Gerard Otmar Gutman v Brian Clouston and Australian Consolidated Press Limited [1989] ACTSC 6 (15 February 1989)

SUPREME COURT OF THE ACT

GERARD OTMAR GUTMAN v. BRIAN CLOUSTON and AUSTRALIAN CONSOLIDATED
PRESS LIMITED
S.C. No. 482 of 1984
Defamation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Defamation - whether words complained of capable of meanings alleged - whether defamatory of the plaintiff.

Gatley on Libel and Slander, 8th Ed., 1981, para.41

Gardiner v. John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171

Lewis v. Daily Telegraph Ltd (1964) AC 234

Jones v. Skelton (1963) 3 All ER 952

Mirror Newspapers Ltd v. Harrison (1982) 42 ALR 487

Farquhar v. Bottom (1980) 2 NSWLR 380

Slatyer v. Daily Telegraph Newspaper Co. Limited [1908] HCA 22; (1908) 6 CLR 1

Keogh v. Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577

Lewis v. Daily Telegraph Limited (1963) 1 QB 340

Lang v. Australian Consolidated Press Ltd (1970) 2 NSWR 408

Middle East Airlines Airliban SAL v. Sungravure Pty Ltd (1974) 1 NSWLR 323

Gorton v. Australian Broadcasting Commission and Walsh (1973) 1 ACTR 6

Readers Digest Services Pty Ltd and another v. Lamb [1982] HCA 4; (1982) 150 CLR 500

Morgan v. Odhams Press Ltd (1971) 1 WLR 1239

Mirror Newspapers Ltd v. World Hosts Pty Ltd [1979] HCA 3; (1979) 53 ALJR 243

Parker v. John Fairfax & Sons Ltd (Court of Appeal, 30th May 1980, unreported)

Freier v. John Fairfax & Sons Limited (NSW Supreme Court, Hunt J., 14 October 1983, unreported)

HEARING

CANBERRA
15:2:1989

DECISION

In this action the plaintiff sues the defendant for damages for defamation. The matter complained of was published by the first defendant to the second defendant and is identified in numbered paragraphs 9-18 in the schedule to the statement of claim. The matter complained of against the second defendant is an article appearing in the "Bulletin" magazine dated 27 March 1984 and includes paragraphs 9-18. The schedule to the statement of claim is reproduced as an Annexure to these reasons. The publication alleged against the second defendant is in the Australian Capital Territory and the other States and Territories of Australia.

2. In respect of publication other than in New South Wales, the plaintiff relies upon the natural and ordinary meaning of the words and claims that they are defamatory of the plaintiff. In respect of publication in New South Wales the plaintiff claims that in their natural and ordinary meaning the article complained of conveys the following imputations defamatory of the plaintiff:
(1) The plaintiff was so vain a person as to pay for

the publication of his book "Retreat of the Dodo"
solely with the motive to see himself in print
notwithstanding his incompetence as an author in
writing an otherwise unpublishable work;
(2) The plaintiff was so lacking in competence as an
economic and financial consultant that he could
only write a book in his field that was so trivial
as to be unworthy of publication except at his own
expense.

3. The plaintiff also relied upon a true innuendo in respect of publication in New South Wales to the effect that the plaintiff was so lacking in competence as an economic and financial consultant that he could only write a book in his field that was so trivial as to be unworthy of publication except at his own expense.

4. Based upon the estimates of the time necessary for the conduct of the action made by the parties' solicitors, four days were set aside for the hearing. The trial commenced on 6 February 1989 and at the end of the plaintiff's case on 9 February 1989, counsel's estimate was that the hearing would take another three days. I indicated that I would be prepared to deliver interim reasons on the issues raised by the defendants in respect of publication in the Australian Capital Territory and in the States of the Commonwealth, viz, whether in its natural and ordinary meaning and/or together with the extrinsic facts pleaded by the defendants, the matter complained of was capable of conveying and did convey the meanings or meanings substantially the same as the imputations pleaded. Both counsel for the plaintiff and for the defendants adopted my suggestion and, accordingly, I deliver these interim reasons on those questions for the benefit of the parties on the adjourned hearing on 19 June 1989.

5. The two questions were identified by counsel for the defendant as follows:

(1) Are the meanings contended for by the plaintiff
capable of arising from the matter complained of?
and
(2) If so, do they arise in fact to the ordinary
reasonable reader?

The Law

6. A matter is defamatory if it tends "to lower the plaintiff in the estimation of right-thinking members of society generally" (Gatley on Libel and Slander, 8th Ed., 1981, para.41) or "if it is likely to cause ordinary decent folk in the community, taken in general, to think less of him" (per Jordan CJ in Gardiner v. John Fairfax & Sons Pty Ltd (1942) 42 SR(NSW) 171 at 172). The question is not what the defendant meant or how the words were understood by the plaintiff. The meaning to be given to the words used is the meaning they would convey to the ordinary reasonable man. They are to be construed in their natural and ordinary meaning, i.e. in the meaning in which reasonable men of ordinary intelligence, with the ordinary man's general knowledge and experience of worldly affairs, would be likely to understand them (Gatley, 8th ed para.93).

