John Gerard Mcmahon v Pamela Anne Arber [1997] ACTSC 29 (2 May 1997)

SUPREME COURT OF THE ACT

JOHN GERARD McMAHON v. PAMELA ANNE ARBER
No. SC1054 of 1996
Number of pages - 4
Appeal

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY MILES CJ

CATCHWORDS

Appeal - against dismissal of application to strike out part of a statement of claim - allegation of defamation by letter passing between officers of Department of Immigration - true test is the understanding of the ordinary person in the community, not the ordinary reader of the publication - an ordinary person would not infer that a migration agent who charged an exorbitant fee would be subject to disciplinary action - true innuendo - need to plead facts giving rise to innuendo.

Migration Act 1958

Mann v. The Medicine Group Pty Limited [1992] FCA 524; (1992) 38 FCR 400 at 413 Consolidated Trust Co. Ltd v. Browne (1948) 49 SR 86 Slim and Others v. Daily Telegraph Ltd. and Others [1968] 2 QB 157 John Fairfax & Sons Ltd v. Hook and Another (1983) 47 ALR 477 at 480 Mirror Newspapers Ltd v. World Hosts Pty Ltd [1979] HCA 3; (1979) 53 ALJR 243

HEARING

CANBERRA, 14 March 1997 2:5:1997

Counsel for the plaintiff/respondent: Mr. A. Twigg

Solicitors for the plaintiff/respondent: Higgins Solicitors

Counsel for the defendant/applicant: Mr. J.S. Wheelhouse

Solicitors for the defendant/applicant: Australian Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. The appeal be upheld. 2. The Master's orders be set aside and an order made that sub-paragraph 4(c) of the statement of claim be struck out with leave to re-plead the substance of that sub-paragraph as a true innuendo. 3. The plaintiff pay the costs of the appeal and of the proceedings before the Master.

DECISION

MILES CJ
1. This is an appeal from the decision of the Master made on 14 February 1997 to dismiss an application by the defendant to strike out sub-paragraph 4(c) of the plaintiff's statement of claim dated 23 December 1996.

2. The plaintiff's claim is that he was defamed by the defendant in a letter dated 23 April 1996 passing between officers of the Department of Immigration and Multicultural Affairs (as it is now called). The matter complained of is as follows: "Migration Agent, J.G. McMahon - Fee for Citizenship. The attached documents were provided to this office by an applicant for grant of Australian citizenship. The applicant advises that he had paid $1000 of the $4000 fee. this (sic) office has had no contact from the agent on this case. It seems to us that amount the agent proposed to charge the applicant was exorbitant in relation to the service to be provided. Referred for whatever action you care to take." The imputations defamatory of the plaintiff as pleaded are: "(a) The (sic) he sought to make a grossly excessive amount of money from an applicant for citizenship; (b) That he took $1,000.00 from a client to represent his interests, but failed diligently to act for his client; (c) That he so conducted himself as a Migration Agent as to warrant disciplinary action by the Migration Agents' Registration Section of the Department of Immigration and Ethnic Affairs."

3. Mr. Wheelhouse, for the defendant, submits that sub-paragraph 4(c) alleges a true innuendo and that, as the facts upon which it is based are not pleaded, it must be struck out.

4. I accept that the ordinary person in the Australian community would not be so well versed in the provisions of and the regulations under the Migration Act 1958 or with the affairs of the Department of Immigration and Multicultural Affairs as to know that a migration agent who charged an exorbitant fee was liable to be subjected to disciplinary action by the Migration Agents Registration Section. The ordinary reader in this sense could not, in my view, draw the inference that the letter, and in particular that the words at the end, namely "referred for whatever action you care to take", meant that the behaviour of the migration agent warranted action of a disciplinary nature. Given that the ordinary reader is not slow to draw inferences and will read between the lines and so forth, I do not think that the ordinary reader would go further than to infer that the writer of the letter thought that the conduct of the migration agent should be drawn to the attention of the Migration Agents Registration Section and that the bureaucratic process, whatever it might be, would take over from there.

