Trkulja v Ethnic Broadcasting Association of Victoria Limited [2000] VSC 219

Trkulja v Ethnic Broadcasting Association of Victoria Limited [2000] VSC 219 - VSC 2000 case summary — Zoe

[30]

It escapes my mind how the published words could convey any action or intention on the plaintiff's part which would be regarded as so improper as to damage his reputation. As I have indicated, some discussion took place in the course of argument as to the circumstances in which (if any) it could be defamatory to say of a person that he or she proposed to enforce, or was enforcing, their legal rights. The analogy was debated of 3ZZZ perhaps being unable to pay a due debt to its bankers, thus leading to call for financial assistance from listeners, as to whether that might be defamatory of the relevant bank. It is not necessary to go so far as to state that a statement of that kind could never be defamatory as the particular circumstances may lend particular meaning to the published words. An examination of the language here in the light of the background does not in my judgment raise such circumstances. It was accepted for the purposes of the present application to be common ground that the plaintiff had succeeding in obtaining an award of damages against 3ZZZ for defamation, and a substantial order for costs. It is a commonplace consequence of the obtaining of a court order for damages and costs that the successful party is not only entitled, but likely to seek to obtain the legitimate rewards of the victorious litigation. It verges on the absurd to estimate it as being a reasonable response of a reasonable reader to think the less of a person because he sought the fruits of the judgment which the justice system has determined he is entitled to. Indeed, he might be thought by many to be insincere if he did not seek them. It might be open to a reasonable reader to conclude that a closure of the radio station was possible or even likely as a consequence of the plaintiff's action, although reason would suggest that that would be a consequence of the radio station's defamation of the plaintiff and its own impecuniosity. But in my judgment it is not be open to a reasonably-minded juror to believe that the plaintiff is disparaged by the published words, bearing in mind the tests to which I have referred. Put another way, it would not be reasonably open to conclude that the plaintiff caused or bore responsibility for that consequence. Accordingly, I am of the opinion that the Master was right to strike out the defamation part of the statement of claim. I am also of the view that he was right to stay the cause of action in defamation. In my view, it would be futile to make orders that would, as it were, give the plaintiff a third shot at torturing out of these inoffensive words some defamatory meaning. His failure to do so thus far is some indication of the impossibility of the task. Accordingly, I order that the paragraphs be struck out and the cause of action in defamation is stayed. Thus I uphold the Master's order in that respect.

[39]

The particulars of loss and damage appended to paragraph 14 were the same as the particulars given under paragraph 19 of the amended statement of claim. Master Wheeler on 11 April struck out paragraphs 18 and 19 of the amended statement of claim, but granted the plaintiff leave to re-plead the subject matter of those paragraphs subject to giving the particulars required by the Rules of malice and damage. Even so late as the time of the commencement of the proceeding before me, the plaintiff has never delivered any particulars of malice or damage. Moreover paragraph 18 does not plead falsehood although it does plead, oddly enough, in paragraph 15 the falsity of the imputations pleaded in paragraph 14. Thus the plaintiff appears to have pleaded falsity as part of the case for defamation (an unnecessary and inappropriate plea) and failed to plead the falsity of the broadcast words in paragraph 18, the paragraph in which, if a claim for injurious falsehood was being made, the plea of falsehood was necessary to be made. In the course of argument, I inquired of counsel for the plaintiff on a number of occasions what was the falsehood relied on. The only answer I received to that inquiry was that the falsehood was in the imputations. In my view, the plaintiff was obliged to plead and identify the falsehood and was obliged by the Rules of this Court to give particulars of malice and damage. Those obligations applied to the original statement of claim and the amended statement of claim. It is conceded that no particulars of malice or damage have ever been given. Mr. Nash appeared to claim that the particulars were to be given by 11 May under the timetable forming part of the order of Master Wheeler of 11 April 2000. However, my reading of that order is that the re-pleading of the statement of claim (paragraphs 18 and 19) had to occur by that date but it was subject to the giving of particulars of malice and special damage. That is, it pre-supposed the giving of the particulars is a condition of having the leave to re-plead. Whether that is right or not hardly matters as no particulars have ever been given nor, as I would judge, ever been embarked upon. Mr. Nash suggested that the intervention of the appeal process led to a reasonable suspension of the obligation. The fact of the matter is, however, the obligation to give the particulars in support of the claim for injurious and malicious falsehood was there from the commencement of the original statement of claim.

