Sungravure Pty Ltd v Middle East Airlines Airliban SAL

High Court of Australia|1975-07-01|Before: Mason JJ, Hardie J, Collins J

High Court of Australia McTiernan A.C.J. Menzies, Gibbs, Stephen and Mason JJ. Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6

ORDER Appeal and cross-appeal each dismissed with costs.

This was an action for defamation brought in the Supreme Court of New South Wales. The Defamation Act, 1958 N.S.W. (Act No. 39 of 1958) applied to the action. It is material to refer to the following sections of the Act:

The imputation may be expressed either directly or by insinuation or irony.

The question whether any matter is or is not defamatory is a question of fact.

The question whether any matter alleged to be defamatory is or is not capable of bearing a defamatory meaning is a question of law.

A person who, by spoken words or audible sounds, or by words intended to be read either by sight or touch, or by signs, signals, gestures, or visible representations, publishes any defamatory imputation concerning any person is said to defame that person.

It is unlawful to publish defamatory matter unless the publication is protected, or justified, or excused by law.

The unlawful publication of defamatory matter is an actionable wrong.

The declaration begins by stating that, "the plaintiff owned and controlled Middle East Airlines an international airline with headquarters at Beirut International Airport, Beirut, Lebanon, its flight numbers being prefaced by the letters "M.E." and its insignia a green cedar tree and the plaintiff employed Australian pilots as well as Arab pilots in its fleet which comprised fourteen aircraft and the defendant published a newspaper called "Woman's Day" with a large and extensive circulation " The declaration continues, "the defendant by itself its servants and agents in an issue of the said Woman's Day dated 11th January 1971 falsely and maliciously published of and concerning the plaintiff the words following " There follows a story headed "Dateline Masada" which runs into seventy-eight pages of the appeal book. At the conclusion of what is alleged to be the defamatory material the declaration continues as follows:

" Meaning thereby that potential air travellers by Arab aircraft to wit by plaintiff's Middle East Airlines faced a serious risk of hijacking by Israelis with attendant dangers of death, grievous injury, suffering, inconvenience and loss and/or that Middle East Airlines aircraft lacked adequate security checks and precautions against hijacking and/or that Middle East Airlines gave insufficient attention to the servicing of their aircraft, mechanical condition and airworthiness and/or that air travel by other than Middle East Airlines was to be preferred and/or that Middle East Airlines' employment of different nationals in their crews was not conducive to smooth operation and could lead to staff friction with resultant inefficiency and/or that Arab members of the aircrew of Middle East Airlines were lacking in concern and consideration for their passengers and would under pressure exhibit cowardice and be guilty of dereliction of duty to the extent of abandoning their aircraft and passengers and/or that Arab pilots lacked the skill and expertise of pilots of other national groups" and concludes, " whereby the plaintiff was held up to public hatred ridicule and contempt and was injured in its credit reputation and circumstances and in its business and was otherwise greatly damnified."

The defendant's pleas are: (1) that it is not guilty; (2) that as to the facts stated in the declaration regarding Middle East Airlines ("MEA") and the fact that the defendant published a newspaper called "Woman's Day" with a large and extensive circulation denies each and every one of them. The plaintiff by its replication joined issue upon these pleas.

Hardie J.A. adopted for the purposes of the appeal before the Supreme Court a summary of the story pleaded verbatim in the declaration which appears in the judgment of Collins J. of 22nd March 1972 in interlocutory proceedings in the action. The summary reads:

The story opens with the account of the preparation of a landing strip at Masada in Palestine by members of an organization called The Popular Front for the Liberation of Palestine which, despite its name, is a pro-Israeli body. The members of the organization have formed a plot or conspiracy simultaneously to hijack the entire fleet comprising fourteen planes of a Lebanese airline described in the story as "Middle East Airlines" or "M.E.A.". The story alleges that the planes of this airline carried the insignia of a green cedar tree. The hijacking operation is planned to take place at various places in the world at a given time and date and the planes are all to be flown to the Masada airstrip. The story revolves around the hijacking of a particular plane identified as M.E. 481. The pilot and co-pilot of this plane are Arabs and travelling on the plane as a passenger is the flight commodore of the airline, who is an Australian.

Two hijackers take over aircraft M.E. 481. Both are Israelis: one a fanatical young woman and the other an idealistic young man. The method adopted to perform the operation is the production of a container which the hijackers proclaim to be filled with nerve gas, this production being accompanied by a threat to kill if necessary the crew and the passengers. When one of the pilots expresses doubts whether the container does hold nerve gas, the female hijacker sprays him with the gas and kills him. The plot is completely successful in that this particular plane and all other planes of the airline are taken over by members of the organisation and are flown to Masada. After a period of peril and hardship, all the passengers and crews from the various aircraft escape. The escape is effectuated by the Australian flight commodore and the American passenger who in World War II served in the United States Army as a commando.

Interwoven with the accounts of the adventures of the capture and escape are three romances, the first between the male hijacker and a young Arab woman passenger, the second between an Australian air hostess on duty on the plane and a doctor who is a passenger, and the third between an English woman and the ex-commando.

I have perused the story as it appears in the declaration. I think the summary is adequate for the purposes of the present appeal.

The learned trial judge, Nagle J., allowed only the second, third and fourth innuendoes pleaded in the declaration go to the jury. The jury gave a verdict expressed to be in favour of the appellant. It is a general verdict. The plaintiff appealed from the verdict to the Court of Appeal Division of the Supreme Court of New South Wales on a number of grounds, one of which was that the trial judge erred in withdrawing from the jury the other four innuendoes assigned in the declaration. By a majority, the Court of Appeal (Hardie and Glass JJ.A., Hutley J.A. dissenting) made an order granting a new trial, on the ground that the first innuendo should have been allowed to go to the jury [1] . It is from that order that the defendant appeals to this Court. The plaintiff cross-appealed but has not pursued the cross-appeal.

