District Court New South Wales Medium Neutral Citation: Carey v Nationwide News Pty Ltd (ACN 008 438 828) [2014] NSWDC 73 Hearing dates: 20 June 2014 Decision date: 20 June 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Defendants' application for summary dismissal of the statement of claim refused. (2) Grant leave to replead imputations (c) and (e). (3) Imputation (d) struck out with leave to replead. (4) Defendants' costs be costs in the cause. (5) Plaintiff to file amended statement of claim in 14 days. (6) Matter listed in the Defamation List on Friday 11 July 2014. Catchwords: TORT - defamation - application to dismiss statement of claim on the basis that no defamatory meaning can be conveyed - whether "apeish" and "Cro-Magnon" to describe the plaintiff, an Aboriginal sportsman, are capable of damaging his reputation or standing in the community - 'bane' and 'antidote' - form and capacity of the imputations pleaded - application for summary judgment dismissed Legislation Cited: - Cases Cited: Bennison v O'Neil [2012] NSWSC 360 Berkoff v Burchill [1996] 4 All E R 1008 Bik v Australian Consolidated Press Ltd [1973] 2 NSWLR 473 Burton v Crowell Pub Co 82 F (2d) 154 (1936) Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443 John Fairfax Publications Pty Ltd v Blake; David Syme & Co v Blake (2001) 53 NSWLR 541 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 Mangope v Asmal 1997 (4) S A 277 (Transvaal Prov. Div) McDonald v The North Queensland Newspaper Company Limited [1997] Qd R 62 Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 Mundine v Brown (No 6) [2010] NSWSC 1285 Patten v Moffatt (Supreme Court of NSW, Levine J, 27 February 1995) Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 Radio 2UE Sydney Pty Ltd v Chesterton (2008) Aust Torts Reports ¶81-946 Trad v Jones (No 3) [2007] NSWADT 318 Waterhouse v Hickie (1995) Aust Torts Reports 81-347 Zybyszko v New York American 228 App. Div. 277, 239 N Y S 411 (1930) Texts Cited: Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd ed.) Category: Interlocutory applications Parties: Plaintiff: Otis Carey First Defendant: Nationwide News Pty Limited Second Defendant: Briana Domjen Representation: Plaintiff: Mr R Rasmussen Defendants: Mr J Hmelnitsky SC / Mrs L Barnett Plaintiff: Sanford Legal Defendants: Ashurst Australia File Number(s): 2014/94505 Publication restriction: None Judgment 1The plaintiff is an indigenous Australian who has enjoyed a successful surfing career. The matters complained of are publications in the Daily Telegraph dated 12 March 2014. The first was published the 12 March 2014 edition of the newspaper and the second is the publication on the newspaper's Internet site. Publication 2The defendants bring two applications before the court: (a)An application to dismiss the statement of claim, on the basis that the matter complained of is incapable of defamatory meaning; and (b)An alternative application to strike out the plaintiff's imputations on the basis of form, capacity and lack of defamatory meaning. 3The two matters complained of are identical, save for the headlines, photographs and the final paragraph. The parties agree that these differences are irrelevant to the argument. Each of the matters complained of is pleaded to convey the following imputations: (a)The plaintiff has an apeish face (paragraphs 2, 3). (b)The plaintiff is sub-human (2, 3). (c)The plaintiff is an ape (2, 3). (d)The plaintiff was expected to speak and behave like Cro-Magnon Man with grunts from his mouth (3). (e)The plaintiff is unfit to be a member of the human race (2, 3). The summary judgment application 4The principles upon which summary judgment as to lack of defamatory meaning may be given are as set out in the discussion of Berkoff v Burchill [1996] 4 All E R 1008, as explained in Radio 2UE Sydney Pty Ltd v Chesterton (2008) Aust Torts Reports ¶81-946 at [85]-[89]. Although Bik v Australian Consolidated Press Ltd [1973] 2 NSWLR 473 is commonly referred to in such applications, Bik was an appeal from a jury finding that the matter complained of was not defamatory. The principles for dismissal on the alternate basis upon which the application is brought, namely that the antidote outweighs the bane, are set out in Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418, although that appeal was, similarly to Bik, brought following the findings of a jury at trial. 5Applications for summary dismissal of a claim in cases on such a basis face a very high bar. As Beazley JA noted in Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 at [20], the question of whether an imputation is conveyed should go to the jury unless it was "blindingly obvious" that no other conclusion was reasonably open. That is even more the case where the assertion is that any imputation conveyed is incapable of being defamatory, as this is quintessentially a jury question: Morosi v Broadcasting Station 2GB Pty Ltd, supra, at [6]. 