New South Wales Court of Appeal CITATION: NATIONWIDE NEWS PTY. LIMITED v. CARMICHAEL & OTHERS [2005] NSWCA 56 HEARING DATE(S): 14/02/2005 JUDGMENT DATE: 14 February 2005 JUDGMENT OF: Sheller JA at 1,24; Beazley JA at 2; Campbell AJA at 23 DECISION: Leave refused with costs. CATCHWORDS: DEFAMATION - whether article capable of carrying an imputation - accuracy of reporting court proceedings - relevance of headlines and article layout - whether article simply reported courtroom proceedings NATIONWIDE NEWS PTY. LIMITED (Appellant) PARTIES: JOANNE CARMICHAEL, LINDA RENZ, MELISSA McKENDRICK (Respondents) FILE NUMBER(S): CA 40650/04 A. Leopold (Claimant) COUNSEL: C. Evatt/G. Foster (Opponents) Blake Dawson Waldron (Claimant) SOLICITORS: Carters Law Firm (Opponents) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 20080/04 LOWER COURT JUDICIAL OFFICER: Nicholas J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40650/04 SHELLER JA BEAZLEY JA CAMPBELL AJA 14 February 2005 NATIONWIDE NEWS PTY. LIMITED v. CARMICHAEL & ORS. Judgment 1 SHELLER JA: I invite Beazley JA to deliver the first judgment. 2 BEAZLEY JA: The claimant seeks leave to appeal against the order made by Justice Nicholas on 16 July 2004, that a newspaper article in the Daily Telegraph on 13 February 2004 entitled "Court told neighbours colluded to get money from a gardener" carried imputations of actual collusion between a group of neighbours "to get rich". 3 The application for leave to appeal and the appeal have been heard concurrently by the Court. The opponents to the appeal were plaintiffs in the action in the District Court in which they sought damages from a neighbour alleging he had attempted to poison them with pesticides. The opponents were all residents in the same block of units. The neighbour, being the defendant in the District Court proceedings, was an elderly market gardener who grew vegetables to sell in a nearby green-grocer's shop. 4 On 13 February 2004 the claimant published an article written by its court reporter headed "Court told neighbours colluded to get money from a gardener". 5 Underneath appeared a group photograph of a number of the opponents. Each was identified by name, together with a short statement of that person's allegations. A photograph of the defendant in the District Court proceedings appeared in an inset, with a statement of his allegations. There was another box inset into the article headed "Case Notes". It set out information under three subheadings: "Claim", "The Defence", and "The Evidence". 6 Beneath the photograph of a number of the opponents and the inset box containing the photograph of the defendant in the District Court, there appeared what I will describe as a second headline that stated, "Poisoning claim a scam 'to get rich'". This second headline was printed in large and heavier print than the top headline. The words "to get rich" were contained within single quotation marks. 7 Of the material on the page, this second headline was the most prominent and was the item that was likely to most readily capture the reader's eye. The introductory paragraph of the article stated: "One of twelve Housing Commission residents suing an elderly gardener for up to $750,000 for pesticide poisoning allegedly told a neighbour the claims were all lies." 8 Thereafter there appeared a fairly detailed reproduction of a portion of cross-examination of two of the opponents. The article concluded with the statement, "The case before Judge Terrence Naughton continues". 9 The first to ninth opponents pleaded that the article (save for the defendant's response to the allegation) conveyed the imputation "the (relevant opponent) colluded with her neighbours for the purpose of bringing a poisoning claim against Mr Tavernese in a scam to get rich". The tenth opponent pleaded that the article conveyed the following imputation in respect of her: "The (tenth opponent) colluded with her neighbours in bringing a poisoning claim against Mr Tavernese in a scam for her son Ayden to get rich". 10 The claimant moved pursuant to Part 31 Rule 2 of the Supreme Court Rules to strike out the imputations on the basis they were not capable of carrying the imputation complained of. The trial judge, Justice Nicholas, held: "... my opinion is that there is ample material in the matter complained of from which a reasonable reader would understand terms of the imputation. The statements 'Court told neighbours colluded to get money from a gardener' and 'poisoning claim a scam to get rich' are prominent and unqualified. The photograph of the claimants as a group juxtaposed with that of Mr Tavernese supports the impression of collusion conveyed by these statements and also by the account of the suggestions put to Ms Carmichael and Mr Planner by, and the statements attributed to, Mr Murr, Senior Counsel." 