LEVER v MURRAY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL HANDLEY, SHELLER and Cripps JJA 29 April 1993, 25 June 1993 [1993] NSWCA 160 The appellant claimed he suffered injury due to two publications of alleged defamatory statements. The first statement was made to a journalist and published and the second was published on a Channel 10 programme in which the plaintiff had appeared prior to the aired statement. The plaintiff claimed that, together with extrinsic facts, particulars of identification and in the words' natural and ordinary meaning that: (a) in respect of the first publication the plaintiff was "not worth regarding as a human being"; (b) in respect of the second publication that the plaintiff falsely pretended to be an Australian Aboriginal and had knowingly claimed land rights which he knew he was not entitled to. The trial judge entered judgment for the defendant. On appeal the appellant claims that: (a) the trial judge erred in not letting certain issues of identification go to the jury the effect of which was claimed to decrease the likelihood of the jury concluding that the plaintiff had established that the matter complained of conveyed the "imputation" to any person who (with certain after knowledge) saw the matter complained of; (b) the trial judge erred in withdrawing from the jury the imputation that the plaintiff was not worth regarding as a human being; and (c) the trial judge misdirected the jury. Held: (a) Whether the trial judge was right or wrong to withhold that material was no basis for a new trial. (b) The imputation claimed from the expression "Heap of imports" was strained, forced and unreasonable and could not have conveyed to the reasonable reader the imputation claimed. The trial judge was correct to withdraw it from the jury. (c) There was no misdirection. Capital and Counties Bank Ltd v Henty and Sons (1887) 7 App Cas 741 Lewis v Daily Telegraph Ltd [1964] AC 234 Jones v Skelton (1963) 63 SR 644 Handley JA I agree with Sheller JA. Sheller JA BACKGROUND Samuel Lever sued Wallace Telford Murray to recover damages for injury alleged to have been suffered by reason of the publication of defamatory matter by the defendant on two occasions, the first on 15 November 1988 in the "Gold Coast Mail" and the second on 2 June 1989 in a telecast on Channel Ten News. The proceedings initially came on for hearing before Carruthers J and a jury in December 1991. On 9 December 1991 Carruthers J, at the end of the closing address of the plaintiff's counsel, discharged the jury on the defendant's application and ordered a new trial. His Honour also ordered the plaintiff to pay the defendant's costs of the trial before him. The costs order was set aside by the Court of Appeal on 5 November 1992 and an order made that the costs of the first trial abide the result of the second trial. 2 UNREPORTED JUDGMENTS The second trial commenced before Hunt CJ at CL and a jury on 10 November 1992. The jury were called upon to answer a series of questions about each imputation alleged to have been made by the defendant by means of each publication. A negative answer to a question in the series directed to the plaintiff's case on liability meant that the jury was required to go no further. On the basis of the jury's answers to these questions, Hunt CJ at CL entered judgment for the defendant on both claims in the statement of claim and ordered the plaintiff to pay the defendant's costs of both trials. ALLEGED DEFAMATORY MATTER The material complained of in the publication of 5 November 1988, as it appeared in the Gold Coast Mail, was set out in Annexure A ("A") to the Statement of Claim: " 'IMPORTS' WON'T DICTATE TO MINISTER By Brad Forrest An unrepentant NSW Deputy Premier Wal Murray said his decision to stop Aboriginal housing projects at Fingal Head was due to the Tweed River feasibility study. "We are not going to be pushed around by a heap of imports or the so called environmentalists,' the Public Works Minister said of Thursday's decision. 'The housing projects are on the wrong side of the river... a river which has been silting up.' The decision has riled aborigines, who are fighting for their land rights claim and the proposed Ocean Blue Resorts Pty Ltd plan for a $200 million resort hotel. While their land council executive considers a $1 million housing offer from the developer, other aborigines say they are disgusted by the 'trade-off' deals and the latest decision to stop the projects. However Mr Murray said he was not going to have a 'bar' of the aborigines who set up a protest tent embassy, describing them as 'imports'. "Most people understand the need for a new river outlet... and most people are happy about moves for development,' he said. See report on Fingal, at 5." The material complained of as published on television on 2 June 1989 was set out in Annexure B ("B") to the Statement of Claim and as part of the context of the full text of the programme in Annexure C ("C"): "Caption: Wal Murray Deputy Premier New South Wales (thereby meaning the defendant). Wal Murray: Well, claims have been made in regard to land rights. The fact is that the people who are here are not of Aboriginal descent. They are of Kanak Island descent." The video of this segment of the programme was Exhibit 'E". CIRCUMSTANCES OF PUBLICATION When the statements were made proposals for development to take place near Fingal Head, a coastal town in northern New South Wales near the