Supreme Court New South Wales Medium Neutral Citation: Hanson-Young v Bauer Media Limited [2013] NSWSC 1306 Hearing dates: 2 September 2013 Decision date: 11 September 2013 Before: McCallum J Decision: Plaintiff's imputations struck out with leave to replead Catchwords: DEFAMATION - imputations - whether capable of being conveyed - where publisher claims matter complained of incapable of being construed as other than a joke - objections to form of imputations - difficulty of pleading imputations in cases of denigration or ridicule Cases Cited: Burton v Crowell Pub Co 82 F(2d) 154 (1936) Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982 Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 Falkenberg v Nationwide News Pty Ltd (Supreme Court of New South Wales, Levine J, 16 December 1994, unreported) Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Jones v Skelton [1964] NSWR 485 Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586 Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 McGuinness v JT Publishing Australia Pty Ltd [1999] NSWSC 471 Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 Murphy v Nationwide News Pty Ltd (Supreme Court of New South Wales, Levine J, 10 July 1998, unreported) Scali v John Fairfax Group Pty Ltd (Supreme Court of New South Wales, Levine J, 15 July 1993, unreported) Wild v John Fairfax Publications Pty Ltd (Supreme Court of New South Wales, Levine J, 8 August 1997, unreported) Category: Interlocutory applications Parties: Sarah Hanson-Young (plaintiff) Bauer Media Limited (defendant) Representation: Counsel: C Amato (plaintiff) M Richardson (defendant) Solicitors: Kennedys Lawyers (plaintiff) Johnson Winter & Slattery (defendant) File Number(s): 2013/195928 Publication restriction: None Judgment 1HER HONOUR: These are proceedings for defamation arising out of the publication of an article in "Zoo Weekly" magazine. The plaintiff in the action is Ms Sarah Hanson-Young, an Australian senator and a member of the Greens Party. The defendant is the proprietor of the magazine. This judgment determines the defendant's objections to the imputations relied upon by the plaintiff. 2The statement of claim alleges that the article was made available in the free online version of the magazine from 2 July 2012 until around August 2012. The first of those dates was within a week after Senator Hanson-Young had made an emotional address in the Senate on proposals to increase Australia's humanitarian intake of asylum seekers, a fact relied upon in the pleading as informing the meaning of the article. 3The article appeared under the headline "Zoo's Asylum Seeker Bikini Plan". It was illustrated with a photograph which, as both parties agree, any reader would plainly have realised had been photo-shopped. The photograph shows Senator Hanson-Young's face superimposed on the body of a young woman in underwear standing at the open door of a motel room. In case the message was too subtle for some readers, the accompanying article was further illustrated with an inset close-up of the woman's breasts. The text of the article was as follows: ZOO's Asylum Seeker Bikini Plan Published: July 2, 2012 Picture (inset): Photograph of a woman's breasts In a bid to break the deadlock, Zoo Weekly has offered Greens Senator Sarah Hanson-Young a deal she can't possibly refuse. ZOO will house the next boatload of asylum seekers in the ZOO office if the senator agrees to a tasteful bikini or lingerie shoot for ZOO. "If Sarah Hanson-Young wants more asylum seekers on Australian Shores, then this is one way to make sure they keep coming", says ZOO. "We know she'll have her knockers if she agrees, but we're confident she'll realise it's for the good of the country." 4By her amended statement of claim filed 25 July 2013, Senator Hanson-Young relies upon four imputations. The defendant objects to all four. Imputations relied upon in the natural and ordinary meaning of the article 5There are evidently some words missing in the pleading but the argument proceeded on the premise that the first two imputations are alleged to arise in the natural and ordinary meaning of the article. They are: 4A The plaintiff is not a politician to be taken seriously. 4B The plaintiff's pro-asylum seeker stance is ridiculous. 6The defendant objects to imputation 4A on the basis that it is incapable of arising and incapable of being defamatory. As the second point was developed in oral submissions, the objection appeared to extend to a complaint that the imputation is bad in form. 7On the question of capacity Mr Richardson, who appears for the defendant, submitted that the article was clearly facetious and would not be taken literally. He submitted that it is not to the point that some readers may find the photograph offensive. It was submitted that, because the article was plainly intended as a joke, the imputation that the plaintiff is not a politician to be taken seriously can only be derived from it on a strained, forced or unnatural reading. 8Those submissions assumed that there is a dichotomy between jokes and damaging statements. Implicitly, the proposition was that if a publication can be characterised as a joke (as opposed to a literal statement) it will be incapable of being defamatory, even if it is facetious or offensive. 9I do not think a definitive statement of principle can be made in those terms. As noted by Ms Amato, who appears for Senator Hansen-Young, the critical question is what the joke says about a person and whether what is said is defamatory. Humour is notoriously subjective, a proposition captured in the quote attributed to the comedian, Mel Brooks: Tragedy is when I cut my finger. Comedy is when you fall in an open sewer and die. 10It may be doubted whether articles published in Zoo Weekly magazine reflect a sense of humour shared by the community as a whole but that is quintessentially a question for the jury. Whether any particular publication can be characterised as a joke which is incapable on that account of being understood in any defamatory sense is essentially an evaluative judgment and one very much informed by community values. 11Those considerations complicate the determination of the present issue. The question whether a publication is capable of conveying an imputation relied upon by the plaintiff is a question of law: Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260. However, although it is a question of law, it is one which requires the application of the test of reasonableness: Jones v Skelton [1964] NSWR 485 at 491; [1963] 1 WLR 1362 at 1370-1371; cited with approval by the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 at [9]. In my view, where the question whether a publication could reasonably be found by a jury to convey an imputation involves a highly subjective judgment or the application of community values to an issue prone to controversy, the Court should not lightly reach a ruling that the imputation will not go to the jury. It is precisely because the meaning of words is so much informed by social context and community values that defamation actions stand alone in the class of civil cases that are still tried by jury if either party so elects. 12For those reasons, leaving aside the defendant's further objections, I am not persuaded that imputation 4A is incapable of arising on the basis that the article was published in jest. 13Separately, Mr Richardson submitted that imputation 4A is not capable of being defamatory, since "it does not suggest any act or condition on the part of the plaintiff and it is not apparent that it is intended to be a ridicule imputation". The failure of an imputation to distil any specific act or condition allegedly attributed to the plaintiff by the matter complained of is sometimes characterised alternatively as an objection to form (rendering the imputation liable to be struck out as embarrassing) rather than as a basis for arguing that it is not reasonably open to the jury to find that the imputation is defamatory. Indeed, that may have been an aspect of what was put in the present case. I have accordingly considered the defendant's submissions on both grounds. 14Mr Richardson provided a helpful survey of authorities dealing with publications which allegedly hold a person up to public ridicule. In Scali v John Fairfax Group Pty Ltd (Supreme Court of New South Wales, Levine J, 15 April 1993, unreported), the plaintiff relied upon the following imputations: (f) That the plaintiffs' business should be shunned and avoided by persons seeking to purchase furniture. (g) That the first plaintiff had so conducted himself as to deserve to be held up to public ridicule. 15Those imputations were struck out. Levine J acknowledged the difficulties for a pleader in formulating the imputations conveyed by matter that holds the plaintiff up to ridicule. His Honour noted that the imputations relied upon in that case included assertions in terms reflecting the usual allegation as to the consequence of the publication of defamatory matter (as opposed to the meaning of the publication). His Honour said: I see no reason in principle why such incorporation would make an imputation defective provided the imputation otherwise is appropriate in form and of course is capable of arising. 16The basis on which his Honour struck out imputations (f) and (g) was that the imputations did not identify the conduct on the basis of which the plaintiff was allegedly to be shunned and avoided or held up to public ridicule. 