The innuendo at issue in this appeal (that is to say, the first innuendo) is in the following terms: "that potential air travellers by Arab aircraft to wit by plaintiff's Middle East Airlines faced a serious risk of hijacking by Israelis with attendant dangers of death, grievous injury, suffering, inconvenience and loss".

The question to be decided is whether a jury of reasonable persons could find that the said innuendo was an "imputation concerning [the plaintiff] by which the reputation of [the plaintiff] is likely to be injured, or by which [it] is likely to be injured in [its] profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise [it]" (s. 5). In withdrawing the first innuendo from the jury, Nagle J. said: "I am unable to see any imputation in this innuendo which is likely to affect the plaintiff's business as a trading corporation. There is no suggestion in the innuendo that the plaintiff's aeroplanes are any more seriously at risk of hijacking than any Arab or other line using the area. There may be material in the story which would be suggestive of dangers of travel by all airlines in the Middle East and the possibility of these aircraft being hijacked there, but this is a fact of life and it seems to me that it could be so regarded as being well-known to the ordinary man that the activities of third parties in this area render travel there hazardous, but the statement of this fact of itself does not seem to me to impute anything which could be said to be defamatory of the plaintiff corporation". Hardie and Glass JJ.A. were of the opinion that the trial judge erred in withdrawing the first innuendo from the jury.

The contention put forward in argument in this appeal by counsel for the appellant is that the innuendo pleaded is not an imputation "concerning the plaintiff" within the scope of s. 5. Counsel cited the case of Hall-Gibbs Mercantile Agency Ltd. v. Dun [2] . In that case, in considering the section of the Queensland Criminal Code which corresponds to s. 5 of the Defamation Act, 1958 N.S.W., Griffith C.J. said [3] , "If the act or condition imputed is such that (inter alia) the plaintiff's reputation is likely to be injured by it, or he is likely to be injured in his profession or trade, the Queensland law calls it defamatory, and says that it is an actionable wrong".

(1910) 12 C.L.R. 84. 2. (1910) 12 C.L.R., at p. 92.

In my opinion the short story set out in the declaration concerns the plaintiff. Its subject is an airline called "Middle East Airlines" and because of that fact it directs attention to the plaintiff in a way likely to injure it in its trade. I think that it is a tenable proposition that the story is capable of affecting the plaintiff in the way stated in the first innuendo.

This is an appeal in an action for defamation brought by the respondent, Middle East Airlines Airliban S.A.L., against the publishers of Woman's Day in respect of a short novel, "Dateline Masada", which appeared in that periodical on 11th January 1971. The subject of the novel was the hijacking of the whole fleet of a Lebanese airline, Middle East Airlines, by a group of fanatical Israelis described somewhat incongruously as the Popular Front for the Liberation of Palestine. The novel suggests that the hijackers were actuated by a desire to retaliate against similar atrocities committed by Arabs against Israelis. The respondent, in its declaration, set out in full the words of the novel and then proceeded to attribute to them a number of defamatory meanings as follows:

Meaning thereby that potential air travellers by Arab aircraft to wit by plaintiffs Middle East Airlines faced a serious risk of hijacking by Israelis with attendant dangers of death, grievous injury, suffering, inconvenience and loss and/or that Middle East Airlines aircraft lacked adequate security checks and precautions against hijacking and/or that Middle East Airlines gave insufficient attention to the servicing of their aircraft, mechanical condition and airworthiness and/or that air travel by other than Middle East Airlines was to be preferred and/or that Middle East Airlines' employment of different nationals in their crews was not conducive to smooth operation and could lead to staff friction with resultant inefficiency and/or that Arab members of the aircrew of Middle East Airlines were lacking in concern and consideration for their passengers and would under pressure exhibit cowardice and be guilty of dereliction of duty to the extent of abandoning their aircraft and passengers and/or that Arab pilots lacked the skill and expertise of pilots of other national groups. It was not alleged in the declaration that these meanings depended upon any special facts additional to those generally known by members of the public; what was suggested was that these defamatory imputations could reasonably be inferred from the words themselves and were thus part of the ordinary and natural meaning of the words. The declaration pleaded what have been called false or popular innuendoes rather than legal innuendoes. It became the duty of the judge at the trial to rule whether the words published were reasonably capable of bearing each of these suggested defamatory meanings: Lewis v. Daily Telegraph Ltd. [4] ; it was for the jury to decide whether the words bore any of those suggested meanings. The learned trial judge held that the words were capable of bearing the meanings alleged in the second, third and fourth innuendoes but that the respondent was not entitled to rely on the first, fifth, sixth and seventh innuendoes. The jury, having been directed accordingly, returned a verdict for the appellant. On appeal, brought by the respondent, the Court of Appeal held that the fifth, sixth and seventh innuendoes were properly withdrawn from the jury but, by a majority, held that the first innuendo should have been left to the jury, and that for this reason a new trial should be ordered [5] . From this decision the appellant has appealed to this Court by special leave. The respondent gave a notice of cross-appeal but advanced no argument in support of it. The decision that it was right to withdraw the fifth, sixth and seventh innuendoes from the consideration of the jury therefore remains unchallenged. 1. [1964] A.C. 234. 2. [1974] 1 N.S.W.L.R. 323.

The questions that now fall for our decision are first, whether the words published were capable of bearing the meaning assigned to them by the first innuendo, secondly, whether, if so, they were defamatory of the respondent, and thirdly, whether if both those questions are answered in favour of the respondent there should be a new trial. The first of these questions was argued but, understandably, was not very strongly pressed. It was at all times conceded that the references in the novel to Middle East Airlines could reasonably have been understood as references to the respondent. However, the novel was patently a work of fiction, of a light and romantic kind, and the gang of Israelis whose activities are the source of its plot appears to be equally fictitious. It was submitted that no reasonable reader could understand the novel as meaning that in real life potential air travellers by the respondent's airline faced a serious threat of hijacking by Israelis. It may well be that a jury would agree with this submission but it would be open to a reasonable jury to take a contrary view. Works of fiction have often been founded upon fact and the hijacking of aircraft for political and racial reasons is unfortunately not uncommon, and readers of the novel might reasonably have understood it to mean that Arab airlines really do face a threat of being hijacked by Israelis. It was open to the jury to find that the words complained of did have the meaning given to them by the first innuendo.

The serious issue in the case, however, is whether the meaning pleaded in the first innuendo is defamatory of the respondent. At the material time the question whether matter published in New South Wales was defamatory was governed by the provisions of s. 5 of the Defamation Act, 1958 N.S.W. which read as follows:

Any imputation concerning any person, or any member of his family, whether living or dead, by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him, is called defamatory, and the matter of the imputation is called defamatory matter.

The imputation may be expressed either directly or by insinuation or irony.

This section repeated almost verbatim the words of s. 366 of the Criminal Code Q., which themselves re-enacted s. 4 of the Defamation Law of Queensland. It was held in Hall-Gibbs Mercantile Agency Ltd. v. Dun [6] , that in Queensland since the passing of those laws the question whether published matter is defamatory has depended solely on whether it comes within the words of the statute, whether or not it would have been actionable as libel or slander at common law - see [7] . Section 5 of the Defamation Act, 1958 N.S.W. was obviously intended to have the same effect as the Queensland laws which it copied. It is therefore necessary to turn to s. 5, and not to the rules of the common law, to determine whether the published words having the meaning set out in the first innuendo were defamatory. 1. (1910) 12 C.L.R. 84. 2. (1910) 12 C.L.R., at pp. 91, 92, 97-98.

The words complained of in the present case were defamatory of the respondent within the meaning of s. 5 only if they amounted to an imputation concerning the respondent by which the respondent was likely to be injured in its profession or trade. No one could doubt that a statement that a particular airline was more likely than others to be attacked by hijackers would, if taken seriously, be likely to deter persons from travelling by that airline and would therefore be likely to injure it in its trade. The words complained of in the present case, according to the first innuendo, meant that potential travellers by Arab aircraft - namely, by the respondent's airline - faced a serious risk of hijacking by Israelis and thus conveyed the suggestion that the risk was not shared by passengers on all airlines but only attached to those travelling on an Arab airline, and in particular on the respondent's airline. It was open to a reasonable jury to regard such a suggestion as likely to injure the respondent's trade.

The question that then arises - and it is the crucial question in the case - is whether words having the meaning stated in the first innuendo were capable of being regarded by a reasonable jury as an imputation concerning the respondent. A statement will not be defamatory of a person within the meaning of s. 5 simply because it is likely to injure him in his profession or trade; to come within the section it must be an imputation concerning that person (or, of course, any member of his family). The imputation need not be a disparaging one; this was settled by Hall-Gibbs Mercantile Agency Ltd. v. Dun [8] where a statement that a man had ceased to carry on business was held to be defamatory. However, the main submission on behalf of the appellant in the present case was that an "imputation concerning any person" within the section must relate to some act or conduct of that person; it must concern something that the person himself has done or failed to do. With all respect, I cannot accept this submission which, like the argument rejected in Hall-Gibbs Mercantile Agency Ltd. v. Dun, seeks to read into the section words that do not appear in it. To make an imputation concerning a person is to attribute some act or condition to him, or in other words, simply to make a statement concerning him: see Hall-Gibbs Mercantile Agency Ltd. v. Dun [9] . Once the notion of disparagement is rejected, the word "imputation" cannot be restricted to mean a statement concerning an act or condition which resulted from the conduct of the person of whom the imputation was made or for which that person was otherwise responsible. In many cases, of course, an imputation concerning a person will necessarily also impute that he is responsible for the act or condition attributed to him, but a statement as to a person's condition, for which it is not suggested that he himself was in any way responsible, will still be an imputation concerning that person. Hutley J.A., in his judgment in the Court of Appeal, gave a clear example of this: to say of a shopkeeper that he is tubercular is an imputation concerning that shopkeeper by which in some cases he is likely to be injured in his trade and is capable of being defamatory, although the condition imputed to him is one for which he himself is not responsible. Counsel for the appellant sought to find support for his argument in some passages in Hall-Gibbs Mercantile Agency Ltd. v. Dun, and in particular in the judgment of Griffith C.J. who, in the course of contrasting defamation with slander of title (to which neither the Queensland nor the New South Wales statutes apply - s. 46 of the Defamation Law of Queensland; s. 42(1) of the Defamation Act, 1958 N.S.W.), said [10] :

There is, in my opinion, an essential distinction between the disparagement of a man's title to property, by which he may be injuriously affected in his efforts to dispose of it, and the disparagement of a man with regard to his own conduct in respect of his property. In both cases the man and the property are elements of the disparagement, but the nature of the wrong is quite different. Although Griffith C.J. there spoke of "the disparagement of a man with regard to his own conduct", he did not in my opinion intend to suggest that an imputation concerning a man must necessarily involve some reference to his conduct any more than to suggest that the disparagement of the man was an essential element of the defamation. The whole tenor of the judgments in Hall-Gibbs Mercantile Agency Ltd. v. Dun appears to me to be opposed to the appellant's contention and to support the view that the word "imputation" in the section is intended to be given a wide meaning so that the section treats as defamatory (inter alia) any statement about a person which is likely to injure him in his profession or trade. 1. (1910) 12 C.L.R. 84. 2. (1910) 12 C.L.R., at pp. 91, 98-99, 101-104. 3. (1910) 12 C.L.R., at p. 93.

