Vacik Distributors Pty Limited & Anor v Australian Broadcasting Corporation & Anor

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

Thursday, 16 December 1999 020326/97 - Vacik Distributors Pty Ltd & 1 Or v Australian Broadcasting Corporation & 1 Or

JUDGMENT NO 7 HIS HONOUR: 1 The plaintiffs in these proceedings are Vacik Distributors Pty Limited ("Vacik") and its managing director Mr V Bates ("the plaintiffs"). The defendants are Australian Broadcasting Corporation ("the ABC"), operator of the television station ABN2 TV, and Nationwide News Pty Limited ("Nationwide"), the proprietor of "The Daily Telegraph" newspaper ("the defendants"). 2 The plaintiffs sue the defendants for damages for defamation.

Proceedings before Levine J to restrain publication of "Smuggled 2": 3 In 1996, a book entitled "Smuggled 2" was published. The author was Mr R Hoser and the publisher was Kotabi Pty Ltd. At that time, Vacik was, among other things, engaged in processing and exporting kangaroo meat for human consumption, and Mr Bates was actively engaged in that part of the company's operations. 4 Proceedings were brought by summons issued by Vacik Distributors and Mr Bates against Kotabi Pty Ltd and Mr Hoser, claiming an injunction to prevent further distribution of the book "Smuggled 2". The summons was heard on 22 November 1996 by Levine J. The record of the hearing has been tendered in evidence in the present proceedings. 5 The plaintiffs' evidence included the book and an affidavit by the plaintiffs' solicitor, Mr A H Norton. The following is an extract from his affidavit: "The matter published in the book contains a large number of defamatory statements including allegations that Mr Bates, Mr William Bates, Mr Clifford Dee, Wattle Glen Pet Foods Pty Ltd and Vacik Distributors are or have been involved in the murders or (sic) Eric and Harry Judd, are members of a criminal syndicate that was involved in the murder of Andrew Komarnicki, are members of a criminal syndicate that was involved in the murder (of) Modesto Melino, are members of a criminal syndicate that is or was involved in the kangaroo meat substitution for export beef racket, are members of a criminal syndicate that is or was involved in wildlife smuggling, are members of a criminal syndicate that is or was involved in illegal drugs and gold importation, are involved in corruption by way of the offering of bribes to officers of the New South Wales National Parks and Wildlife Service, are involved in a wildlife racket in conjunction with Sydney crime boss Abe Saffron, and allegations that Vacik Distributors is effectively controlled and run at the direction of Sydney crime boss Abe Saffron, that Vacik Distributors takes direction from criminals, and that Mr Bates is a criminal." 6 Mr Hoser was called as a witness for the defendants in those proceedings. His evidence included the following. He accepted responsibility for the book. Kotabi Pty Ltd being a company controlled by him. About 6,200 copies of the book had been printed. About 4,000 had been sold directly to members of the public or supplied to distributors. Mr Hoser said he believed in the truth of the matters referred to in the book. 7 Under cross-examination, Mr Hoser said the book did not allege that Mr Bates was responsible for any murder. He said he did not believe Mr Bates was so responsible and had not stated that Mr Bates carried out any murder. Mr Hoser said he had no evidence to suggest that Mr Bates was involved in the disappearance of persons mentioned in the book. All he questioned was Mr Bates' denial that he (Mr Bates) had knowledge of those matters. 8 It was submitted in the proceedings before me that Mr Hoser had recanted from an assertion by him that Mr Bates was involved in murders. That is not how I read the evidence. Mr Hoser was saying, rightly or wrongly, but consistently, that he had not stated in the book that Mr Bates was involved in murders, only that assertions of such involvement had been made by others. 9 Levine J refused the application in a judgment given ex tempore on the same day. He held that the book was arguably defamatory in that it contained allegations of serious criminality. The person who took responsibility for the publication (Mr Hoser) had asserted the truth of the allegations in the book (by which I take his Honour to have meant that Mr Hoser asserted the truth of statements in the book that had been made by others that the plaintiffs had engaged in criminal conduct). His Honour went on to say that the fundamental reasons for refusing the application was the extent to which the book had already been distributed and sold by direct sale.

