Queensland Newspapers Pty Ltd v Palmer

[1] MARGARET McMURDO P: I agree with Boddice J's reasons for dismissing this appeal.

[2] A pleaded imputation in a claim for defamation will be struck out only when an ordinary reasonable reader could not draw the imputation. If an ordinary reasonable reader could draw the imputation, it does not matter that the court would not. The article claimed to be defamatory was in a light-hearted business gossip column featuring a related witty caricature. In that context, the ordinary reasonable reader may well consider it to be satirical, teasing and ironic with an element of Schadenfreude and not intended to be taken literally. In this case, different minds could reasonably reach different conclusions as to whether the pleaded imputations are to be drawn from the article. But as the primary judge identified and as Boddice J explains in his reasons, it cannot be said that the ordinary reasonable reader, unequivocally could not draw the pleaded imputations.

[3] I agree with the order proposed by Boddice J.

[4] MUIR JA: I agree that the appeal should be dismissed with costs for the reasons given by Boddice J.

[5] BODDICE J: By amended claim and statement of claim filed 19 January 2010, Ross Leslie Palmer ("the respondent") claimed damages for defamation against Queensland Newspapers Pty Ltd and Albert Franz Slowiak in respect of material published in The Courier-Mail newspaper on 10 June 2009.

[6] By application dated 10 February 2011, Queensland Newspapers Pty Ltd ("the appellant") sought to strike out six of seven imputations pleaded by the respondent on the basis that each imputation was not reasonably capable of having been conveyed by the material. That application was dismissed by the primary judge on 28 February 2011.

[7] The appellant appeals that decision on the ground that the primary judge erred in law in finding that the material complained of was capable of bearing each of the pleaded imputations the subject of the application.

[8] The material complained of appeared as an item in a column entitled "City Beat" in the business section of the newspaper. The item was in the following terms:

On a quiet day yesterday your diarist got thinking about the old Roaring '80s and all those great characters who littered the corporate landscape.

In particular, we wondered what ever did happen to that great swashbuckling Queensland entrepreneur, Ross Palmer, the gent who in the BRW 2002 edition was listed as being worth a cool $180 million. Today that sum is greatly reduced. Palmer received over $80 million from the sale of his Palmer Tube Mills in 1994 but business deals have cost him plenty in recent years.

He had to sell his No. l King Arthur's Court pile, lost out in his ANI stoush with Kerry Packer in the late '90s which cost him a seat on the board and some $30 million to $40 million in lost share value after his exposure.

He lost an estimated $12 million on his daughter Vanessa's Hippies women's underpants and stocking venture and spent a fair bit of cash on motor racing on the way through -- and battled a divorce to boot.

Now he is defending a Supreme Court action over his last asset, Poolrite. He is being sued in the Supreme Court of Queensland by a former Group CEO, Frank Slowiak, for a six-figure sum for breach of contract, unpaid annual leave and unpaid bonuses going back four years, unpaid superannuation, unpaid salary and wages and unpaid equity entitlements.

Oh, yes, he also lost his precious clipper, Serica, a two-mast boat that has been sold."

Adjacent to those words appeared a cartoon of a naked plaintiff, standing in a section of steel tubing on which was etched "Palmer Tube Mills". Below the cartoon appeared the words "Ross Palmer ... former swashbuckling entrepreneur".

[9] The respondent pleaded that the words under the heading "Downsized", together with the cartoon and its accompanying words ("the publication"), in their natural and ordinary meaning meant, and were understood to mean, that the respondent:

(c) is a businessman who makes unwise business decisions;

(d) is a businessman who makes unwise business investments;

(e) as a result of being a failed and incompetent businessman who has made unwise business decisions and investments, has been forced to sell his 1 King Arthur's Court mansion and precious two mast boat;

(f) as a result of being a failed and incompetent businessman who has made unwise business decisions and investments, has now only one last asset, a business that itself is the subject of a six figure Supreme Court claim for unpaid wages, superannuation, annual leave and bonuses, by a former CEO;

(g) is a businessman who has presided over a string of business losses that have greatly reduced his personal fortune once estimated by BRW to be $180 million.

