New South Wales Supreme Court CITATION : Robert Waites & Anor v Macquarie Radio Network Ltd [2006] NSWSC 507 HEARING DATE(S) : 24.05.06 JUDGMENT DATE : 30 May 2006 JUDGMENT OF : Nicholas J DECISION : para 26 CATCHWORDS : DEFAMATION – statement of claim – multiple publications – defendant's strike in application – separate radio talk-back programmes – whether plaintiffs should plead both programmes as one publication – UCPR r 14.28 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Buckingham v Murray (1825) 2 Car. & P. 46, 172 ER 22 Burrows v Knightley (1987) 10 NSWLR 651 CASES CITED : Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410 Plato Films Ltd v Speidel [1961] AC 1090 Phelps v Nationwide News Pty Ltd & Anor [2001] NSWSC 130 Kyle Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 The Age Corporation Ltd v Beran [2005] NSWCA 289 Robert Waites - first plaintiff PARTIES : Susan Waites - second plaintiff Macquarie Radio Network Ltd - defendant FILE NUMBER(S) : SC 20425/05 COUNSEL : R Potter - plaintiffs M Lynch - defendant SOLICITORS : Phillips Fox - plaintiffs Banki Haddock Fiora - defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST Nicholas J 30 May 2006 20425/05 Robert Waites & Anor v Macquarie Radio Network Ltd JUDGMENT 1 His Honour: The defendant seeks an order that the plaintiffs be directed to include as part of the publication presently pleaded consisting of matter from a radio programme presented by Mr Alan Jones additional matter from the later radio programme presented by Mr Ray Hadley. In the jargon of practitioners in the Defamation List the defendant's application is often described as a "strike in" application. In substance the application is made under r 14.28 for an order that the amended statement of claim be struck out on the ground that it is unfair and embarrassing to have omitted matter which forms part of the publication sued upon which was capable of being understood by the ordinary reasonable listener as materially altering or qualifying the complexion of the imputations. 2 The first plaintiff at all material times was an Assistant Commissioner of Police. The second plaintiff was at all material times a staff officer within the New South Wales police force, and the wife of the first plaintiff. 3 By their amended statement of claim the plaintiffs claim damages against the defendant arising out of the publication on 22 August 2005 on radio station 2GB of matter from its Alan Jones programme (the Jones programme). It was a talk-back programme in which members of the public participated by telephone. 4 The plaintiffs have pleaded as one publication six items from the Jones programme the first of which was broadcast at about 6.18am and the last at about 9.35am. Each item was between about 2-3 minutes duration. The intervals between each varied considerably, e.g., 4 minutes between the first and second; 24 minutes between the third and fourth; 84 minutes between the fifth and sixth. It is common ground that during the intervals other unrelated matter were broadcast including advertisements, and news items. 5 The discussion during these items principally concerned advice given by the first plaintiff to the Federal Minister, Mr Tony Abbott, to cancel a debate with Ms Julia Gillard at the University of Sydney on voluntary student unionism because the police could not guarantee his safety. Another question raised concerned the promotion of the second plaintiff in circumstances where the first plaintiff sat on the panel which interviewed her, and she proceeded under her maiden name. 6 The first plaintiff alleges the following imputations arise from the matter complained of: "(a) The First Plaintiff acted dishonestly in the performance of his duties as an Assistant Commissioner of Police in that he participated as a member of an interview panel in the determination of an application for promotion by his wife within the Police Service without disclosing to the other panel members his relationship to her. (b) The First Plaintiff participated as a member of an interview panel in the determination of an application for promotion by his wife within the Police Service without disclosing to the other panel members his relationship to her. (c) The First Plaintiff allowed promotion within the Police Service by the use of nepotism. (d) The First Plaintiff is a half-wit. (e) The First Plaintiff is regarded by other policemen as the most hated policeman in the Police Service. (f) The First Plaintiff as an Assistant Commissioner of Police is out of touch with the operations of the Police Service because he refuses to leave his office". 7 The second plaintiff alleges the following imputations arise from the matter complained of: "(a) The Second Plaintiff acted dishonestly by applying for promotion in the Police Service in her maiden name to disguise the fact she was married to a member of the panel appointed to decide her application. (b) The Second Plaintiff applied for promotion in the Police Service in her maiden name to disguise the fact she was married to a member of the panel appointed to decide her application. (c) The Second Plaintiff gained promotion in the Police Service by the use of nepotism". 8 The Jones programme concluded with the sixth item at about 9.38am with these words: "… This is a policeman speaking. And if other police want to ring, please ring. And, Ken Moroney, your credibility is on the line. You either support Waites or you don't. And if you support Waites in this decision you are supporting the surrender of the police force of New South Wales to potential intimidation". 9 At about 10.06am the Hadley programme, which was also in talk-back format, commenced with an item of about 1 minute's duration concerning the first plaintiff's advice to Mr Abbott. During the interval of about 28 minutes between the end of the Jones programme and the start of the Hadley programme the defendant broadcast unrelated matter which included the news at 10am. 10 Thereafter, until about 11.22am, the defendant broadcast four more items concerning the first plaintiff. Like those on the Jones programme, the items, except the second, were between about 1 and 4 minutes duration. The second item consisted of an interview with the first plaintiff of about 10 minutes' duration. There were intervals of various lengths between the items during which unrelated matter was published. In the first item Mr Hadley stated that he had received plenty of complaints about the first plaintiff, and was hopeful of talking to him. He commenced the second item with the words: "We'll go to callers shortly. But an important issue that Alan raised this morning um, the New South Wales Police Force have decided to give up as opposed to try to serve and protect …". After some introductory material he proceeded to interview the first plaintiff who sought to demonstrate the reasonableness of his advice to Mr Abbott. 