JOHN FAIRFAX & SONS LIMITED v LUKIN LUKIN v JOHN FAIRFAX & SONS LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS, MCHUGH and CLARKE JJA 22 & 23 February 1988, 6 July 1988 [1988] NSWCA 74 KEY WORDS: DEFAMATION — LEAVE TO APPEAL DEFAMATION — separate trial in Defamation List under Pt31 r 2 of questions whether or not certain imputations should go to the jury — discussion of circumstances in which leave to appeal in such cases should be granted and refused — plaintiff's application for leave to appeal refused and defendants' application allowed. PRACTICE & PROCEDURE — circumstances in which application for leave to appeal will be treated as the hearing of the appeal — Pt1 r12 and Pt51 r4(2) referred to. Samuels JA There were two summonses for leave to appeal before us, one filed by the plaintiff and the other by the first, second, fifth, and sixth defendants. Each challenged orders made by Hunt J in the Defamation List on 22 December 1987 deciding which of the imputations asserted in the further amended statement of claim should or should not go to the jury following a separate trial under Pt31 r 2 held with the consent of the parties. The further amended statement of claim (the amendments were made during the course of the hearing before Hunt J) sued upon an article written by the second defendant and published by the first defendant in The Sydney Morning Herald on 15 November 1986. The article is Annexure "A" to this judgment. [EDITOR'S NOTE: The said article is not reproduced on the CLIRS system. Refer to hard copy of judgment for details.] The plaintiff alleged that by that publication the first and second defendants made the following defamatory imputations of the plaintiff:- "(a) that the plaintiff and his brother had together committed the crime of cultivating and possessing marijuana for sale; (b) that the plaintiff had committed the crime of cultivating and possessing marijuana for sale; (c) that the plaintiff has so perverted a sense of humour and such little regard for his father that he was prepared to make fun of a near fatal accident to his father; (d) that the plaintiff was implicated in the murder of John Loller; (e) that the plaintiff is an ignorant and vulgar person; (f) that the plaintiff's conduct was such as to damage the tourist trade in his hometown of Port Lincoln; (g) that, by reason of some or all of the matters referred to in (a), (b) and (d) the plaintiff is no longer worthy to represent his country, Australia, in sporting competitions." Hunt J rejected (a), (b) and (c), holding as a matter of law that the publication was not capable of sustaining them, but ordered that the remaining four imputations should go to the jury. The defendants sought leave to appeal against the orders concerning imputations (d) and (g), and the plaintiff sought to restore the first three. 2 UNREPORTED JUDGMENTS When the applications came on before us, counsel appeared for the third and fourth defendants, who had not however participated in the proceedings before Hunt J, and to this procedural matter I will return presently. We were told at the outset that the plaintiff and the defendants (by which I mean, unless I state the contrary, the first, second, fifth and sixth defendants) had agreed that leave to appeal in each instance should be granted. However, we thought it preferable to hear something further about the nature of the case and, in the event, we heard full argument from Mr McPhee QC and Mr Rares for the defendants and from Mr Barry for the plaintiff. It will be convenient to consider first the defendants' challenge to the learned judge's determination that the publication was capable of sustaining an imputation "that the plaintiff was implicated in the murder of John Loller". It was common ground that "implicated in" was to be taken as meaning "criminally responsible for". The learned judge observed that two issues arose. The first was whether the ordinary reasonable reader could have read the matter complained of as asserting that Loller was murdered. The second was whether such a reader could have read it as asserting that the plaintiff was implicated in that murder. I agree that this analysis is logically correct. But (as his Honour appreciated) the issues so identified are "intertwined", and, to my mind, to such a degree that it is impossible to separate them. If the article does imply murder it can only be a murder in which the plaintiff or at least the Lukin family were implicated. And the implication of murder arises (if it arises at all) because of the presence of the references to Loller in an article about the plaintiff and his family and his, and his brother's, convictions of criminal charges concerning a prohibited substance. As Hunt J pointed out "the ordinary reasonable reader would be likely to interpret the matter complained of as asserting that Loller had been murdered only if some motive is seen as having been available for such a murder." That motive in the circumstances must be attributable to the plaintiff or the Lukin family. Hunt J found that the article either made or may be understood to have made the following statements, which I gratefully adopt:- "1. John Loller, a deckhand on a tuna boat owned by the plaintiff's father, jumped overboard sometime before May 1985 while the moored boat was riding out a storm, but he survived. 