[48]

The amended statement of claim added further sub-paragraphs to paragraph 1, namely 1(g) to 1(j). Paragraph 1(e) specifically pleads that at all times material the first defendant was the provider of a community broadcasting service within the meaning of s.15 of the Broadcasting Services Act 1992. The first matter to be addressed is the issue, notwithstanding that 3ZZZ might on some occasions engage in activities which might be described as commercial, whether there is any element of conduct in trade or commerce with respect to the publication of the words relied on as amounting to deceptive and misleading conduct within the meaning of the Acts referred to. Essentially the argument was advanced that an appeal for voluntary donations from listeners or subscribers to this radio station to cover the legal costs of a previous legal proceeding lost by the radio station is not an aspect or element of any activity or transaction by 3ZZZ which, of its nature, bore a trading or commercial character. In Concrete Constructions (N.S.W.) Pty. Ltd. v. Nelson (1991) 69 C.L.R. at 594, the High Court of Australia had occasion to consider the proper construction of the phrase "in trade or commerce" in s.52. These were considered in a rather unusual context, namely an action by a construction worker who alleged in his statement of claim that he had been working for his employer. He was instructed to remove grates from part of air-conditioning shafts. Whilst the worker was removing the grate it gave way, he fell and was injured. Part of the claim for damages against the employer was based upon the Trades Practices Act it being alleged that the statement to him that the grates were securely bolted was misleading and deceptive within s.52 of the Trade Practices Act 1974. In the principal judgment (Mason, C.J., Deane, Dawson and Gaudron, JJ.) it was made clear that the words "trade and commerce" for the present purpose are not terms of art but are terms of common knowledge of the widest import. It was stated (602-604):

[52]

I pause to emphasise the words of characterisation about those activities or transactions, namely that "of their nature they bear a trading or commercial character". The Court itself later noted that the dividing line of what was conduct in trade or commerce and what was not was not always clear and might require the identification of what imports trading of a commercial character. Subsequently, in Fasold & Anor v. Roberts & Anor (1997) A.T.P.R. 41-561, Sackville, J. in the Federal Court re-visited this issue in the context of an intriguing case concerning claimed historical and archaeological research into the situation and discovery of Noah's Ark, it being suggested that by a member of the Australian Skeptics that the researcher-proponent of the discovery, Dr. Roberts, had made misleading and deceptive statements in the course of public statements concerning its discovery. This case is not concerned with the issue of the validity or otherwise of the hypothesis put forward by Dr. Roberts but the claim by the sceptic that false statements had been made in the course of public meetings addressed by Dr. Roberts. The Court concluded, without pronouncing upon the validity of the competing perspectives, that Dr. Roberts' activities could not be characterized as conduct in trade or commerce, even though they may have been related to trade and commerce, because of the manner in which they were conducted. Sackville, J., having closely considered the statements made by the High Court of Australia in Concrete Constructions described the critical question for him as being "whether the public presentations by Dr. Roberts constituted 'conduct which is itself an aspect of or the element of transactions which, of their nature, bear a trading or commercial character.'" (His emphasis.) I have not ignored the views of Wilcox, J. in E v. Australian Red Cross Society [1991] FCA 20; (1991) 27 F.C.R. 310 but, having regard to the issue presently before me, they are not of assistance.

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Judgment (57 paragraphs)

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Cases Cited (1)