Tingle & Anor v Harbour Radio P/L & Anor [No 2] [1999] NSWSC 414

New South Wales Supreme Court CITATION : Tingle & Anor v Harbour Radio P/L & Anor [No 2] [1999] NSWSC 414 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 21262/95 HEARING DATE(S) : 27/04/99, 28/04/99 JUDGMENT DATE : 28 April 1999

John Tingle (1 Pl) PARTIES : The Shooters Party Limited (2 Pl) Harbour Radio Pty Limited t/as 2GB New Plus 873 (1 Def) Ron Casey (2 Def) JUDGMENT OF : Kirby J

T D Blackburn (1 Pl) COUNSEL : No appearance (2 Pl) B R McClintock SC/R Lancaster (Defs) SOLICITORS : Barker Gosling (1 Pl & 2 Pl) Bush, Burke & Co (Defs) CATCHWORDS : Defamation; Imputations - whether arise Jones v Skelton (1963) SR (NSW) 644 CASES CITED : Farquhar v Bottom [1980] 2 NSWLR 380 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 DECISION : See para 19

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Wednesday 28 April 1999

21262/95 - JOHN TINGLE & ANOR v HARBOUR RADIO PTY LTD & ANOR [No 2]

JUDGMENT

1 HIS HONOUR: : The plaintiff, John Tingle, has brought an action for defamation against the company responsible for operating Radio 2GB. The action arises out of a broadcast on 1 November 1995 by Radio 2GB in which their announcer Ron Casey said the following words: "I was talking about the Shooters' Party and the Shooters' Party is in debt to the State Government. Now we hear a lot about them, you know, beating their chests and they have got all this political strength and they - well they have money coming in from the United States and the Shooters' Party in a Court case High Court Judge Sir Harry Gibbs appointed as a mediator on May 26 he said the Shooters' Party must pay back the principal of the loan made to them by the State Government and the legal costs and the interest, which means the Shooters' Party John Tingle's crowd, is in debt to the State Government to the tune of $880,000. That's right $880,000. Okay fellas, shut up until you pay your bill, okay, just be quiet until you have paid your bill". 2 The plaintiff asserts in the context of certain facts which are notorious, and which are conceded to be notorious by the defendant, that the words spoken gave rise to certain defamatory imputations. 3 The facts are these: · First that Mr John Tingle is a member of the Legislative Council of New South Wales, being the sole representative of the Shooters' Party. · Secondly, that Mr Tingle is a person prominently identified with the Shooters' Party. 4 On the basis of these notorious facts it is said that the publication, on the natural and ordinary meaning of the words used, gave rise to the following imputations, each of which was defamatory of the plaintiff: (a) the first plaintiff had bragged publicly about the political strength and secure financial position of the Shooters' Party, knowing that both boasts were untrue. (b) the first plaintiff was a foolish politician in that he allied himself to a political party whose members made unfounded boasts. 5 The defendant has submitted that the words published were not capable of giving rise to either imputation, and a verdict should therefore be entered for the defendants. 6 The submission made by the defendants in broad terms is along the following lines: First, it is suggested that the words published could not be construed as an attack upon the plaintiff. They may be an attack upon the Shooters' Party, but that's a different matter. 7 Secondly, there is no basis upon which it can be suggested either that the words which were published were untrue, or that the plaintiff had knowledge that they were untrue. 8 Thirdly, moving to the second imputation, it is said to be inconsistent with the first. It suggests that members of the party, as opposed to Mr Tingle, did the bragging. Further there is no basis upon which it can reasonably be inferred that the words used carried a suggestion that Mr Tingle was foolish. He would only be foolish if he knew at the time he joined the party that boasting had occurred. The words published carry no such suggestion. 9 In broad terms, in respect of both imputations, the defendants have pointed to the fact that nothing in the passage, in terms, makes the accusations which are contained within either imputation. Further, no process of reasoning, by implication or inference, can give rise to such imputations. 10 The plaintiff responded to these arguments by drawing attention to the words of the Privy Council in Jones v Skelton (1963) SR (NSW) 644, where the following was said at page 650: "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 Eng R 151). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided by not any special but only by general knowledge and not fettered by 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." 11 (See also Hunt J in Farquhar v Bottom [1980] 2 NSWLR 380 at 380 and 385-386). 12 Here the plaintiff contends that the notorious facts amount to the identification of Mr Tingle as the public face of the Shooters' Party. He is its sole member in Parliament. He is the person that the public associates with the party. That association is reinforced by the reference to him in the words complained of. 13 In respect of the first imputation the ordinary reasonable listener would understand the following: First, that Mr Tingle had bragged publicly. They point to the words 'beating their chest'. 14 Secondly, that the matters in respect of which there was boasting are identified. They are two in number, namely, their political strength and their financial strength. The reference to money coming from the USA is capable of implying, according to their argument, reasonably substantial sums of money flowing to the party. 15 Thirdly, that the party in fact owes a substantial sum, almost $1 million ($880,000), which fact is said by Mr Casey in a sneering tone. They contrast, therefore, the boasts, on the one hand, and what they suggest is the reality, on the other. 16 It is the juxtaposition of the two which is capable of suggesting that the boasts of the plaintiff were both untrue, and known to be untrue. A clear implication is that Mr Tingle does not have the political clout or the financial strength which he has claimed on behalf of the party. That impression they say is reinforced by the final words in the broadcast: Namely, "Okay fellas, shut up until you pay your bill, okay, just be quiet until you have paid your bill". 17 In respect of the suggestion that the second imputation is inconsistent with the first, counsel for the plaintiff very properly has drawn my attention to the remarks of the then President of the Court of Appeal in Drummoyne Municipal Council v Australian Broadcasting Corporation ((1990) 21 NSWLR 135) where, at 148, his Honour drew attention to two authorities which suggested that the plaintiff may not allege two inconsistent or contradictory imputations. 18 Here however counsel for the plaintiff asserts that the two imputations are not contradictory. They are capable of being read together. Mr Tingle may have made boasts, but other members of the party may have made the same boasts, and he is foolish because he joined up with such people. 19 These, then, are the arguments. I have not found the issue easy to determine. I have reservations as to whether the material published is capable of conveying the imputations pleaded. However, on balance, I am persuaded that the material is arguably capable of carrying the imputations, and that the matter should go to the jury. **********