The Age Corporation Limited v. Beran [2005] NSWCA 289

The Age Corporation Limited v. Beran [2005] NSWCA 289 - NSWCA 2005 case summary — Zoe

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CIRCUMSTANCES 6 On 13 February 2001, material concerning the Plaintiff was published in The Sydney Morning Herald, and similar material was also published in The Age. In both cases, the material was in two sections, with the author of each section being identified as Gerard Ryle. 7 On 2 March 2001, the Plaintiff commenced proceedings in the Supreme Court of New South Wales against John Fairfax Publications Pty. Limited (John Fairfax) in respect of the material published in The Sydney Morning Herald. In the Statement of Claim, the Plaintiff pleaded separately imputations said to arise from one section of the material, imputations said to arise from the other section of the material, and imputations said to arise from the material as a whole. On 4 May 2001, Adams J struck out those parts of the Statement of Claim that alleged imputations said to arise from the two sections of the material considered separately, so that thereafter the claim proceeded solely on the basis of imputations alleged to arise from the whole of the material. 8 On 5 September 2002, a jury in a trial pursuant to s.7A of the Defamation Act found that seven of the eight imputations alleged by the Plaintiff were not conveyed, and that the other one was conveyed but was not defamatory of the Plaintiff. A verdict was then entered for John Fairfax with costs. 9 On 30 September 2002, the Plaintiff appealed against that decision, on the ground that the jury's decisions were perverse, and also on the ground that Adams J had erred in his interlocutory decision. 10 On 4 December 2002, the Plaintiff commenced the subject proceedings against the Defendant in the District Court of New South Wales. In the Statement of Claim in these proceedings, the Plaintiff pleaded separately imputations said to arise from each section of the material in The Age, but did not plead imputations said to arise from the material as a whole. 11 The appeal in the Plaintiff's proceedings against John Fairfax was heard on 6 May 2003; and judgment dismissing his appeal was given on 5 April 2004. 12 On 12 May 2004, the Defendant filed a Notice of Motion in these proceedings seeking orders that certain imputations in the Plaintiff's Statement of Claim be struck out, or that the proceedings be dismissed or permanently stayed. In the course of the hearing of that Notice of Motion, the Defendant with leave amended it to seek an order to the effect that the Plaintiff be directed to plead as one matter all of the matters contained in two paragraphs of the Statement of Claim, that is the two paragraphs alleging imputations as arising from each of the two sections of the material published. 13 That Notice of Motion was disposed of by the orders referred to at the commencement of the judgment.

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THE ARTICLES 14 The material published in The Sydney Morning Herald appeared on page 1 and page 4 of that paper. 15 Page 1 contained one section of the material, and part of the other section, which was completed on page 4. The two elements on page 1 took up a large part of the front page of the paper, both appearing under a red banner with the words "A Herald Investigation" printed within it, a headline "The Drug Body-Snatchers" and a subsidiary headline "Australians used as guinea pigs for the global pharmaceutical market"; and a photograph of one Mrs. James was placed extending into the text of the first section and above that part of the second section that appeared on the page. That part had a further headline "No cure, Mrs. James, but thanks for all the money", and a subsidiary headline "Helen James agreed to test a new epilepsy drug, at her cost. Gerard Ryle writes." The Plaintiff was not named in the first section, but was named in the part of the second section appearing on page 1. 16 The first section on page 1 also contained an insert with the words "Take This Body" and "More Reports Page 4"; and a table entitled "The Rise of Clinical Trials in Australia" showing numbers of trials over the ten years from 1990 to 2000, and showing as its source "Therapeutic Goods Administration". 17 The continuation of the second section on page 4 had a headline "No Cure, But Lots of Money", a photograph of the Plaintiff, and a space with large font words "What happens in Australia is that we are often the last port of call. When people cannot recruit patients overseas they say, 'Well let's include Australia'". 18 The material published in The Age appeared on page 1 and page 13 of that paper. 19 On page 1 there was material the text of which was similar to but not identical with the first section of The Sydney Morning Herald material, but there was no material similar to any part of the second section of The Sydney Morning Herald material. The material on page 1 appeared towards the bottom of that page, under the headline "Patients in Soaring Drug Tests"; and at the end of the section there were the words "Features 13: Testing Treatments". Inside the material there was a box with a photograph, a heading "Human Factor", some material unrelated to the material complained of, and concluding "News 6: Genome Project". 20 On page 13, material appeared the text of which was similar to but not identical with the second section of The Sydney Morning Herald material (which in that paper was spread over pages 1 and 4), under the heading "Testing Treatments" and a subsidiary headline "Some patients weren't told the full story when they volunteered to take part in drug tests, writes Gerald Ryle", and with a photograph of Mrs. James accompanied by the words "Guinea pig: Epilepsy sufferer Helen James took part in a drug trial". The Plaintiff was named in this section, but not in the material appearing on page 1. No table similar to that on page 1 of The Sydney Morning Herald appeared on either page 1 or page 13 of The Age.

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DECISIONS OF THE PRIMARY JUDGE 24 In the first judgment, on the question of whether the Plaintiff should be directed to plead all the material in The Age as one matter, the primary judge noted the Defendant's submission that the material was so connected that the ordinary reader would read it as one publication, and that the two sections were inseparably linked so that they qualified each other. The primary judge referred to the decision of Adams J in the John Fairfax proceedings, to the Court of Appeal's decision (Beran v. John Fairfax Publications Pty. Limited [2004] NSWCA 107), to the decision of Simpson J in Phelps v. Nationwide News Pty. Limited [2001] NSWSC 130, and to the decisions of Hunt J in Burrows v. Knightly (1987) 10 NSWLR 651 and Gordon v. Amalgamated Television Services Pty. Limited [1980] 2 NSWLR 410. The primary judge said the present case was distinguishable from the Plaintiff's case against John Fairfax, and continued: 19. It seems to me on the facts of the present case, the two articles are not so interlinked that permitting them to be pleaded separately is embarrassing. In my view the ordinary reader may well have read them as two separate publications. Their situation in the paper, i.e. on pages 1 and 13, is such that the 'pointer' or 'teaser' at the bottom of the page 1 article may have directed the reader to the next article, but equally, the article may have directed the reasonable reader to the article about the child with leukaemia. I do not believe them to be so inextricably intertwined that they should be classed as one publication and are not sufficiently connected and identified with each other. The plaintiff has the option of pleading in such a situation and has chosen separate publication. I am not satisfied I should allow the defendant the orders sought in respect of the 'strike in' application, and I decline the orders sought. 25 In her second judgment, on the remaining questions in the Notice of Motion, the primary judge noted the Defendant's submissions that the Plaintiff was seeking to agitate again the same questions as had been determined against him in the John Fairfax proceedings, and that Anshun estoppel could apply even when the parties are different. She referred to Haines v. Australian Broadcasting Corporation (1995) 43 NSWLR 404, Morris v. Wentworth-Stanley [1999] QB 1004, Rippon v. Chilcotin Pty. Limited (2001) 53 NSWLR 198, and Harris v. 718932 Pty. Limited (2003) 56 NSWLR 276. The primary judge concluded: It seems to me the articles in each newspaper have substantial differences and whilst a few of the imputations pleaded are substantially the same, in essence I believe the issues are not relevantly the same in the different publications. There is no identity of parties and I do not believe an Anshun estoppel applies to prevent the plaintiff from bringing this action.