2. Something about this incident (which is nowhere specified) led to an investigation into its circumstances by the police, in May 1985. 3. The Police visited the Lukin family home in the course of investigating that incident in May 1985. 4. The marijuana cultivated by the plaintiff's brother was discovered by the police during that visit, although they had not expected to find it. 5. The plaintiff's brother pleaded guilty to cultivating and possessing marijuana and sometime between May and September 1985 he was sentenced to gaol for six months. He served three months of that sentence. 6. In September 1985, Loller fell down a shaft inside a wheat silo on a farm north of where the plaintiff lived, and he died in the ambulance on the way to hospital." The article does not offer any explanation of how Loller came to jump off the boat and there are, of course, a great many speculative possibilities. One is that he was drunk. The second is that he was under the influence of drugs other than alcohol. The third is that he was being victimised or threatened by another member of the crew, and the fourth, a rather unlikely conjecture, is that, though sober, he was showing off in some way. The article, I might add, does not indicate UBWHN FAIRFAX & SONS LIMITED v LUKIN LUKIN v JOHN FAIRFAX & SONS LIMITEB (Samuels JA) how he got back on board again. The police obviously were told of the incident and they must have been told of it in terms which suggested that an inquiry was appropriate. Their informant is not identified. There is no reason to assume that it was Loller himself. If the police had been told or had inferred, that Loller had been drunk at the time, it is unlikely, I would think, that they would have bothered further. If, however, they understood that a prohibited drug of some kind was involved, then they might indeed have proceeded to investigate. If they understood that Loller had been forced off the boat by someone else's threats of violence, then they might well have investigated on that account also. Whatever the circumstances were, about which the article is, as I have said, completely silent, it contains no suggestion that the plaintiff or any other member of the Lukin family was aboard the boat from which Loller jumped or was directly involved in the event in any way. The article asserts that Mr Lukin senior, or the Lukin organisation, owned a fleet of about twenty boats employing 200 men. Next, it is curious that the article, having taken Detective Senior Constable Barton to the Lukins' house "to find out about" Loller, relates Barton's chance discovery of David Lukin's marijuana, but says nothing at all about whether Barton did find out anything about Loller's immersion. One might think therefore that it was not, to Barton, an incident of great importance; or, perhaps, that if Loller was thought to have been affected by drugs when he jumped overboard, Barton's inquiry, to find out where he had got them, had been summarily and adventitiously answered. Loller's fatal fall is treated with similar economy. There is no indication of what he was doing at the time, or how he came to fall. What is of significance, however, is that there is no suggestion that the fall was other than accidental, or that it involved any other human agency or any suspicion of criminal or negligent conduct by anyone. Even more to the point, the article does not hint that any investigation by the police had been undertaken, or that a coronial inquiry had been held. Loller died about fourteen months before the article was published, ample time for the completion of any inquiries by police or coroner had any ever been carried out. It is perfectly consistent with what was published that Loller had left the sea, was working on the farm and accidentally fell before the eyes of fellow workers and in tragic but wholly innocent circumstances. I would conclude that, up to this point, the article is incapable of sustaining an implication that Loller was murdered. But does the fact that the description (laconic though