGISTRY No. NTG 34 of 1983

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

NATIONWIDE PUBLISHING PROPRIETARY LIMITED trading as

Second Respondent VERONICA MARY GOLDER Third Respondent

REASONS FOR JUDGMENT Coram: Toohey, McGregor, Fitzgerald JJ.

as THE CENTRALIAN ADVOCATE (appeilant) appeais against an

order made by a learned Judge of the Supreme Court of the Northern Territory on 18 October 1983 at Alice Springs. The

appeal was brought pursuant to leave granted on 22 November 1983.

On 22 April 1983 "The Centralian Advocate", which the appellant owns and publishes in the Northern Territory, including Alice Springs, featured an article referring to a proposal by the Northern Territory Government to construct a recreational lake at or near the Old Telegraph Station (an area called Welatye-Therre by Aboriginal people whom the article described as traditional owners of the site). The article stated that traditional owners had set up a camp there and intended to stop the construction. It referred to ROSIE TFURBER (first respondent) as a traditional owner.

VERONICA MARY GOLDER (third respondent) DAVIE HAYES (fourth respondent) and NANCY ANNE LYNCH (f1f£th respondent) were

sald also to be traditional owners; and the first respondent and MICHAEL PAUL RICE (second respondent) to have been living at Welatye-Therre for about eight months. The action was said to have been taken on behalf of the respondents and relations and traditional owners "concerned with the matter" of the

On the morning of 18 October 1983 it came to be known that the same nowspaper proposed to run an article covering the deaths of two Aboriginal people in a tent fire which had occurred at Welatye-Therre on the night of 15

October 1983. The Solicitor for the first, second, third,

fourth and fifth respondents (collectively referred to as

the respondents) viewed the article. Following this the respondents through their Solicitor sought an order that the appellant be restrained permanently or until further order from publishing and distributing the said article or similar articles. It was alleged that publication of the proposed article would cause great distress to the Aboriginal community as 1t printed 4nd discussed matters of Aboriginal tribal law in breach of that law; 1n the circumstances it constituted

a gross libel on the inhabitants of Welatye-Therre and the traditional owners inasmuch as it suggested the respondents and others may have been responsible for the deaths of two people; and it constituted a gross libel on the first respondent in that 1t suggested she may have caused the deaths of her son and her brother by desecrating, or being party to the desecration of,a sacred site and by breaking Aboriginal

tribal law 1n handling sacred objects and permitting them to

The appellant had been notified of the intention to seek the injunction and was represented at the application

At the hearing his Honour expressed the opinion that even allowing for the hearsay nature of the evidence a strong case had been made out for an interim injunction. He granted an interim injunction restraining the appellant from publishing

or distributing for sale or dissemination the said articic.

The order he made was Formally drawn up and is dated 19 October

The restraint was expressed to be "until further order".

The further hearing of the application was adjourned to

31 October 1983. 'The appeal book does not disclose what

an undertaking by the respondents to issue a Writ of Summons prior to the granting of the

(b) an fazlang to require the respondents to give an undertaking as to damages prior to the

(11) that damages would not be an adequate remedy to the respondents in the event the publication was defamatory;

(111) that the appellant did not have a defence or defences to the respondents' allegations.

(d) un granting injunctive relicf without first considering where in all the circumstances of

The learned primary Judge did not accept the submission of Counsel who appeared for the appellant on 18 October 1983 that there was nothing defamatory in what was proposed to be published. Apart from arguing that the article merely reported statements of belief rather than

made assertions of fact, Counsel for the appellant did

Rather, he suggested that the appellant was and 1s ina

position fully to justify the intended publication. He

agreed 1n argument that the appellant's complaint was that because the claim was to be in defamation, no interim injunction should have been granted. He also argued that a large majority of the readers would not have believed what was said in the

article as to supernatural forces; that no ordinary

reasonable reader would .snterpret the article as saying that

the acts of desecration caused the deaths; that the article was Saying no more than that in the eyes of some people '

Senior Counsel for the respondents submitted the Oxder appealed was a discretionary Order as to practice and procedure; that therefore the appellant must show that there had been an error of fact or law. He referred to

Mclarg v. Universal Stock Iixchange (1895) 2 Q.B. 81;

Adam P. Brown Male Tashions Pty. Ltd. v. Philip Morris Ltd.

(1981) 35 ALR-625; House v. The King (1936) 55 C.L.R. 499.

Further, he argued that the appellant must show an error in principle and/or substantral injustice; that even if satisfied the primary Judge was wrong this Court had a discretion.

He submitted that the order made was not ex parte; that

the learned primary Judge was apparently satisfied the prcceedings would be regularised. le pointed out that no undertaking as to damages was sought, nor was an application

to dissolve the injunction pressed on that basis. A Writ

was issued on 22 March 1984. Ile submitted that an undertaking as to damages was the usual but not invariable

practice. Ne referred to Ansett Transport Industries

{Operations) Pty. Ltd. v. Halton, Interstate Parcel Express

Co. (Aust.) Pty. Ltd. and Air Express Ltd. (1979) 25 ALR 639;

Graham v. Campbell (1877) 7 Ch.D. 490; Kerridge v. Foley

(1968) 1 N.S.W.R. 628; Dein & Dein v. Bealey (1960) N.S.W.R. 385; alternatively, the undertaking was implied or waived by the appellant; one had been proffered on 19 March 1984; the learned primary Judge had satisfied himself as to various matters including publication of an earlier article, the

reference to respondents and defamatory meaning; he had

adverted to the question of damages. Counsel referred to the arguments pul lo the Jearned primary Judge by Counsel then appearing for the appellant. He submitted the Court could refuse an iunterlocutory order where there was a

"triable defence"; that no defence had been asserted or verified. The learned primary Judge considered, he said,

The following comments on the grounds of appeal as filed seem 10 mc to be warranted. The letters preceding

each of the four succeeding paragraphs correspond to those

the Northern Territory of Australia provides for the commencement of proceedings by c.g. issuc of a Writ of Summons. Strict compliance with this Order perhaps may not be insisted upon

in some circumstances e.g. where a mattcr 1s of extreme

urgency. Other things apart, this may well have seemed such

a matter to the learned primary Judge at the time and in the circumstances in which it came to him. Nor was there any

complaint by Counsel for the appellant to his Honour at the

hearing on 18 October of this defect. Before the hearing of

(b) The second ground of appeal complained of the farlure of the learned primary Judge to extract an undertaking as to damages from the respondents. Again it 1s noted there was no suggestion or submission on 18 October from the appellant's then Counsel] that such an undertaking should be given. As a matter of practice, such undertakings are usually sought by a defendant and ordinarily required by the Court as a'condition of its granting an injunction. I do not accept that as no such application was made the learned primary Judge was in error in not himself requiring the undertaking. During argument we were told that such an

At a glance

Court

Decision date

Before

Source

Judgment (233 paragraphs)

Cases Cited (2)