Winnel v Snow; Winnel v Byron [2003] ACTSC 94 (14 November 2003)

Last Updated: 24 November 2003

ROBERT WINNEL v TERRENCE SNOW

ROBERT WINNEL v STEPHEN BYRON

[2003] ACTSC 94 (14 November 2003)

DEFAMATION - true innuendo - extrinsic facts - particulars of identity of persons to whom published

Fullan v Newcastle Chronicle and Journal Limited [1977] 3 All ER 32

Grappelli v Derek Block (Holdings) Limited [1981] 2 All ER 272

Lazarus v Deutsche Lufthansa AG [1985] 1 NSWLR 188

Moore v Australian Broadcasting Commission (Hunt J, Supreme Court of New South Wales, 5 July 1985, unreported)

Hughes v Mirror Newspapers Limited [1985] 3 NSWLR 504.

Hall v Jones [2000] NSWSC 39

No SC 780 of 2002

No SC 787 of 2002

Coram: Master Harper

Supreme Court of the ACT

Date: 14 November 2003

IN THE SUPREME COURT OF THE )

) No SC 780 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT WINNEL

Plaintiff

AND: TERRENCE SNOW

Defendant

ORDER

Coram: Master Harper

Date: 14 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

IN THE SUPREME COURT OF THE )

) No SC 787 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT WINNEL

Plaintiff

AND: STEPHEN BYRON

Defendant

ORDER

Coram: Master Harper

Date: 14 November 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed.

1. In these related actions, the plaintiff claims damages for defamation against separate defendants alleging separate publications of defamatory material. Both publications were alleged to have been made by the defendants in their capacity as officers or employees of Canberra International Airport Pty Limited, in the context of a dispute between that company and the Village Building Company Limited, of which the plaintiff is a shareholder and the managing director. The latter company owns land at Tralee in New South Wales close to the Australian Capital Territory border. The company wishes to develop the land for housing. The Airport company asserts that the proposed development is under its flight path and for that reason would be unsuitable for residential development.

2. The present applications are made by the defendants seeking further and better particulars of the statements of claim, in each claim, as amended to date.

Winnel v Snow

3. The plaintiff asserts in a further amended statement of claim, filed on 19 June 2003, that Mr Snow is a property developer and a director of the Airport company; and that on or about 19 November 2002, he published defamatory material in a letter to Mr Simon Corbell, the Minister for Planning in the Australian Capital Territory Government.

4. The plaintiff asserts that the material is defamatory of the plaintiff in its natural and ordinary meaning, particulars of which are set out in the pleading; or alternatively, that the meaning is a true innuendo arising by reason of extrinsic facts within the knowledge of people to whom the matter was published. Particulars of the extrinsic facts are set out in the pleading.

5. It is asserted that the natural and probable consequence of the publication to the Minister was that he would republish the material; or alternatively, that the defendant intended or authorised the Minister to republish it; and that the matter was republished, by the Minister attaching a copy of it to a media release.

6. It is one of the bases upon which the plaintiff's case is put that there were people to whom the defamatory matter was published who were aware of the pleaded extrinsic facts, and who would have read the material as defamatory of the plaintiff, notwithstanding that other persons who were unaware of the extrinsic facts might not have read the material in that way.

7. By letter dated 26 June 2003, the solicitors for the defendants asked for the names and addresses of the persons who allegedly read the publication and had knowledge of the extrinsic facts. They also asked for the names and addresses of the people to whom the matter had been republished.

8. The solicitors for the plaintiff replied on 15 August to the effect that it would be oppressive to expect the plaintiff to provide names and addresses. They said that there were numerous businessmen, public servants and associates of the plaintiff who would have been aware of the facts. As to republication, they said that the matter was republished to the media generally by way of a media release issued by the Minister. They said that the extent of its further dissemination by the media, although undoubtedly broad, was not yet known to the plaintiff.

9. Republication by the media is not pleaded by the plaintiff. It became clear during the hearing of the application that the plaintiff will be relying on republication. It was accepted on both sides that this will require yet another amendment to the statement of claim. Appropriately, the defendants do not seek these particulars in the present application; whether or not they are entitled to additional particulars will depend on the particularity of the pleading itself, assuming that the plaintiff decides to take this aspect further, and obtains consent or leave for the requisite amendment.

10. On 29 August 2003, the solicitors for the defendants wrote again to the solicitors for the plaintiff, pressing their entitlement to know the names and address of the persons who read the publication and had knowledge of the extrinsic facts. They foreshadowed the present application if those particulars were not provided. They referred to the decision of Hunt J in the Supreme Court of New South Wales in Moore v Australian Broadcasting Commission, formally unreported but set out in Australian Defamation Law and Practice at para [50,010]. The solicitors for the plaintiff responded that the plaintiff was not entitled to the particulars: hence the present application.

