Bass v McDonald & TCN Channel Nine Pty Ltd (No.6) [2001] NSWSC 988

Reported Decision : [2001] NSWSC 988 [2001] ACL Rep 145 NSW 56

New South Wales Supreme Court

CITATION : Bass v McDonald & TCN Channel Nine Pty Ltd (No.6) [2001] NSWSC 988 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 16791/90 HEARING DATE(S) : 17 - 19 October 2001 JUDGMENT DATE : 21 November 2001

Robin Bass PARTIES : Thomas McDonald TCN Channel Nine Pty Ltd JUDGMENT OF : Sperling J at 1

COUNSEL : Mr T Molomby with Mr R Rasmussen for the Plaintiff Mr B McClintock SC with Mr M Richardson for the Second Defendant SOLICITORS : William Oates Lawyers for the Plaintiff Gilbert & Tobin Lawyers for the Second Defendant CATCHWORDS : Defamation - whether alleged imputations were conveyed by the matter complained of - relevance of ameliorating content - "bane and antidote" - whether relevant that defamatory imputations would not have been believed Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 Chalmers v Payne (1835) 150 ER 67 CASES CITED : Charleston v News Group Newspapers Ltd [1995] 2 AC 65 at 74 Farquhar v Bottom [1980] 2 NSWLR 380 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 R Z Mines (Newcastle) Pty Ltd & Anor v Newcastle Newspapers Pty Ltd & Anor (Supreme Court, 14 November 1994, unreported) DECISION : See paragraphs 7 to 12 of the judgment.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List Sperling J