[10] At the hearing of the application, the appellant conceded that imputation (g) was capable of being conveyed by the publication. However, the appellant contended that each of the remaining imputations was not reasonably capable of being conveyed by the publication. There was no application to strike out the imputations on the basis that they were incapable of being defamatory.[1]

[11] The primary judge set out the relevant principles to be applied on an application to strike out pleaded imputations. The primary judge noted that the issue was whether the publication was capable of giving rise to the imputations alleged, and that the discretion to strike out is one that should be exercised with caution. The primary judge also noted that the ordinary reasonable meaning of the publication may be either the literal meaning or what is inferred from it. Any strained, or forced, or utterly unreasonable interpretation must be rejected.[2]

[12] After considering the applicable principles, and submissions made on behalf of the parties, the primary judge found that it could not be said that the publication was incapable of giving rise to each of the imputations in question.[3]

(a) In determining whether the imputations were capable of being reasonably conveyed by the publication, the primary judge wrongly applied well-established principles in that the primary judge did not consider the publication as it would be read and understood by the ordinary reasonable reader. Instead, the primary judge focussed her attention on two passages in the publication without reading it as a whole.

(b) The imputations that were found by the primary judge to be capable of arising only arise, and can only arise, as a result of an interpretation of the publication which is strained or forced or utterly unreasonable, or which involves an overly elaborate analysis.

(c) The result reached by the primary judge is either unreasonable or plainly unjust as this was not a case in which reasonable minds may possibly differ about whether or not the publication is capable of giving rise to the pleaded imputations. The contested imputations did not arise as a matter of impression.

[14] In support of these contentions, the appellant submitted that whilst the respondent's position on the meaning of the publication was that the imputations arose because the publication implied that the respondent was responsible, or at fault, for the alleged losses, the respondent accepted in the hearing below that the publication did not expressly say that he was a failure or incompetent.[4] It was the respondent's case that the imputations arose from the "flavour" of the publication, and that the sting of it was that the respondent had failed as a businessman.[5] The appellant submitted that such an interpretation was not in accord with the theme of the publication which was that the respondent's fortune is not what it was in 2002. The publication did not suggest that the respondent was destitute. The cartoon also did not support a suggestion that the respondent was destitute or in the poor house. It was obviously intended to be a pun.

[15] Further, the publication specifically referred to the respondent as an entrepreneur, and the ordinary reasonable reader would appreciate that the very nature of entrepreneurial activities includes successful and unsuccessful business investments. The publication did not, either expressly or by implication, pass doubt on the respondent's business acumen, or suggest that he was responsible for any of the matters referred to in it.

(a) Whilst the publication observed that some business deals had cost the respondent money, an imputation that he was a "failed businessman" could only arise from a strained or forced or utterly unreasonable interpretation of the publication.

(b) To be incompetent, a person generally must not have the necessary skills to do something successful. Having regard to the reference to the respondent having accumulated a personal fortune of $180 million, an imputation that he is an incompetent businessman could only arise from a strained or forced or utterly unreasonable interpretation of the publication.

(c) There was nothing to suggest that the respondent was "unwise" in making any business investments or decisions, particularly having regard to the reference that he was an entrepreneur.

(d) It was irrational for the ordinary reasonable reader to conclude that the respondent had lost his mansion as a result of his being a failed and incompetent businessman as the publication made it clear that the respondent had had to sell the property following his stoush with Kerry Packer. Further, that stoush had occurred in the late 1990s, several years before the respondent's wealth was estimated at $180 million. Similarly, it would be absurd and illogical for the ordinary reasonable reader to conclude that a person who still owns the company Poolrite is a failed and incompetent businessman. The reader is not informed how many assets the respondent owned.

