Ow Chio Kiat v Nationwide News P/L & Anor [2000] NSWSC 700

New South Wales Supreme Court

CITATION : Ow Chio Kiat v Nationwide News P/L & Anor [2000] NSWSC 700 CURRENT JURISDICTION: Common Law Division Defamation List FILE NUMBER(S) : SC 20279/99 HEARING DATE(S) : 07/07/2000 JUDGMENT DATE : 21 July 2000

Ow Chio Kiat (Pl) PARTIES : Nationwide News Pty Ltd (ACN 008 438 828) (1 Def) Teresa Ooi (2 Def) JUDGMENT OF : Kirby J

COUNSEL : J R Sackar QC (Pl) T Blackburn (Defs) SOLICITORS : Browne & Co (Pl) Blake Dawson Waldron (Defs) CATCHWORDS : Defamation - Capacity of material to carry imputations CASES CITED : Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Charleston v News Group Newspapers Limited (1995) 2 AC 65 DECISION : Ref para 23

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

KIRBY J

Friday 21 July 2000

020279/99 - OW CHIO KIAT v NATIONWIDE NEWS PTY LTD & ANOR (CAN 008 438 828)

JUDGMENT

1 HIS HONOUR: The plaintiff, Ow Chio Kiat, is a successful businessman with interests in Asia and Australia. He has commenced an action for defamation against Nationwide News Pty Limited, the publishers of The Australian newspaper, and against a journalist, Teresa Ooi. The action arises out of the publication by The Australian of an article by Ms Ooi on 23 April 1999. 2 The article was published under the following headline: "Ow Lies Low at Luxury Hotel Launch" 3 The headline has some prominence. The article which follows is in these terms: "Singapore investor and shipping tycoon CK Ow kept a low profile despite being in Sydney earlier this week when his $220 million hotel and luxury residential development of the former Caltex House on Kent Street was officially unveiled. Although he was staying at his Sir Stamford Hotel in Double Bay, Mr Ow did not turn up for the media launch when plans of the 157 unit project were revealed on Tuesday. Since the onset of the Asian crisis, when Mr Ow had to shelve plans to launch a $500 million listed trust of his Stamford hotels in Australia and New Zealand early last year, he has been out of the public eye as far as Australia is concerned. Delays in construction and hiccups in the marketing campaign of the apartments have not helped. It is Mr Ow's first hotel and residential development in Australia. 'Building a multi-storey structure on top of an existing building has not been easy' admitted Anthony rice, general manager of Stamford Property Services, Mr Ow's development arm. 'We have renegotiated our agreement with the builders, Multiplex and will now complete the development by November', Mr Rice added. When marketing of this apartments (sic) was first launched in November 1997, the Asian financial crisis had begun to bite into the regional economy. Amid growing concerns that Sydney CBD was facing an oversupply of city units, marketing of the Stamford on Kent apartments was called off a month later. Prices have fallen about 5 per cent from $390,000 for one-bedder to $376,000. Two-bedders originally priced at $660,000 to $900,000 are now between $807,000 and $858,000. The most expensive penthouse costs $3.4 million instead of $3.7 million. Stamford has changed marketing agents since late last year, appointing Jones Lang LaSalle to relaunch the marketing drive. Previous arrangements where investors were given guaranteed returns on sales of the apartments have been abolished. Jones Lang LaSalle said about 30 percent of the 157 apartments had been sold. The company recently appointed Ian Hurst as general manager of the hotel, to be branded Stamford Plaza. Mr Hurst, who previously worked for the Hilton International group, said: 'We are aiming at the high and corporate market and we see the Observatory and Park Hyatt as our closest rivals.'" 4 Objection was taken by the defendants to the original Statement of Claim. An Amended Statement of Claim was, therefore, prepared. It has not yet been filed. It quickly became apparent, in the course of argument, that the proposed imputations required refinement. The first imputation in the proposed Amended Statement of Claim was in these terms: "7.1 The plaintiff deliberately avoided the media launch of the Kent Street Project because he was ashamed at being exposed for his economic misjudgment in causing Hai Sun Hup to undertake the Kent Street Project." 5 The plaintiff relies upon the natural and ordinary meaning of the words published. However, nowhere does the article mention Hai Sun Hup. The imputation which was substituted, in the course of argument, was in these terms: "The plaintiff deliberately avoided the media launch of the Kent Street Project because he was ashamed he may be exposed for his economic misjudgment in undertaking the Kent Street Project." 6 The broad submission of the defendants, in respect of this, and other imputations, is that the article is unremarkable and inoffensive. Only a reader of extreme sensitivity, or someone who had a morbid or suspicious mind, would see any criticism in the article. They would certainly not see the imputations which have been pleaded. The article is, in the defendants' submission, a classic illustration of what Mason J (as he then was) was referring to in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, when he said this: (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 being 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. " [emphasis added] 7 The defendant underlined that the article should not be examined from the viewpoint of a section of the community, such as the Chinese readership. Rather, the test is the ordinary reasonable reader. In the words of Lord Nicholls of Birkenhead in Charleston v News Group Newspapers Limited (1995) 2 AC 65: (at 73/74) "The law adopts a single standard for determining whether a newspaper article is defamatory; the ordinary reader of that newspaper. I leave aside cases where some readers may have special knowledge of facts which would cause them to give the words a different meaning. In principle this is a crude yardstick, because readers of mass circulation newspapers vary enormously in the way they read articles and the way they interpret what they read. It is, indeed, in this very consideration that the law finds justification for its single standard. The consequence is that, in the case of some publications, there may be many readers who understand in a defamatory sense words which, by the single standard of the ordinary reader, were not defamatory. In respect of those readers a plaintiff has no remedy. The converse is equally true. So a newspaper may find itself paying damages for libel assessed by reference to a readership many of whose members did not read the words in a defamatory sense." 