17In a second decision in the same proceedings, the plaintiffs (evidently intending to replead in accordance with his Honour's reasons in the first decision) filed an amended statement of claim with the following new imputations: (d) that the plaintiffs, by reasons of the first plaintiff being a person lacking in good taste in respect of furniture and interior decorations, should be shunned and avoided by persons seeking to purchase furniture. (e) that the first plaintiff, by reason of his lacking in good taste in respect of furniture and interior decorations, is deserving of being held up to public ridicule. 18Those imputations were also struck out: Scali v John Fairfax Group Pty Ltd (Supreme Court of New South Wales, Levine J, 15 July 1993, unreported). The burden of the decision, I think, is that the imputations were liable to be struck out because they were rhetorical, by reason of the inclusion of the exhortation that the plaintiff "should be shunned and avoided" and was "deserving of being held up to public ridicule". In each case, the rhetorical exhortation added nothing to a separate, non-contentious imputation (that the first plaintiff was a person lacking in good taste in respect to the quality and style of furniture and interior decorations he provides for buildings). 19Levine J stated that, if a publication "in some way says that the plaintiff is ridiculous, the imputation should be so pleaded". What emerges from the two Scali decisions is that an imputation which does no more than to appeal to rhetoric ("the plaintiff should be shunned and avoided" or "the plaintiff deserves to be held up to ridicule") is bad in form, since it achieves no more than to assert the consequence of publication of a defamatory imputation and, in so doing, fails to distil the act or condition allegedly attributed to the plaintiff by the matter complained of by reason of which his or her reputation has been damaged. 20Levine J applied the Scali line of authority in Kelly v John Fairfax Publications Pty Ltd [2003] NSWSC 586. In that case, a photograph of a man partly naked and chained to a piano in Hyde Park was wrongly described in the newspaper as being a photograph of the plaintiff. The plaintiff relied upon the following imputation: that the plaintiff behaved in such a way as to deserve to be ridiculed by the Sun-Herald newspaper. 21Levine J held that an imputation in those terms was liable to be struck out, since it fell within the area of difficulty identified in Scali. However, his Honour indicated that he would allow an imputation in the following terms: that the plaintiff, by reason of permitting himself to be photographed partly naked in Hyde Park with bonds, has justifiably exposed himself to the ridicule of the defendant. 22The next decision relied upon by Mr Richardson was the decision in Murphy v Nationwide News Pty Ltd (Supreme Court of New South Wales, Levine J, 10 July 1998, unreported). That was a defamation action brought by the well-known Sydney solicitor, Mr Chris Murphy, in respect of an article published in The Daily Telegraph. The article reported the potential for people to confuse Mr Murphy with the former INXS manager, also named Chris Murphy. The relevance of the decision for present purposes is that his Honour struck out the following imputation: that the plaintiff was a shyster who deserved to be ridiculed by the defendant's snide reference to him. 23His Honour said (as to the second clause of the imputation): The words here adopted do not and cannot amount to an imputation at all; they amount to no more than saying that the plaintiff is a person who has been defamed by the defendant. 24Mr Richardson next relied on the decision of Levine J in Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564. The plaintiffs in that case were the coach of South Sydney football team and his mother. The matter complained of was a satirical piece blaming the mother for Souths' disastrous year. The article opened: South Sydney's poor showing in the 2002 NRL season may be linked to coach Craig Coleman being put in childcare as a toddler, according to a psychologist. 25The article continued in that vein. Plainly, it was a piece based in satire, making light of the phenomenon of blaming adult failure on childhood trauma. Levine J held that the article was incapable of being understood as anything other than an absurd joke. His Honour accordingly held that the matter complained of was incapable as a matter of law of defaming the plaintiffs in the terms of the imputations pleaded in the statement of claim. His Honour entered a verdict for the defendant in respect of each imputation. 26Finally, Mr Richardson relied upon the decision of Falkenberg v Nationwide News Pty Ltd (Supreme Court of New South Wales, Levine J, 16 December 1994, unreported). The matter complained of in that case was a Gary Larson "The Far Side" cartoon captioned "graffiti in hell", which had been republished in The Telegraph Mirror. The cartoon depicted the devil in a rage because a graffiti artist had drawn happy images of birds, butterflies, a flower and a smiley face together with the words "Satan is a warm and tender guy" and "For a pleasant conversation call Satan [on a number beginning with 555]". 