Sutherland v ACP Publishing Pty Limited

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No.20543/99

JUDGMENT: (strike out application - defences of comment, contextual truth and unlikelihood of harm - post s 7A trial) 1 In the September 1999 edition of "Ralph" magazine the defendant published of and concerning the plaintiff the following words (accompanied by a headshot): "ROCK AROUND THE BOX MUSIC AND TELEVISION HAVE CREATED SOME BASTARD OFFSPRING Sounds Host Donnie Sutherland Time Saturday morning Channel 7 Launched 1973 Axed 1987 No man in the history of Australian TV has appeared hungover - or still pissed - as much as Donnie Sutherland. Sounds (called Sounds Unlimited, until it was presumably privatised) offered all the top-40 hits and countless interviews delivered with an insight and intellect only a smashed Sutherland could muster." 2 On 15 May 2000, pursuant to s 7A of the Defamation Act 1974, a jury found that the matter complained of carried the following imputation defamatory of the plaintiff: "(a) that no person in Australian television history has appeared on television as grossly affected by alcohol as often as the plaintiff." 3 On or about 24 November a Notice of Motion was filed for the plaintiff seeking relief in relation to various aspects of an amended defence filed on 15 November 2000. 4 The relief now sought is that the defences of comment, contextual truth and unlikelihood of harm under s 13 be struck out. 5 The amended defence filed on 15 November 2000 purports in some way to acknowledge the findings of the jury. There is no requirement for a defendant to amend its defence to this effect. Indeed, the pleadings on the issues tried by the jury should remain in place. The jury determined the issues reserved to it under s 7A of the Defamation Act as joined by the pleadings at the time of the s 7A trial. Accordingly, the defence should be amended to reinstate the pleading of issues as originally joined. 6 Further, by consent, particular (ii) of the particulars of Mitigation of Damages is struck out. The truth of a contextual imputation is not available for that purpose. 7 The plaintiff seeks to have struck out the defence of comment. It is submitted that the defence is "demurrable" as the imputation (and the matter from which it arises) is a bare statement of fact which could not be understood as an expression of an opinion. 8 This proposition rests in lines of cases dealing with the comment defences provided for by the Defamation Act 1974: David Syme & Co Limited v Lloyd (1984) 3 NSWLR 346 and (Privy Council) 1985 3 NSWLR 725; Bob Kay Real Estate Pty Limited v Amalgamated Television Services Pty Limited (1985) 1 NSWLR 505 and particularly Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448. 9 In the last mentioned judgment Clarke JA said at 467A: "It will be seen that the test directs attention to the matter which was published by the defendant and requires the jury to determine whether, in the context of the whole of that published matter, the relevant statements made or published by the defendant were statements of fact or were comment, that is, expressions of opinion or conclusions on facts stated in the material or known to the recipients of the published matter. In these circumstances the resolution of the question whether the relevant statements were made as comments or statements of fact could not depend upon the form of the imputation which, obviously enough, would not be seen by the recipients of the published matter." 10 His Honour later said (467G): "In my opinion a defendant who raises a defence of comment is obliged to establish that the imputation which the jury has found that the published matter conveyed was conveyed by the writer or speaker as a comment. In this respect, as I have sought to point out, the actual form of the pleaded imputation is not a relevant consideration. What the jury is required to consider is the published material in order to determine whether the writer or speaker conveyed the defamatory statement which, according to its finding, the published matter conveyed as an expression of opinion or conclusion on the one hand or a statement of fact on the other. I regard this conclusion as consistent with principle and it is, in any event, supported by the decisions in David Syme & Co Pty Ltd v Lloyd both in this Court and in the Privy Council: Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728." (emphasis added) 11 These passages from the judgment of Clarke JA were considered by Priestley JA (with whom Sheppard AJA agreed) in New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340 where at 348, his Honour having substituted the phrase "imputation pleaded" for the phrase "defamatory statement" in the second passage cited from Clarke JA went on to say as to the observations of Clarke JA (at 345C): "(a) whether or not an imputation pleaded by a plaintiff as a cause of action is an expression of opinion, or conclusion or a statement of fact or some mixture of any two or all three of these will sometimes be impossible to decide simply from the terms of the imputation itself; (b) in the kind of case referred to in (a), where the jury finds the alleged imputation was made by the published matter complained of and was defamatory of the plaintiff and the defendant is relying on the defence of comment, then it will be for the defendant to show, amongst the other requirements of that defence, that the defamatory imputation was a comment and not a statement of fact; (c) to do that the defendant is entitled to require the tribunal of fact to consider the published matter which made the defamatory imputation. In order to determine whether that matter made an imputation which was comment (in which case the defendant will have succeeded in establishing one of the matters necessary to the defence) or was not (in which case the defence will have failed)." (emphasis added) 12 His Honour concluded at 346C: "Radio 2UE was decided on the basis that the defence of comment must be pleaded as an answer to the cause of action consisting of the imputation the plaintiff relies on and that in considering whether the imputation made by the matter was made as a comment or a statement of fact, the matter from which the imputation is derived may be taken into account ."