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FIRST JUDGMENT 29 Mr. Gray SC for the Defendant submitted that it was reasonably to be expected that a reader would read both sections of the material in The Age, and each was capable of affecting the sense of the other; and that in those circumstances, the Plaintiff should be required to plead the two sections as one publication, in accordance with long-established principle: see Gordon, Burrows, Beran v. John Fairfax. He submitted it was not necessary for the Defendant to establish that material in one section must have been understood as materially altering or qualifying the complexion of the other, it being sufficient that it may have been so understood: Gordon at 414-5, Tsvangarai v. Special Broadcasting Service [2002] NSWSC 532 at [12]. To the extent that Phelps was inconsistent with these principles, it was wrong. 30 On this question, it is appropriate to review some of the authorities. 31 Prior to the Defamation Act 1974, it was necessary for a plaintiff to plead the very words of an alleged libel; and if the alleged defamatory matter was part of more extensive written material, and if the meaning of this matter alone was not clear or if its complexion was materially altered or qualified by other passages in the more extensive material, it was necessary for the plaintiff to set out all of the passages that affected the sense of the alleged defamatory matter: Ron Hodgson (Trading) Pty. Limited v. Belvedere Motors (Hurstville) Pty. Limited [1971] 1 NSWLR 472 at 476-7. 32 Under the Defamation Act, it is the imputation or imputations made by means of published matter that is the essential element of a plaintiff's cause of action. The Statement of Claim must identify alleged imputations, and identify the published matter by means of which the defendant is alleged to have made those imputations. However, according to Gordon at 413, a plaintiff is obliged to include within its pleadings every passage of the published matter which materially alters or qualifies the complexion of the imputations complained of. 33 Difficult questions can arise where what is published is published in sections that may possibly be considered either as distinct publications or as parts of one overall publication. This was considered in Burrows, in which the plaintiff sued the author and publisher in relation to a four-part serialisation of a book in the Australian newspaper. In the Statement of Claim, the plaintiff pleaded imputations claimed to have been conveyed by the four parts of the serialisation as a whole, and also pleaded imputations claimed to have been conveyed by each of the second, third and fourth parts of the serialisation. The defendants sought to have the latter allegations struck out. 34 On the question whether the plaintiff could rely on imputations said to arise from the four parts of the serialisation as a whole, Hunt J said this: What little authority there is upon the subject supports the correctness of the plaintiff's pleading in the present actions. Where the matter complained of contained in a newspaper refers to other material in the same newspaper, the plaintiff may be required to tender that other material in his case: Thornton v Stephen (1837) 2 Moo & Rob 45 at 46 [174 ER 209 at 209]; provided that such other material is capable of affecting the sense of the matter complained of: Darby v Ousley (1856) 1 H & N 1 at 11-12 [156 ER 1093 at 1097]; Hedley v Barlow (1865) 4 F & F 224 at 228 [176 ER 541 at 542]; Bolton v O'Brien (1885) 16 LR Ir 97 at 109, 110, 119, 129 (cf 117-118, 121); and see Cooke v Hughes (1824) Ry & M 112 at 115 [171 ER 961 at 962]. Where there are two separate publications by the defendant, the plaintiff is entitled to (or may be obliged to) have them considered together in order to determine the sense in which either was understood, provided that they are sufficiently connected and identified with each other: Solomon v Lawson (1846) 8 QB 823 at 840 [115 ER 1084 at 1090]; Smyth v Mackinnon (1897) 34 SLR 762 at 765, 767; Dauncey v Holloway [1901] 2 KB 441 at 443 (the judgments in the Court of Appeal do not deal with this issue); see also Rex v Slaney (1832) 5 C & P 213 at 217-218 [172 ER 944 at 946].

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In my opinion, the law may be stated in this way. Where the matter of which a plaintiff complains consists of related material published by the defendant on different occasions, and where there is apparent, on the face of the matter complained of itself, either an intention on the part of the defendant that it be read together or direct references internally one to the other so that the reader may reasonably be expected to read it together, it is acceptable practice to plead all of the material in the one paragraph of the Statement of Claim and to identify the imputations said to have been conveyed by the material as a whole. It is not necessary to plead each part separately and to add "true" innuendoes where material published on one occasion is relied upon to give a statement published on another occasion a meaning beyond that which it conveys when considered in isolation. 35 On the question whether the plaintiff could, in addition, rely on imputations said to arise from each of three individual parts of the serialisation, or whether to do so was an abuse of process, Hunt J said this: No such abuse was perceived in Cooke v Hughes, where in relation to separate and distinct passages taken from the one publication the plaintiff had pleaded those passages both together in one count and separately in different counts: see at 113 [ER at 962]. Even less could it be an abuse of process where the separate and distinct passages are taken from different publications. In the present action, the plaintiff is entitled to claim damages for the publication of the imputations conveyed to those readers who read all four parts of the serialization as well as damages for the publication of the imputations conveyed to those different readers who read only one of those parts. I can see no abuse of process here. There may be some difficulty involved at the trial in determining approximately how many of the newspaper's readers fell into each group, but that difficulty is one of proof and does not render the pleading an abuse of process.