In the alternative it was submitted on behalf of the appellant that even if the construction of s. 5 for which the appellant contended be not adopted, the words complained of, in the sense stated in the first innuendo, did not amount to an imputation concerning the respondent, because to say that travellers by the respondent's airline faced a risk of hijacking was not to assert anything about the respondent itself. This argument is the one that has caused me the greatest difficulty in the case. Of course it is not the mere form of the words of the first innuendo that occasions the difficulty; an imputation may be expressed by insinuation, and a statement about the goods or services which a person supplies may indirectly say something about the person himself. Thus, to say that guests at a particular inn will find bad food and poor service may be regarded as an imputation concerning the innkeeper. Although theoretically it is possible to regard every statement about the goods or services in which a man trades as an imputaton of some sort about the trader, it would be unreal to take that view where the statement was a perfectly general one and applied no more to one trader than to all. For example, to say that all cigarettes are dangerous to health could not reasonably be regarded as an imputation concerning a particular cigarette merchant. The words complained of in the present case, according to the first innuendo, might reasonably be regarded as saying of the respondent that it is an Arab airline, and that for that reason it, through its aircraft, is especially likely to be attacked by hijackers. It seems to me that a jury might reasonably regard this as a statement concerning the respondent and it is not to the point that it is not due to any action or inaction on the part of the respondent that the threat of hijacking is likely to arise. I therefore consider that the learned trial judge was wrong in withdrawing the first innuendo from the jury.

The final submission on behalf of the appellant was that the first innuendo added nothing to the second, third and fourth, and that therefore no injustice was done in failing to allow the jury to consider it. Clearly, the second and third innuendoes are quite different in substance from the first, and although the fourth innuendo might be said to be a generalization embracing the first, it lacks the particularity of the first innuendo and it would be mere speculation to say that a jury which declined to put upon the words the meaning asserted in the fourth innuendo would also have refused to give them the meaning of the first innuendo. There should in my opinion be a new trial. It was agreed that if a new trial is ordered the first, second, third and fourth innuendoes should be left to the jury but the fifth, sixth and seventh should not.

In the 11th January 1971 issue of Woman's Day, a magazine published by the defendant, there appeared a complete long story, obviously a work of fiction, entitled "Dateline Masada", which described the hijacking by a band of Israeli irregulars of the entire air fleet of the plaintiff's Lebanese international airline; it dwelt in particular upon happenings, both dramatic and romantic, said to take place in one of the hijacked aircraft. The plaintiff regarded this story as defamatory of it and sued for defamation in the Supreme Court of New South Wales.

The plaintiff's declaration contained but one count which set out the story in full and concluded with the assertion of seven allegedly defamatory meanings, each amounting to what has come to be known as a false or popular, as distinct from a true or legal, innuendo. At the trial the learned primary judge withdrew four of these innuendoes from consideration by the jury, which found for the defendant. The plaintiff then appealed to the Appeal Division of the Supreme Court upon a great variety of grounds and by a majority that appeal was allowed upon one ground only, the withdrawal of the first of these seven innuendoes [11] .

The effect of that innuendo was to allege that by the publication of the story the defendant meant "that potential air travellers by Arab aircraft to wit by plaintiff's Middle East Airlines faced a serious risk of hijacking by Israelis with attendant dangers of death, grievous injury, suffering, inconvenience and loss".

In the Court of Appeal Division each of the three members of the Court found the story to be capable of bearing the meaning thus assigned to it; I would, with respect, adopt a like view. The question upon which the members of the Court divided, and which was the question argued upon this present appeal, was whether a publication bearing such a meaning is one capable of being defamatory within s. 5 of the Defamation Act, 1958 N.S.W..

It is clear that at common law it will be no libel to publish of a carrier by air that, for reasons not associated with any blameworthiness on his part, those who might patronise his airline face a serious risk of hijacking, with its attendant dangers. However much a statement may tend to injure a man in the way of his office, profession or trade it will only be defamatory at common law if it involves some reflection upon his personal character or upon the mode in which he carries on his business, his business reputation. Whether or not this was always so (and occasional references to the contrary in early cases and early texts, some of which have been gathered together by Professor Morison in his article in Sydney Law Review, vol. 3 (1959), at pp. 6-7, appear to be equivocal, obiter or reported very much at second hand) the modern common law position appears in the judgment of the Court of Appeal in Ratcliffe v. Evans [12] . There an action for words not defamatory of the plaintiff but liable to injure his business was described as "not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title" [13] . The point was succinctly made by Isaacs J. in Slatyer v. Daily Telegraph Newspaper Co. Ltd. [15] , a case in which in argument the distinction between defamation and an action on the case for what has now come to be styled injurious falsehood was debated; his Honour there said [16] , "This is an action for defamation, in other words, for defaming the personal character or reputation of the plaintiff" - and see Hall-Gibbs Mercantile Agency Ltd. v. Dun, per Griffith C.J. [17] , Barton J. [18] and O'Connor J., who said [19] that for words to be defamatory of a person they must charge "something discrediting his conduct or character"; and see generally Gatley on Libel and Slander, 6th ed. (1967), pp. 39 et seq.

[1892] 2 Q.B. 524. 2. [1892] 2 Q.B., at pp. 527-528. 3. (1908) 6 C.L.R. 1. 4. (1908) 6 C.L.R., at p. 8. 5. (1910) 12 C.L.R., at p. 92. 6. (1910) 12 C.L.R., at p. 95. 7. (1910) 12 C.L.R., at p. 102.

However we are here concerned with statutory defamation and with the scope of s. 5 of the Defamation Act, which reads as follows:

The imputation may be expressed either directly or by insinuation or irony.

Unless the precise meaning which the innuendo here in question attributes to the words complained of is such as to bring those words within s. 5 this appeal will succeed, for there is no room here for the placing of any gloss upon the words of the pleader. That he has already done by pleading the innuendo, the purpose of which is to set out a particularly defamatory meaning which the words, according to their ordinary and natural meaning, are said to bear; it records what the plaintiff submits is the ordinary meaning conveyed by the words sued on - Lewis v. Daily Telegraph Ltd., per Lord Morris [20] - going beyond their literal meaning and stating the meaning which is said to be inherent in them - per Lord Devlin [21] ; and see Jones v. Skelton [22] .