6Senior Counsel for the defendants made his submission as to absence of defamatory meaning on the following bases: (a)While parts of the matter complained of were obviously offensive to the plaintiff (notably the reference to his "apeish face"), no act or condition of the plaintiff capable of injuring his reputation (as opposed to being offensive or contemptuous in tone) could be conveyed. (b)The matter complained of is a reaction to another publication's slighting of the plaintiff, and all it does is to record how upset the plaintiff is at this "insensitive" earlier publication. While the circumstances in which a publication seeking to refute a calumny may be held not to have repeated it are comparatively rare (Bennison v O'Neil [2012] NSWSC 360 at [23]), this is one of those cases. (c)Most importantly, where the matter complained of does touch upon the plaintiff's character (in paragraphs 6 - 10), it is to note his qualities of character in a sympathetic fashion as a person proud of his aboriginal heritage. The defendant was standing up as the plaintiff's friend, and neither agreeing with what was said nor repeating the libel. (d)Alternatively, if there was bane (Morosi v Broadcasting Station 2GB, supra), then paragraphs 6 - 10, which placed the plaintiff in a good light, and the reference to the allegations as "insensitive", constituted a full antidote. Each matter complained of also noted how "devastated" the plaintiff was by this "insensitive" slight. 7The first issue for determination is whether the matter complained of conveys imputations at all. As is set out below, I am satisfied that the matter complained of is capable of conveying imputations (a) and (b). Leave to replead imputations (c) and (e) has been granted, and imputation (d) was struck out with leave to replead. 8The summary judgment application is not merely premised on the submission that no imputations are capable of being conveyed by reason of the anodyne nature of the matter complained of. The principal submission is that any imputation conveyed of and concerning the plaintiff cannot be defamatory, because imputations concerning the plaintiff's appearance cannot affect his reputation. A person's reputation can only be injured when the esteem in which that person is held by the community is diminished in some respect. In Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 at [4] - [5] French CJ, Gummow, Kiefel and Bell JJ stated: "[4] Lord Atkin proposed such a general test in Sim v Stretch, namely that statements might be defamatory if "the words tend to lower the plaintiff in the estimation of right-thinking members of society generally". An earlier test asked whether the words were likely to injure the reputation of a plaintiff by exposing him (or her) to hatred, contempt or ridicule but it had come to be considered as too narrow. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society. [5] The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer v The Daily Telegraph Newspaper Co Ltd, although Griffith CJ expressed some concern about the ambiguity of the expression "right thinking members of the community". The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this Court in Mirror Newspapers Ltd v World Hosts Pty Ltd, Chakravarti v Advertiser Newspapers Ltd and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic. Gummow and Hayne JJ in Gacic referred to the likelihood that the imputations might cause "ordinary decent folk" in the community to think the less of the plaintiff." (Footnotes omitted) 9These remarks relate to the explanation of ridicule cases given by McColl JA in Radio 2UE Sydney Pty Ltd v Chesterton (2008) Aust Torts Reports ¶81-946 at [85]-[89]. At [85] - [86] her Honour explains the leading English case on the issue, Berkoff v Burchill: "[85] A publication is capable of being defamatory even though it arguably does no more than expose the plaintiff to ridicule, but that exposure has to be such as to tend to injure the plaintiff's reputation. Berkoff v Burchill was such a case. There the question arose whether the following words published in a review of a film version of "Frankenstein" were capable of being defamatory of Mr Berkoff: The Creature is made as a vessel for Waldman's brain, and rejected in disgust when it comes out scarred and primeval. It's a very new look for the Creature - no bolts in the neck or flat-top hairdo - and I think it works; it's a lot like Stephen Berkoff, only marginally better-looking. [86] Although the Court divided as to the capacity of the matter complained of to convey, as a question of law, a defamatory imputation, O'Neill LJ and Phillips LJ holding it could, Millett LJ dissenting, all were of the view that to be capable of being defamatory the matter complained of had to tend to injure the plaintiff's reputation. After reviewing a number of authorities on what constituted defamation, O'Neill LJ concluded (at 1013): It will be seen from this collection of definitions that words may be defamatory, even though they neither impute disgraceful conduct to the plaintiff nor any lack of skill or efficiency in the conduct of his trade or business or professional activity, if they hold him up to contempt, scorn or ridicule or tend to exclude him from society. On the other hand, insults which do not diminish a man's standing among other people do not found an action for libel or slander. The exact borderline may often be difficult to define. (emphasis added) and (at 1018): It is trite law that the meaning of words in a libel action is determined by the reaction of the ordinary reader ... it would, in my view, be open