Thursday 17 April 2008
Radio 2UE Sydney Pty Limited v Ray Chesterton
Judgment
1 SPIGELMAN CJ: In this matter I have read the judgment of McColl JA in draft. I agree with her Honour that Mr Evatt's submission that her Honour directed that the jury determine the business reputation imputations in accordance with a "community standards" approach should be rejected. I agree with her Honour that, considered as a whole, the direction to the jury would have been understood as not requiring the jury to assess whether the three business reputation imputations were defamatory in accordance with the standards of the general community.
2 Accordingly, it is necessary to determine whether this Court should follow the reasoning in Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675. McColl JA sets out the relevant passages together with the significant support for the reasoning of this Court in the two joint judgments of Gleeson CJ and Crennan J and Callinan and Heydon JJ on appeal in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291.
3 The relevant passages were an essential part of the reasoning of this Court in Gacic. The Court should not depart from such previous authority unless it is clearly satisfied that the decision was erroneous. McColl JA has set out with force and clarity the reasons why such a conclusion should be drawn. Nevertheless, I have come to the view that the defects her Honour identifies are not sufficiently clear or determinative to justify the Court departing from a recent judgment of this Court which has, in relevant respects, attracted support from the High Court on appeal.
4 There is no single authoritative statement of the interests which the law of defamation protects nor of reasons why those interests are protected. There have been numerous attempts at definition, few of which distinguish between the process for determining what words mean from whether the meaning is defamatory. It is only the second question that arises here. The issue is whether it was necessary for the trial judge to explicitly direct the jury as to the standard by which they should determine whether the imputations in issue on this appeal were defamatory, and specifically, whether it was necessary to refer to community standards as constituting that standard.
5 There have been numerous attempts to express in words the concept of defamation and the standard by which it must be assessed. (See the numerous examples set out in Raymond E Brown The Law of Defamation in Canada, 2nd ed (1994) Carswell at par 4.2(2) and the critique in par 4.2(3)). The formulation perhaps most frequently relied upon in this jurisdiction is that of Jordan CJ in terms of a publication "which is likely to cause ordinary decent folk in the community, taken in general, to think less of [the plaintiff]". (See Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 72; Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 at 88.) There is no doubt that this is an appropriate test in numerous cases, perhaps in most.
6 Another broadly equivalent test is that of Lord Atkin in Sim v Stretch [1936] 2 All ER 1237 at 1240; (1936) 52 TLR 669 where his Honour referred to the effect upon "right-thinking members of society generally". It is, however, instructive to set out the full context in which the frequently cited test of Lord Atkin appears. It is as follows:
"The question, then, is whether the words in their ordinary signification are capable of being defamatory. Judges and textbook writers alike have found difficulty in defining with precision the word 'defamatory'. The conventional phrase exposing the plaintiff to hatred, ridicule, or contempt is probably too narrow. The question is complicated by having to consider the person or class of persons whose reaction to the publication is the test of the wrongful character of the words used . I do not intend to ask your Lordships to lay down a formal definition, but after collating the opinions of many authorities I propose in the present case the test: would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally?" (Emphasis added)
7 The publication in issue in Sim v Stretch was not a publication to the world at large, but a telegram addressed to the person alleged to have been defamed. It is in this context that the general test identified by Lord Atkin was found to be the appropriate one. Such a direction was necessary in that case because the jury may otherwise have been under the impression that a standard particular to the sole recipient of the telegram could have been appropriate.
8 It is of significance that his Lordship referred to the test in terms of what the authorities suggested was appropriate "in the present case". His Lordship did not suggest that the test was applicable in every case. Indeed, the contrary is indicated by that part of his Lordship's reasons which states that it is necessary: "to consider the person or class of persons whose reaction to the publication is the test of the wrongful character of the words used".
9 Lord Atkin's reference to the need to consider the persons whose reaction to a publication was referred to and applied by Willmer J in Drummond-Jackson v British Medical Association [1970] 1 WLR 688. That case concerned a publication in the British Medical Journal of an article criticising a technique developed by the plaintiff for use in dentistry. Willmer J said at 700H:
"In the present case the plaintiff is an experienced dental surgeon, and the article complained of relates to dentistry; and this circumstance, I think, is sufficient to indicate the class of persons whose reaction to the publication is to be considered."
10 As McColl JA notes, the approach of Willmer J in Drummond-Jackson v British Medical Association has been applied in some Australian cases. (Her Honour refers to Switzerland Australia Health Fund Pty Ltd v Shaw (1988) 81 ALR 111, FAI General Insurance Co Ltd v RAIA Insurance Brokers Limited (1992) 108 ALR 479 and Nixon v Slater & Gordon [2000] FCA 531; (2000) 175 ALR 15; Morgan v Mallard (1997) 68 SASR 184.) Such an approach receives significant support in the judgment of Callinan and Heydon JJ in Gacic, set out by McColl JA, where their Honours apply, at [190], the standards relevant to the business in question, being "restaurant standards" rather than "community standards".
11 Injury to the reputation of a person in his or her trade, profession or business is also a matter which directs attention to a narrower section of the community than the whole. It is, in my opinion, arguable that, accordingly, the relevant test is not of the character for which the appellant contends.
12 No complaint is made on this appeal of any failure by her Honour to direct attention in some specific way to the relevant group. In any event, it may be taken to be subsumed within her Honour's direction that the jury had to be satisfied that the relevant imputations did in fact damage the respondent "in his professional reputation" [62] or "damaged him … in the practice of his profession as a journalist" [60]. In each case the reference to "damage" directs attention to the conduct of those whose response could relevantly have that effect.
13 Notwithstanding the authorities set out by McColl JA, which suggest the contrary, there is, in my opinion, authority in support of the reasoning in Gacic. This Court should not give leave to the appellant to invite the Court to overrule it.
14 In the case of an imputation directed to the impact upon reputation generally - whether by means of lowering estimation or by means of shunning and avoiding - it will be appropriate and, on occasions, necessary to ensure that the jury is aware that community standards is the relevant test. In the case of impact upon the reputation of a person of a trade, professional or business character, it will, on the above analysis, usually be unnecessary to ensure that the jury is made explicitly aware that it is the standards of the persons who interact with the plaintiff in those respects which are pertinent.
15 In my opinion, the appeal should be dismissed with costs.
16 HODGSON JA: The judgment of McColl JA sets out the circumstances giving rise to this appeal and the issues it raises.
17 I am indebted to McColl JA for her careful review of the authorities, but I respectfully disagree with some of her conclusions.
18 In particular, in my respectful opinion, there is in her Honour's discussion a conflation of two concepts that are similar but that are best kept distinct, particularly in consideration of issues concerning matter alleged to be defamatory in having a tendency to injure a person's business reputation. These concepts are those of the ordinary reasonable reader (or as in this case, listener) and of community standards. In my understanding, the decision of the Court of Appeal in Gacic v John Fairfax Publications Pty Ltd [2006] NSWCA 175; (2006) 66 NSWLR 675 turned on a distinction between these two concepts, and this approach was confirmed by most of the judges of the High Court on the appeal from that decision in John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291. In that regard, in my respectful opinion, these decisions were correct.
19 In my opinion, these decisions correctly support the following propositions:
(1) The question whether published material conveys an alleged imputation is to be determined by the tribunal of fact by considering whether the imputation would be conveyed to the ordinary reasonable reader (in which I would include listener or viewer). Similarly the question of whether the imputation is defamatory, that is, whether it tends to injure the plaintiff's reputation, is also to be determined by considering whether it tends to injure the plaintiff's reputation in the view of the ordinary reasonable reader.
(2) In a case where the plaintiff alleges that the tendency is to injure his or her reputation in the area of general character and conduct, then the ordinary reasonable reader must be considered as accepting community standards and viewing the matter in the light of those standards: that is, there must be a tendency to convey to the ordinary reasonable reader who accepts community standards that the plaintiff's character or conduct falls short of the standards.
(3) However, in a case where the plaintiff alleges that the tendency is to injure his or her business reputation, then the ordinary reasonable reader must be considered as viewing the matter in the light of the reader's understanding of what are the requirements for fitness or competence for the plaintiff's business: that is, there must be a tendency to convey to the ordinary reasonable reader that the plaintiff's fitness and/or competence falls short of what, in the understanding of the ordinary reasonable reader, are the requirements for the plaintiff's business.