7. In Lewis v. Daily Telegraph Ltd (1964) AC 234 at 258, Lord Reid said:

"There is no doubt that in actions for libel the
question is what the words would convey to the ordinary
man: it is not one of construction in the legal sense.
The ordinary man does not live in an ivory tower and he
is not inhibited by a knowledge of the rules of
construction. So he can and does read between the
lines in the light of his general knowledge and
experience of worldly affairs."

8. In Jones v. Skelton (1963) 3 All ER 952 at 958 Lord Morris, speaking for the Privy Council, said:

"In deciding whether words are capable of conveying a
defamatory meaning the court will reject those
meanings which can only emerge as the product of some
strained or forced or utterly unreasonable
interpretation. In Capital and Counties Bank v. Henty
(1882) 7 App Cas 741, Lord Selborne said (at 745)
'The test according to the authorities, is, whether
under the circumstances in which the writing was
published, reasonable men to whom the publication was
made, would be likely to understand it in a libellous
sense.'
The ordinary and natural meaning of words may be
either the literal meaning or it may be an implied or
inferred or an indirect meaning any meaning that
does not require the support of extrinsic facts
passing beyond general knowledge but is a meaning
which is capable of being detected in the language
used can be a part of the ordinary and natural meaning
of words (see Lewis v. Daily Telegraph Ltd (1963) 2
All ER 151). The ordinary and natural meaning may
therefore include any implication or inference which a
reasonable reader, guided not by any special but only
by general knowledge and not fettered by any strict
legal rules of construction, would draw from the
words."

9. In Mirror Newspapers Ltd v. Harrison (1982) 42 ALR 487 at 492-3; 56 ALJR 808, Mason J (as he then was), with whom the other members of the court agreed, said:

"A distinction needs to be drawn between the reader's
understanding of what the newspaper is saying and
judgments or conclusions which he may reach as a result
of his own beliefs and prejudices. It is one thing to
say that a statement is capable of bearing an
imputation defamatory of the plaintiff because the
ordinary reasonable reader would understand it in that
sense, drawing on his own knowledge and experience of
human affairs in order to reach that result. It is
quite another thing to say that a statement is capable
of bearing such an imputation merely because it excites
in some readers a belief or prejudice from which they
proceed to arrive at a conclusion unfavourable to the
plaintiff. The defamatory quality of the published
material is to be determined by the first, not the
second, proposition. Its importance for present
purposes is that it focuses attention on what is
conveyed by the published material in the mind of the
ordinary reasonable reader."

10. Further relevant authorities relating to the question whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon have been collated by Hunt J. in Farquhar v. Bottom (1980) 2 NSWLR 380. The following principles are taken from his Honour's judgment (at 385-386).

11. In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, the Court must be guided and directed by the test of reasonableness. It must reject any strained or forced or utterly unreasonable interpretation. It must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence (Slatyer v. Daily Telegraph Newspaper Co. Limited [1908] HCA 22; (1908) 6 CLR 1) who is neither perverse (ibid) nor morbid or suspicious of mind (Keogh v. Incorporated Dental Hospital of Ireland (1910) 2 Ir R 577 at 586) nor avid for scandal (Lewis v. Daily Telegraph Limited (1963) 1 QB 340 at 374, affirmed (1964) AC 234 at 260).

12. This ordinary reasonable reader does not live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs (Lewis v. Daily Telegraph Ltd (1963) 1 QB 340 at 358; Jones v. Skelton (1963) SR(NSW) 644; 80 WN 1061; Lang v. Australian Consolidated Press Ltd (1970) 2 NSWR 408 at 412; Middle East Airlines Airliban SAL v. Sungravure Pty Ltd (1974) 1 NSWLR 323 at 340).

13. I refer also to Gorton v. Australian Broadcasting Commission and Walsh (1973) 1 ACTR 6 at 11 and Readers Digest Services Pty Ltd v. Lamb [1982] HCA 4; (1982) 150 CLR 500 per Brennan J. at 505-6.

14. In what might be described as "newspaper" cases, further questions may arise as to the care with which the ordinary reasonable reader would have read a sensational article, and as to the degree of analytical attention he would apply to it (Morgan v. Odhams Press Ltd (1971) 1 WLR 1239 at 1254, (1971) 2 All ER 1269), following Lewis v. Daily Telegraph Ltd (1963) 1 QB 277; Mirror Newspapers Ltd v. World Hosts Pty Ltd [1979] HCA 3; (1979) 53 ALJR 243; Parker v. John Fairfax & Sons Ltd (Court of Appeal, 30th May 1980, unreported).