(emphasis added) 13 Therefore, as I understand the law as presently pronounced upon by the Court of Appeal the defence of comment is a defence to the cause of action namely the imputation; nothing however in Parker or Perkins precludes the consideration of whether or not the imputation constitutes an expression of opinion without reference to the matter complained of said to carry it. 14 In the instant case the defamatory imputation found by the jury (the plaintiff's cause of action), standing alone, could in my view be understood, by reference to the extreme language - hyperbole even - employed in it, as an expression of an opinion. However, the more so is that view available when that imputation is (as it may be) considered in the light of the material published which the jury said carried that meaning. 15 The material published contains such expressions as "some bastard offspring" …, "appeared hungover - or still pissed as much as…", "delivered with an insight and intellect only a smashed Sutherland could muster". This is extreme language, as I have said hyperbole even, could lead to the determination that the matter published carried an imputation which could be understood as comment. 16 The more recent judgment of the Court of Appeal (refusing special leave) in Radio 2UE Sydney Pty Ltd & Anor v Goldsworthy [2000] NSWCA 130 (23 May 2000) does not, with respect, usefully elucidate the difficulty (if there be a difficulty) in respect of the relationship the published matter complained of has to the determination of the question of whether the cause of action (the imputation) could be understood as an expression of an opinion as opposed to a statement of fact. (I understand that Goldsworthy is the subject of an application for special leave to the High Court). 17 I am of the view that the defence afforded by Division 7 of the Defamation Act 1974 - (Comment), can have no useful operation without there being available some regard to the published matter complained of said to carry the cause of action namely the imputation, in determining whether or not that imputation is a statement of fact or an expression of an opinion. There is no reference in Division 7 to the defence, or exclusion of liability on the basis of comment, being required to be considered in respect of the cause of action provided by s 9, the imputation. 18 The "imputation", of course, over the last twenty-five years has evolved into a highly technical lawyer's construct. There are many reasons for this. The first of course is that authority has founded the technical approach to the wording and form of an imputation: the authorities are collected by Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 162C - F. Plaintiffs also are at pains to have framed imputations that can circumscribe if not preclude a defendant from pleading a defence under s 15 of the Act (justification) - a defence, in terms, directed to the cause of action that is the imputation. 19 The proposition however, that the defence of comment can only relate to the imputation and nothing else not only would render Division 7 of the Act of no utility at all but reflect at the highest level the evolution of the technical status of the imputation to the point where it is completely "detached from" the published material found to have carried it. 20 In the "real world" freedom of speech is exercised by the publication of newspaper articles, reports, television programs, radio broadcasts, books, letters and so on. It is in the same world that the fact that someone has published such material which usually aggrieves the plaintiff. The law intervenes to require the aggrieved plaintiff to plead a cause of action in the form of an imputation drafted by lawyers to get that grievance "off the ground" in court. There is a risk that that "real world" will be forgotten when in pursuit of a remedy for the grievance all attention is focused on the artificial construct of the imputation to the exclusion of the published material which conveyed it. 21 Whilst it is clear that the law of justification under the 1974 Act requires this, I am not persuaded as a matter of construction let alone as a matter of common sense and reality that the legislation in relation to the defence of comment has the same requirement. 22 I am not prepared to strike out the defence of comment on the first basis asserted. 23 The second basis asserted is that the material which the defendant asserts to be proper material for comment is "incapable" of being proper material for comment "in relation to" the imputation conveyed. 24 The introduction of the notion of a " relationship" between material for comment and the expression of the opinion is a troublesome one. Certainly some observations of the learned President in Goldsworthy (supra) might lend support to the view that there must be such a relationship. The essence of the defence is that the imputation be found to be an expression of an opinion, honestly held by the requisite person, based on proper material for comment. The introduction of the notion of a relationship between that material and the comment can be seen as undermining the concept which provides that the opinion be honestly held and be based on proper material for comment. The opinion does not have to be "right or wrong" sound or unsound, or even rational. It may be extreme, stupid, biased or prejudiced. It is because expressions of opinion may reflect such attitudes that there is a requirement that the opinion be honestly held based on proper material. Again, if such concept of "relationship" between that material in terms of "reasonableness" for example was introduced, the defence would be eliminated from the law. 25 A starting point for the defendant as material for comment is the status of the plaintiff as a person who appeared on television - a classic foundation, namely the "public performer", for the defence of comment. (see Gatley: Libel and Slander, 8th ed, par 745, page 322). 