8 The article unquestionably identified difficulties in the project. However, the difficulties, according to the defendants, were incapable of reflecting adversely upon Mr Ow. They were: "(a) the building of a multi storey structure on top of an existing building; (b) delays in construction and hiccups in the marketing campaign of the apartments; (c) most fundamentally, the Asian financial crisis." 9 In written submissions, the defendants said this: "8. The Asian financial crisis is a matter of notoriety. It was not caused by the plaintiff. In the mind of the public, it is probably fair to say that the general perception was of a domino-like collapse of Asian financial institutions on account of bad debts and currency movements. Even if that is not an accurate summary of the general perception of the Asian crisis, it had nothing to do with the plaintiff in particular. There is not the slightest suggestion in the matter complained of that problems with the development were caused by the plaintiff's economic misjudgment. Drawing such an imputation as a whole from the matter complained of is quite simply unreasonable." 10 At first, I was inclined to the view, that attributing shame to the plaintiff may be putting the matter rather too high. However, I am persuaded that the imputation is capable of arising, and should be left to the jury. 11 First, the headline uses the expression "Lies Low". That expression is commonly associated with criminal conduct, and avoidance of detection by the police. An extract from the Macquarie Dictionary includes the meaning, "to be in hiding". 12 Secondly, in the context of a media launch, and the marketing of apartments in Sydney, the article states "Mr Ow did not turn up." That phrase carries with it, to my mind, the idea that there was a reasonable expectation that he would be there, but failed to appear. It plainly was reasonable to suppose that he would be there. It was his project. It concerned the development of apartments in Sydney. He was close at hand, staying at Double Bay. 13 Thirdly, a media launch, by its nature, includes journalists, and perhaps others, who may be expected to ask questions. Those whose questions he was avoiding by not turning up may include investors, as well as journalists. 14 These matters in combination, to my mind, carry with them a recognition by Mr Ow that he was responsible, and was at fault. He sponsored a project which failed, or encountered significant difficulties. He misread the signs. Having done so, he went into hiding out of shame. The imputation, in my view, is capable of arising. 15 Turning to the second imputation, it is in these terms: "7.2 The plaintiff was a coward in that he had deliberately avoided the media launch of the Kent Street Project in order to escape criticism of his financial and commercial judgment." 16 The defendants object to this imputation upon much the same basis. However, the article gives rise to the question, "Why did Mr Ow fail to attend the media launch?" As with the previous imputation, the answer suggested by the article involves a recognition on his part of mismanagement, or miscalculation, as well as responsibility. That, to my mind, arises from the article taken as a whole, and especially the headline ("Lying Low"), and the phrase "not turn up". By not turning up, Mr Ow had refused to make himself accountable. That, I believe, is capable of being viewed as cowardice. Imputation 7.2, therefore, should go to the jury. 17 It is convenient to deal with the next two imputations together. As originally framed in the proposed Amended Statement of Claim, they were in these terms: "7.3 The plaintiff had deliberately avoided facing potential investors in the Kent Street Project because he had broken promises to the previous investors that there was a guaranteed return on apartments in the Project. 7.4 The plaintiff was not to be trusted in business because he had caused Hai Sun Hup to go back on its promise to provide guaranteed returns on apartments in the Kent Street Project which had been purchased prior to 22 April 1999." 18 However, 7.4 suffers from the same difficulty as 7.1 above. The proposed imputation, which was debated during the hearing, was therefore amended so that it was in these terms: "7.4 The plaintiff was not to be trusted in business because he had gone back on his promise to provide guaranteed returns on apartments in the Kent Street Project which had been purchased prior to 22 April 1999." 19 The plaintiff relies especially upon the following passage, as giving rise to these imputations: "Stamford has changed marketing agents since late last year, appointing Jones Lang LaSalle to relaunch the marketing drive. Previous arrangements where investors were given guaranteed returns on sales of the apartments have been abolished." 20 That passage appears in the context of a previous marketing campaign, launched in November 1997, which was abandoned after one month (once it was recognised that there was an over-supply of CBD apartments). The original marketing agents were then replaced, and the marketing campaign relaunched almost two years later. 21 The plaintiff argues that the phrase "guaranteed returns … have been abolished" is capable of suggesting that the plaintiff has reneged on his previous promise. It has to be said that the use of the word "abolished" is odd. The plaintiff suggests that it is ambiguous. It is capable of suggesting that all arrangements which included a guaranteed return (past as well as future), have been abrogated. If there is ambiguity, it must be construed against the publisher, in much the same way as an ambiguous insurance policy is construed against the insurer. Moreover, if there is ambiguity, all shades of meaning are available to the jury. Since the issue is one of capacity, it should be left to the jury. To my mind, however, it does not carry the suggested implication. Rather, the article is speaking about the arrangements now being offered to those who choose to invest. I believe that the imputations 7.3 and 7.4 are a strained and unreasonable construction. They should not go to the jury. 22 I therefore make the following orders: