Oakley v 3AW Southern Cross Radio Pty Ltd [1999] VSCA 96

"SN: Did you hear Wal Oakley calling the Head of the river? CW: I was going to try and get Wal up on the line today but the breakfast team got ahead of me. Yeah, they interviewed him this morning. Oh it was awf... SN: He wasn't 'dirty' was he? CW: He was um, actually, he was so chuffed he rang and asked for a tape of the interview. SN: Yeah, he's not going to sue us 'cos we were only joking. CW: He spoke to his children. It was the worst call I've had in my life. I could not understand him at all. SN: Because you couldn't hear him on the phone, so we just said that he'd obviously had a couple too many champagnes with the chicken and champagne.... CW: I bet I heard you do a re-run of Wal last night too actually but it was very funny and I think Wal asked his children and they all agreed that he didn't sound all that terrific. SN: But it was the phone, it wasn't his fault. CW: It wouldn't of course, it wasn't, it was very funny. What happened to Geelong Grammar anyway, they weren't even in the final. Wayne Carey? Three years in a row."

14. On 2 April the respondent was alleged to have broadcast exchanges between Ross Stevenson and Dean Banks ("the second programme") as follows:

"RS: Hey, stay tuned. We found some of Wal Oakley's earlier works. DB: After six. RS: After six? DB: Well, same time as yesterday. RS: Oh, is that when we did it after six did we? DB: Yep. RS: All right. Fair enough. Yep. And after eight again? DB: Yeah. RS: I think so. Okay. DB: And after nine if Neil wants to play. RS: Yep, okay." "RS: And also, Wal Oakley, who we replayed his call yesterday of the boat race on the weekend: someone has kindly sent to us evidence of some earlier work. It's a little known fact that Wal a few years ago called a horse race in New.... in this country. We'll catch up with Wal's earlier work a little bit later on. DB: I think he participated in a boat race.... RS: Yes. DB: ... prior to calling the horse race. (unrelated items follow.) DB: So.... but this has been a little bit like Christmas for me, 'cause I've been waiting for the past 24 hours for this to be exhumed from the archives. RS: Well I'm very .... we're very grateful to the person who's alerted us. We heard yesterday Wal Oakley calling the Head of the River. It turns out that Wal, several years ago, used to be a race caller and this person has kindly provided us with a tape of Wal Oakley calling the races at some country venue. Let's have a listen to ... let's see how good he was as a race caller. (Unidentified race call played.) RS: Thank God he remembered the name of Luvelle, was up there ... most of the race was the only horse he knew. Well done Wal. DB: Would you believe, what a lovely position to be in. Would you believe, what a lovely position to be in. Would you believe ... RS: He said they'll be coming around the home turn in a minute or two. DB: It's a one minute twenty race. RS: Oh, all right. Let's ... DB: Actually, I'd have liked to have heard the calling of the whole card to find out the progression of his state. RS: Yeah. Well someone was telling me yesterday, someone rang up to say that every year in Canberra, I believe, they have a race meeting where they invite all the race callers from the various radio stations around Australia and they each get to call a race. And it's a bit of a sort of ... a bit like butchers' picnic for them. Apparently there's one bloke who has to be given race one. Or there's ... DB: Or he's scratched ... RS: Significant. DB: ... race three. RS: Significant trouble. Apparently though, last year or the year before they gave him race two. And it's something they shouldn't have done, 'cause that's a bit late. That's about, you know, ten past one, race two, and they need to get him by no later than half past twelve. And he's going to attempt to gid out that ... I I don't think it's Wal. DB: There's a lot of race callers ... Australia is parked in Canberra (sic). I don't think he's ever been able to crack the right one to leave, that's a chap called Tony Campbell. He's been calling races there for many, many a long year. Known to like a drink but I don't think it has affected his calling in any way. RS: Yeah. Brian Martin, 3UZ race caller, has got a million great race caller stories. We should just get him on one morning and say, okay Brian, open the microphone; one - in serial order thanks - one after the other. DB: When's the next major race dat? RS: Yeah, we should get him on."

18. In his statement of claim the appellant alleged that the first programme meant and was understood to mean that -

(a) the appellant was inebriated when he broadcast on 3AW the Head of the River boat race;

(b) the appellant was so unprofessional that he allowed himself to be inebriated when he broadcast the Head of the River boat race on 3AW.

(c) the appellant was so undisciplined that he allowed himself to be inebriated when he called the Head of the River boat race on 3AW;

(d) the appellant was incompetent in his profession as a rowing commentator/journalist by allowing himself to be inebriated when broadcasting the Head of the River boat race on 3AW.