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However, I should emphasise that, although the plaintiff is entitled to plead in this way, it is not a course which he should lightly be advised to follow. Having successfully avoided all of the complications involved in pleading the serialization in the manner for which the defendants contended, he is now making the case unnecessarily complicated by the addition of pars 6, 8 and 10. Pleaders in defamation actions should not overlook either the nature of the litigation in which their clients are involved (which is already sufficiently, if necessarily, complicated) or the nature of the tribunal which will be deciding its result (a jury). The issues in a defamation action should always, so far as possible, be made simple and straightforward, not perplexing and pedantic or convoluted and confusing. In this present action, the plaintiff's pleader should make up his mind whether he wants to proceed upon the basis that the serialization was read as a whole (in which case the complications involved in possible duplication are unnecessary), or upon the basis that each part of the serialization was read separately (in which case they should each be pleaded separately and not together). Common sense would appear to dictate following the former course, for most of the readers could safely be assumed to have accepted the defendants' invitation to read all four parts of the serialization. If the latter course is to be followed, it would in my view be preferable from everyone's point of view (if it is possible) for each part of the serialization to be considered in isolation from the others and without resort to any "true" innuendoes. Only in that way will the action be able to be fought without unnecessary complications. 36 In Phelps, a plaintiff sued in respect of material that appeared in the Weekend Australian in two parts: first, on page 1, a "pointer" or summary, concluding "Full report - page 3"; and second, the full report itself on page 3. The plaintiff pleaded five imputations said to be conveyed by the pointer, five imputations said to be conveyed by the full article, and five imputations said to be conveyed by the combination of the two. The five imputations were in fact the same in each case. The defendants sought to strike out the paragraphs in which the separate parts were pleaded. Simpson J said this at [10]: 10 The issue raises a question about the proper identification, or the boundaries, of "a publication" as distinct from separate publications. There is no rigid dividing line, no categoric test that can be applied to the determination of the boundaries. That is because the examples of publications that may be perceived either as a single entity or as multiple single entities are numerous. There will, no doubt, be many cases where reasonable minds might differ on the proper categorisation, and many where a reasonably minded person would recognise that either classification would be valid. In these cases, the plaintiff has the option as to the manner of pleading. 37 Her Honour then referred to Burrows and two other cases, and continued: 21 The above review of the cases drawn to my attention illustrates the diversity of the circumstances which might give rise to considerations of whether separate but related publications should properly be regarded as one. Related publications may be distinct items contained in a single edition of, for example, a newspaper (Rakimov, Lucas); or may be contained in successive daily or weekly (or other) editions of the same publication (Burrows). No doubt many other situations will arise. One example that comes to mind is the publication of a news item illustrated by a photograph, or a cartoon. Others are episodic items, broadcast on radio or telecast, separated by advertisements or by unrelated segments.

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57 I would also reject the appellant's complaint that in striking-out paras 4, 5 and 6, Adams J determined a factual question which was truly the province of the jury. Simpson J rejected that argument in Phelps v Nationwide News Pty Limited , (above at [31]). I agree with her Honour that the identification of the publication is not a jury question. The authorities to which I have referred make it clear that the issue of how the publication should be pleaded is properly the province of the court. The function of a jury is confined to whether the matter complained of carries the imputation and, if it does, whether that imputation is defamatory: s 7A(3) Defamation Act 1974 (NSW). 41 In my opinion, McColl JA endorsed Phelps, but held that the relationship between the two parts published in The Sydney Morning Herald was such that, not only could the two parts properly be seen as a single publication, but that this was the only view reasonably open. McColl JA held in effect that this was not one of those cases, referred to at [10] in Phelps, where reasonably-minded people could consider either classification, that is as a single entity or as a number of entities, to be valid. 42 There may be cases where reasonably-minded people could consider either classification valid, so that it is prima facie open for a plaintiff to plead the parts as individual publications, and also plead their combination as a publication, but nevertheless where this should not be permitted because it introduces confusion and complexities into the case wholly unwarranted by any advantage to the plaintiff, and thus can be considered embarrassing. It is possible that this was the approach taken by Adams J in the Plaintiff's case against John Fairfax, and that McColl JA endorsed this as a further reason for dismissing the appeal. 43 The question then is, is the material as published in The Age such that the only view reasonably open is that this was one publication? In my opinion, plainly not. No part of the second section of The Age material appeared on page 1; and the first section on page 1 did not indicate that what was on page 13 was to be read together with what was on page 1 as part of the same whole. There were none of the indications of unity of the two sections displayed in The Sydney Morning Herald material and referred to earlier. Reasonable readers could well read what appeared on page 1 of The Age and not read what appeared on page 13. In my opinion, this was a case where reasonably-minded people could regard the two sections as separate publications, and could also regard them as part of a whole: that is, they could regard both possible classifications as being valid. 44 In my opinion, this is not a case where pleading the two sections separately in this way introduces such complexity or confusion that it should not be permitted. This was not held to be the case in Burrows or Phelps despite the concerns expressed in those cases by Hunt J and Simpson J. In addition, in this case the Plaintiff has avoided the additional complexity of also pleading the two sections as one publication. 45 Mr. Gray placed some reliance on the circumstance that, in relation to the first section, the Plaintiff relied on the naming of the Plaintiff in the second section to complete the identification of the Plaintiff in the first section. In my opinion, this does not affect the issue. In any case where a plaintiff is not named in the publication sued on, the plaintiff may rely on other circumstances to show that at least some people would identify the plaintiff as being the person referred to in that publication. It may then be open for the defendant to submit that anyone who knew enough about the plaintiff to identify the plaintiff as the person referred to would also know enough to understand what was said about the plaintiff in a way not defamatory of the plaintiff. The Plaintiff's reliance in this case on a reader of the first section as having read at least some of the second section of what was published, in order to identify the Plaintiff as the person referred in the first section, would open the way for a submission from the Defendant that persons who read the section sufficiently for this purpose would also, by reason of other things in the second section, have read the first section in a particular way. This does not in my opinion affect the question whether the Plaintiff can rely on the first section as a publication without including it in the whole constituted by both sections. 46 For those reasons, in my opinion the attack on the first judgment must fail.