11 It followed on his Honour's judgment that the imputations should go to the jury. 12 The claimant contended that the article in its entirety was a neutral report of court proceedings by its court reporter. In particular, it submitted that because the second headline, "poisoning claim a scam 'to get rich'" contained within it a quotation, it was apparent that the words "to get rich" indicated those words were a quote from somewhere, and indeed were to be found shortly thereafter in the body of the article in the second paragraph. I must say that for myself the use of single quotation marks does not self-evidently convey that what was said therein was a quote, but at the end of the day that will not be determinative of my view on the matter. 13 The claimant further, and more particularly, contended that the article was not capable of conveying an imputation of guilt, that being the imputation alleged. Rather, the article conveyed a lesser imputation of, for example, an allegation of suspicion of guilt (see Mirror Newspaper v Harrison (1982) 149 CLR 293). The opponents in written submissions submitted, that the second headline was the claimant's own creation and didn't derive from the Court proceedings themselves. 14 The opponents also said that the second heading was unconnected with the article as a whole, which is a report of the cross-examination of two only of the opponents. It was submitted that a fair report, including headlines, would have made that clear. More particularly, the opponents submitted that the article did not state that the Court was told that neighbours colluded to get money or that they were involved in "a poisoning scam to get rich". 15 The principles that govern a court's determination as to the capacity of a matter complained of to convey an imputation were not in dispute. The appellant relied upon McConnel Kitchen & Co Pty Limited v John Fairfax & Sons Pty Limited (1980) 2 NSWLR 845 at 25, where Hunt J said: "Where the context of the report of an allegation in a pleading is that the allegation is denied and that the truth has yet to be determined by a trial, the report as a whole is, in my view, incapable of conveying the imputation that the plaintiff is guilty of the allegation reported ... Each case will, of course, depend upon the context in which that allegation is reported." 16 The appellant further relied upon the statement of Justices McHugh and Callinan in Fairfax Publications Pty Limited v Rivkin (2003) 77 ALJR 1657 and a statement of McHugh J at 27: "The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party. The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher. Accordingly, it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it. But, as Griffith CJ pointed out in Ronald v Harper, although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not 'a rule of invariable application'. The context of the statement may show that it is refuted or undermined by other parts of the publication." 17 Counsel for the claimant relied, in particular, upon the requirement that the publication had to be read as a whole so that when a defamatory matter was being considered, the test was how the ordinary, reasonable reader of average intelligence would consider the publication, having read it as a whole. 18 Whilst that is true, as the judgments in the High Court also indicate, and I here re-emphasise the words of Justice Callinan at paragraph 187, that layout may create its own impression, as may the order in which matters are dealt with. Callinan J at paragraph 188 stated further: "The repetition of one person's allegations by a newspaper, particularly if accompanied by other, balanced material, may not always necessarily carry as an imputation the substance of the allegations, but the fact that an apparently responsible financial and broadsheet publisher has chosen to repeat them may well give them a meaning, credibility and impact that they might not otherwise possess." 19 I should add that all the authorities in this area are clear that it is a question of fact in each case as to whether the imputation is conveyed. 20 In my opinion, given the prominence of the second headline, taken in conjunction with the first headline, as well as the photograph of a group of opponents juxtaposed with a photograph of the defendant in the District Court proceedings, and, finally, given the limited basis of reporting in the article, there was no error in the trial judge's determination that the article was capable of carrying the imputations alleged, and that it was a matter for the jury to determine whether the imputation was in fact conveyed. 21 Accordingly, I would propose that leave to appeal should be refused with costs. 22 SHELLER JA: I agree with what her Honour has said. I would also add that in the course of his judgment Justice Nicholas said that, in his opinion, the effect of the various statements in the article which were relied upon, and the photographs which supported the defamatory imputation claimed, was not automatically negated by the reported denials, and the fact that the overall context in which the allegation were made was a report of a trial which was continuing. In my opinion, for reasons his Honour has given, the application for leave should be refused. 23 CAMPBELL AJA: I agree with Justice Beazley, and with the additional comments made by his Honour Justice Sheller. 24 SHELLER JA: The decision of the Court therefore will be the application is refused with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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