25. In relation to the second programme the appellant pleaded that in its natural and ordinary meaning the second programme meant and was understood to mean that -

(a) the appellant was inebriated when he called a country horse race several years ago;

(b) the appellant was so unprofessional, undisciplined, and incompetent in his profession as a sports commentator/journalist that he allowed himself to be inebriated when calling a country horse race several years ago.

30. By its amended defence the respondent pleaded inter alia that neither programme meant or was understood to mean or was capable of bearing or was understood to bear any of the meanings pleaded in the statement of claim.

33. The proceeding was entered into and run in the Defamation List of the County Court. On 4 May 1998 the proceeding was listed for trial in the County Court before a judge and a jury of six. Before the jury was empanelled, counsel for the respondent sought a ruling from the trial judge "as a question of law as to whether the imputations pleaded by the plaintiff were not borne out in the two broadcasts". After hearing argument the judge ruled that none of the imputations pleaded in the statement of claim could be borne by the broadcasts and ordered that there be judgment for the respondent with costs on the appropriate scale.

36. In the course of short reasons for this ruling, the judge said -

"In Farquhar's Case [Farquhar v. Bottom (1980) 2 N.S.W.L.R. 380], the test was whether 'the matter complained of was capable of conveying those imputations to the ordinary reasonable reader'. His Honour Judge Hunt stated that he 'must reject any strained forced or other unreasonable interpretation' which was the test in Jones v. Skelton [(1963) 3 All E.R. 952]. I also must proceed as Judge Hunt did upon the basis of an ordinary reasonable 'listener' who is a person of fair average intelligence who is neither perverse, morbid, suspicious or avid for scandal."

(The reference to "Judge Hunt" is, of course, a reference to Mr Justice Hunt).

41. Tapes of the second programme and an earlier broadcast (but not the first programme) were played for the judge during the application. After hearing argument, the judge said -

"It is my view that ... no right minded listener could infer from the broadcast material complained of, that the plaintiff was intoxicated when the Head of the River race call was made. None of the imputations can be borne by the broadcasts because of the express disclaimers by Sam Newman, in that he said 'you couldn't hear him - it was the phone - it wasn't his fault'."

45. The appellant appeals to this Court, claiming that each of the programmes was capable of conveying the imputations pleaded, in substance that he was inebriated when he made a professional race call and was thus unprofessional and incompetent. He submits that it cannot be said that his claim is so clearly unarguable as to justify the summary intervention of the court to prevent him from submitting his case for determination in the appointed manner by a jury. The respondent on the other hand contends that the judge was quite correct in concluding that no reasonable jury could find that either or both programmes conveyed the imputations alleged in the statement of claim.

48. The principles to be applied in deciding whether any particular imputation is capable of being conveyed by a broadcast were discussed by Hunt, C.J. at C.L. (with whom Mason, P. and Handley, J.A. agreed) in Amalgamated Television Services Pty. v. Marsden (1998) 43 N.S.W.L.R. 158 at 165-166, in particular in the following passages -

"There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual ... All of these considerations, and more, apply to a 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 ... The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case ..."

52. Dixon, J. said in Dey v. Victorian Railways Commissioners [1949] HCA 1; (1949) 78 C.L.R. 62 at 91 -

"A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious or an abuse of process."

56. In my view the appeal should be allowed and the matter should be sent back to be heard in the proper way. These conclusions are, I think, supported by the recent decision of the High Court in Naxakis v. Western General Hospital & Anor [1999] HCA 22, decided on 13 May 1999. In Naxakis, a plaintiff's claim in medical negligence was heard by a judge and jury. At the end of the evidence the defendants asked the judge to enter a verdict by direction. The judge did so, holding that the question was whether there was any evidence that ought reasonably to satisfy the tribunal of fact that the facts sought to be proved were established. The plaintiff appealed to this Court, which held that the test which should have been applied was whether "there was no evidence on which the jury could properly conclude that the plaintiff had made out his case", and dismissed the appeal. The plaintiff then appealed to the High Court which unanimously allowed the appeal.

59. The judgments of the High Court in Naxakis demonstrate that the role of a trial judge, where there is a jury, is a restricted one, and that the power of the judge to withdraw the decision from the jury is one to be exercised with considerable caution, where the only possible verdict which could reasonably be open on the evidence adduced at the trial is one for the defendants. The judgments emphasise that it is the constitutional function of the jury to resolve all disputed facts that may reasonably be taken into account. For example, Kirby, J. at paras. 66-67 said -

"Special caution is needed before withdrawing from the jury the resolution of a dispute of facts where the case is not one of direct proof but of the reasonable and definite inferences which are to be derived from the evidence given. Because claims in negligence quite often depend upon circumstantial evidence and the inferences therefrom, once some evidence is adduced which, if accepted, could found a verdict in favour of the plaintiff, it requires the clearest case to support the conclusion that, for legal purposes there is no evidence at all or that the jury could not reasonably accept such evidence as exists or act upon it. Where inferences may reasonably be drawn within the experience properly attributed to a jury of lay people, it must be assumed for the present purpose that the jury would draw the inferences available in a way favourable to the plaintiff."