[1964] A.C. 234, at p. 263. 2. [1964] A.C., at p. 280. 3. [1963] 1 W.L.R. 1362, at pp. 1370-1371; [1963] 3 All E.R. 952, at pp. 958-959.

Having pleaded this innuendo the plaintiff was bound by it, and by such others as he also relied upon, and was not free thereafter to rely upon some quite different meaning which he might seek to read into the words complained of - Slim v. Daily Telegraph Ltd., per Salmon L.J. [23] - at least not one more injurious to the plaintiff - per Diplock L.J. [24] ; and see Simmons v. Mitchell [25] ; and Ryan v. Ross [26] , per Gavan Duffy and Isaacs JJ. in their dissenting joint judgment.

[1968] 2 Q.B. 157, at p. 185. 2. [1968] 2 Q.B., at p. 175. 3. (1880) 6 App. Cas. 156, at p. 162. 4. (1916) 22 C.L.R. 1, at p. 27.

Here, then, the plaintiff has taken this story and has distilled out of it a number of particular meanings which it seeks to present to the jury as its version of what is complained of. Each of these particular meanings is the product of the pleader and cannot call in aid inference or innuendo so that it may thereby express a meaning defamatory of the plaintiff; it is itself the inference, the innuendo, contended for and represents the final distillation, from the mass of words published by the defendant, of the defamatory essence. Its function is to set out "meanings which the plaintiff alleges ordinary men would infer from the words used" (Barclay v. Cox [26a] ), to state the "inference that the plaintiff draws from the article" complained of (Loughans v. Odhams Press Ltd., per Sellers L.J. [27] ).

[1968] V.R. 664, at p. 666. 2. [1963] 1 Q.B. 299, at p. 308.

This innuendo fell short of alleging what was perhaps aimed at, an imputation that the airline was, because of its nationality, particularly prone to attack by Israeli irregulars and was hence to be avoided by intending travellers. Since its very function as a false innuendo was to state the particular meaning which the plaintiff sought to place upon the words complained of, it cannot be permissible to extend the meaning which it in fact states by, as it were, placing an innuendo upon the innuendo. As drawn, it says nothing expressly about the plaintiff and therefore must necessarily have been rejected by the trial judge as not defamatory within s. 5 and, consequently, as not being matter upon which the jury could find a verdict for the plaintiff. To have left it to the jury would have amounted to an invitation to them to find for the plaintiff if all the meaning they could properly extract from the words of the story, understood according to ordinary and natural meaning, was no more than that potential travellers by the plaintiff's airline faced a serious risk of hijacking by Israelis. That would not, in my view, have constituted any imputation "concerning the plaintiff" within the meaning of s. 5 of the Defamation Act.

For this reason, therefore, I would regard this innuendo as having properly been withdrawn from the jury and would on that ground allow this appeal.

There is, I think, a broader ground upon which it should also be allowed, a ground which does not depend upon any question of the form in which the innuendo is pleaded but would apply even were the allegedly defamatory words understood to mean that because the plaintiff's airline is an Arab airline its air transport operations are therefore particularly at risk of hijacking by Israeli irregulars.

The feature which such an imputation notably lacks for purposes of defamation at common law is the absence of any disparagement of the plaintiff itself. The absence of this feature will not be sufficient to exclude the imputation from being defamatory within s. 5, but when there is also absent any suggestion that the plaintiff's conduct has brought about the condition of risk to which its operations are said to be subject s. 5 will then, in my view, have no application.

To impute a condition to a man's business which neither reflects upon his personal character or reputation nor carries any suggestion that he is in any way responsible for that condition is, of course, a long way short of being defamatory at common law. That in itself may be no ground for viewing with caution the suggestion that it is nevertheless defamatory under the Act; the Act clearly enough departs from the common law in other respects and may have been intended to do so in this area also. What do, however, call for some consideration are the far-reaching consequences should the Act be regarded as rendering such an imputation defamatory. In that event neither the suffering of damage by the plaintiff nor the existence of any malice on the part of the defendant need be proved; the defendant will bear the onus of establishing, as a defence, the truth of the words published but, to escape liability, he must go further and also establish that it was for the public benefit that the publication should have been made. Moreover he will be liable even if the imputation was made inadvertently or in complete ignorance of the existence of the plaintiff. Again, the making of the imputation will be unlawful and will subject the defendant to the possibility of prosecution for a criminal offence punishable by imprisonment. Moreover the application of these stringent legal consequences to an imputation such as the present will occur in circumstances in which there already exists, as against a defendant who intends to inflict injury, a well established and quite adequate remedy for any damage the plaintiff may suffer (Ratcliffe v. Evans [28] ).

In these circumstances a close examination of the vital words of s. 5, "Any imputation concerning any person", is called for; these words received such an examination in the Hall-Gibbs Case [29] and one result of that examination was, in my view, to exclude from the class of defamatory imputations struck at by s. 5 those imputing a condition to a person's business not itself reflecting upon that person's own reputation and for which he could not, by his own conduct, be regarded as in any way responsible.

In the Hall-Gibbs Case, the Court was concerned with Queensland legislation which was, for all presently relevant purposes, identical with, and was indeed the progenitor of, the Defamation Act 1958 N.S.W.. The imputation consisted of an untrue assertion that the plaintiff had sold its business in the State of Queensland to the defendant. The principal question for the Court was whether or not, to constitute an "imputation", words had to convey some disparaging reflection upon the plaintiff. The words there complained of did not do so, although they were likely to injure it in its business. The Court was unanimous in holding that "imputation" was without colour of this sort, having the same sense as the verb "impute", being equally applicable to laudatory as to disparaging words and meaning no more than "statement" or the like. It follows that in the present case it is nothing to the point that it may not be disparaging of the plaintiff to describe its airline as especially subject, because an Arab airline, to the unlawful activities of Israeli hijackers.