Queensland border, were on foot. The plaintiff was a leader of the Aboriginal community at Fingal Head and lived with members of his family in an Aboriginal village nearby. The plaintiff and other local residents were strongly opposed to the proposed development. His opposition was an active one. He had either set up or helped to set up an embassy tent which became the focal point of the Aboriginal protest against the development. The defendant, the Deputy Premier and Minister for Public Works and State Development in the New South Wales Government, supported the development. URJ LEVER v MURRAY (Sheller JA) 3 The first statement republished what had been said by the defendant to Brad Forrest, a journalist with the Gold Coast Mail which had a large circulation and was widely read in New South Wales and elsewhere. The second statement was made by the defendant during a programme concerning the Fingal Head development telecast by Channel 10. Shortly before the telecast of the matter complained of the plaintiff had appeared on the programme when he was introduced as "Samuel Leven" (sic). He had said: "As far as we're concerned, we're going to fight them all the way - till we have this bit of land protected under some kind of Legislation that will keep it for everyone and not just for a little handful." The video tape of this segment of the programme was Exhibit "D". The plaintiff gave evidence that when the defendant spoke he was about 300 yards from the tent embassy. From where the defendant stood it was not possible to see the tent embassy. IMPUTATIONS RELIED UPON In his statement of claim in its final form, the seventh further amended statement of claim (as amended), the plaintiff alleged that the matter complained of in the publication on 5 November 1988, both with the aid of certain extrinsic facts and in its natural and ordinary meaning, conveyed amongst other imputations the following: "The Plaintiff is not worth regarding as a human being." The plaintiff alleged that the matter complained of in the publication of 2 June 1988, both with the aid of certain extrinsic facts and in its natural and ordinary meaning, conveyed the following imputation: "(a) The Plaintiff falsely pretends to be an Australian Aboriginal. (b) The Plaintiff has knowingly claimed the Land Rights to which he is not entitled because he is not an Aboriginal." In each case these imputations were alleged to be defamatory of the plaintiff. As particulars of Extrinsic Facts (True Innuendo) it was alleged that the material complained of was published to persons, listed in the particulars of identification, with knowledge of the following extrinsic facts: "(a) The Plaintiff on many occasions had said that he was an Australian Aboriginal and was descended from Australian Aboriginals. (b) The Plaintiff is an Aborigine from Fingal Head. (c) The Plaintiff holds himself out as being an Aborigine. (d) Only Aboriginals are entitled to claim land rights. (e) The description of a person as an import means that person if an Aboriginal is a thing or inanimate object, an article and not a human being. (f) The words were spoken by the Defendant on the television while he was physically standing on the top of a hill at Fingal Head." It was said that the material complained of was published to the persons referred to in the particulars of identification. PARTICULARS OF IDENTIFICATION The particulars of identification were as follows: "Particulars of Identification The material set out in "A", "B" and "C" was published to persons with knowledge of the following: (a) The Plaintiff has claimed land rights on behalf of the Fingal Aboriginal community of which he is a member. 4 UNREPORTED JUDGMENTS (b) The Plaintiff was the spokesman for Aboriginals in respect of the Fingal Head Aboriginal Housing Project, Aboriginal Land Rights issue and proposed development at Fingal Head and the stopping of the Aboriginal housing project. (c) The Plaintiff was the secretary/administrator of the Aboriginal Land Council in the Tweed Bryon Bay area. (d) The Plaintiff was the Chairperson of the Fingal Head Aboriginal community. (e) The Plaintiff was one of a small group of Aboriginals who set up a protest tent embassy. (f) The Plaintiff was depicted in the segment on Channel Ten which contained the material complained of as spoken by the Defendant immediately prior to the Defendant. (g) The subject matter of the segment on Channel Ten which contained the statements of the Defendant comprising the material complained of was concerning the proposed Fingal Head Development and the battle by the Aboriginals, including the Plaintiff, to save the area. (h) The Plaintiff was introduced in the segment of the programme on Channel Ten containing the material complained of as spoken by the Defendant. He was introduced as being a member of the Aboriginal Land Council and was quoted as being in opposition to the proposed development. (i) When he appeared on the television programme on Channel Ten as aforesaid the Plaintiff looked and gave the appearance of being an Aboriginal. (j) The Plaintiff set up the protest tent embassy. The Plaintiff was identified by friends, relatives, Aboriginals and associates of the Plaintiff including: (i) Olga Vidla, Fingal Road, Fingal Head (ii) Bruce Graham, West Tweed Heads (iii) Noelene Lever, c/- 201 Cleveland Street, Redfern (iv) Jeff Farran (sic), 24 Lagoon Road, Fingal Head (v) Tony Jordan, Bambury Street, Fingal Head. The Plaintiff will also rely on the grapevine effect." GROUNDS OF APPEAL The plaintiff appealed against the verdict and judgment in favour of the defendant and such of the jury's answers to questions which were unfavourable to him and sought to have the verdict for the defendant set aside and a new trial ordered on issues determined by the jury against the plaintiff. The grounds of appeal upon which the plaintiff relied fell under three heads. Under the first head (Grounds 2, 4, 5, 6 and 8) the plaintiff contended that Hunt CJ at CL erred in not allowing certain evidence to be put to the jury on the issue of identification of the plaintiff. The grounds of appeal were: "2. His Honour erred in not allowing the evidence of Mr Farrar to go to the jury supporting the Plaintiff's case upon the issue of identification in respect of the television count (that is to say questions (1), (2) and (3) for each of the two imputations). 4. His Honour erred by not allowing the Appellant to attempt to establish the conveyance of the imputations in the television count by reason of the fact that witnesses saw Exhibit 'D' (the segment featuring the Appellant) immediately prior to Exhibit 'E' (the segment featuring the Respondent and the words complained of). URJ LEVER v MURRAY (Sheller JA) 5 5. His Honour erred in not allowing the Appellant to put to the jury that those who heard the Plaintiff speak on 4ZZZ in Brisbane and who saw the television programme would have identified the Appellant. 6. His Honour erred in law by not allowing the Appellant to submit to the jury that those who saw the Plaintiff speak on the television (Exhibit "D') just prior to the Respondent would have identified the Appellant for that reason when the Respondent spoke the words complained of. 8. His Honour erred in withdrawing from the consideration of the jury that the Appellant could have been identified by reference to the fact that the tent embassy which was manned by the Appellant and four other Aboriginals was 300 yard (sic) from where the Respondent spoke the words complained of and the Respondent's reference to 'the people who are here' could have been a reference to the people including the Appellant in the tent embassy." Under the second head the plaintiff contended that Hunt CJ at CL erred in law in withdrawing from the jury the imputation: "The Plaintiff is not worth regarding as a human being" (Ground 1). Finally the plaintiff contended that Hunt CJ at CL misdirected the jury in his summing up by stating that part of the address of counsel for the plaintiff was wrong (Ground 3). IDENTIFICATION This part of the appeal related to the television publication on 2 June 1989. In respect of each of the two imputations alleged to have been made by means of that publication the jury answered questions | and 2 "Yes" and question 3 "No". The questions were as follows: "TImputation (a) (1) Has the plaintiff established: (a) that he was one of the group of persons who had made claims in regard to land rights in the Fingal area; and (b) that he is an Australian Aboriginal, and (c) that he has held himself out to be such an Aboriginal? (2) Has the plaintiff also established: (a) that any persons who saw the matter complained of with knowledge of ALL three of the facts stated in (1); and (b) that any such person as an ordinary reasonable viewer interpreted the defendant as having asserted that every member of that group making land rights claims was of Kanak rather than of Aboriginal descent; and (c) that such person identified the plaintiff as a member of that group. (3) Has the plaintiff also established that the matter complained of conveyed to such person the imputation that he had falsely pretended to be an Australian Aboriginal? Imputation (b) (1) Has the plaintiff established that he was one of the group of persons who had made claims in regard to land rights in the Fingal area? (2) Has the plaintiff also established: (a) that any person saw the matter complained of with knowledge of that fact; and (b) that such person as an ordinary reasonable viewer interpreted the defendant as having asserted that every member of that group was of Kanak rather than of Aboriginal descent; and (c) that such person identified the plaintiff as a member of that group? 6 UNREPORTED JUDGMENTS (3) Has the plaintiff also established that the matter complained of conveyed to such person the imputation that he had knowingly claimed land rights to which he is not entitled because he is not an Aboriginal?" The plaintiff accepted that the jury's answer "Yes" to question 2 on each imputation meant that the plaintiff had succeeded on the issue of identification. In substance the plaintiff contended that Hunt CJ at CL erred in: - wrongly refusing to allow the evidence of Mr Farrar supporting the plaintiff's case on identification to go to the jury; - wrongly withdrawing from the consideration of the jury that the appellant could have been identified by the fact that the tent embassy was 300 yards from the point where the defendant spoke the words complained of; and - wrongly refusing to allow the plaintiff to submit to the jury that those who saw him speak on television in the segment of the programme Exhibit 'D' just prior to the defendant would have identified the plaintiff when the defendant spoke the words complained of. In his written submissions the plaintiff said that the five grounds of appeal "basically relate to facts his Honour decided himself on the issue of identification and refused to leave to the jury". The plaintiff described Mr Farrar as his main witness. Mr Farrar said when he saw the telecast he identified the plaintiff "because of the role he had in the protest at Fingal". He said he thought it was "an attack on Sam" and "was quite outrageous". Hunt CJ at CL took this evidence from the jury because he found Mr Farrar had not "come to a reasonable conclusion" since his identification depended upon something "not stated in the matter complained of'. The plaintiff further submitted that when, during the telecast the defendant said "The fact is that the people who are here are not of Aboriginal descent. They are of Kanak Island descent" he could be taken to be referring to the four or five aboriginals, including the plaintiff, who were manning the protest tent embassy only 300 yards away from where he was shown speaking. Hunt CJ at CL ruled that it was "not open to anybody reasonably to understand" that the defendant "was referring to people 300 yards away in the tent embassy, which he couldn't see". Instead of being able to rely for identification on the small group of Aboriginals who manned the tent embassy his Honour categorised the group referred to as those who had made land claims on the Fingal area. Hunt CJ at CL refused to let exhibit "D" go to the jury on the issue of identification even though it was shown to the three identification witnesses called by the plaintiff including Mr Farrar all of whom said they identified the appellant when they were next shown the material complained of. The plaintiff argued that the effect of the exclusion of this identification evidence was drastically to limit the matters available for the jury to consider on question 2 with the effect it became improbable they would answer question 3 in favour of the appellant. The reason his Honour ruled as he did was because it involved a new formulation of the plaintiff's case at a late stage which, if allowed, except on the basis that the jury were discharged and the plaintiff pay the costs, would seriously prejudice the defendant. In light of the affirmative answer given by the jury to question 2 it is difficult to see why the Judge's withholding of further identification from the jury would call for a new trial. Question 3 under both Imputation (a) and Imputation (b) asked whether the plaintiff had established that the matter complained of conveyed the imputation set out "to such person", meaning a person described in question 2 namely, "any person (who) saw the matter complained of with URJ LEVER v MURRAY (Sheller JA) 7 knowledge of all three of the facts stated in question 1". In his summing up Hunt CJ at CL defined the expression as meaning "the ordinary reasonable person who had identified the plaintiff in the way set out in question 2". The jury found that there were persons who had identified the plaintiff in the way set out in question 2 but the negative answer to question 3 indicated that the jury was not satisfied that the material complained of in its natural and ordinary meaning conveyed the alleged imputations to such person. The fact that the plaintiff may have been identified by other evidence and therefore by other persons does not seem to me to touch upon the critical issue raised by question 3, on which the plaintiff failed, namely whether the natural and ordinary meaning of the matter complained of conveyed the imputation alleged. The plaintiff conceded that one of the persons whose evidence of identification was before the jury, namely Mr Combo, was a person who knew all the relevant extrinsic facts relied upon to support the true innuendo, that is to say, all the extrinsic facts particularised other than that described in para(e), which was not relevant. Thus the jury's answer to question 3 in each case meant that the material complained of did not, to its satisfaction, convey the imputation to a person with knowledge of those extrinsic facts. In my opinion whether Hunt CJ at CL rightly or wrongly withheld or withdrew from the jury the material the subject of these grounds of appeal and said to support the plaintiff's case on identification, no basis is shown for a new trial. Despite the terms of grounds 4 and 5 of the grounds of appeal no separate or different argument was advanced in reliance upon them. "A HEAP OF IMPORTS" The imputation relied upon the subject of ground 1 was dealt with by Hunt CJ at CL in his judgment of 19 November 1992 as follows: "The context in which the expression 'a heap of imports' is to be found here is that the Government (if that is the 'we' to whom the defendant was understood to be referring) would not be 'pushed around by a heap of imports or the so-called environmentalists'. That context suggests (although it does not dictate) that the defendant was intending to say that the views of both sub groups would be disregarded because they had come or had been brought in from outside the Fingal area. Mr Evatt conceded that the imports and the conservationists would be understood as belonging to the same category. If that is the obvious context in which the expression 'a heap of imports' finds itself (as I think that it is), it is at least more likely that the subsequent reference to the word 'imports' by itself would be understood in the same sense. The issue which I have to decide is whether the ordinary reasonable reader would have disregarded that obvious interpretation to latch on to a