11 The plaintiffs have not sued upon the Hadley programme in these proceedings. 12 The defendant challenges the pleading, and seeks an order requiring the plaintiffs to plead both programmes as a single composite publication. It submitted that it is unreasonable that they did not plead in this way. It was submitted that at the end of his programme Mr Jones had invited police and others to call in and that the opening items in Mr Hadley's programme, including the interview, demonstrated a direct connection between the programmes so that, in effect, both were inseparably linked and qualified each other. It was submitted that in the circumstances the ordinary listener might reasonably be expected to have heard and understood them as if they were one publication. It was argued that the matter in the combined items in the Hadley programme, particularly the explanatory statements of the first plaintiff, were capable of affecting imputations 8(d), (e), and (f), concerning the first plaintiff. 13 The defendant submitted that in this case, consistently with the principles in Gordon v Amalgamated Television Services Pty Ltd (1980) 2 NSWLR 410, pp 413-415 and Burrows v Knightley (1987) 10 NSWLR 651, pp 655, 657, it is entitled to require the plaintiffs to plead as one publication separate publications which are sufficiently identified and linked with each other. (Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107, para 53). 14 Recent authorities which considered the principles relevant to the questions raised by the defendant were referred to in Kyle Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 from which it is appropriate to quote the following: 18. In Phelps (paras 22-30) Her Honour upheld the right of a plaintiff to frame his action as he chooses subject to unfairness amounting to abuse of process, or unreasonableness, or the inability of the publication to sustain the form of pleading chosen ( Ron Hodgson p 480). Phelps was approved in Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 (paras 54-56) and in The Age Corporation Ltd v Beran [2005] NSWCA 289 (paras 40-41). 19. In The Age Corporation Hodgson, JA said: "41 In my opinion, McColl JA endorsed Phelps , but held that the relationship between the two parts published in The Sydney Morning Herald was such that, not only could the two parts properly be seen as a single publication, but that this was the only view reasonably open. McColl JA held in effect that this was not one of those cases, referred to at [10] in Phelps , where reasonably-minded people could consider either classification, that is as a single entity or as a number of entities, to be valid. 42 There may be cases where reasonably-minded people could consider either classification valid, so that it is prima facie open for a plaintiff to plead the parts as individual publications, and also plead their combination as a publication, but nevertheless where this should not be permitted because it introduces confusion and complexities into the case wholly unwarranted by any advantage to the plaintiff, and thus can be considered embarrassing. It is possible that this was the approach taken by Adams J in the Plaintiff's case against John Fairfax, and that McColl JA endorsed this as a further reason for dismissing the appeal. 43 The question then is, is the material as published in The Age such that the only view reasonably open is that this was one publication? In my opinion, plainly not. No part of the second section of The Age material appeared on page 1; and the first section on page 1 did not indicate that what was on page 13 was to be read together with what was on page 1 as part of the same whole. There were none of the indications of unity of the two sections displayed in The Sydney Morning Herald material and referred to earlier. Reasonable readers could well read what appeared on page 1 of The Age and not read what appeared on page 13. In my opinion, this was a case where reasonably-minded people could regard the two sections as separate publications, and could also regard them as part of a whole: that is, they could regard both possible classifications as being valid". 20. In order to succeed on its strike out application on the ground of unreasonableness, the defendant must establish that not only could the three broadcasts properly be seen as a single publication, but that this is the only view reasonably open ( Phelps para 30, The Age para 41). This is another way of saying that it must establish that the plaintiff's claims as pleaded are so obviously untenable that they cannot possibly succeed or that they are manifestly unarguable ( General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125, p 129). 21. Entrenched in the law of defamation is the principle that each publication of defamatory matter constitutes a new and separate tort for which a plaintiff could sue, and gives rise to a separate cause of action ( Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, paras 27, 124, 197). As each separate communication of defamatory matter is actionable, attention is necessarily directed to identifying the occasion on which the publisher made the communication and committed the tort of defamation. The tort will be complete when, by the communication of defamatory matter in comprehensible form to another, damage to reputation is done Gutnick (para 44). 22. As stated in Phelps (para 24) the answer to the question whether related matter published on different occasions should be regarded as one or as a composite involves assessment of the particular facts and circumstances in each case. Where the publications are transient in nature, such as radio and television broadcasts, significant weight will ordinarily be given to the intervals between them, to the context of other matter in which each was presented, and to the commonality or diversity of their content. The question should usually be resolved by taking a common sense approach to the evidence. 