26 The matters particularised by the defendant in the amended defence as constituting proper material for comment and the basis for that material being "proper" are not such as to warrant the defence being struck out. They point to matters to be proved and argued at trial. In so far as the plaintiff contends that such matters upon which the defendant relies do not bear some proper "relationship" to the opinion expressed in terms of being material for comment, I reject that submission. The opinion was genuinely held or it was not; the material was proper or it was not. These are the trial points. 27 I decline to strike out para 5 of the amended defence. 28 The plaintiff seeks to have struck out para 6 of the amended defence. This is a defence pursuant to s 16 of the Defamation Act and the contextual imputation pleaded is: "(i) the plaintiff regularly consumed excessive quantities of alcohol during the years when he was host of a television program". 29 The first submission made for the plaintiff is that the contextual imputation was bad in form. I reject the submission. It is perfectly clear what it means and admits of no ambiguity at all. 30 The second submission is that it cannot be said to arise at the same time and in addition to the defamatory imputation found by the jury. On a strike out basis I am prepared to find, although not without some reservation, that the contextual imputation does have this quality. 31 The third basis and the one the subject of submission particularly, is that if proved to be true, the imputation is not of a kind that would bring it about that no further injury would be done to the plaintiff's reputation by reason of the plaintiff's imputation not being proved to be true. In other words, to use the argot of the Defamation List, the contextual imputation is incapable of "swamping" the plaintiff's imputation. 32 The sting of the plaintiff's imputation is the plaintiff appearing on television grossly affected by alcohol. There is no such sting in the contextual imputation which relates to consumption only and allocates a time period by reference to the plaintiff hosting a television program and not his behaviour on it. 33 In McBride v ABC [2000] NSWSC 747 (4 August 2000) I review the authorities in relation to s 16 and in that case struck out the pleaded contextual imputations, (see para 88 and following). 34 The question is concerned with the operation of s 16(2)c) of the Defamation Act 1974 as considered by Hunt J in Jackson v John Fairfax & Sons Ltd (1981) 1 NSWLR 36 and Priestley JA in Waterhouse & Anor v Hickie (1995) Aust Tort Reports 81-347. 35 I have little difficulty in coming to the view that there will be no rational basis for the tribunal (the judge) considering the defendant's contextual imputation in the manner of the section and the authorities provide. 36 To put it another way, the "sting" of the plaintiff's imputation relating to his public performance on television while drunk is such that it not being proved to be true could injure him in reputation notwithstanding any truth in the suggestion that he, the plaintiff, excessively consumed alcohol in a context otherwise that in his public appearance on television. 37 I strike out para 6 of the amended defence. 38 The plaintiff next seeks to have struck out para 7 of the amended defence which pleads that the matter complained of was published in such circumstances that the plaintiff was not likely to suffer harm (s 13). 39 No additional particulars are provided. 40 The plaintiff simply argues that a defence based on s 13 is not available in relation to a defamatory imputation published to a wide audience in the form of hard copy in a magazine. Reference is made to the decision of the Court of Appeal in Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 and particularly the following passage from the judgment of the court at 800: "Section 13 seems to be intended to provide a defence to trivial actions for defamation. It would be particularly applicable to publications of limited extent, as, for example, where a slightly defamatory statement is made in jocular circumstances to a few people in a private home It may be that the knowledge of the plaintiff's reputation by the persons to whom the publication is made in such a case, and their acceptance of that reputation as truly reflecting the plaintiff's character, can be taken into account in deciding whether the plaintiff is likely to suffer harm: … but it is difficult to apply these considerations to a case where the publication is to a vast number of unknown people whose knowledge of the plaintiff's reputation, and their acceptance of that reputation as justified, is equally unknown. Even where defamatory matter which is published to the world at large concerns a person with a generally bad reputation, it is difficult to understand how it could be found that his feelings (as opposed to his reputation) were not likely to be hurt when he found his bad reputation spread across a newspaper. The expression 'circumstances of the publication' seems more apt to describe matters such as the nature of the defamatory matter, the manner in which it is published, the persons to whom it is published and the place where it is published." 41 In Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80-691 at 68,947 Moffitt P said: "The apparent purpose of sec 13 and its predecessors, despite some difference in their terms and application, was to give a defence to and hence discourage actions for trivial defamation. This will arise in particular where there is a limited publication. This will more often be the case where the defamation is oral but will sometimes extend to a written defamation. Examples of written defamatory imputations of trivial impact published by letter or circular to a limited or particular class of persons can be readily thought of." 42 Section 13 received further consideration in the Court of Appeal in King and Mergen Holdings Pty Ltd v McKenzie (1991) 24 NSWLR 305 - a non "media" publication case. 43 Inter alia, the Court of Appeal (per Mahoney JA at 309-310) did not reconsider the correctness of the decision in Chappell and was concerned with the distinction between a quality of the person to whom the defamatory matter was published and a quality concerning the plaintiff of whom it was published in the context of the defence and in the context of prior knowledge in the recipients of the publication of the information published. 