to a jury to conclude that in the context the remarks about Mr Berkoff gave the impression that he was not merely physically unattractive in appearance but actually repulsive. It seems to me that to say this of someone in the public eye who makes his living, in part at least, as an actor, is capable of lowering his standing in the estimation of the public and of making him an object of ridicule. (emphasis added) [87] Phillips LJ recognised (at 1020) that the law of defamation protects reputation and that reputation was not generally dependent upon physical appearance. He acknowledged that "with one possible exception, [there was] no precedent for holding it defamatory to describe a person as ugly". While he concluded (at 1021) that "a statement that a person is hideously ugly does not fall into that category of statements that are defamatory because they tend to make people shun or avoid the plaintiff", he was also of the view that the words described the plaintiff as hideously ugly by way of ridicule and that the question whether they exposed him to ridicule to the extent that his reputation has been damaged must be answered by the jury. 10McColl JA noted, at [89], that even in the case of an imputation which exposes a person to ridicule, the Court was of the view that the plaintiff's standing or reputation had to be lowered before the imputation was capable of being defamatory. Her Honour's reference to "standing" is significant in my view, because it gives full force to the "contempt" portion of the phrase "hatred, ridicule and contempt". 11Imputations arising from a display of, or comments on, a person's physical appearance may be defamatory. In Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, a photograph of a footballer showering in the team's change room (which appeared to show his penis) appeared to have been taken with his consent. Hunt J (at 449) considered that publication of this imputation was capable of subjecting the entirely blameless plaintiff to a more than trivial degree of ridicule, tracing the history of "ridiculous light" imputations from cases such as Burton v Crowell Pub Co 82 F (2d) 154 (1936) and Zybyszko v New York American 228 App. Div. 277, 239 N Y S 411 (1930) (where the plaintiff was compared to a gorilla). In McDonald v The North Queensland Newspaper Company Limited [1997] Qd R 62, a photograph of a footballer being tackled, in which his penis was shown, was similarly held to make it likely he would be ridiculed. 12While display of a penis may subject a person to ridicule, criticism of a person's appearance as "apeish" or "Cro-Magnon" falls into both the "ridicule" and "contempt" categories of "hatred, ridicule and contempt". As to ridicule, comparison of an aboriginal to an ape or to Cro-Magnon man is to belittle that person's achievements, standing and reputation: Mundine v Brown (No 6) [2010] NSWSC 1285. As to contempt, in Trad v Jones (No 3) [2007] NSWADT 318 at [174], the Tribunal, albeit in relation to race vilification, observed: "One of the most contemptuous forms of commentary on another person or group is to describe them in sub-human terms, such as likening them to insects, vermin or animals." 13Thus the description of any person of Aboriginal or black heritage as "ape-like" or "Cro-Magnon" is diminishing to that person's reputation because it invites shunning and contempt that is damaging to the standing of the plaintiff in the community (McColl JA in Chesterton at [89], citing O'Neill JA in Berkoff v Burchill, supra) and thus to his reputation. A strike-out application on the basis that calling an Aboriginal person a "coon" could not be defamatory failed in Patten v Moffatt (Supreme Court of NSW, Levine J, 27 February 1995). 14Nor does the matter complained of answer these claims, beyond calling them "insensitive". By emphasising the plaintiff's aboriginal background, the matter complained of appears to be directly attributing the description of the plaintiff to his Aboriginal heritage. The application for summary dismissal on the basis that no defamatory imputation can be conveyed must fail. 15The alternative basis upon which the application was brought, namely that the antidote outweighs the bane, must similarly fail. The matter complained of repeats the offensive remarks twice, calls them "insensitive" and says the plaintiff is "devastated", and goes on to describe the plaintiff's pride in his Aboriginal heritage. Senior Counsel for the plaintiff submitted that his client was seeking to be a friend to the plaintiff and coming to his aid. A similar submission in Morosi v Broadcasting Station 2GB, supra, was answered by Samuels JA: [16] All of this was put in aid of the meaning which it was said the publication conveyed. It is easy to see, I think, that a legitimate answer to these encomiums ...was that apparently made by the plaintiff's counsel, who might indeed, if I might be permitted to use a homely phrase, have said: "With friends like these, who needs enemies?" 16The sum total of the "antidote" passages of the matter complained of cannot outweigh the "bane" of the repeated description of the plaintiff's "apeish" appearance. 17The application to strike out the statement of claim is dismissed. 