Wednesday 21 November 2001

16791/90 Bass v Mcdonald & TCN Channel Nine Pty Ltd

Judgment (No.6 – Reasons for directions to the jury) 1 His Honour: The plaintiff, Mr Bass, claimed damages for defamation in relation to a television programme. There was a separate trial as to the imputations allegedly conveyed and as to whether any such imputations were defamatory. 2 The plaintiff, an erstwhile building contractor, appeared in the programme, asserting, in effect, that, he had been subjected to victimisation by the BWIU. The state secretary of the union, Mr McDonald, was then shown in the programme, saying, in effect, that union was justified in taking action against the plaintiff because he was "a shonky operator". The moderator of the programme, Mr Munro, challenged Mr McDonald's explanation. 3 Counsel for the plaintiff, Mr Molomby, addressed first. It was a combined opening and closing address. The only evidence – the video recording of the programme and a transcript of it – was adduced during the address. In the course of his address, Mr Molomby said, as recorded (at Transcript 11), The question is not would the ordinary reasonable viewer believe these things as a result of seeing the programme. Would the ordinary reasonable viewer think they were true? The question is: would the ordinary reasonable viewer understand them as things that the programme is saying. To give you a simple example: it is possible to defame somebody in circumstances where nobody believes it when something very nasty is being said about them. For example, a clear, almost stupid, example: Mother Theresa is a child molester. Nobody in their right mind would believe it. You would think the person saying it is some sort of terminal lunatic. No one would believe it, but she can still bring a defamation case because it is a very nasty thing to say. It is said in that case in very direct terms. It is obviously the sort of thing that is potentially damaging to someone's reputation. It is not a question of whether the viewer believes it; it is a question of whether the viewer understands it as the message that is being given out - the meaning in that sense. 4 Counsel for the defendant, Mr McClintock, then addressed the jury. In the course of his address, he said, as recorded (at Transcript 30), If a viewer did not believe Mr McDonald and did not believe he was telling the truth, but believed what Mr Munro had said, and what Mr Bass had said, it is perfectly clear that that viewer would come down on the side of Mr Bass and against Mr McDonald. It is relevant who was believed in this program because differing points of view are put. . . . . . If a viewer believed Mr Bass and Mr Munro, these imputations will not be conveyed and the answer to the questions would be "No". … For them to succeed, they have to persuade you that the viewer would have believed what Mr McDonald was saying. . . . . . His Honour will tell you that you are bound to take account of the whole of the material. If there is a question in a program where you have got someone saying A and someone else saying A is wrong, you have to make up your mind what the viewer would have thought as a result. Did it say A or the opposite of A? . . . . . [T]aken overall, who do I really believe? And later, as recorded (at Transcript 36): The plaintiff wants you to accept that certain things are conveyed to the viewer. As I said to you, there are different points of view. On the one hand there is Mr Bass's point of view. If you ignore Mr McDonald, always said the scales would be heavily on the defendant side. If you thought Channel 9 was taking side with Mr Bass again the scales fall down on Channel 9 side, if you thought the viewer didn't know whether Mr Bass was saying that it was a vendetta, didn't know if Mr McDonald was saying the truth, if you didn't know or couldn't tell the scales. In fact, as I have said to you, my suggestion to you is that very strongly that you ought to take Mr Bass's side if you thought the viewer couldn't tell, and different points of view being put as media organisations do as responsible journalists, the plaintiff fails because it would mean the scales are, even the imputations would not have been conveyed because the viewer doesn't know whether they are or not. They don't know who is to be believed of the two sides. It is only you, if you believe the viewer. As I said members of the jury, in my submission to you, you fall very short on that because come down on Mr Bass's side, if you don't accept that proposition one thing I suggest you will accept is that the viewer would not have come to an adverse conclusion about Mr Bass because he would not have accepted Mr McDonald. That, members of the jury, is the burden of proof. As I said, members of the jury, the plaintiff must establish that to persuade you or must actually persuade you that those imputations were there and in relation to the second question and that they are defamatory. 5 At the conclusion of Mr McClintock's address, Mr Molomby sought a direction in accordance with a draft which was marked "3" for identification: DRAFT DIRECTION SOUGHT BY PLAINTIFF ON 18 OCTOBER 2001 There is something which Mr McClintock said in his address which I must correct. Mr McClintock said that Mr Molomby was wrong to say that it was not necessary for the ordinary reasonable viewer to believe that the imputations were true. Mr Molomby was not wrong. Everything he said on that point was correct. It was Mr McClintock who was wrong. He said: If the viewer did not know who was telling the truth as between Mr Bass or Mr McDonald, if you thought the viewer couldn't tell, and different points of view were being put, then the case would fail. That is wrong. If you thought the viewer did not know who was telling the truth, but saw the meanings, or the imputations, conveyed in the program, then the case would succeed. Mr McClintock also said in talking about putting the weight of each side's evidence and argument onto a set of scales, that: It's only if you thought the viewer would believe Mr McDonald that the scales would be pushed down in favour of Mr Bass. That too is wrong. It is not necessary, for the imputations to arise, that you find that the viewer would have believed Mr McDonald. It does not matter whether the viewer would have believed Mr McDonald or not. 6 Submissions were heard on the application in the absence of the jury. I said I would not rule on the question prior to my summing up but that my view on the legal question involved would be reflected in the summing up. 7 My direction to the jury on this point was as follows (at Summing Up 21/10/01 16): What is the significance of the principle that one has to have regard to the program has a whole? There are a number of ways, members of the jury, in which that can be done. For example, what is said elsewhere in the program may affect the meaning of what is said in the passage relied upon by a plaintiff. A word or a phrase may mean one thing in isolation but something else in the wider context of a program as a whole. But that is not this case. There is nothing in the rest of the program that gives a different meaning to the phrase 'shonky operator' than it would have if that phrase were used in isolation. In this case, the defendant relies on the program as a whole in a different way. The defendant says that the ordinary reasonable viewer would not have taken the program to convey that Mr Bass was a shonky operator, even though Mr McDonald said that in the program, because of other things in the program which were to the contrary. It is at this point that I have to give you the legal principle which governs that argument. The principle was formulated in the 19th century in relation to newspaper articles. It is expressed in terms of a publication suggesting a written publication. But the principle also applies in modern times to other media, such as television. The principle is this. If, in one part of the publication, something disreputable to the plaintiff is stated but that is removed by another part of the publication, it is said that the poison and the antidote must be taken together. I will elaborate on this but let me repeat that first. If, in