20 In my opinion, these propositions are generally consistent with the authorities referred to by McColl JA, except to the extent that in some of them there are statements to the effect that the publication must tend to lower the plaintiff's reputation in the eyes of "right-thinking men". That expression is unexceptionable in circumstances where the plaintiff alleges a tendency to injure his or her reputation in the area of general character and conduct; but it could be seen as carrying the suggestion that the assessment of whether what is imputed falls short of some standard is always to be assessed having regard to community standards. In my opinion, to that extent, the expression could be misleading.
21 The case of Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 could be seen as contrary to the propositions I am advancing. However, the question being addressed by Brennan J at 505-7 was whether, where no true innuendo is pleaded, the question of defamation could be determined by reference to how the matter would be understood by a hypothetical reader within some narrower class than the community generally; and his Honour (with the concurrence of other members of the High Court) held that it could not. However, in the course of the judgment, Brennan J also referred to the sharing of a moral or social standard by which to judge the defamatory character of the imputation; and in that respect, in my opinion, the judgment should be considered as applying to defamation in relation to general character and conduct.
22 I do not see anything in the judgment of the majority of the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716, that is inconsistent with the propositions I am supporting.
23 McColl JA refers to some authorities that have, contrary it would seem to the view of the High Court in Reader's Digest, supported the view that the question of defamation may be judged by reference to an hypothetical member of a narrower class than the community as a whole. It is not necessary to consider whether such an apparent departure from Reader's Digest can be supported.
24 In my opinion, the propositions I have stated are supported by the judgments of the Court of Appeal in Gacic, including the statement by Beazley JA at [40] in that case to the effect that there "could be business defamation even though the defamatory statement did not lower the defamed person in the estimation of right-thinking members of the community". I do not, with respect to McColl JA, read Beazley JA's judgment as failing to recognise the necessity that imputations must reflect on the plaintiff's reputation; nor do I see any inconsistency between the Court's de-emphasis of community standards in relation to business defamation and its insistence on reference to what is conveyed to the ordinary reader.
25 In my opinion also, the propositions I have stated are supported by the judgment of Gleeson CJ and Crennan J in the High Court in that case, particularly in paras [2] and [6] quoted by McColl JA; and by the judgment of Callinan and Heydon JJ, particularly in paras [189]-[190] quoted by McColl JA.
26 The judgment of Gummow and Hayne JJ in that case is, in my opinion, not inconsistent with the propositions. The statement in para [53] of their judgment that it is sufficient that an imputation "be such as is likely to cause ordinary decent folk in the community, taken in general, to think less of [the plaintiff]" is to some extent against the propositions I am supporting, in bringing together the concept of the ordinary reasonable reader and community standards. However, the particular problem being addressed in this judgment was not then being addressed by them.
27 The question then is, was the primary judge in error in her directions to the jury. The relevant parts of her directions have been quoted by McColl JA in para [54] of her judgment.
28 I agree with McColl JA that there is an error in the last three lines of para [60] of those directions, if they are taken in isolation. The question is not whether the imputations damaged the plaintiff in the practice of his profession as a journalist, but rather whether they tended to damage him in respect of his reputation in his profession as a journalist. However, that the jury is being directed to consider the question of injury to reputation is indicated in the first two lines of the same paragraph, and is made quite clear in the following paras [61] and [62].
29 Apart from that matter, in the light of the propositions I support, I do not see any error in the primary judge's directions to the jury.
30 For those reasons, in my opinion the appeal should be dismissed with costs.
31 McCOLL JA: This appeal concerns the question of the directions a trial judge should give to a jury hearing a defamation case about how to determine whether imputations found to have been conveyed by a publication tend to injure a person in his or her trade, business or professional reputation ("business reputation imputations"). Is the jury to be directed that that issue is to be determined in accordance with community standards, meaning thereby matter which has a tendency to make ordinary right-thinking people think less of the plaintiff? If not, what standard is the jury to apply?
32 I have concluded that in a case in which the plaintiff pleads business reputation imputations the jury should be directed that the question whether those imputations are defamatory turns on whether the hypothetical referee, whose standards are taken to reflect those of ordinary right-thinking people, would conclude that they tended to injure the plaintiff in his or her trade, business or professional reputation.