The ABC broadcast 10 As against the ABC, the matter complained of is an item in the 7 o'clock news broadcast on 22 November 1996. A transcript is in evidence. The lines are numbered in the exhibit, with a new series of line numbers commencing on page 2 of the exhibit. In the quote which now follows, I have continued the same series of line numbers. The descriptions of images on the right hand side of the transcript appears to me to be accurate. [Judgment continues next page] [Judgment continues next page]

Subsequent proceedings before Dowd J to restrain the publication of "Smuggled 2" 11 In December 1996, the plaintiffs made a further attempt to prevent further distribution of the book. The summons was heard by Dowd J. Evidence was tendered and submissions were made on 18 and 20 December 1996. (There is a slip in his Honour's judgment, referring to 18 October 1996.) The only thing that happened in the proceedings on 24 December 1996 was the delivery of the judgment. His Honour reserved his decision. Judgment was given orally from the bench on 24 December 1996. 12 On this occasion, the plaintiffs adduced evidence with a view to demonstrating that the allegedly defamatory allegations in the book, whether by the author or attributed to others, were not true. For reasons which will become apparent, it is unnecessary to review that evidence. 13 Dowd J dismissed the application. In his judgment, Dowd J noted that on the first day of the hearing, a statement of claim by the plaintiffs was filed in Court, followed by defences filed in Court on the second day of the hearing. The statement of claim asserted that Vacik Distributors and Mr Bates had been defamed by Kotabi Pty Ltd and Mr Hoser by publication of the book. It was asserted that imputations arose that Vacik Distributors was illegally exporting kangaroo meat for beef, was illegally exporting kangaroo meat from Australia, and was a disreputable company because of its employment of a murderer as its managing director. It was asserted that imputations also arose that Mr Bates was involved in substitution of kangaroo meat for beef intended for human consumption and in the illegal export of kangaroo meat, and that Mr Bates was an associate of Abe Saffron and had committed the murder of one or more persons. The defences pleaded that the imputations did not arise, that, if they did, they were not defamatory, and (alternatively) that the imputations related to matters of public interest or were published under qualified privilege and were matters of substantial truth. His Honour referred to the evidence before Levine J which had been tendered in the proceedings before him. He reviewed the issues and submissions in the proceedings before him. He reviewed the authorities relating to interlocutory injunctions seeking to restrain the publication of allegedly defamatory material. He agreed with Levine J that the book was arguably defamatory in several of the respects alleged. He noted that, on the pleadings, Mr Hoser had taken responsibility for the publication contending that the allegations capable of arising were true and had also said, on oath, that he believed in the truth of the matters that had been published. His Honour referred to the large number of books that had already been sold and the special problem of sale through the Internet. His Honour said the defences were clearly arguable and the subject matter was of considerable public interest. His Honour held that the balance of convenience was resolved in favour of the defendants.

It may be noted that his Honour made no finding as to the truth of the imputations allegedly arising from the book.

14 As against Nationwide, the matter complained of is an article published in "The Daily Telegraph" on 25 December 1996. The relevant page of the newspaper for that date is in evidence. The text of the article appears as an attachment to the statement of claim. It is as follows. I have preserved the line numbers appearing there.

1 The publisher of the book alleging corruption in the National Parks and Wildlife

2 substitution export racket has beaten a second bid to have the work banned.

3 Meat processing firm Vacik Distributors claimed it had been defamed in Smuggled 2:

5 Author Raymond Hoser alleged Vacik sold kangaroo meat overseas in place of beef

7 The book also includes a claim the company's managing director is a murderer.

8 The book has been available in bookshops and advertised on the Internet.

9 As of November 22, 4000 of the 6200 print had been sold.

10 Yesterday Justice John Dowd refused to order the book off bookshelves.

11 He said while some of the matters might be potentially defamatory they were "arguably

12 Kotabi Pty Ltd admitted publishing the work but denied it imputed all Vacik had claimed.

13 Justice Dowd said the meat export industry was the subject of much international

The statement of claim 15 In their statement of claim in the present proceedings, the plaintiffs allege that the matters complained of contained the imputations there specified.

Admission 16 In that regard, Nationwide admitted, for the purposes of these proceedings, that some persons who would have read the article knew that Mr Bates was managing director of Vacik.

The defamatory imputations 17 Section 7A of the Defamation Act 1974 applied to these proceedings. In the first phase of the hearing, I determined that the matters complained of were reasonably capable of carrying the imputations pleaded by the plaintiffs and that the imputations were reasonably capable of bearing a defamatory meaning. A jury empanelled for the purposes of s 7A determined that the matters complained of carried the following imputations and that each such imputation was defamatory. (I omit reference to the alleged imputations which the jury found did not arise.) Publication by the ABC

(a) Vacik had engaged in illegal practice of bribing officers of the NSW National Parks and Wildlife Service.

(b) Mr Bates had engaged in the illegal practice of bribing officers of the NSW National Parks and Wildlife Service.

