MAYAS PTY LTD (t/as MOREE CHAMPION) v RODNEY CAVALIER SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE JJA and Hope AJA 17-18 August 1989, 27 September 1989 [1989] NSWCA 141 DEFAMATION — trial judge holds words complained of capable of bearing defamatory imputation alleged by plaintiff — leaves to jury question whether the words did bear the imputation — jury find for plaintiff — question on appeal whether words were capable of bearing the alleged imputation — Farquhar v Bottom [1980] 2 NSWLR 380 and Jones v Skelton 1963 SR 644 referred to — appeal upheld. Priestley, Clarke JJA and Hope AJA On p17 of the Moree Champion of 14 February 1985 the following letter to the Editor was printed: "Sir, The appointment last year of Rodney Cavalier as Minister of Education, represented the nadir into which the NSW Labour Party had descended in filling cabinet positions. With Mr Wran's desire to balance left and right factions, and also to ensure that no man of stature was in a position to challenge his waning leadership, the need to fill the position with the best available talent took a back seat, if indeed it was ever a consideration. With his commission the policy of the Labour Party to force State children into private schools became immediately apparent. Mr Cavalier's threat to dismiss incompetent teachers at a time when his own brand of child molestation and teacher bashing has reached endemic proportions was ludicrous, coming from a Minister whose toadying to the bureaucrats in the Education Department has achieved lap dog proportions. Promotions based on exemplary paper work and toeing the departmental line 20 years ago are no substitute for a genuine commitment to the principles of public education today. One only has to read between the cliches and banalities of the Swan-Mackinnon and Rural reports to realise how far these air conditioned and ivory tower moguls are removed from the real World of today's classroom. We need these anachronisms like we need sickness and as such they should be cauterized. The Education Department and the portfolio must be abolished and the money spent on ensuring new teachers are properly selected and trained by practising educators, seconded to training institutions for no more than four years. This way, they would remain in touch with the classroom, and teacher training, now an absolute disaster of criminal neglect would do much to ensure the efficiency in schools with which our irrelevant minister is so apparently concerned. John C Boswell, Walgett High School." In letters much larger than those in which the letter was printed, and within the box enclosing the letter, the heading "Cavalier hranded 'molester"' appeared. This heading would be the first thing noticed by anyone looking at the part of the page on which the letter was printed. In April 1985 the letter was brought to the attention of the plaintiff by his Press Secretary to whom it had been forwarded as part of press clipping service. The plaintiff began proceedings against the newspaper publisher for defamation. In 2 UNREPORTED JUDGMENTS the proceedings he did not complain about the criticism of his performance as a Minister but the use of the phrase "child molestation". He contended that those words, understood in the context of the heading and the letter as a whole, conveyed the imputation that he had committed sexual offences against children. At the trial of the proceedings in June 1989 the jury found that the publication did convey that imputation. It is not disputed that if the words did convey that imputation, it was a highly defamatory one. The jury awarded the plaintiff $150,000 damages. The defendant appealed contending that the trial judge was in error in holding that the article was capable of conveying that imputation and consequently leaving to the jury the question whether the article in fact did convey it. The test to be applied in determining whether a publication is capable of conveying an imputation is well settled; for a convenient collection of the matters to which attention should be directed, and the cases which discuss various aspects of the test, see Farquhar v Bottom, 1980 (2) NSWLR 380 at 385-6. A frequently cited statement of the rule appears in the opinion of the Privy Council in Jones v Skelton 1963 SR 644, at 650: "Tt is well settled that the question as to whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide as to whether the words do in fact convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty and Sons (at 745), Lord Selborne said: 'The test according to the authorities is whether under the circumstances in which the writing was published, reasonable men to whom the publication was made would be likely to understand it in a libellous sense'. The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning; any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph ({1963] 2 All ER 151). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense." Although the statement in the foregoing passage that the question is a question of law has been questioned; see Lord Reid in Morgan v Odhams Press Ltd, [1971] 1 WLR 1239, at 1242-3, and Barbaro v Amalgamated Television Services Pty Ltd, Court of Appeal, 21 July 1989, unreported, per Samuels JA, at 9, there is no doubt that the question is one for the judge to decide and subject to appeal in the same way as any other judicial decision on a critical matter in the course of a trial. In applying the accepted test it is important to bear in mind the distinction between the ordinary, or reasonable, reader's understanding of what the newspaper is saying and the conclusion which a reader may reach as a result of WAAWAS PTY LTD (t/(as MOREE CHAMPION) v RODNEY CAVALIER (Priestley, Clarke JJ& and Hope AJA) his own beliefs and prejudices aroused by something in the article. This distinction was made in the reasons of Mason J in Harrison v Mirror Newspapers (1982) 149 CLR 293, at 301: "A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader." Senior Counsel for the defendant submitted that in a real sense the question is whether a reader could reasonably conclude that the letter (and heading) conveyed the imputation sued on or, as he put it, could the reasonable reader have reached a reasonable conclusion that it did. For this formulation he sought support from the reasons of Samuels JA in Steele v Mirror Newspapers [1974] 2 NSWLR 348, at 372-4. In that case Samuels JA was however dealing with the different issue of identification. Further, there