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SECOND JUDGMENT 47 Mr. Gray submitted that the Plaintiff was seeking to have re-litigated substantially the same issues as had been determined against him in the proceedings against John Fairfax. Even though the parties were different, this was still an abuse of process: Reichel v. Magrath (1899) 14 App Cas 665, Haines. The issues did not have to be literally identical for this to apply: Haines, Rippon. Rippon in fact showed that minor differences between issues can be bridged by reference to the Anshun principle. 48 Mr. Gray further submitted that if the case against the Defendant was allowed to continue, there was a risk of "the scandal of conflicting decisions": Rogers v. The Queen (1994) 181 CLR 251 at 273-4. Another jury might, despite the overwhelming similarities of the publications, take a different view as to whether imputations were conveyed (even the six that are identical as between the two sets of proceedings) and whether the imputation found by the jury in the John Fairfax case to have been made was defamatory. 49 I accept that it can be an abuse of process for a plaintiff to seek to re-litigate, even against a different party, issues decided against that plaintiff. For example, if the Plaintiff now brought proceedings against the author of the articles, or against some distributor of The Sydney Morning Herald, in respect of the publication of the material in The Sydney Morning Herald, I believe that would be an abuse of process, even if the Plaintiff sought to plead the imputations a little differently. 50 However, the Plaintiff in this case does not sue in respect of the publication in The Sydney Morning Herald, but in respect of the publication of similar but not identical material in The Age. We have not been referred to any case where proceedings have been stayed or dismissed because of the failure of earlier proceedings against another party in respect of a different published item, purely on the basis of similarity of material in that item to material in the item complained of in the later proceedings. Moreover, there are differences in the text between the two publications, some of which could be considered significant and supportive of the Plaintiff's case. There are also differences in the headlines and the layout. The circumstance that the Plaintiff has been permitted to rely on the two parts of the publication in The Age as separate publications is itself a difference between the two proceedings, that could be regarded as of substance. 51 In my opinion, the possibility of the scandal of conflicting judgments is not a matter that weighs heavily in this case. Not only are there differences between the two proceedings, as I have noted, but there is also the consideration, pointed out by Brownie AJA, that if the Plaintiff had succeeded against John Fairfax and later sued the Defendant, it is inconceivable that the Defendant could have been inhibited in defending the proceedings against it on the ground that to do so could lead to the scandal of conflicting judgments. 52 As submitted by Mr. McHugh for the Plaintiff, to dismiss or permanently stay proceedings without a hearing, particularly on the application of a defendant against which proceedings have not previously been brought, is an extreme step. In my opinion, the Defendant has fallen far short of showing that the primary judge erred in failing to take that step. In any event, in my opinion the issues in the two proceedings are not so similar that these proceedings should be considered an abuse of process. 53 Accordingly, the attack on the second judgment also fails.

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