metaphorical use of the words in the way suggested by Dr Muecke." Dr Muecke who gave his evidence on the voir dire had suggested that the word "import" usually referred to goods, not to humans, and that semantically, when applied to humans it was a metaphorical use of the words which implied (in a derogatory manner) that the person was "inanimate as in other words non human, the same as a thing. " He thought that the metaphorical use of the word "heap" assisted such a sense to be conveyed. At one point in his evidence Dr Muecke seemed to be saying that the word "import" had a special meaning in relation to Aboriginal people. However later in his evidence when asked "Is the understanding of that word 'import' meaning inanimate object, restricted to a class such as Aboriginals or is that general?" he answered: "No, that is general." 8 UNREPORTED JUDGMENTS Hunt CJ at CL would not allow Dr Muecke's evidence go to the jury and ruled that the matter pleaded was incapable of conveying the imputation claimed to the ordinary reasonable reader. This is the test described in a number of cases referred to by his Honour: Capital and Counties Bank Ltd v Henty and Sons (1887) 7 App Cas 741 at 745; Lewis v Daily Telegraph Ltd [1964] AC 234 at 259 and 266 and Jones v Skelton (1963) 63 SR 644 at 650. His Honour concluded that the imputation for which the plaintiff contended in the context and which the phrase "a heap of imports" was used was strained, forced and utterly unreasonable. As a matter of ordinary English usage in Australia "import" may be used to describe people and "heap" to describe a group of people. The context of the passage complained of could leave, in my opinion, no doubt that the expression "a heap of imports" was used to describe a group of people. I agree with Hunt CJ at CL that the expression "a heap of imports" was not one which could have conveyed to the reasonable reader the imputation that the plaintiff was not worth regarding as a human being. Accordingly, in my opinion, this ground of appeal fails. ALLEGED MISDIRECTION Finally I come to what the plaintiff contended to be a misdirection by his Honour. In the course of that part of his address to the jury concerning the identification of the plaintiff as the person referred to in the article in the Gold Coast Mail Mr Evatt, who appeared for the plaintiff both at the trial and on this appeal, referred, by way of example, to an article in the next morning's newspaper along these lines: "One of the barristers in a defamation case in the Supreme Court yesterday offered the members of the jury a bribe - one of the barristers in the defamation case heard yesterday in the Supreme Court offered members of the jury a bribe". This illustration was to demonstrate that while the ordinary reasonable reader of the newspaper would not know the barristers to whom the article referred a reader with particular knowledge such as the name of the defamation action and the names of the barristers involved would. Mr Evatt said: "There are only four of us. Each barrister, each of the four, would be identified as one of the barristers who tried to bribe the jury." Shortly after this Mr Evatt said: "So, the first thing we have to establish, if the barristers brought a claim against the Herald, was that they were the barristers in this case. The plaintiff has to establish that he was one of the group of Aborigines who set up a protest tent embassy." The illustration was, apparently, also designed to point out that damages were recoverable for the hurt involved even though the reader might know that the allegation, which Mr Evatt described as "a really serious allegation to make against a barrister", was untrue. The allegation central to the example was that one of the barristers offered a bribe. Built into counsel's address was the proposition that the allegation supported an imputation that each of the four barristers had offered a bribe. The proposition has only to be stated to be seen to be unsustainable. His Honour said, in that part of his summing up concerned with emphasising that the plaintiff sued as an individual person and not on behalf of a group of persons and accordingly must show he was individually being pointed to by the defendant: URJ LEVER v MURRAY (Cripps JA) 9 "Tt should be absolutely clear to you from what I have said that the example which Mr Evatt gave to you yesterday, about a statement that one of the four barristers here had bribed you would enable each of the four barristers here to sue for that allegation, was completely wrong." Mr Evatt argued, as I understood him, that his Honour misunderstood what he, Mr Evatt, had put to the jury. I do not agree. Mr Evatt further argued that the point made by his Honour was technical and that even if the example given by Mr Evatt "was completely wrong" his Honour should not have said so in his summing up. These arguments have no merit and I reject them. I see no reason why his Honour should not have taken steps in the way he did to ensure that the misapprehension in the jury's mind, to which Mr Evatt's example may have given rise, should not be corrected. In my opinion this ground of appeal also fails. CONCLUSION. In my opinion the appeal should be dismissed with costs. Cripps JA I agree with Sheller JA. Appeal dismissed with costs. Counsel for the Appellant: C Evatt QC Instructed by: Bruce R Miles Counsel for the Respondent: RR Stitt QC/RS McColl Instructed by: State Crown Solicitor