Winnel v Byron

11. The assertion against Mr Byron, in an amended statement of claim dated 19 June 2003, is that he published an advertisement in the Canberra Times which was defamatory of the plaintiff. In the first instance, it is pleaded that the publication was defamatory in its natural and ordinary meaning, particulars of which are set out in the pleading. It is pleaded in the alternative that the defamatory meaning is a true innuendo which arises by reason of extrinsic facts within the knowledge of certain people to whom the matter was published. Particulars of the extrinsic facts are pleaded, including the wording of an advertisement authorised by the plaintiff and published in the Canberra Times six days earlier. In summary, the plaintiff's case, as pleaded on this alternative basis, is that there were persons who, having read and remember the earlier advertisement, would have read the second advertisement as defamatory of the plaintiff, even if other persons who had not read or remembered the first advertisement might not have read the second one in that way.

12. The solicitors for the defendant wrote to the solicitors for the plaintiff on 26 June, asserting an entitlement to the names and addresses of the persons who allegedly read the defamatory publication and had knowledge of the extrinsic facts. The solicitors for the plaintiff replied, stating that the plaintiff was well known in the business community of Canberra and the surrounding area and that literally hundreds of people would be aware of the extrinsic facts. Apart from businessmen involved in land development and the building industry, such people would include the staff of the Queanbeyan Council, numerous public servants employed by the ACT Government and numerous employees of the Commonwealth Department of Communications.

13. On 1 September 2003, the solicitors for the plaintiff wrote again, referring to Moore v Australian Broadcasting Commission and repeating their request for the names and addresses. The solicitors for the plaintiff responded that no such entitlement existed. They accepted that some form of identification of the persons or class of persons with the required knowledge was an appropriate matter for particulars, but they refused to provide names and address, describing this as a requirement by the plaintiff to select his witnesses and identify them for the benefit of the defendant.

Submissions

14. The plaintiff relies, for the alternative basis upon which he puts his case against both defendants, on a claim of true innuendo: that is to say, a defamatory meaning which arises, and arises only, because of facts outside the publication which are known to the recipients. This knowledge in the recipients is an element of the cause of action. In addition to pleading the special meaning which the plaintiff contends that the published words have by reason of the extrinsic facts, the plaintiff must also prove that those facts were known to at least one of the persons to whom the words were published. It need not be shown that any person knowing the extrinsic facts understood the published words in a defamatory sense; nor is it necessary to show that the defendant knew the facts giving the words their special meaning. These are fundamental propositions, for which authority is set out in Gatley on Libel and Slander (9^th Edition, 1998) at paras 3.17-3.18. The obligation on the plaintiff to prove that the extrinsic facts were known to at least one recipient of the publication arises because the recipients who were ignorant of the extrinsic facts could not reasonably attach a defamatory meaning to the words: Gatley at para 3.19.

15. Counsel for the defendant submitted that the identity of the persons to whom the publication was made and who had knowledge of the extrinsic facts is relevant to the availability of defences, the extent of damages, and, consequently, any compromise of the proceedings. For that reason, the defendant is entitled to particulars which specify the names and addresses of those persons to whom it is alleged that the publication was made with that knowledge. In support of this position, counsel relied upon four decisions of single judges of the Supreme Court of New South Wales, three being decisions of the same judge in the same year (Hunt J in 1985) and the fourth a 2002 decision of Studdert J. Reference in those decisions was made to two earlier decisions of the Court of Appeal in England, and it may be helpful for me to refer to those.

16. In Fullan v Newcastle Chronicle and Journal Limited [1977] 3 All ER 32, the plaintiff had been a Roman Catholic priest. He had left the priesthood and become a schoolteacher. Two years later, he married, and a year after that, had a child. Some eight years thereafter, a local newspaper published an article naming him, from which, he asserted, it could be inferred that he had fathered a child whilst a parish priest and had fathered an illegitimate child. He pleaded as extrinsic facts the dates of his marriage and birth of the eldest child. He did not give particulars of the persons who knew one or other of those extrinsic facts. Lord Denning MR, with whom Orr and Scarman LJJ agreed, held that any person having knowledge of the extrinsic facts must be identified in the pleading or particulars, notwithstanding that this would provide the solicitors for the defendant with an opportunity to interview and make enquiries of the named persons.

17. Fullan was a case where the number of persons likely to be aware of the extrinsic facts and also to have seen the published material would have been very small. The Master of the Rolls referred in his reasons to the fact that he had tried to imagine whom such a person could be and to the fact that such a person would be so rare and so exceptional that the case on legal innuendo would not stand a chance unless that person was called. This was because the local newspaper circulated in an area many miles from where the plaintiff had been living at the time of his marriage and the birth of the child.