[17] The respondent submitted that the ordinary reasonable reader would have regard to the following matters:

(b) The heading "Downsized", when read with the accompanying cartoon depicting an apparently naked respondent concealed only by a steel tube, depicted an image of failure.

(c) The words under the cartoon referred to the respondent as a "former swashbuckling entrepreneur" in circumstances where there was no suggestion he had retired from business. As such, the reference to former refers to a fall from grace.

(d) The publication contained several examples of what the respondent had lost or been forced to sell in recent years, conveying these losses were his fault.

(e) The publication referred to the respondent being sued over his last asset, listing the matters in dispute as being unpaid salary, leave, superannuation, bonuses and other entitlements.

(f) The last paragraph of the publication referred to the loss of the respondent's "precious" clipper, suggesting that he was financially on his knees.

[18] The respondent submitted that, having regard to those matters, and reading the publication as a whole, the primary judge correctly held that none of the imputations in question were incapable of arising from the publication.

[19] Whether words complained of are capable of conveying a defamatory meaning is a question of law. The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed.[6] In deciding whether a particular imputation is capable of being conveyed in the natural ordinary meaning of the words complained of, the question is whether it is reasonably so capable to the ordinary reasonable reader.[7] The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it.[8] However, any strained, or forced, or utterly unreasonable interpretation must be rejected.[9]

[20] The ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal. However, that person does not live in an ivory tower but can, and does, read between the lines in light of that person's general knowledge and experience of worldly affairs.[10] The ordinary reasonable reader considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning.[11] That person has regard to the content of the publication. Emphasis given by conspicuous headlines or captions is a legitimate matter the ordinary reasonable reader takes into account.[12]

[21] Whilst the test of reasonableness guides a determination of whether the matter complained of is capable of conveying any of the pleaded imputations, a distinction must be drawn between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of, and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said. The approach to be taken must be the former, not the latter.[13]

[22] In determining what the ordinary reasonable reader would understand from what is said in the publication, it is necessary to have regard to the form of publication. Here, it is a gossip column.[14] As such, the ordinary reasonable reader would not read it as closely as other forms of publication. Further, whilst the ordinary reasonable reader will read the publication as a whole, the ordinary reasonable reader will not analyse it line by line. The ordinary reasonable reader is also likely to read between the lines. The ordinary reasonable reader will also have regard to the fact that the words in the item have juxtapositioned beside them a cartoon of a naked respondent with a section of tubing marked "Palmers Tube Mills", reminiscent of a barrel, covering his nakedness. The ordinary reasonable reader will understand such a cartoon as one commonly used to depict a person who has lost everything, including their clothes. The appellant accepted the cartoon certainly showed "penury and loss of money".[15] Penury is defined as meaning "destitution; poverty".[16]

[23] Ultimately, a determination of the meaning conveyed to the ordinary reasonable reader is, as the appellant accepted, a matter of impression,[17] allowing for the fact that that reader is likely to have read the publication only once.[18]

[24] Reading the publication as a whole, the ordinary reasonable reader would distil that the publication was recording that the respondent, once a swashbuckling entrepreneur worth $180 million, had lost greatly in business deals in recent years, had had to sell his home, was now being sued for unpaid entitlements in relation to his last asset, and had even lost his "precious" asset, a two mast clipper, that had been sold. Emphasis on the magnitude of these losses is given by the adjacent cartoon of a naked respondent, his nakedness being covered by a section of tubing.

[25] The central thrust of the publication is what the respondent has lost. Those losses are not merely recorded as business losses of an entrepreneur. To record that a businessman who was once worth $180 million in assets has had to sell his home, has sold his "precious" asset, and is down to his "last" asset over which he is being sued for unpaid entitlements, is capable of conveying to the ordinary reasonable reader that that person is a "failed" businessman. Contrary to the appellant's contention, a "failed" businessman does not only include a person who is no longer a businessman.[19] The word "failed" includes being unsuccessful. A once successful businessman could, properly, be considered a failed businessman if that person has substantially lost his assets. It may not require bankruptcy.