However, while essentially concerned with this question of disparagement, the Court also undertook a general review of the scope of the legislation and in the course of doing so the Chief Justice and O'Connor J. in my view made it clear that they would exclude from its reach an imputation such as the present one.

The Chief Justice had occasion to do this when discussing [30] the views of the Queensland Full Court concerning s. 46 of the Queensland Act, which, like s. 42 of the New South Wales legislation, excluded from the effect of the legislation "the actionable wrong commonly called "slander of title" ". The Chief Justice, in the course of expressing disagreement with a certain view of s. 46 expressed by Shand J. in the Supreme Court, described as within the true reach of the legislation, and as not excluded by s. 46 the disparagement of a man "with regard to his own conduct in respect of his property". It is his Honour's reference to "his own conduct" that is significant. His Honour had earlier described the verb "impute" as properly used with reference to any act or condition asserted of or attributed to a person, and had given the noun "imputation" a similar width of meaning [31] ; but he had done so while directing the thrust of his thought to the question of whether an imputation need be disparaging. He did not, I think, intend that every condition relating to a man, however passive, however much the result of the actions of others and in no way the product of his own conduct, should nevertheless, if described by another and likely to cause injury in profession or trade, be defamatory. His Honour's reference to an assertion made concerning a man whether it imputes to him "some small pecadillo or untruly alleges that he has ceased to carry on business altogether" [32] , again embodies the concept that some conduct on the part of the plaintiff must be involved if a condition not itself reflecting upon the plaintiff personally nor such as to cause him personally to be shunned or avoided is, when made the subject of an imputation, to be defamatory within s. 5. There must, in addition, be conduct on his part conducing to that condition.

(1910) 12 C.L.R., at p. 93. 2. (1910) 12 C.L.R., at pp. 91-92. 3. (1910) 12 C.L.R., at p. 92.

O'Connor J. took, I think, a like view; he undertook an examination of the general scope of the legislation [33] , and concluded by saying that its effect was to

extend the area of protection against defamation still further, so as to embrace the class of case now under consideration, thus giving a remedy as for defamation to every person injured in his profession or in his trade by statements made concerning him, but not extending the remedy beyond cases in which the statement is made of the man whether in relation to his goods or not. Where, however, the statement is made not of the man in relation to his goods, but of his goods alone, the injury is in its nature of a different kind. (The emphasis is his Honour's.) Since defamation may be by innuendo, as s. 5 expressly recognizes by its reference to imputations "expressed either directly or by insinuation or irony", it follows that, if effect is to be given to a distinction between statements made of a man in relation to his goods, they being defamatory, and those made of his goods alone, they being not defamatory, the former must be statements about goods which cast a reflection upon the man, whether he be owner, manufacturer or in some other way identified with and responsible for their condition. The latter class, on the other hand, must contemplate statements confined to "goods alone" in the sense that what is said of the goods cannot cast any such reflection, and this will normally be because the condition of the goods which is spoken of is not attributable to the action or inaction of the man, is not related, in the words of the Chief Justice, to "his conduct in respect of his property". 1. (1910) 12 C.L.R., at pp. 103-104.

Although, as I read the judgment of Barton J., no similar limitation can be discerned from his discussion of the scope of the legislation, the other two judgments do, I think, justify the conclusion that to constitute an "imputation concerning a person" of the presently relevant kind, depending upon a condition associated with goods, business or other assets of that person, the words must relate to some condition for which he is in some way responsible. Thus to disparage a man's own products or the services he renders will usually reflect upon the man's conduct and therefore fall within the Act as defamatory, but to say, for example, of a particular make of motor car, well known for its excellence, that it is, for that reason, particularly attractive to car thieves, will involve no imputation in which the manufacturer's conduct plays a part and will not be defamatory within s. 5, although it may be likely to injure the manufacturer's business. Likewise statements suggesting that the businesses of particular persons may, because of their wealth, religion, nationality, or political beliefs, be particularly subject to unlawful acts of extortion or violence, which render their businesses less attractive to deal with, will not be defamatory of, although injurious to, those businesses.

To say of the plaintiff that its business of an airline operator has associated with it the quality of being especially prone to hijacking by reason of its nationality is, no doubt, to describe a condition of the plaintiff, the condition of being the operator of an airline prone, for such a reason, to hijacking. But since such a condition is, of its very nature, unconnected with any conduct on the plaintiff's part it will not, in my view, be defamatory within s. 5.

For these reasons I would allow this appeal, dismiss the plaintiff's cross-appeal and restore the verdict of the jury.

The respondent (plaintiff) sued the appellant (defendant) for damages for defamation arising out of the publication by the appellant in its magazine Woman's Day of a story called "Dateline Masada", a work of fiction written by K. T. Moncur. The story is an account of the adventures of the crew and passengers of an aircraft, said to be one of the appellant's aircraft, which, together with the other thirteen aircraft comprising the appellant's fleet, is the subject of a simultaneous hijacking by the members of The Popular Front for the Liberation of Palestine which surprisingly in view of its name, is cast in the role of a pro-Israeli organization. The aircraft, as well as the other aircraft involved, is flown on the instructions of the hijackers to an airstrip at Masada which the organization has constructed, from which the surviving members of the crew and passengers ultimately escape.

The respondent's case at the trial was that the story contained a number of innuendoes defamatory of it. Of the seven innuendoes pleaded, the trial judge allowed only three to go to the jury. They were the second, third and fourth pleaded, namely,

that Middle East Airlines aircraft lacked adequate security checks and precautions against hijacking;

that Middle East Airlines gave insufficient attention to the servicing of their aircraft, mechanical condition and airworthiness; and

that air travel by other than Middle East Airlines was to be preferred.