5. However, Mr. Twigg, for the plaintiff, submitted that the test is not that of the ordinary person in the community but of the ordinary reader amongst those persons who may be expected to constitute the readership of the publication in question. In the present case it is alleged to have been published to an officer of the Migration Agents Registration Section at the central office and to other persons within the Department whose names have not yet been ascertained, and republished to certain named persons and other officers and staff of the Migration Agents Registration Board. So Mr. Twigg submits that the test is whether the ordinary reader amongst that limited readership could understand the matter complained of to carry the imputation pleaded. If that is the test I would accept that the imputation pleaded may be relied upon.

6. However, the initial question for me is: which is the true test - that of the ordinary person in the general community or that of the ordinary reader in the Department? Mr. Twigg relied on a passage of a judgment of my own in Mann v. The Medicine Group Pty Limited [1992] FCA 524; (1992) 38 FCR 400 at 413: "The reasonable reader is to be taken to be the reasonable reader within the Australian Capital Territory. Furthermore, that reader was not a member of the general public, as would be expected in relation to the readership of a general newspaper. This was a publication which circulated principally, if not exclusively, in the medical community which, for the purposes of the present case, was the medical community within the Australian Capital Territory."

7. Mann's case was about a letter referring to medical practitioners, published in a medical journal and circulated amongst medical practitioners. Apart from the fact that the passage quoted is from a dissenting judgment (on a point which the majority Judges do not appear to have discussed) the issue in Mann's case was not defamatory content but identification. It is well established that evidence can be called to prove that particular persons understood the matter complained of to refer to the plaintiff: e.g. Consolidated Trust Co. Ltd v. Browne (1948) 49 SR 86, but not otherwise as to what those persons understood its meaning to be: Slim and Others v. Daily Telegraph Ltd. and Others [1968] 2 QB 157, applied in John Fairfax & Sons Ltd v. Hook and Another (1983) 47 ALR 477 at 480. The distinction was referred to in the judgments of Mason and Jacobs and Aickin J in Mirror Newspapers Ltd v. World Hosts Pty Ltd [1979] HCA 3; (1979) 53 ALJR 243.

8. The authorities are otherwise too numerous to mention to the effect that it is what used to be called "the ordinary man" whose understanding provides the test. Although the ordinary person will take the surrounding circumstances known to him or her into account before reaching a conclusion as to its meaning, once the imputation alleged passes beyond the general knowledge of the ordinary reader and requires the support of extrinsic facts to be proved, then the charge of libel must rest upon an innuendo which the plaintiff must plead and the defendant may deny or admit.

9. Although the exact boundary of general knowledge may be difficult to draw, it is my view that the ordinary reader in the community would not of his or her general knowledge know enough about the licensing of migration agents or the powers, functions and operations of the Migration Agents Registration Board to be aware or to believe that a migration agent who proposed to charge an exorbitant fee was subject to disciplinary action. Hook's case may be seen in contrast. There the majority Judges in the Federal Court came to the conclusion that an allegation that a licensee of a tavern had received a direction to comply with the liquor licensing laws gave rise to an imputation that the licensee had committed offences against those licensing laws. That imputation was clearly open on the natural and ordinary meaning of the words in the allegation. It did not depend upon particular knowledge of the licensing laws. Indeed it might have been contrary to a true understanding of the licensing laws. But in relation to the function and powers of the Migration Agents Registration Board and the duties of migration agents, I do not think that the ordinary reader's knowledge would be such that he or she could draw the inference that the charging of an exorbitant fee on the part of a migration agent warranted disciplinary action at the instance of the Migration Agents Registration Board.

10. On that view, the appeal must be allowed, the Master's orders set aside and an order made that sub-paragraph 4(c) of the statement of claim be struck out with leave to re-plead the substance of that sub- paragraph as a true innuendo. The plaintiff is to pay the costs of the appeal and of the proceedings before the Master.