(a) Vacik had engaged in illegal substitution of kangaroo meat for beef in the export beef market.

(b) Vacik had engaged in corrupt activities in conjunction with officers of the NSW National Parks and Wildlife Service.

(c) Vacik was a disreputable company because it employed a murderer as its managing director.

(e) Mr Bates was derelict in his duties as managing director in that his company had engaged in the illegal substitution of kangaroo meat for beef in the export market;

(f) Mr Bates was derelict in his duties as managing director in that his company had engaged in corrupt activities in conjunction with officers of the NSW National Parks and Wildlife Service.

The s 24 defences 18 Each of the defendants, by their respective defences, pleaded a defence pursuant to s 24(2) of the Defamation Act 1974. Nationwide also pleaded defences pursuant to s 24(3) and (4). In a separate determination made during the hearing, I held that Nationwide had no defence in law pursuant to s 24(3) or (4). Accordingly, it is necessary to refer to part only of s 24(1) and (2). 19 The section provides, so far as is material, as follows: "24(1) In this section, protected report means a report of proceedings specified in clause 2 of Schedule 2 as proceedings for the purposes of this definition. (2) There is a defence for the publication of a fair protected report." 20 Clause 2 of sched 2 provides, so far as is material: "2. The following proceedings are specified for the purposes of the definition of protected report in section 24(1): …. (5) proceedings in public of a court"

Other proceedings specified in cl 2 include "proceedings in public of a parliamentary body". 21 It was agreed that defences pleaded by Nationwide in relation to publication of the newspaper article in states other than New South Wales gave rise to issues materially identical with those arising under the foregoing statutory defence.

Replies 22 In their replies to the respective defences, the plaintiffs pleaded, pursuant to s 26 of the Act, that publications were not in good faith for public information or the advancement of education.

The meaning of "report of proceedings in public of a court" 23 What is meant by a "report of proceedings in public of a court" as contemplated by the legislature in the combined operation of s 24 and cl 2 of sched 2 of the Defamation Act 1974? 24 These provisions are to be construed according to their purpose. In Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, Hunt J collected the authorities on the point (at 62): "The policy upon which this defence is based is that the public has a right to enter the courts of justice and to see and hear what is said and done in those courts (cf Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1), and the publication of reports of what takes place there enlarges the area of the courts and communicates to the whole public what that public has a right to see and hear: Macdougall v Knight (1889) 14 App Cas 194 at 200 (see also the earlier proceedings in the Court of Appeal, reported at (1886) 17 QBD 636 at 639-640, and the subsequent proceedings in the Court of Appeal in the fresh action between the same parties at (1890) 25 QBD 1 at 9); Hutchison v Robinson (1900) 21 LR (NSW) 130 at 140-141; 16 WN 254; Ex parte Terrill ; Re Consolidated Press Ltd (1937) 37 SR (NSW) 255 at 257; 54 WN 106." 25 Section 24(1) and (2) and cl 2 of sched 2 codify and enlarge the common law. I quote again from the judgment of Hunt J in Waterhouse (at 62-3): "The defence afforded by s 24 has enlarged the class of proceedings to which the common law defence of qualified privilege (fair report) applies, as it has also in relation to the proceedings to which were applicable the statutory defences of fair report afforded by the Defamation Act 1912 , s 29, and by the Defamation Act 1958 , s 14. But the 1974 Act has not altered the basic common law requirement which was maintained by both the 1912 Act and the 1958 Act, that to be a fair report the matter complained of must with substantial accuracy express what took place in that part of the proceedings of which it purports to be a report: see, generally, Thom v Associated Newspapers Ltd (1964) 64 SR (NSW) 376 at 380, 383; 81 WN (Pt 2) 390 at 393, 395; Macdougall v Knight (1890) 25 QBD 1 at 7."