44 Badgery-Parker J had occasion to consider the ambit of the defence in Perkins v New South Wales Aboriginal Land Council (unreported, 15 August 1997) at pages 23-28. Again, his Honour was not concerned with a "media" publication. What his Honour did say (and with which I respectfully agree) having considered the statements in Morosi was: "The reference to the section as intended to apply to 'trivial' defamations is not, I think, intended to express a concluded view that the section may never apply where the imputation conveyed by the defamatory material is of a serious kind, which was the way in which counsel for the plaintiff sought to make use of that expression. The question to which s 13 directs attention is whether the circumstances of the publication were such that the plaintiff was unlikely to suffer harm. It appears to me, with respect, that the characterisation of the defamation as trivial involves circularity of reasoning: a defamation, no matter what the substance of the imputation, will be trivial only if the circumstances of its publication were such that the plaintiff was unlikely to suffer harm. Obviously, since the circumstances include, as the court said in Morosi, the nature of what was published, the defence is less likely to be made out where the content of the imputation is serious than when the content of the imputation is trivial, but is it misleading, in my view, to embark upon a consideration of s 13 from the stand point that its application is only in respect of trivial defamations. The question whether a defamation is trivial can only be answered after, not before, the circumstances of the publication have been evaluated in terms of s 13. The major circumstances of a publication (apart from its content) which are likely to be such as to render it unlikely that the plaintiff would suffer harm are the extent of the publication of the defamatory material, the nature of the recipients, and the relationship, if any, between the recipients and the plaintiff. It would be relatively easy to make out the defence in circumstances where the publication was to a small number of persons well acquainted with the plaintiff and able themselves to make a judgment of their own knowledge as to the likelihood that there was any substance in the imputation conveyed." 45 It is here argued for the plaintiff that the matter is simply resolved by reference to the "circumstances" of publication being publication in a magazine of unknown circulation and the identity of the recipients be unascertainable: that is, in the context of some quality in the persons to whom the matter was published as opposed to some quality in the plaintiff. 46 For the defendant it is argued that none of the authorities state a proposition that absolutely forecloses a "media" publication from reliance upon the circumstances of the publication in any given case merely by reason of the fact that it is a "media" publication. The defendant seeks to point to, by way of example, the location in the magazine, the context ie the whole column of material in respect of other persons in addition to the plaintiff, the language used and the like as amounting to circumstances of publication. 47 What the defendant does not, and indeed cannot argue, is that the circumstances of the publication were such that no reasonable person would have taken it otherwise than as a joke. The jury has found to the contrary. 48 For the plaintiff however it is argued that the notion of "harm" referred to in the section must include that component of "relevant harm" namely hurt to feelings. Thus, in effect there could hardly be any circumstances of publication by reference to knowledge in the recipients of the matters the subject of the publication, or any matters as to the form of the publication, which did not, or more pertinently, was unlikely to cause harm to a plaintiff in this respect. Arguably if that proposition is correct then s 13 will never operate to the benefit of the defendant irrespective of the circumstances of the publication or the triviality of it. However, it is to be kept in mind that the claim for injury to feelings is founded in the assertion that such injury was sustained by reason of the publication (the imputation) having damaged the plaintiff in his reputation. (Uren v John Fairfax & Sons Ltd [1965-1966] 117 CLR 118 at 150 per Windeyer J). 49 The matters of submission raised by both the plaintiff and for the defendant are such as to preclude in my view the pleading of the s 13 defence being struck out. I decline to do so. 50 It is neither relevant nor determinative of the resolution of such issues as have been raised in the present application that the jury role is now limited. A strike out application will succeed or fail. A new reality is the operation of Practice Note 114, the new rules under SCR Pt 67, and of course s 7A of the Defamation Act itself all of which point to the elimination of areas of potential confusion for a jury, trial disruption or attenuation and to a desirability that issues of the kind here unsuccessfully/successfully argued on a "strike out" application will be the more amenable to appellate consideration after a disciplined managed and organised trial before a single judge. 51 Accordingly, the formal orders are, the defendant enjoying predominant success:

(a) Order 3 in plaintiff's Notice of Motion is made striking out paragraph 6 of the Amended Defence (contextual truth).

(c) Defendant has leave to file a further amended defence within seven days to reinstate issues joined as at 15 May 2000.

(d) Particular (ii) of Particulars of Aggravated Damages, by consent, struck out.

(e) Plaintiff to pay defendant's costs. (f) Matter listed for directions on 30 March 2001.

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