one part of the publication something disreputable to the plaintiff is stated but that is removed by another part of the publication, it is said that the poison and the antidote must be taken to go. A clear illustration of that principle would be a newspaper report of something disparaging said about someone where the publication of such an article is obviously for the sole purpose of refuting what has been said about that person. If the report stood on its own, that is the earlier report which was disparaging and the reference to it in the article stood on its own, it would convey something disparaging about that person. But, if the whole tenor of the publication is to destroy the suggestion of wrongdoing, the publication does not convey the disparaging imputation. In that case, the illustration I have just given to you, the poisonous imputation is cancelled out by the antidote of the refutation. But that principle, members of the jury, only operates if the imputation that would have arisen from the disparaging statement standing alone is totally removed by what appears elsewhere in the publication. It is a question in each case whether the antidote is sufficient to remove the poison. If the reader or the viewer is left with nothing more than inconsistent assertions, neither of which overrides the other, the principle does not apply. The result is that one can have a television program where one part of it conveys a disparaging imputation and another part of it conveys the opposite imputation. In such a case, unless the ordinary reasonable viewer would understand the positive imputation as removing the negative one, the principle does not apply. The antidote must be a complete cure or the poison is left to do its work. It might not do as much damage because of the contrary imputation being there, but the disparaging imputation continues to be conveyed. That is the legal principle. But you might think it is equally a matter of commonsense. For relevant purposes, if a part of a program would be disparaging in isolation, the program carries that imputation, unless it is apparent that what the program as a whole is saying on that point is that the disparaging statement is wrong. I will repeat that. For relevant purposes, if part of a program would be disparaging in isolation, the program carries that imputation unless it is apparent that what the program as a whole is saying on that point is that the disparaging statement is wrong. 8 After my summing up of the plaintiff's case, the jury was allowed a fifteen minute break, during which time I asked counsel, in the absence of the jury, to raise anything they wished. Mr McClintock said, as recorded (at Summing Up 19/10/01 21): I would ask your Honour to redirect the jury in relation to what your Honour said to them in relation to when your Honour said if the viewer is left with inconsistent assertions the principle does not apply. Your Honour has, in fact, elevated to a question of law what is in fact is always a question of fact. With great respect, that direction is not correct. There is no authority that has ever said that if there are two inconsistent assertions the imputation must be conveyed. It is always a matter for the jury to make the decision. That was the reason why, for example, in R Z Mines , Hunt J presented two inconsistent assertions, said to the jury, one being the denial by my then client, the other being the defamatory imputation. He said: If you do interpret paragraph 12 in that way, nevertheless, you are left with an assertion by the newspaper and counter assertion by the company leaving the ordinary reasonable reader to judge for himself which is correct. The publication – it goes on. I ask your Honour to direct the jury in the same way Hunt J did, so that if they are told this assertion and counter assertion it is up to the reasonable reader to make the decision whether the imputation is conveyed, and to withdraw from the jury what your Honour said to them on that point. I say that with respect. While, of course, it's true, as I said to the jury, and, indeed your Honour said to the jury, we are responsible for what Mr McDonald said. The way your Honour left it to them, at least on the last occasion your Honour mentioned that, the second occasion, might conceivably be misleading. We are responsible for what Mr McDonald said and for what Mr Bass said and Mr Munro said. Your Honour earlier on gave the direction in relation to us relying upon the whole program. I ask your Honour to direct the jury, yes, we are responsible for what Mr McDonald said, we are equally responsible for what Mr Bass and Mr Munro said, and all of those things have to be taken into account in determining whether the meaning is conveyed. 9 I declined to accede to this request. Resuming my summing up, I reviewed the points made by Mr McClintock in his address which were, in my opinion, available to support the defendant's case. I then said (at Summing Up 21/10/01 26): Before I move to Mr McClintock's argument, I have to say that, in some respects, the way in which he sought to use the points I have mentioned did not accord with legal principle and must be disregarded. It is not enough for the program to have presented two sides of the story and leave it to the viewer to decide which is correct, let alone expect that the viewer will decide which is correct. Nor is it a question of which of the protagonists in the program the ordinary reasonable viewer would have believed. Still less is it the case that the plaintiff cannot succeed unless Mr McDonald would have been believed. It is a question of whether the ordinary reasonable viewer would have understood the program as conveying the alleged imputations against Mr Bass. It is not a question of whether the ordinary reasonable viewer would have been persuaded that the alleged imputations were true. To the extent that Mr McClintock put the defendant's case that way, you will have to disregard what he said. But that does not have any effect, one way or the other, on the argument that is available. That is the argument which I have outlined to you. Being available is, of course, not the same thing as being right. That is a matter for your consideration as, indeed, is every argument advanced in favour of one side or the other. 10 At the conclusion of my summing up, in the absence of the jury, Mr McClintock said, as recorded (at Summing Up 21/10/01 37), I just ask your Honour to withdraw that part of your summing-up which followed the introductory words in which your Honour said that some of the things I said did not accord to principle. In the course of that part of your Honour's summing-up, your Honour said, again it wasn't enough for the program to present two sides of the story. I am entitled to say it wasn't a question which it should be believed, it wasn't a case which Mr McDonald should be believed. In my submission, what is taken away from the jury is a factual question. It was a question if they didn't believe Mr McDonald, the imputation could not be conveyed. It is an argument about fact. Your Honour has elevated a factual argument into a converse of my factual argument into a question of law which, in my respectful submission, it is not. Also, may I say, it is in the circumstances when my submissions were open to me to put, on behalf of my client, it does injustice to my client's case to tell the jury that what I said did not accord with the principle. Those are my submissions, your Honour. 11 I declined to accede to this submission. 12 Mr McClintock asked me to give reasons for my opinion concerning the legal question involved, as reflected in my summing up. Those reasons now follow. 13 What is the law when a publication contains an alleged imputation and, in another part, a contradiction of that imputation? It is said that the publication must be taken as a whole, but what does that mean? 14 In Chalmers v Payne (1835) 150 ER 67, Baron Alderson said (at 68): [T]he question here is, whether the matter be slanderous or not, which is a question for the jury, who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff's character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together. [Emphasis added].