is an element of tautology in the submission. If regard is to be paid to the reasonable reader one is considering a notional reader who reaches a reasonable conclusion. If, on the other hand one adopts, for the purposes of the test, the ordinary reader then it would be correct, in accordance with the authorities, to approach the matter on the basis that that reader reached a reasonable conclusion. Our preference is to posit the reasonable reader and ask whether he could have understood the article to convey the imputation. In defending the judge's decision counsel for the plaintiff founded himself on the word "molester" in the letter's heading and the phrase "child molestation" in its body. He submitted that while there was no reference in the published material to molestation of a sexual nature there was a widely held perception in the community that the description "child molester" applied to someone who had interfered sexually with children. Thus it was, he said, that any reasonable reader reading this article could understand the author to be saying that the plaintiff was a person who interfered sexually with children. Counsel for the plaintiff also placed emphasis on the use of the word "branded" in the heading. This word was capable, he argued, of being understood as stigmatised or labelled derogatively and as assisting to convey the notion that the molestation was sexual. These submissions quite properly place considerable emphasis on the heading; however, they also seem to us to tend to disregard the balance and, in particular, the whole thrust of the letter. We accept that if a person baldly said of another that he was a child molester it would be open to a jury to conclude that the reasonable reader would understand the speaker to mean that the person had interfered sexually with children; but the question raised in this case seems to us to be the significantly different one, was the phrase "own brand of child molestation" when considered in its context including the heading "Cavalier branded 'molester'" capable of conveying that message to the reasonable reader. 4 UNREPORTED JUDGMENTS In considering this question, we note first that the letter, on any view, constituted a polemic criticism of the Government, the Department of Education, the Premier, two named reports on education and the plaintiff, the plaintiff being particularly singled out for censure. The criticism was all directed, however, to the performance of those responsible for the administration of public education. The Premier was criticised for appointing the plaintiff to the Education portfolio; then the plaintiffs threat to dismiss incompetent teachers, and other aspects of the public administration of education, were roundly condemned. The unmistakeable theme was that the education system was deplorable and in need of reform and that the plaintiff's appointment as Minister of Education had only made things worse. We do not think the letter could reasonahly be understood to be of a gossipy nature or to be addressing questions of sexual behaviour. It appeared to be, and was presented as, a letter by a person, presumably a teacher, from a High School, voicing his considerable dissatisfaction with the system of public education. The particular words on which the imputation was based must be understood both in that general context and also in their immediate context. In the particular passage in which the words appear the point was made that the plaintiff's threat to dismiss teachers was ludicrous in view of his conduct which was described in terms of child molestation and teacher bashing. The words child molestation would not in their natural and ordinary meanings necessarily convey the idea of sexual misbehaviour against children. Depending on context they could just as readily be understood to convey child harassment or hostile interference with children. In the presently relevant context those meanings are not inapt given the earlier reference to the plaintiff's advancement of the government policy of forcing children into private schools. On the other hand an allegation of sexual molestation of children is not in keeping with the thrust of the letter's message. The letter plainly is concerned with one topic, public education, and the inadequate performance of persons, including the plaintiff, in the discharge of their duties in the administration of public education. To read into the words complained of a sexual connotation would involve, we think, the adoption of a strained or forced interpretation disregarding the whole thrust of the letter and accepting that the writer momentarily diverged from his subject to make an unconnected and wholly irrelevant charge of serious sexual misconduct against a Minister of the Crown. We think such an interpretation was only open if the tribunal took the words relied on by the plaintiff quite out of their context and put a meaning on them in complete disregard of the other contents of the letter. In the course of argument counsel for the plaintiff agreed that the hypothetical reader spoken of in the authorities must be taken to have read the whole of the letter, read it once, read it quickly and read it reasonably. We think this summary statement, short though it is, is justified by the authorities earlier referred to, collected in Farquhar. Such a reader of the letter would, in our opinion, first notice its heading, and could not know what it meant. The reader would have to go to the text to find out, and could then not escape seeing that the topic of the letter was criticism of the kind we have earlier detailed; we do not think that reader could reasonably come to the conclusion that anything sexual was being referred to at all. We conclude that the imputation relied on was not capable of being conveyed by the letter and heading. Accordingly, we uphold the appeal. This conclusion makes it unnecessary to refer to other grounds of appeal that were argued. WAAWAS PTY LTD (t/(as MOREE CHAMPION) v RODNEY CAVALIER (Priestley, Clarke JJA and Hope AJA) The Court is of the view that the judgment below should be set aside and judgment entered for the defendant. The plaintiff should pay the defendant's costs of the trial and the appeal, and should have a Suitors Fund Certificate. 5 Counsel for Appellant: WH Nicholas QC, with RA Campbell Solicitors for Appellant: Bush Burke and Co Counsel for Respondent: D Kennedy with Mrs Enright 10 Solicitors for Respondent: White Barnes and McGuire