15. Counsel for the defendants relied upon the Macquarie Dictionary meaning of "vanity publishing the publishing of unprofitable books with the financial backing of the author". Counsel relied upon Freier v. John Fairfax & Sons Limited (unreported decision of Hunt J. in the Supreme Court of New South Wales, delivered 14 October 1983) where his Honour said:

"Dictionaries, of course, may be used to support a
particular meaning as being part of the natural and
ordinary meaning of a word or phrase, but it seems to
me to be an unusual use of a dictionary in order to
limit that meaning. Words are often used other than in
their precise dictionary sense and particularly in an
article which is written, as is this one, in a
lighthearted way. Such articles often contain within
themselves their own dictionary. As Holroyd Pearce,
L.J. (as his Lordship then was), said in Lewis v. Daily
Telegraph Ltd. (1963) 1 QB 340, at 374:
"When persons publish words that are imprecise,
ambiguous, loose, fanciful or unusual, there is room
for a wide variation of reasonable opinion on what the
words mean or connote. The publisher can hardly
complain in such a case if he is reasonably understood
as having said something that he did not mean.'"

16. It was submitted on behalf of the defendant that the phrase "vanity press" as used in the article is synonymous with "vanity publishing" as defined by the Macquarie Dictionary. I reject that submission and consequently derive no assistance from the Macquarie Dictionary meaning of "vanity publishing". The article complained of is headed "Chapter and Verse on the Vanity Press". Reading the article as a whole I think that the ordinary reader would understand the vanity press to embrace publishing of books at the expense of the author, without regard to literary merit or the publishing marketplace and that the dominant motivation for such authors to pay for their own works to be published is their own vanity.

17. The Oxford Dictionary lists different meanings for the word "vanity":

"1. That which is vain, futile, or worthless; that
which is no value or profit.
2.The quality of being vain or worthless; the
futility or worthlessness of something.
3.The quality of being personally vain; high opinion
of oneself; self-conceit and desire for admiration.
4. A vain, idle, or worthless thing; a thing or
action of no value.
5. Emptiness, lightness; the state of being void or
empty; inanity."

18. It was submitted on behalf of the defendants that the two elements which are explored in the article are that rejection slips defeat most budding authors and some authors, faced with rejection slips, pay for their own books, including design, printing, binding and distribution. The submission was that there is no other element in the notion of vanity publishing except those two factors.

19. I reject that submission because, as previously stated, I think the ordinary reasonable reader would understand the work of vanity publishing to involve people who are motivated by vanity i.e. the quality of being personally vain, having a high opinion of themselves, are conceited, or have a desire for admiration. Once that meaning is established in the mind of the ordinary reader, it logically follows that to name an author who has had recourse to vanity publishing is to embrace him in that class of people who have had their work rejected by recognised publishers, whose work may have no literary merit or viability in the publishing marketplace and who are motivated to pay for their own publishing by their own vanity.

20. The plaintiff is listed as such a person. It follows that in their natural and ordinary meaning the words convey the imputation that the plaintiff was so vain a person as to pay for the publication of his book "Retreat of the Dodo" solely with the motive to see himself in print notwithstanding his incompetence as an author in writing an otherwise unpublishable work.

21. With regard to the innuendo that the plaintiff was so lacking in competence as an economic and financial consultant that he could only write a book in his field that was so trivial as to be unworthy of publication except at his own expense, the plaintiff has to establish that the matter complained of was published to persons who knew extrinsic facts, which facts gave rise to that innuendo when otherwise the words were innocent.

22. I am satisfied on the evidence that at all material times the plaintiff was a highly regarded economic and financial consultant and publication of the material complained of was capable of giving rise to the innuendo pleaded.

23. With regard to the second question whether the ordinary reasonable reader would in fact have read the matter complained of as conveying the imputations pleaded, as Fox J. said in Gorton v. Australian Broadcasting Commission and Walsh, supra, at p 11, "can only be a matter of impression". My own impression is that the naming of the plaintiff in the whole context of the article as an author who had had recourse to the vanity press is derogatory of the plaintiff in the ways particularised. As I said before, he is included in the class of people who are egocentric and "simply want to see themselves in print" regardless of literary merit and the publishing marketplace.

24. It is not ameliorating that the article proceeds to outline the circumstances in which Mrs Goss' book "The Gosses - An Anglo-Australian Family" came to be published. The circumstances as set out in the article convey the meaning that in Mrs Goss's case, her motivation was not vanity, but a desire to have published a family history which took 20 years to research and write. Those background circumstances tend to remove Mrs Goss from the class of vain unpublishable authors. The plaintiff has been listed in the class but not excluded. The class of people is later described in the article in the quotation from Richard Walsh, publisher at Angus and Robertson as "self-important people". In my view the ordinary reasonable reader would P embrace the plaintiff in that class and, of course, that is derogatory.