Stephen Loosley v West Australian Newspapers [1993] ACTSC 16 (26 February 1993)

SUPREME COURT OF THE ACT

STEPHEN LOOSLEY v. WEST AUSTRALIAN NEWSPAPERS
No. SC 325 of 1992
Number of pages - 7

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

HEARING

CANBERRA, 27 November 1992
26:2:1993

Counsel for the Plaintiff: B. Connell

Instructing Solicitors: Macphillamy Cummins and Gibson

Counsel for Defendant: J. S. Wheelhouse

Instructing Solicitors: Mallesons Stephen Jaques

ORDER

1. The application is dismissed.

2. I order the defendant applicant to pay the costs of the plaintiff respondent of and incidental to the Motion.

DECISION

MASTER A. HOGAN. This is an application to strike out certain imputations pleaded by the plaintiff in an action for defamation.

2. The matter published by the defendant of which the plaintiff complains is set out in a schedule to the Statement of Claim as follows:
"1. "MPs deny claim of 'love boat' sex romp" by Eugenie Reid.

2. (Picture of) Mr Peacock.
3. (Picture of) plaintiff.
4. SYDNEY: Three senior Federal politicians appeared in the
NSW District Court yesterday to deny having sex with
prostitute Virginia Perger on the so-called "Love Boat"
while it cruised Sydney Harbour.
5. Former Federal Opposition Leader Andrew Peacock, ALP
national president Senator Stephen Loosley and Labour MP
Frank Walker said they were outraged, hurt and besmirched
by the allegations of a sex-romp.
6. The politicians were giving evidence in the trial of
businessman and former ALP identity Joe Meissner, 48, who is
charged with attempting to pervert the course of justice.
7. Peacock, now Liberal legal affairs spokesman, said claims that
he had sex with the woman on Meissner's boat, the Kanzen, were
the most outrageous of his 26-year parliamentary career.
8. He denied ever meeting Perger or Meissner, or having been on
the boat.
9. Peacock told the Court he was not in the habit of taking
cruises with members of the Labor Party.
10. While it was funny now, the allegations had outraged him
at the time, he said.
11. Perger had claimed he was nice man who didn't talk crap on
TV. But she later withdrew the sex allegation, saying she may
have confused him with former racing identity George Freeman
because they had similar hair.
12. Asked whether he had ever been confused with Freeman,
Peacock laughed and replied: "No, never".
13. Loosley said he had been on the Kanzen once, but Perger
had not been there and it was a thoroughly miserable
experience.
14. He told the Court he had been invited on an all-male
fishing trip in 1978 where he first met Meissner.
15. However, he was violently ill as the flimsy boat was
tossed about in the rough weather.
16. Loosley told the Court he was a married man with two young
sons and had met Perger only once when Meissner introduced
her at a constituency meeting in 1980.
17. Loosley said he probably met Meissner six times, the last
occasion being in 1982.
18. The Court has been told that Perger, now known as Rebecca
du Pont, claimed the senator featured in naked photographs
taken on the boat. Other leading ALP politicians named
were Walker, Federal Transport Minister Graham Richardson
and parliamentary speaker Leo McLeay. Richardson and
McLeay will both give evidence later this week.
19. Meissner has pleaded not guilty to trying to make Perger
change her plea from not guilty to guilty of making a
false statement over a newspaper article.
20. Walker, a former NSW Attorney-General, told the Court
there were no real nude prints involving him but it was
possible someone manufactured photographs.
21. He said he had never seen Perger in his life, although he
recognised her from media coverage of the case.
22. "I have absolutely nothing to do with this woman in any
shape or form" he said.
23. But when rumours were circulating that a Minister in the
Labor Government had been compromised by photographs of a
"lively encounter by a prostitute", he said he identified
himself.
24. The trial continues."

3. A photocopy of the article which is in evidence in these proceedings shows that the text "MPs deny claims (sic) of 'love boat' sex romp" is in very bold headline type, the pictures of Mr Peacock and Mr Loosley are one above the other to the left of the whole article, and the rest of the article (other than the journalist's name) is in the paper's normal typeface.