27Whilst 555 is a fictional phone prefix in America, the plaintiffs (who lived in Australia) had the misfortune to have the telephone number recorded. Extraordinarily, they had been subjected to a barrage of disturbing calls from "weird people", as Levine J put it. His Honour held that the matter was incapable of being understood to be published of and concerning the plaintiffs and incapable of conveying the imputations relied upon. I do not think that decision assists in the determination of the present issue. 28For completeness, Mr Richardson also drew my attention to two further cases involving humour or parody which have gone to a jury. The first was the decision in Wild v John Fairfax Publications Pty Ltd (Supreme Court of New South Wales, Levine J, 8 August 1997, unreported). The matter complained of in that case was an article discussing feminism in the context of lingerie advertisements. It was illustrated by a photograph of the plaintiff (a male) standing in front of a billboard (there were apparently two billboards shown in the article, one of two bare bottoms of two women and one showing a lingerie model in bra and panties with a piece of rope between her teeth. It is difficult to tell from the judgment which of those billboards was in front of the plaintiff in the photograph of him). 29The plaintiff pleaded the following imputations: (a) that the plaintiff is a dirty old man; (b) that the plaintiff is voyeur; (c) that the plaintiff is sexist; (d) that the plaintiff is the kind of low individual who would pose in front of a billboard of scantily clad young girls for the purpose of having his photograph in the Sydney Morning Herald. 30Levine J allowed all four imputations to go to the jury. I do not think that case posed the kind of difficulties that arise in the present case. 31Mr Richardson also drew my attention to the decision in McGuinness v JT Publishing Australia Pty Ltd [1999] NSWSC 471. The relevance of that decision is that the matter complained of was evidently presented as parody. The content of the matter complained of is not reported in the judgment and Mr Richardson said in submissions that he had not been able to locate a copy of it. However, he informed me that it was a cartoon "about a policeman and a gun". The relevance of the decision for present purposes is that, although the matter complained of plainly was presented as parody, Levine J held that "the matter should go to the jury", whilst giving rulings as to individual imputations. Importantly, the decision stands as an instance of a case in which a piece plainly intended to be humorous in some form was evidently viewed by the Court as being capable of damaging the plaintiff's reputation. 32Without purporting to be exhaustive, the authorities relied upon by Mr Richardson confirm the correctness of two principles relevant to the determination of the present issue: (a)a publication plainly intended as a joke will not necessarily be incapable of being defamatory on that account; (b)a rhetorical imputation, that is, one which merely appeals to rhetoric without identifying any act or condition allegedly attributed to the plaintiff by the article, will be liable to be struck out as being bad in form. 33In my view, although the matter complained of in the present case would plainly be understood as a joke of sorts, it cannot be concluded that the article is incapable of being defamatory of Senator Hanson-Young. 34The difficulty lies in formulating the imputations it conveys. I would accept that the imputation that the plaintiff is not a politician to be taken seriously is bad in form on the basis that it is rhetorical. It says, "this is what you should think of the plaintiff", not "this is what the plaintiff is". It amounts to an exhortation, not the attribution of an act or condition. 35I should acknowledge that an imputation in similar terms went to the jury in a trial over which I presided in Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 982. As far as I am aware (and as best I recall), there was no challenge to the imputation in that case. The conduct of an earlier trial does not stand as precedent on the present issue. 36I would accept, as submitted by Ms Amato, that a publication that holds a plaintiff up to ridicule can be defamatory even if it does not attribute any moral blame to that person. Ms Amato relied on the discussion by Hunt J in Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 at 449. In that case, his Honour held that the following imputation was capable of defaming the plaintiff: The plaintiff is a person whose genitals have been exposed to the readers of the defendants' magazine "HQ", a publication with a widespread readership. 