it is) of Loller's death appears in this article, which consists of a more or less sensational treatment of the life and times of Dean Lukin (and of his family), compel a different conclusion? Why was Loller's death included unless it was to imply that it had something to do with the Lukin family? Does the article therefore, to return to the earlier analysis, suggest a motive for Loller's murder which fills the gap left by the absence of any discernible suggestion that his death occurred in suspicious circumstances? In my opinion that negative element is not overcome by the rest of the publication. Alike with his Honour I would reject the argument that the article is capable of conveying that the plaintiff (or his family) killed Loller, either because he was an informer, or because he was the innocent cause of the discovery of David Lukin's crop of marijuana. I also reject the theory (which I think ultimately influenced the learned judge) that the motive for murder could be seen as the need to keep Loller quiet about whatever it was that led him to jump overboard. I have 4 UNREPORTED JUDGMENTS already suggested an explanation for that conduct which would dispose of this submission. But, apart from that, the police already had some information about the incident; it was that which led them to the Lukin house in the first place. In the four months which elapsed between that incident and his death Loller must have had ample opportunity to talk to the police. Certainly, it is open to arrive at that conclusion. But, most importantly, there is nothing in the article to suggest that the police ever pursued their investigation into Loller's jump into the sea: and nothing to suggest that it contained any elements implicating the Lukin family apart from the possibility that the police were told that Loller had jumped from a boat owned by the Lukins while affected by some drug; or, perhaps, more specifically, after smoking marijuana. Of course, this might lend some additional support to the first of the theories Ihave discarded. But there is nothing to suggest, if the hypothesis just advanced is accepted, that it was Loller who gave information to the police. There is, perhaps, reason to suppose that in those circumstances he probably would not have done so. It is, of course, fairly open to wonder why the account of Loller's death was included in the article unless it was intended to have some relevance to the Lukin family. But I do not set much store by this. Loller certainly had such relevance. He was the unwitting cause of David Lukin's exposure, and he met a tragic, and to an extent, a violent death. A journalist might well have seen that combination as making a dramatic point. I see no motive reasonably conveyed by the publication which is capable of implying that Loller's death was murder, or, if it was, of implicating the plaintiff. Hunt J referred to English & Scottish Co-Operative Properties Mortgage & Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440, emphasising the setting (an article about the plaintiff and the Lukin family) in which the references to Loller are imbedded. I think, however, that Slesser LJ's reference (at 452) to Lord Halsbury's speech in Nevill v The Fine Art & General Insurance Co Ltd [1897] AC 68 (at 73 where his Lordship cites what was said by Brett LJ in Capital & Counties Bank v Henty (1879-80) 5 CPD 514 at 541, about seizing the only bad interpretation of a document in the face of a number of good ones) is a great deal more to the present point. There is a further aspect which occurs to me. Hunt J had "considerable difficulty" in resolving the fate of imputation (d) but finally let it go. I find less difficulty in rejecting it. Nevertheless, does the fact that two judges have differed constitute an argument that it represents an implication which a jury should be permitted to consider? I think not. I have the greatest respect for the view expressed by Hunt J, but prefer my own, and must, I think, give full expression to it. Hence, in my opinion imputation (d) should not go to the jury. It must follow that since imputation (g) rests in part upon imputation (d), imputation (g) cannot go to the jury either. That brings me to the plaintiff's summons which seeks, in substance, the restoration of imputations (a), (b) and (c). I need say no more than that I agree with Hunt J's reasons for concluding that these imputations should not go to the jury. That leaves the procedural questions. As I have said we heard full argument on all matters raised by the summonses. Counsel for the defendants were content to treat that argument as the hearing of the appeal, so that if leave were granted the substantive fate of the submissions made could be determined in one proceeding. UBUIN FAIRFAX & SONS LIMITED v LUKIN LUKIN v JOHN FAIRFAX & SONS LIMITEB (McHugh JA) Counsel for the plaintiff, however, told the Court, after taking instructions overnight, that his client wished for a formal hearing of the appeal proper if leave were granted upon either summons. To hear argument again on these points would be a waste of the Court's time; an even greater waste if it were necessary because of existing commitments to sit a different bench. We have heard everything that could have been usefully said. For my own part I have arrived at a firm conclusion. No doubt my colleagues have too. The Court has power under Pt! r 12 to dispense with compliance with any of the rules, and thus to do what may be necessary to give effect to Mr Rares' application - "We want your Honours to deal with the matter on the basis of the argument that was heard yesterday." Mr Barry conceded that the Court had power to waive the rules "so far as the disposing of the point of the appeal is concerned", but sought to rely on the requirement of Pt51 r 4(2) that an appeal must be instituted within fourteen (14) days after leave is given. So, he contends, he was entitled to see a notice of appeal filed by his adversary before being called on to argue. But he was made well aware of the grounds on which the defendants sought to appeal, and argued them. I am clear that to determine the matter now would not cause the slightest hardship, prejudice or inconvenience to the plaintiff; and none was suggested. That leaves the position of the third and fourth defendants, for whom Mr Holmes appeared. Although the Court invited him to address he preferred to take no part in the appeal, save to ask for his costs; but he remained on hand not seeking to be dismissed. Nor did the plaintiff seek to discontinue against him although there was no judgment or order against his clients which could be the subject of any appeal. I take it that the plaintiff had in mind to have the third and fourth defendants bound by the orders of this Court. That, however, is not possible without consent. The summons for leave to appeal in CA 45 of 1988 filed by the plaintiff as claimant is dismissed and leave to appeal is refused. The claimant must pay all six opponents' costs of the summons. To the extent that it may be necessary the appeal filed in the same matter is dismissed with no order for costs. The summons for leave to appeal in CA 41 of 1988 filed by John Fairfax & Sons Limited and Louisa Costa is allowed and leave to appeal granted. The opponent must pay the claimants' costs of the summons. The Court dispenses with the requirements of Pt51 r 4(2) and orders that O.2(i) of the orders made by Hunt J be varied by deleting reference to imputations (d) and (g). McHugh JA In this matter the plaintiff and defendants in a defamation action seek leave to appeal against decisions by Hunt J made pursuant to Pt31 r 2 of the Supreme Court Rules. The defendants contend that his Honour erred in permitting two imputations to go to the jury. The plaintiff contends that his Honour erred in determining that three imputations should not go to the jury. The facts and issues are set out in the judgment of Samuels JA which I have had the advantage of reading. Speaking generally, where a defendant in a defamation action, which must go to trial in any event, seeks leave to appeal against a Pt31 r 2 order on the ground that a particular imputation should not go to the jury, leave should be refused. A defendant who has had an adverse decision under Pt31 r 2 can always appeal against the decision if the plaintiff obtains a verdict on the imputation: David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346. To give a defendant leave to appeal against an interlocutory order where there must be a trial always delays the hearing of the trial and invariably increases the cost of litigation. If the defendant succeeds at the trial, an appeal against the ruling is unnecessary. No doubt there are cases where it is proper to grant leave 6 UNREPORTED JUDGMENTS to a defendant even though there must be a trial in any event. If, for example, the defendant intends to plead justification to the imputation if it goes to the jury, the Court may think it proper to grant leave to appeal in some cases. A trial on the issue of justification may be so long and expensive that it is proper for the Court to grant leave where the ruling under Pt31 r 2 is prima facie erroneous. However, to grant leave to appeal to a defendant, as of course, whenever this Court thinks that the ruling of the judge is prima facie erroneous would negate the benefits which flow from the