[26] The appellant contended that such an interpretation was not open to the ordinary reasonable reader as the publication referred to the respondent as having an estimated worth of $180 million in 2002 in circumstances where the publication stated that the house had been sold as a consequence of losses sustained in the "stoush" with Kerry Packer, which had occurred at an earlier time, in the late 1990s. However, such a reading of the publication requires a degree of analytical care which may not accord with the way the ordinary reasonable reader would read the publication. The ordinary reasonable reader does not read an article analytically.

[27] The publication expressly refers to multiple losses by the respondent in a variety of transactions whilst also recording that the respondent "had to sell" his home, is being sued in respect of his "last asset" and had sold his "precious" clipper. To record that the respondent had gone from a personal fortune of $180 million to his last asset, about which he is being sued for unpaid entitlements, is capable of conveying inadequacy of ability. "Incompetence" is an inadequacy of ability. Read as a whole, the publication is capable of conveying that the respondent is an "incompetent businessman".

[28] The appellant submits that having regard to the reference to the respondent as an "entrepreneur", the ordinary reasonable reader would understand the publication as acknowledging that the respondent, as an entrepreneur, made decisions which sometimes resulted in gains and sometimes resulted in losses, without there being any question of competence. Such an interpretation does not, however, allow for the fact that the ordinary reasonable reader often reads between the lines.

[29] The appellant accepts that imputations (c) and (d) are appropriately considered together. The appellant submits that neither is capable of arising as there is nothing to suggest that the respondent was "unwise" in making business or investment decisions, particularly having regard to the specific reference to entrepreneur. The appellant submits that the definition of "unwise" in the new Shorter Oxford English Dictionary requires decisions that are not marked or prompted by wisdom but which are characterised by a lack of sound judgment or are injudicious. Further, such an imputation requires the element of repetition, continuity and consistency.[20]

[30] To record multiple losses, such that the respondent has gone from a wealth of $180 million to his last asset, emphasised by the accompanying cartoon of a naked respondent, is capable of conveying injudiciousness or a lack of sound judgment. When the publication is read as a whole, imputations that the respondent is a businessman who made unwise business decisions or investments are capable of arising from the publication.

[31] Once it is accepted the publication is capable of conveying to the ordinary reasonable reader that the respondent is a failed and incompetent businessman, for the ordinary reasonable reader to link the forced sale of the respondent's home, the sale of his precious boat and the respondent having one "last" asset in relation to which he is being sued, to the respondent being a failed and incompetent businessman does not involve a forced or strained interpretation of the publication. Each is capable of arising to the ordinary reasonable reader of the publication, read as a whole.

[32] Contrary to the appellant's submission that the ordinary reasonable reader would have clearly identified from the publication that the sale of the respondent's home was as a consequence of the stoush with Kerry Packer, the ordinary reasonable reader would not necessarily link the sale of the house with the "stoush" involving Kerry Packer. Further, the publication records "Poolrite" to be "his last asset" in circumstances where he is recorded as once being worth $180 million. The ordinary reasonable reader would not necessarily be "absurd and illogical" in concluding that the respondent, who still owned the asset "Poolrite", is a "failed and incompetent businessman".

[33] The appellant has not established that any of the imputations complained of are incapable of arising from the natural and ordinary meaning of the publication. The primary judge did not err in dismissing the appellant's application.

[6] Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 744.

[7] Lewis v Daily Telegraph Ltd [1964] AC 234 at 259, 266.

[9] Jones v Skelton [1964] NSWR 485 at 491, approved in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 at [9].

[10] Lewis at 258; Favell at [10].

[12] Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632 at 646.

[13] Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301.

[16] The Australian Concise Oxford Dictionary, 4th edition, p 1042.