37In so holding, Hunt J placed considerable reliance on the principle discussed in Burton v Crowell Pub Co 82 F(2d) 154 (1936), a decision of the Second Circuit Court of Appeals. A close consideration of his Honour's discussion of that case (at 448 to 449) leads to the conclusion, in my view, that the matter complained of in the present case is plainly capable of being found to be defamatory of Senator Hanson-Young. In particular, in my view the article is capable of being understood as subjecting her, as an "entirely blameless plaintiff" to "more than a trivial degree of ridicule". Whether that is ultimately the way it is to be understood is, again, quintessentially a jury question. I am dealing at this point only with the issue of capacity. 38The difficulty, however, lies in formulating the imputation on that basis. Regrettably, Hunt J did not apply his considerable expertise to suggesting what imputation was conveyed in the case of Burton v Crowell. Nonetheless, his Honour was plainly of the view that an imputation along the lines of that found capable of being defamatory in Ettingshausen (set out above) was a proper foundation for the claim that the advertisement sued on by Mr Burton was defamatory (on the basis of the ridicule to which it subjected him). 39In any event, the conclusion for present purposes must be that imputation 4A should be struck out as being bad in form. 40Imputation 4B does not suffer from the vice of being rhetorical. However, in my view, it is bad in form, as submitted by the defendant. The imputation attributes the condition of ridiculousness not to the plaintiff but to her stance on a political policy. It does not identify any act or condition attributed to her. In my view, imputation 4B should be struck out with leave to replead. Imputations relied upon as true innuendoes 41The plaintiff relies upon the following further imputations as true innuendos: 5A The plaintiff is not competent to make a serious contribution to the political debate over asylum seekers because she is too emotional. 5B The plaintiff is too immature to make a serious contribution to the political debate over asylum seekers. 42The extrinsic facts relied upon in support of the two true innuendos are as follows: (a) On 26 June 2012, the plaintiff cried when addressing the Australian senate on proposals to increase Australia's humanitarian intake of asylum seekers. (b) On 26 June 2012, when speaking to the Australian senate, the Plaintiff cried as she expressed her sympathies for the plight of asylum seekers. (c) The extrinsic facts were within the general knowledge of the community. (d) Further particulars of extrinsic facts may be provided after discovery and interrogatories. 43The true innuendoes are problematic, in my view. It is useful to return to first principles. A true innuendo is a meaning conveyed by a publication which does not arise on the face of the publication but only by reason of the reader's knowledge of a fact extrinsic to the publication. By way of example, an article which published the fact that a barrister had refused to act for a person charged with a criminal offence because the barrister thought the person was guilty may not be defamatory on its face. However, if that statement were published to a person who knew the content of the Bar Rules, including the cab rank rule, it would convey the defamatory imputation that the barrister had breached one of the ethical obligations of his profession. 44Some of the defendant's submissions on this issue appeared to assume that, in a case of true innuendo, the article must invite attention to the extrinsic fact. In particular, the defendant sought to rely on the fact that nothing in the matter complained of directed attention to the speech made by Senator Hanson-Young the previous week. I do not think that is a relevant consideration. A true innuendo can arise whether or not the matter complained of contains any express or oblique reference to the extrinsic fact. 45There is, however, a difficulty, in my view. The imputations relied upon by the plaintiff as true innuendos impute incompetence and immaturity. Nothing in the matter complained of is capable of imputing those conditions to the plaintiff. I do not have any difficulty accepting that the article is denigrating and capable of holding the plaintiff up to public ridicule. However, I do not think it is capable of attributing incompetence or immaturity to her. Imputations 5A and 5B should not go to the jury. 46In my view, the plaintiff should have leave to replead the true innuendoes. It may be that an imputation of ridiculousness could be pleaded as arising in the natural and ordinary meaning of the article and alternatively by reason of the extrinsic facts pleaded. However, I do not think the extrinsic facts set out above can be relied upon to import different acts or conditions from those capable of arising from the article in its natural and ordinary meaning. ********** 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 September 2013