4. The imputations are set out in paragraph 4 of the Statement of Claim as follows:

"The matter complained of paragraph 3 hereof in its natural
and ordinary meaning was defamatory of the plaintiff and was
understood to mean:
(a) That the plaintiff had committed perjury in proceedings
before the NSW District Court by falsely denying that he had had
sex with Virginia Perger on the "Kanzen", otherwise known as "The
Love Boat".
(b) That the plaintiff had committed adultery with a
prostitute called Virginia Perger on the "Kanzen", otherwise known
as "The Love Boat".
(c) That the plaintiff had permitted himself to be
photographed naked with a prostitute called Virginia Perger on the
"Kanzen", otherwise known as "The Love Boat".
(d) That the plaintiff had participated with other persons in
a boat trip aboard the "Kanzen", otherwise known as "The Love
Boat", in which he and those persons had sex with a prostitute
called Virginia Perger.

5. A number of reasons for striking out the imputations are set out in the Notice of Motion, but counsel for the defendant summarised them, correctly I think, as being essentially a submission that as a matter of law the matter complained of does not have the capacity to convey the imputations alleged in the pleading. It is obvious that if they do arise, they are defamatory.

6. The significant matters that concern this plaintiff appear to me to be the following.

7. The heading (1 in the schedule) conveys the information that claims had been made by someone about a "love boat" sex romp.

8. The picture of the plaintiff and at least items 5 and 13 to 18 inclusive convey the information that at least some of the claims that had been made about a love boat sex romp related to the plaintiff.

9. The heading (item 1) also conveys the information that the Mps denied the claim. It may be inferred from item 16 at least, although it is not in terms stated, that what the plaintiff said was on oath. An inference could also be drawn from items 13 and 16, although again it is not stated in terms, that the plaintiff denied the claims.

10. Counsel for the plaintiff submitted that, in terms of the metaphor used by Baron Alderson in Chalmers v Payne (1835) 2 Cr M and R 156 at 159; 150 ER 67, at 68, this was a bane and antidote case, and that the antidote did not destroy the bane.

11. Mr Wheelhouse, for the defendant, submitted, first, that it was not a bane and antidote case. But as I understood his argument, it really amounted to a submission that the antidote did in fact render the poison harmless. He said that what the whole of the article amounted to was not an allegation that the plaintiff had engaged in improper conduct, but that it was essentially a denial of such an allegation. In particular, so far as imputation (a) is concerned, the article did not anywhere convey the impression to the ordinary reader that there was any reason why the plaintiff's denial was untrue.

12. However, I am not the tribunal of fact deciding the plaintiff's claim. This application can succeed only if, as a matter of law, the imputations are incapable of arising. The test to be applied on this pleading point is analogous to that applied by a judge at a jury trial who is asked to remove an issue from the jury.

13. It seems to me that the following statement by Hutley J.A. in Sergi v ABC (1983) 2 NSWLR 669 is apposite to this case.

"There being no doubt that if portions of the material
published stood alone, the plaintiff/appellant would have been
defamed, it is only if the whole of the material published does
not permit of a defamatory meaning that there is no case to go to
the jury. The bane and antidote theory upon which Hunt J relied
is merely a vivid way of stating that the whole publication must
be considered, not a segment of it: cf World Hosts Pty Ltd v
Mirror Newspapers Ltd (1976) 1 NSWLR 712, at 719, 725. It must
follow that it is only rarely that it will be possible for a judge
to remove from the jury, the issue whether the whole publication
is defamatory where a publication contains clearly defamatory
statements if they had been published on their own. As Samuels JA
said: "... cases (ie, when a publication which seeks to refute a
calumny which it expressly states may be held incapable of
conveying any defamatory meaning) must be comparatively rare.".
Morosi v Broadcasting Station 2GB Pty Ltd (1980) 2 NSWLR 418(n),
at 419.

14. I note that although the article contains the information that the plaintiff denied the truth of the claims made by Miss Perger, it does not contain any statement by the author or the publisher that her claims were, or were acknowledged or had been found to be, untrue.

15. In those circumstances it is clear to me that the issues, whether imputations (b), (c) and (d) arose from the published matter, remain questions of fact for the tribunal of fact. The submissions made by Mr Wheelhouse on those issues may very well find favour with the tribunal of fact. I am not prepared to say as a matter of law that they must do so.

16. Imputation (a) has given me greater difficulty. It arises by inference only if the effect of (b), (c) or (d) is accepted. But again I am not prepared to rule that as a matter of law it could not arise on a fair reading of the whole of the article.

17. The application is dismissed. I order the defendant/applicant to pay the costs of the plaintiff/respondent of and incidental to the motion.