The jury returned a verdict for the appellant and the respondent then sought a new trial on the grounds, inter alia, that his Honour was in error in not putting to the jury the remaining innuendoes which were pleaded. The New South Wales Court of Appeal (Hardie and Glass JJ.A., Hutley J.A. dissenting) set aside the verdict and ordered a new trial on the ground that the first innuendo pleaded should have been allowed to go to the jury [34] . It was expressed in these terms: that potential air travellers by Arab aircraft to wit by plaintiff's [respondent's] Middle East Airlines faced a serious risk of hijacking by Israelis with attendant dangers of death, grievous injury, suffering, inconvenience and loss. The appellant now appeals from the order for a new trial. The respondent has cross-appealed but this cross-appeal was not argued.

The question which arises falls to be determined by reference to the definition of defamatory matter which is contained in s. 5 of the Defamation Act, 1958 N.S.W.. By the Defamation Act, 1974 the 1958 Act was repealed with effect from 1st July; however, by s. 4(2) of the new Act the operation of the old Act is preserved in relation to matter published before 1st July 1974.

Section 5 of the old Act, so far as material, provides that:

Any imputation concerning any person by which the reputation of that person is likely to be injured, or by which he is likely to be injured in his profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise him is called defamatory, and the matter of the imputation is called defamatory matter. The precise question for consideration is whether the Court of Appeal was right in holding that the article complained of was capable of being understood by a reasonable jury as an imputation (in the sense referred to in the first innuendo) concerning the respondent which was likely to injure it in its business within the meaning of the section.

Except perhaps for its use of the word "imputation" the language of s. 5 would seem reasonably clear in its expression to a mind uninhibited by a familiarity with the complexities of the common law of defamation, slander of title and injurious falsehood and to provide that any statement about a person by which he is likely to be injured in his profession or trade is defamatory. Any doubt that this is the correct conclusion to be drawn from the language of the section, viewed in isolation, would be dispelled once it emerged that "imputation" is to be understood not as "disparaging imputation", but as any statement about a man, or the attribution to him of an act or condition, whether disparaging or not, having any of the characteristics mentioned in the section (Hall-Gibbs Mercantile Agency Ltd. v. Dun [35] ).

It may be, as Professor W. L. Morison suggested in his article "The New Law of Verbal Injury", Sydney Law Review, vol. 3 (1959), pp. 4-11, that s. 4 of the Defamation Law Q., 1889 (on which s. 5 of the Defamation Act, 1958 was based), was introduced and enacted in the belief, now shown to be mistaken, that, except in so far as it enabled action to be brought for an imputation concerning a relative which reflected on the plaintiff's reputation, it did not extend the common law concept of defamation. But this circumstance does not affect the interpretation of the statutory definition. Indeed, it was acknowledged in the Hall-Gibbs Case that the inclusion in s. 4 of an imputation by which the plaintiff is likely to be injured in his profession or trade expanded the common law concept of defamatory matter.

Apart from s. 42, to which I shall refer shortly, it has not been suggested that the meaning of s. 5 requires qualification by reference to any other provision of the Act. The provision in s. 42(1) that, subject to s. 42(2), nothing in the Act applies to the actionable wrong called "slander of title" in my view applies only to the action for slander of title of property stricto sensu and not to the action for "injurious falsehood" in respect of goods, as Sir John Salmond called it, which, though analogous to slander of title, is not correctly so described. In this respect I prefer the opinion expressed by Barton J. to that stated by O'Connor J. in the Hall-Gibbs Case [36] .

It would follow that there is no reason why as a matter of statutory interpretation a statement about a man's goods, provided that it is a statement about him and is likely to injure him in his profession or trade, should not be actionable in defamation, notwithstanding that it was formerly actionable on proof of special damage only in the action on the case (see Ratcliffe v. Evans [37] ). The Defamation Act is not a comprehensive and exclusive code governing the law of defamation. By s. 3(2) it preserves common law protection and privilege for which express provision is not otherwise made and at least as to damages it must be supplemented by the common law. Yet within the ambit which it seeks to cover the Act is a code which is expressed by its long title "to state and amend the law relating to defamation". Its meaning therefore is to be ascertained in the first instance from its language and the natural meaning of that language is not to be qualified by considerations deriving from the antecedent law (Bank of England v. Vagliano Brothers [38] ). An appeal to earlier decisions can only be justified if the language of the statute is itself doubtful or if some other special ground is made out, e.g. if words used have previously acquired a technical meaning.

[1892] 2 Q.B. 524. 2. [1891] A.C. 107, at pp. 144-145.

Here the ordinary meaning of the words is clear and it is not suggested that they previously acquired a technical meaning. Accordingly, it is not to be presumed that the section was intended to reiterate the antecedent law or to conform as closely as possible to that law. Here there is even less reason for making such a presumption because it is accepted that the part of s. 5 which has relevance for present purposes represents an advance upon the common law.

Yet the appellant submits that the relevant part of the section should be confined to a statement which attributes to the plaintiff either conduct on his part or a condition for which he is responsible, i.e. a condition which is not the product of the conduct or attitude of others, and the appellant's principal ground for so qualifying the generality of the words "Any imputation concerning any person by which he is likely to be injured in his profession or trade" is to say that, without some qualification, a radical departure from the common law is brought about and that in some instances at least, statements about a man's goods, profession or trade will become actionable in defamation and subject to prosecution for criminal libel, whereas formerly they were actionable only on proof of special damage in the action on the case. Accepting that there are differences in the issues, the defences and the damages in the two causes of action and that there is the new additional element of liability for prosecution for criminal libel, I am unable to perceive that these considerations are sufficient in themselves to justify a departure from the conclusion to which the language of the statute itself points.

Once it is accepted, as it must be, that to fall within s. 5 the statement should be a statement about the plaintiff, though it may also be a statement about his goods, profession or trade, there is no a priori reason why it should not be actionable as defamation rather than as an injurious falsehood. Whether statements of this kind should be actionable in defamation rather than as injurious falsehoods is a matter on which there may be differences of opinion, but this consideration cannot influence the construction of the section.

