Reading v Australian Broadcasting Corporation

• 1 - On IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

Paul George READING -v- AUSTRALIAN BROADCASTING CORPORATION

JUDGMENT 1 HIS HONOUR: On 7 April 1997, the defendant published a "Four Corners" program. It was in three segments and lasted approximately forty-five minutes. The first segment (about thirty minutes) was concerned with what were said to be attempts by Mr Kerry Packer and/or persons on his behalf to ensure that he and Consolidated Press Holdings Ltd (CPH) together with Circus to ensure that his rival, the combination of Showboat -Leighton syndicate did not succeed. 2 The second segment (about ten minutes) concerned the relationship between CPH and ANI Limited (ANI), in which reference was made to payments of money "approved by Kerry Packer" to two members of the ANI board, of which one was the plaintiff, prior to the board deciding to buy a company owned by CPH and which ultimately caused ANI to loose many millions of dollars by which time CPH had long since ceased to be a shareholder. 3 The third segment (about five minutes) was concerned with attempts by Mr Packer and/or Consolidated Press Holdings to gain control of the Fairfax Companies, and segments were presented showing Mr Packer arguing vigorously with members of a Senate Inquiry. 4 The question in the present case is whether the plaintiff should be compelled, in light of the imputations alleged, to plead the entire "Four Corners" program dealing with the activities of Mr Packer and his Companies and those companies associated with them, or whether it is permissible for him to plead just the segment that referred to the ANI transaction. 5 The Plaintiff, Mr Redding has taken proceedings, alleging that he was defamed. The imputations alleged are: (a) that he corruptly accepted a bribe of $2 million; (b). he dishonestly and in breach of his duties as a director of ANI, voted for ANI to make a disastrously bad decision to buy ABT, because Kerry Packer, whose company owned ABT, agreed to pay him $2 million; (c) that as a director of ANI, the plaintiff dishonestly changed calculations valuing the deal for ANI to buy ABT, so that the deal would not have to be approved by shareholders; (d) that the Plaintiff, as a director of ANI acted contrary to shareholder's interests by deliberately concealing from shareholders key aspects of the deal for ANI to purchase ABT; and (e) the Plaintiff, as a director of ANI defrauded shareholders of ANI by dishonestly changing calculations, valuing the deal for ANI to buy ABT so that the deal would not have to be approved by shareholders. 6 The issue before me is not whether those imputations are capable of arising from the segment referred to. It is whether the plaintiff should be compelled to publish the whole of the "Four Corners" programs - the three segments -so that it is open to the defendant to maintain that in the context of the program the imputations contended for by the plaintiff are not those conveyed. 7 Mr Tobin QC submits that the whole program should be pleaded because he wishes to rely on references throughout the program to the general forcefulness and determination of Mr Packer. He submits that the issue at trial should be whether the jury may take into account other parts of the program, not pleaded at present, as colouring the meaning attached to so much of the programs dealt with the conduct of Mr Reading. He submits that the program was directed to "the exercise of power in the community" by Mr Packer and he is entitled to put to the jury that it was not being alleged in the program that Mr Reading committed the offences referred to in the imputations as pleaded.

8 The essence of Mr Tobin QC's submission is that although the imputations make reference to corruption, fraud and dishonesty, he says that when the whole program is seen it would be open to the jury to consider the conduct attributed to the plaintiff is simply that of a person compliant with the overbearing intimidating public presence of Mr Packer. He said that the imputation alleged "smacks of criminal conduct" and therefore the jury would have to be satisfied that what was been said was, not only did he do these things but that he did them with the requisite criminal intent and that that requisite criminal intent would not be present if he was simply intimidated, overborne or even "threatened" in some way. 9 He submits that he should be at liberty to put to the jury that it would be entitled to think that what was said was that Mr Reading was such a weak director that he allowed himself be overborne against the interests of his company to whom he owed obligations and that that is a different imputation from one of dishonesty or corruption. 10 The question then arises whether or not the defendant should be denied the opportunity to put this argument to the jury. When asked how that would explain the allegation of two million dollars being paid to Mr Reading, Mr Tobin QC said it could be argued that he was being paid money by ANI to perform a task unrelated to the decision to approve the purchase of ATB. He also submitted that when Sue Palmer, in the program, said that it was her personal opinion that the payment of money sounded to her like the kind of money that could buy cooperation, that was a reference to something in the nature of "equitable" as opposed to "common law criminal" fraud. In short he wishes to have the opportunity to persuade the jury that the program was about Mr Packer's power and that if the jury saw it in that light they would view assertions against Mr Reading as directed to Mr Packer's power rather than Mr Reading's culpability. He submits that in all three topics, the Casino, ANI and Fairfax it is clear the program one over riding theme, namely, "the Power of Packer" which was the introduction to the program.

11 On the other hand, Mr McClintock SC submits that the jury may misuse the material by taking an adverse reaction to Mr Packer and may improperly transpose that hostility to Mr Reading. He also submits that although it would not be proper to do so, some barrister appearing for the defendant would suggest to the jury that because Mr Reading was mentioned for only two to three minutes in a forty-five minute program anyone watching the program would probably forget any imputations directed to him by the time the program was concluded. It is agreed that such a comment should not be made and indeed, Mr Tobin QC has claimed he would not make it, conceding it would be improper. I am not prepared to assume therefore that it would be made. 12 McClintock SC also submits that if anyone put to the jury a meaning from the program was that the decision to vote for the acquisition of ATB was unrelated to the two million dollars "approved by Kerry Packer" there would be, to use his expression, "gales of laughter" in the courtroom.

13 As I understand the law a jury cannot be compelled to accept an imputation although of course there have been decisions where the rejection of an imputation has been held by the Court of Appeal to be a decision no reasonably minded jury could reach in all circumstances. Nonetheless, to my knowledge, there is no power in the Court at the end of all the evidence to direct the jury that they must bring in a verdict in the plaintiff's favour. 14 As Mr McClintock SC has acknowledged, if I were to rule in the present case that he should not present the whole of the program, because I was not satisfied they could be relevantly connected to the plaintiff's claims arising out of the second segment, it would have the effect of foreclosing, after the plaintiff's case in chief was closed, an argument that the defendant should be allowed to play the balance of the program - or at least it might be embarrassing for the trial judge who by that time may have a different view.

15 In Morgan Tsvangirai v The Special Broadcasting Service [Unreported, NSWSC, 14 June 2002], Levine J referred to the circumstance that an ordinary reasonable viewer is taken to have viewed the whole program with the variation and concentration which is sometimes referred to. Therefore, a 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 current affairs on television, in most cases one would anticipate the whole of the relevant segment should be pleaded. If an issue arises as to whether the plaintiff has impermissibly omitted material from the publication 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. 16 It would seem to me the question must be whether a jury would be entitled to have regard to segments one and three for the purpose of determining the true meaning of the imputations said to arise in segment two. Mr McClintock SC may be correct in his assessment of the mirth that would be generated by what Mr Tobin QC is proposing to submit. Nonetheless, juries are assigned the task of determining defamatory meanings and I do not think that matter, which is arguable, should be withheld from juries simply because there is a fear that they could not be trusted.

17 Accordingly, I direct that the whole of the program be pleaded. 18 The plaintiff to pay the defendant's costs. OoO

Last Modified: 11/07/2002 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.