23. It follows that questions of imputations or meanings will not arise until the content of the matter complained of in each case has been determined. A "strike in" order which requires the plaintiff to plead the whole of the publication is ordinarily available to the defendant only where a viewing (reading or listening) of the whole is capable of altering or qualifying a defamatory meaning claimed to be conveyed by the part which the plaintiff has chosen to plead. Gordon and Ron Hodgson do not assist in defining the scope and content of a publication claimed to contain a libel. Their relevance is to the issue of the meaning of the matter found to have been published". 15 Accordingly, the success of a defendant in a "strike in" application requires clearing two hurdles. The first is to establish that the omitted matter is an inseparable component of the publication. The second, after delineation of the publication by which the plaintiff claims the libel was conveyed, is to establish that the omitted matter is capable of affecting the sense or imputation(s) conveyed by the matter which the plaintiff has pleaded. 16 It is useful to be reminded of the passage in Buckingham v Murray (1825) 2 Car. & P. 46, 172 ER 22 in which Abbott, CJ said: "Suppose one part is stated which has a qualification, and there be another which has not, have you not a right to read that part which does not contain the qualification? If one part of a book cannot be understood without a reference to another, then you must set out both; but if it is intelligible without, then you need not.", and of the passage in Plato Films Ltd v Speidel (1961) AC 1090, p 1143 in which Lord Denning said: "If it is one single publication, in which it is necessary to see the whole in order correctly to appreciate the impact of the parts, the judge will let the jury see the whole and both sides can make any fair comment on it". 17 It is fundamental to the proper application of the principles to have regard to the circumstances of the particular case. In my opinion, for example, it is unrealistic to consider items in a talk-back radio programme in the same way as one considers separate articles published in the same edition of a newspaper or the chapters in a book. A listener to several conversations on the same subject between different participants and the presenter during a talk-back radio programme cannot necessarily be equated with a reader of several related articles contained in the same edition of a newspaper or with the reader of serialised editions of a book published over a number of days (e.g., Beran; Burrows). 18 A feature of a talk-back radio programme is its question and answer format. A segment involving one participant and the presenter may reasonably be regarded as the broadcast of a conversation discrete and separate from earlier and later segments involving other participants and the same or a different presenter. The matter broadcast would not be understood as a continuous conversation but as a series of separate conversations between different participants separated by intervals of varying duration. The relevant context in which the published words would be understood is usually contained in the questions and answers which conveyed them and those which immediately preceded and followed them. 19 In Phelps v Nationwide News Pty Ltd & Anor [2001] NSWSC 130, para 22, Simpson, J said the plaintiff is entitled to mark out the playing field. I understand her to mean that it is for the plaintiff to select the matter of which he complains and in the pleading identify the limits of the publication claimed to convey the defamatory imputation. However, if the pleading has omitted matter which should have been included as part of the publication, and which affects its meaning, it may be struck out as unreasonable or so unfair as to amount to an abuse of process. 20 In this case the question is whether the only view reasonably open is that the Jones programme and the Hadley programme constituted one publication. This is not a case in which there are difficulties in distinguishing one from the other. In my opinion the differences between each are apparent from listening to them, and from the transcripts. 21 A significant factor which is likely to distinguish the later from the earlier programme in the mind of the listener is that it was conducted by a different presenter with a voice, manner and style peculiar to him. Another is that it followed a 28 minute interval during which unrelated material was aired. 22 Furthermore, the Jones programme is, and its components are, intelligible without reference to the Hadley programme or to any of its components. 23 In the circumstances in which the components of these programmes were broadcast a listener would not necessarily have heard the programmes as one publication. A reasonable listener to the Jones programme may well have not listened to the Hadley programme (cf: The Age Corporation Ltd v Beran [2005] NSWCA 289, para 43). It is difficult to see how it could be said that anything in the later programme constituted the context in which anything in the Jones programme would have been understood. That it was suggested in the earlier programme that more may be said about the first plaintiff in the later provides no foundation for a finding that both were so inextricably connected that they constituted one publication. Nor does the fact that the later referred to, and repeated, statements made in the earlier programme concerning the first plaintiff. 24 In my opinion each programme is separate and distinct from the other. That it may have been acceptable in this case (a question I do not decide) for the plaintiffs to have sued on the Hadley programme separately, or to have pleaded it as one with the Jones programme (Burrows), does not mean that it was unreasonable for them not to do so. In my opinion the plaintiffs have acted entirely reasonably in marking out the playing field in the way pleaded in their amended statement of claim. 25 The defendant has failed to show that the two programmes can only be properly pleaded as a single publication, and that the only view reasonably open is that they constituted one publication. 26 Accordingly, the orders of the court are: (1) The defendant's application be dismissed. (2) The defendant to pay the plaintiffs' costs. (3) The proceedings be stood over for directions to the Defamation List 9.30am 19 June 2006. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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