18The defendant also challenges the form and capacity of the imputations. As the plaintiff sought leave to replead two of the imputations, the reasons given below are brief. The imputations (a) The plaintiff has an apeish face. 19This is a direct quotation from the matter complained of, in circumstances where this is a permissible course: John Fairfax Publications Pty Ltd v Blake; David Syme & Co v Blake (2001) 53 NSWLR 541 at [52] - [54] per Hodgson JA; Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 at [29] per McColl JA. To say of an aboriginal person that he or she resembles an ape is capable of defamatory meaning. A person may be defamed by being "compared to the unpalatable or discreditable characteristics of some animals or other subhuman species" states Professor Brown in Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd ed.) at [5.19], citing Mangope v Asmal 1997 (4) S A 277 (Transvaal Prov. Div) ("baboon") and Zybyszko v New York American, supra ("gorilla"). Zybszko was referred to with approval in Berkoff v Burchill at 1015, although (at 1019) O'Neill J, dissenting, considered it an indication of "the lengths of absurdity to which a New York lawyer will go in pleading a case". 20What gives the "apeish" its sting is the context of the plaintiff's Aboriginal background, which is repeatedly referred to in the matter complained of. The "List of Ethnic Slurs" in Wikipedia notes that "ape" means "black person" in the United States. The matter complained of emphasizes the plaintiff's Aboriginality, which tends to underline this unfortunate sting, rather than ameliorate it. 21Applying the test set out in Malcolm v Nationwide News Pty Ltd, supra, at [20], this imputation is capable of being conveyed. (b) The plaintiff is sub-human. 22This imputation picks up on the reference to "Cro-Magnon grunts", and to the plaintiff's appearance, including his hairstyle. For the same reasons set out in (a) above, the imputation is both capable of being conveyed and defamatory. (c) The plaintiff is an ape. 23The plaintiff has been granted leave to replead this imputation. (d) The plaintiff was expected to speak and behave like Cro-Magnon Man with grunts from his mouth. 24This imputation suffers from the defect of form that the person who had this expectation is not identified. Whether it is the author of the original Surfing Life article, or the authors of this article, or the readers of the Daily Telegraph, the identity of any such person should be made clear. Alternatively, the "was expected" formula of the imputation could be replaced by an act to accompany the imputation of condition in imputation (b) concerning the plaintiff's alleged Cro-Magnon characteristics. 25This imputation has been struck out with leave to replead. (e) The plaintiff is unfit to be a member of the human race. 26This imputation is one that "does not seem to add anything" and is "an unnecessary pleader's flourish": Waterhouse v Hickie (1995) Aust Torts Reports 81-347 per Priestley JA. Counsel for the plaintiff has accordingly sought leave to replead, which has been granted. Orders (1)Defendants' application for summary dismissal of the statement of claim refused. (2)Grant leave to replead imputations (c) and (e). (3)Imputation (d) struck out with leave to replead. (4)Defendants' costs be costs in the cause. (5)Plaintiff to file amended statement of claim in 14 days. (6)Matter listed in the Defamation List on Friday 11 July 2014. Schedule 1Carey devastated by slight in surfing mag 2Indigenous surfer Otis Carey is said to be devastated by a feature in Surfing Life magazine which said he had an "apeish face". 3The Narabeen surfer, whose mother is of Aboriginal heritage, is also rumoured to be speaking to Sydney Swans player Adam Goodes about the insensitive article. Surfing Life, owned by Morrison Media, ran a story titled 'Poetry Night with Mermaid Killer' in their March issue written by Nathan Myers, and wrote, "With his apeish face and cowering hair-curtains, I expect mlittle [sic] more than Cro-Magnon grunts from his mouth. I am caught off guard by the clarity and eloquence of his speech." 4His father Chris Carey told Confidential he has read the feature and is currently focusing on the wellbeing of his son. 5"At this stage we don't want to talk about it, our concern is Otis's wellbeing," Carey said. "We just have to support him." 6In a previous interview with the father of one, Carey spoke proudly of his indigenous heritage. 7"My Nan is from the Gumbaynggirr people and my Pop was from the Bundjalung people," he told Focus magazine. 8"My Nan was born in the dunes up at Red Rock, so we have very strong connections to the land and ocean up around Coffs. 9"It's always such an energising feeling coming back home for a few days after being away on a surf trip; it definitely keeps me grounded coming home. 10"Whether I like it or not, that natural spiritual connection I have with the ocean and the land has been given to me as a gift through my heritage, and it's something I embrace to the fullest and something I'm very proud of." 11'Confidential' approached 'Surfing Life' magazine but did not hear back from them before going to press 12[Caption] Otis Carey was angered by comments in a surfing magazine 13[picture] 14[picture] ********** 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: 26 June 2014