existence of the Defamation List. Where a plaintiff wishes to appeal against a ruling that a publication does not carry a particular imputation, the position is different. If the plaintiff's submission is correct, and the case goes to trial on other imputations, there may at the plaintiff's own option be a new or further trial of the action. Consequently, this Court should be more inclined to grant leave to appeal to a plaintiff than to a defendant. Nevertheless, even where the claimant for leave is a plaintiff, the Court must guard against the view that leave should be granted upon a showing of prima facie error. In the present case both parties have sought leave to appeal. If the matter were left to my own decision, I think that I would refuse both applications for leave to appeal. However, the other members of the Court think that leave should be granted. In the circumstances I must consider the appeals on their merits. Having had the advantage of reading the judgment of Samuels JA, I agree with the orders which he proposes for the reasons which he gives. Clarke JA I agree with the orders proposed by Samuels JA and broadly for the reasons he has given. I wish only to make two observations. The first concerns imputation (d) "that the plaintiff was implicated in the murder of John Loller". This imputation was said to arise out of three paragraphs in the article understood in the context of the statements made in the balance of the article. Those three paragraphs when reduced to the basics assert that Loller, a deckhand employed by the Lukin family, jumped overboard, presumably from a Lukin fishing vessel, in 1984 in circumstances that led to a police inquiry. That inquiry took Detective Barton to the Lukin family home in May 1985 where he discovered that David Lukin, the plaintiff's brother, was cultivating marijuana. David Lukin was charged and pleaded guilty to cultivating and possessing marijuana, was sentenced to six months gaol and served three months of the sentence. In September 1985 Loller fell down a shaft inside a wheat silo on a farm north of Port Lincoln and died. It was said in support of this imputation that the suggestion was that each event was linked. Loller jumps overboard in suspicious circumstances; these involved the Lukins and thus Detective Barton went to their home and discovered and exposed David Lukin's criminal activity; Lukin was gaoled for, effectively, three months from some date in or after May 1985 and in September of that year Loller was found dead. Thus the article was suggesting, so the argument runs, that Loller was silenced by the Lukins. Samuels JA has pointed out in detail the fallacies involved in the submission and I agree with his reasoning. The imputation is a very grave one and in my opinion the foundation on which it is based is far too flimsy to withstand analysis. This is so even after allowance is made for the reasonable reader's tendency to read between the lines. The difficulty is emphasised by the absence of any reference to the plaintiff in this section of the article. The only UBMWHN FAIRFAX & SONS LIMITED v LUKIN LUKIN v JOHN FAIRFAX & SONS LIMITED (Clarke JA) feature linking these passages with the plaintiff is that they appear in an article about the Lukin family which focuses upon him. My second observation is that while I believe that leave should be granted in respect of the defendant's summons as proposed by Samuels JA I share the misgivings which have been expressed by McHugh JA as to the granting of leave to appeal against decisions upon the capacity of published material to convey imputations. ORDERS The summons for leave to appeal in CA 45 of 1988 filed by the plaintiff as claimant is dismissed and leave to appeal is refused. The claimant must pay all six opponents' costs of the summons. To the extent that it may be necessary the appeal filed in the same matter is dismissed with no order for costs. The summons for leave to appeal in CA 41 of 1988 filed by John Fairfax & Sons Limited and Louisa Costa is allowed and leave to appeal granted. The opponent must pay the claimants' costs of the summons. The Court dispenses with the requirements of Pt51 r 4(2) and orders that O.2(i) of the orders made by Hunt J be varied by deleting reference to imputations (d) and (g). COUNSEL: CLAIMANTS - N R McPHEE QC/S D RARES (CA 41 of 1988) CT BARRY (CA 45 of 1988) OPPONENTS - C T BARRY (CA 41 of 1988) 1,2,5 & 6 N R McPHEE QC/S D RARES (CA 45 of 1988) 3 & 4 M F HOLMES (CA 45 of 1988) SOLICITORS: CLAIMANTS - MALLESONS STEPHEN JAQUES (CA 41 of 1988) FREEHILL, HOLLINGDALE & PAGE (CA 45/1988) OPPONENTS - FREEHILL HOLLINGDALE & PAGE (CA 41 of 1988) MALLESONS STEPHEN JAQUES (CA 45 of 1988)