Not every statement likely to injure a person in his profession or trade is a statement about him. That the statement must be a statement about him to qualify as defamatory matter is in itself a limitation on the category of imputations made actionable by the statute. Thus, for a newspaper to observe in the course of a published report on the performance of a particular model of a car that it was unsafe would be to make a statement likely to injure the distributors of that car in their business; yet it would not be a statement about the distributors and would therefore not defame them. Conversely, it could well be regarded as a statement about the manufacturer of the car, viz. that it produced an unsafe product, likely to injure it in its business and therefore actionable by it.

In the instance given the statement about the manufacturer is one which attributes to him an unfavourable character as a manufacturer, a character which is the consequence of his own conduct and activities, and is therefore damaging to his reputation. As Walsh J.A. pointed out in Murphy v. Australian Consolidated Press Ltd. [39] , frequently, but not universally, the imputation complained of will, if it is one by which the plaintiff is likely to be injured in his profession or trade, be disparaging and damaging to his personal reputation. But far from supplying a reason for confining imputations injurious to the plaintiff's profession or trade to those which are disparaging or damaging to reputation, this circumstance demonstrates that the category is more extensive.

No matter how pervasive it may have been at common law, the element of damage to the plaintiff's reputation is not essential to the statutory concept of defamatory matter. The class of imputations damaging to the plaintiff's reputation is but one of the various categories of defamatory matter listed by the section. Imputations by which others are likely to be caused to shun or avoid the plaintiff depend not on damage to the plaintiff's reputation, but on the tendency of the imputation to exclude the plaintiff from society (see Gatley on Libel and Slander, 7th ed. (1974), par. 167; Carslake v. Mapledoram [40] ; Youssoupoff v. Metro-Goldwyn-Mayer Pictures Ltd. [41] ). These references may serve to indicate that even at common law the defamatory character of some imputations rested on their tendency to exclude the plaintiff from society rather than on their capacity to work an injury to reputation, but this is a point which need not be pursued. What is important is that the statute has selected the tendency of the matter complained of to exclude a person from society as a separate and sufficient head of defamatory matter, whether injurious to reputation or not. The same comment applies in relation to imputations of the class under consideration in this case.

(1788) 2 T.R. 473 [100 E.R. 255]. 2. (1934) 50 T.L.R. 581.

The qualification which the appellant seeks to engraft on the relevant words of s. 5, namely, that the statement concerning the plaintiff must attribute to him either conduct on his part or a condition for which he is responsible, that is, a condition which is not the consequence of the attitude or conduct of others, bears a haunting resemblance to the old notion of "disparaging imputation" which was rejected as heresy in the Hall-Gibbs Case [42] . In view of what has already been said it cannot be supported by reference to notions of disparagement or damage to reputation derived from the antecedent common law. And once that is established there is nothing in the section or the statute by reference to which the appellant's argument can be supported.

If it be defamatory to say of X, a trader, that he has ceased to carry on business, it is not easy to perceive why it is not defamatory to say of him that, for no fault on his part, he will be unable to do business with members of the public henceforth because the Y trade union is picketing his premises so as to put him out of business. In each case there is an imputation concerning X and the attribution of a condition which tends to injure him in his business. Why the statute strikes at the first case but not at the second is not evident from its language. Once the sources of possible limitation deriving from disparagement and injury to reputation are dismissed for the reasons already given, it is difficult to perceive why a distinction of the kind now sought to be made should be insisted upon.

The remarks of Griffith C.J. and O'Connor J. in the Hall-Gibbs Case do not, when read in context, support the appellant. The Chief Justice was concerned to give instances of disparaging and non-disparaging statements injurious to a man's business [43] . Not unnaturally he gave examples involving a man's conduct, but they are scarcely a sufficient basis for concluding that his Honour was asserting that only statements about a man's conduct are actionable in defamation.

O'Connor J. observed correctly that the statement must be "of the man". But from this and the remainder of his judgment no relevant qualification can be drawn. Indeed, his Honour expressed his view in positive and broad terms [44] :

In other words, it is only on the assumption that the legislature intended to include within the scope of the Act all statements about persons likely to cause them injury in their business that the presence of s. 46 is at all explainable. (The italics are mine.) 1. (1910) 12 C.L.R., at p. 104.

To constitute a statement "concerning" a person it is not necessary that the statement should relate to the man's conduct or to a condition or quality that is the product of his conduct. To say of a person that he is the target of a group of terrorists is to make a statement about him. Even if the statement does not reflect on his reputation, it is a statement the tendency of which may be to exclude him from society or to injure him in his business (because it may induce others, including potential customers, to keep away).

Here the innuendo pleaded goes further than the illustration because it ascribes an inherent characteristic to the respondent, that it is an Arab airline, this being the characteristic which has attracted the hostility of the terrorists. Thus the imputation alleged, which must be regarded in its entirety, does not merely attribute to the respondent that it is the object of the unwelcome attentions of the pro-Israeli hijackers, but it associates their hostility with a characteristic inherent in the respondent which is in no sense the product of the conduct of others.

In form the innuendo pleaded is a statement about potential air travellers by the respondent's airline. It is none the less a statement about the respondent in the context of the airline operation which it carries on. To say that air travellers by the respondent's airline face a serious risk of hijacking is in my view as much to make a statement about the respondent as it is to make a statement about its passengers.

I do not agree with the appellant's submission that a reasonable jury would necessarily regard the short story as a work of fiction involving no imputation concerning the respondent by which it is likely to be injured in its business. In my opinion, despite its character as a work of fiction, a reasonable jury might regard it as containing a statement concerning the respondent in the form of the first innuendo pleaded by which the respondent is likely to be injured in its business.

I would reject the respondent's submission that the verdict in its favour on the innuendoes left to the jury at the trial negates the first innuendo. There is an obvious difference between the first innuendo and those which were left to the jury.

As the cross-appeal was not pressed it should also be dismissed.

[The Right Honourable Mr. Justice Menzies died before judgment was delivered in this case.]

At a glance

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Judgment (99 paragraphs)

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