26 Earlier authority therefore applies. In Anderson v Nationwide News Pty Ltd (1970) 72 SR (NSW) 313, Asprey JA said (at 318): "A report is a factual recounting of an event or situation and must be distinguished from comment." 27 This formulation was adopted and applied by Samuels JA in Burchett v Kane (1980) 2 NSWLR 266 at 273 (with whom Moffit P and Mahoney JA agreed, at 270 and 274). Samuels JA (at 273) added: "It ( a report ) is essentially descriptive of an event or series of events …." 28 More recently in Tsikata v Newspaper Publishing plc [1997] 1 All ER 655, Ward LJ (at 669) said that a report of proceedings is constituted by "a narration of … the proceedings" or "an account of or a resume of the proceedings". 29 A publication limited to the reporting of a judgment of the court qualifies as a report of proceedings in court: Macdougall v Knight (1890) 25 QBD 1 at 11: Duncan v Associated Scottish Newspapers Ltd (1929) SC 14 at 17, 19 and 21. 30 A "report of proceedings in public of a court" is a factual account of what happened in the courtroom. It need not, of course, be verbatim. It may be brief. It is to be distinguished from a factual account of other events or situations (unless also mentioned in the schedule) and from a publication about proceedings in court which is not a factual account of those proceedings, such as comment. 31 Whether a publication constitutes a report is a question of fact for the court. A statement in the publication that it is such a report, or to that effect, cannot pre-empt the question, although such a statement may colour the content of the publication and influence the result. 32 It follows that a publication may refer to proceedings in court, it may be based on them and may say a great deal about the proceedings, and yet not be a report of them. 33 Inclusion of passages which, standing alone, would constitute a report does not necessarily make the publication a report in whole. Other elements may so predominate or be so interwoven that the publication, is not a report in whole or in part.

The ABC broadcast is not a report of proceedings of a court 34 Is the ABC broadcast a "report of proceedings in public of a court"? It is not. My reasons follow. 35 In isolation, lines 1-6, 16-18 and 26-27 would be a report of proceedings in court. (Lines 7 and 8, although comment, give content to the "attempt" and the "action" in lines 1-6, making clear that lines 1-6 are concerned with legal proceedings if that were otherwise not apparent. But, even then, lines 1-6 are not themselves an account of proceedings in the courtroom. I have included them as a legitimate introduction to what could then follow as such an account.) 36 Notwithstanding that lines 16-18 and 26-27 say what happened in the courtroom, that is not the main theme of the broadcast. The predominant theme is commentary in relation to the proceedings. What the broadcast conveys predominantly are assertions by Mr Hoser about his book and about the proceedings. Those assertions are relayed, in the first instance, by the reporter and then by Mr Hoser himself. The reporter says Mr Hoser claims the legal proceedings are an attempt to stifle his right to freedom of speech (lines 7 and 8). There is an accompanying image of the book, conveying that it is the right to freedom of speech by publishing a book which Mr Hoser asserts. Mr Hoser himself is then presented to the viewer. He attests to the seriousness of what he wants to make known: wildlife trafficking which appears to be organised by senior officials within the state Parks and Wildlife Service and by officials in other states. The reporter then continues the same theme - note the word "also" - about the seriousness of the allegations in the book: illegal dealings between Vacik Distributors and the Service, allegedly involving large bribes (lines 12-15). That is accompanied by an image of what are ostensibly Vacik Distributors' factory premises, where animal skins are being handled. The implication is that these raw materials are alleged to have been obtained by the dishonest dealings referred to in the reporter's voice over. The same theme is continued by the reporter at lines 19-22, after a short statement of what happened in court that day (lines 16-18). A previous book and an attempt to ban it by legal process are referred to. Mr Hoser is thereby cast in the role of a campaigner against alleged illegal trade in flora and fauna. Mr Hoser is then pictured again, asserting that the allegations are serious, that they are made not by him but by officers in the Wildlife Service and other senior government officials, and that the legal proceedings are an attempt to suppress any objective investigation of those allegations (lines 23-25). After a further short statement of what happened in court that day (lines 26-28), the broadcast finishes with a picture of Mr Hoser holding his book to the camera, in the manner of a book promotion, reminding the viewer of what the book was said to contain. 37 Viewed as a whole, this was not a report of what had happened in the courtroom on 22 November 1996. What happened in court that day was merely contextual. The theme of the broadcast was comment, namely, Mr Hoser's contention, conveyed by the reporter and Mr Hoser himself, that the proceedings were an attempt to silence the dissemination by him, through his book, of serious allegations of criminal conduct, made by high officials against the state Wildlife Service and a substantial meat processing company, Vacik Distributors. As such, the broadcast was about what had happened in court. It was not a report of what had happened in court. 38 Assuming for the purpose of the argument that the broadcast was, in part, a report of what happened in court, lines 12-15 are not part of any such report. Lines 12-15 are the part of the broadcast which carries the relevant imputations (when supplemented by line 16, in the case of Mr Bates). In this part of the broadcast, Mr Hoser's claims, as represented (correctly or incorrectly) by the reporter, are not presented as part of an account of what happened in court. True it is that the book was tendered at the hearing, but the statement at lines 12-15 is not made in the course of an account of evidence adduced in court. The mere fact that a book has been tendered in evidence in court proceedings does not, of itself, make a report of the contents of the book a report of proceedings in court. That depends on the theme of the publication. As I have said earlier, this was part of the broadcast (lines 12-15) had a different theme, Mr Hoser's assertion that the proceedings were an attempt to stifle the serious allegations made in his book. That was comment about the proceedings, not an account of them. 39 It is instructive to read lines 1-6, 16-18 and 26-28 together. Other passages to which I have referred, as not being part of a report of proceedings in court, are not necessary to give meaning to the passages which constitute a report on this approach. They do not become part of a report of proceedings in court in that way. 40 I conclude that, if part of the broadcast can be regarded as a report in the relevant sense, the part of the broadcast which carries the imputations was not part of that report. 41 On either approach, the defence fails and the plaintiffs are entitled to a verdict.