63. Although Naxakis was a decision concerning alleged medical negligence, it is clear from the judgments that their Honours were speaking generally of civil actions to be heard by a jury (see e.g. McHugh, J. at para.39, Kirby, J. at paras.52-54, 58 and 83, and Callinan, J. at para.123). In para.53, Kirby, J. in footnote 59 makes specific reference to defamation trials.

66. I should say that the tapes of the second programme and the earlier broadcast were played to this Court, as they were to her Honour. Having heard them, I think the issue of whether each programme was defamatory of the appellant was clearly one for the jury. Insofar as the judge accepted the respondent's submission that in the first broadcast there was no suggestion that the appellant was inebriated when he made the boat race call, with respect, the judge erred. Whether or not the so-called "express disclaimers" had the result that none of the imputations pleaded in respect of the first broadcast was open was a question for the jury. It was also a question for the jury whether the second programme bore the imputations pleaded, whether or not affected by anything said in the first programme.

69. I have no doubt that the question whether a listener could infer from the broadcast material that the plaintiff was intoxicated when the race call was made was a matter for the jury. A jury would clearly have been entitled to find that the statement attributed to Mr Newman -

"Because you couldn't hear him [the appellant] on the phone, so we just said he'd obviously had a couple too many champagnes with the chicken and champagne ..."

conveyed that imputation. Insofar as the alleged disclaimers by Mr Newman are concerned, it was, of course, open to the jury to conclude that these disclaimers were ironic, or satirical, and - possibly - a re-affirmation of the defamatory comments which preceded them.

74. In this Court Mr Houghton submitted that if the appellant sought to rely on irony or sarcasm it was necessary to plead that claim specifically in the statement of claim. This submission fails because the appellant relies on other passages for the sting of the defamation - and it is the respondent which seeks to rely upon the possibly sarcastic disclaimer. But, even if the appellant should have made specific reference to irony or sarcasm in his statement of claim, his failure to do so would not have justified taking the case away from the jury.

77. Furthermore, the judge appears to have treated the supposed disclaimers in the first broadcast as covering the second broadcast and to have given no independent consideration to the contents of the second broadcast. A number of different aspects of the second broadcast are independently perfectly capable of carrying the claimed imputations, as, for example, the comment attributed to Mr Banks, "I'd have liked to have heard the calling of the whole card to find out the progression of his state", and his later remark made of a different caller that he was "known to like a drink but I don't think it has affected his calling in any way".

80. The second programme was introduced by Mr Stevenson saying that "someone has kindly sent to us evidence of some earlier work", clearly identifying it as a call of a horse race made by the appellant a few years ago. During the second programme a tape of this race call was played, with Mr Stevenson saying "Let's have a listen to ... let's see how good he was as a race caller". The "he" could only have been the appellant. In the context in which this tape was played, most of the comments relating to, and after, the playing of this race call were capable of conveying the imputations alleged. Mr Houghton's only argument as to this was that the jury could not reasonably have identified the appellant as the race caller; an argument which, at least in this appeal, was quite insupportable, since Mr Stevenson had identified the appellant as the race caller on no less than five occasions.

83. In my view her Honour was not entitled to conclude that no right-minded listener could infer from the broadcast material complained of that the appellant was intoxicated when the Head of the River race call was made, and wrongly ruled that no reasonable jury could have found the first programme or the second programme defamatory. Accordingly, judgment should not have been entered for the respondent.

86. The appeal should be allowed, judgment entered below for the respondent set aside, and the action sent back to the County Court for trial.

101. The order of the Court will be in accordance with these minutes:

3. In lieu thereof order that defendant's application for judgment be dismissed with costs.

109. If the Court please, I seek a certificate under section 13 of the Appeal Costs Act.

114. In our view the application to withdraw this case from the jury should never have been made, especially to an inexperienced judge. It is highly surprising and very unfortunate that this case was withdrawn from the jury. The respondent should not have a certificate. The application for a certificate under the Appeal Costs Act 1964 is refused.

119. We will take time to consider this matter, and in view of the fact that the order pronounced earlier will require modification in some respect or respects in any event, we will make no order today, not even the order formally disposing of the appeal. We will pronounce an entire order afresh when we come to deal with the questions upon which we have reserved our decision.