"The Daily Telegraph" article not a report of proceedings of a court

42 Is the Nationwide article a report of proceedings of a court? It is not. 43 The submission made in support of the article being a fair protected report was that it was a fair report of the proceedings in court on 24 December 1996. It was not submitted on behalf of Nationwide that the article was a report of the proceedings as a whole or of any part of them. That was explicitly forsworn. All that happened on 24 December 1996 is that Dowd J delivered his judgment. As I have said, a report of a judgment given in court is a report of proceedings in court for the purposes of this defence. 44 I mention at the outset that, in his judgment Dowd J referred to the imputations which were alleged in the statement of claim to be carried by the book: kangaroo meat substitution for beef; illegal export of kangaroo meat; and murder. In the newspaper article the book is said to contain three claims by Mr Hoser, two corresponding with the first and third of these imputations, and another not mentioned by his Honour, namely, involvement in corruption with wildlife officers. 45 A further disparity is that the judgment only went so far as to record the imputations alleged by the plaintiffs to be conveyed by the book. By contrast, the article reports allegations said to be actually made in the book. I will refer to these disparities later. 46 In this instance, unlike the ABC broadcast, the publication includes well defined passages which constitute a report of the judgment. These are the headline, lines 1-2 and lines 10-13. I include line 12. Although not expressly attributed to his Honour, that is the implication arising from the context, with references to what his Honour did and said lying immediately before and after. 47 The same cannot be said of lines 3-9. Having reported the result of the proceedings in the headline and lines 1-2, the article reports matters in lines 3-7 ostensibly as background information, and not as anything said in the judgment. This part of the article does not purport to be what was said in the judgment. It does not read as such a report. It reports on other matters: Vacik Distributors' claim in the proceedings (not the proceedings in court on 24 December 1996, which consisted only of the judgment); the allegations by Mr Hoser in the book (being materially different in content and character from the imputations asserted by the plaintiffs and recorded as such in the judgment); and information about the nature and extent of dissemination of the book which had occurred. The article then resumes its report of the judgment at line 10 in explicit terms commencing with the word "Yesterday". There is a clear change of character in the article at line 3 (from a report of the judgment to a report of other things) and again at line 10 (from the report of other things back to the report of the judgment). 48 The part of the article which carries the relevant imputations is lines 5-7. That is not part of the report of the proceedings in the courtroom on 24 December 1996, ie the judgment delivered on that occasion. 49 I have taken into consideration that the headline should be recognised as part of a report of the proceedings in court on 24 December 1996. It was submitted that this was a representation that the whole of the article was a report of the occasion when the injunction application failed. I do not agree that the headline sent that message at all. It is consistent with the headline that the article might contain both a report of what had happened on that occasion, and also other information or comment concerning what had happened but not necessarily information as to what had actually occurred on that occasion. 50 If contrary to that view, the headline was a representation that the whole of the article was a report of what actually happened in the courtroom on 24 December 1996, the change in the character of the article is so clear at line 3 and again at line 10, that the reader would not take lines 3-9 to be a report of what was said in a judgment on 24 December 1996, as distinct from other information concerning the proceedings and concerning the contents and dissemination of the book. The reader would, in this view of the headline, take the representation to be incorrect. 51 For these reasons, the Nationwide article was relevantly not a report of proceedings in court within the meaning of the statute, and the defence of fair protected report accordingly fails on that account. 52 All parties agreed that, if I came to these conclusions, a separate judgment as to liability could be delivered. This is that judgment. 53 There will be verdicts and judgment for the plaintiffs against the defendants for damages to be assessed. Counsel should bring in short minutes of order. I will deliver a separate judgment as to damages in due course. *********

Last Modified: 12/22/1999 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.