18. The other English decision is Grappelli v Derek Block (Holdings) Limited [1981] 2 All ER 272, a decision of Lord Denning MR, Templeman and Dunn LJJ. The plaintiff was a violinist with an international reputation. The defendant booked concerts at various places in England some months in advance without his authority. The defendants cancelled the bookings by telephone, making the excuse that the plaintiff was seriously ill and unlikely to tour again. This was completely false. About two months later, the Sunday Times and other papers published a notice setting out details of concerts where the plaintiff would be performing a few weeks later. The plaintiff's case was that the telephone representations were actionable in defamation, having being made defamatory by the later accurate publication by the Sunday Times. The court held that a statement not defamatory when published could not be subsequently rendered defamatory in such a manner.

19. Lord Denning MR referred also to the fact that the plaintiff had not identified any of the readers of the Sunday Times or other publications who, by reason of the later facts, might have put a defamatory meaning on the earlier representations. His Lordship dealt with this point in principle. Referring to Fullan, he said that the plaintiff ought to specify the persons who had the particular knowledge from which they drew a defamatory meaning. The fact that this had not been done in the statement of claim was a secondary reason why the defamation count should be struck out.

20. These observations of the Master of the Rolls in Grappelli were strictly obiter. The issue was not referred to by Dunn LJ. Templeman LJ simply agreed with both other judgments.

21. Returning to the NSW authorities: in Lazarus v Deutsche Lufthansa AG [1985] 1 NSWLR 188, a non-media slander case not involving innuendo, Hunt J ordered the plaintiff to provide the best particulars he could identifying the persons to whom the matter in question had been published, and of the factual basis of his lack of knowledge of the names of those persons. His Honour made the point (at p 192) that the identity of the persons to whom publication is alleged to have been made (either general or precise) is of vital importance to a defendant in almost every defamation action, whether the publication was oral or in writing. His Honour went on to say that, on the other hand, a newspaper defendant in a written defamation case could hardly require the plaintiff to identify the readers of the newspaper. Such a defendant does not have to meet any case based upon the precise identity of its readers, nor does it need to know that precise identity for any purpose in relation to its own defence. The plaintiff in such a case will be relying upon the width or the unrestricted nature of the publication, not upon the precise identity of the persons to whom it was made. His Honour referred to Fullan and Grappelli as exceptions to this general rule about newspaper cases, but made the point that Fullan in particular was a somewhat special case in the light of the extraordinary extrinsic facts identified by the plaintiff: identity of readers will not usually be relevant in mass media cases (at page 193).

22. Mention was earlier made in these reasons of Moore v Australian Broadcasting Commission (Hunt J, Supreme Court of New South Wales, 5 July 1985, unreported). The plaintiffs sued in respect of defamation in a television programme, in which they were not identified by name but would be identifiable to persons aware of certain extrinsic facts. Particulars were in very general terms, referring to persons throughout New South Wales and the rest of Australia, including members of the Police force, their friends and relatives and shopkeepers, tradespeople and the like with whom the plaintiff came into contact. The essential extrinsic fact was that the plaintiff, as a police officer, had conducted a record of interview with a person identified in the television broadcast. Hunt J speculated as to the categories of persons who might be expected to have been aware of this, but said that a defendant should not be obliged to guess and was entitled to know the nature of the case which was to be presented against him. His Honour referred to Fullan, Grappelli and Lazarus, and said that the present case was the very sort of case where such particulars must be given. The principal reason why the application was resisted was an objection by the plaintiffs to identifying their witnesses in advance. This was not a valid basis for objection. His Honour ordered the plaintiffs to provide particulars of the names and addresses of the persons to whom the publication was made who had knowledge of the relevant extrinsic fact. A general description was ordered to be given where the plaintiffs were unable to identify such persons by name or address.

23. The third 1985 NSW decision relied upon by the defendant is Hughes v Mirror Newspapers Limited [1985] 3 NSWLR 504. This was a newspaper defamation case, where the plaintiff relied primarily upon the proposition that certain extrinsic facts were within the general knowledge of the community, and thus within the natural and ordinary meaning of the matter complained of. In the alternative, the plaintiff relied upon a true innuendo. Hunt J acknowledged that particulars must be given of persons who have knowledge of extrinsic facts which are not generally known, where the class of relevant readers may be sufficiently limited in size or composition to enable the defendant to rely upon some defence which would not be applicable to a publication to a wider class or a different class, or where the size or the composition of that class may dictate to the defendant the amount which it should consider paying into court (at p 506). His Honour referred to Fullan as authority for this proposition. His Honour was satisfied that it was at least arguable that the extrinsic facts pleaded by the plaintiff were within the general knowledge of the community (including, at least, the great majority of those members of the public who watch rugby league football on television). His Honour went on to say that it will not be every case in which a plaintiff will escape giving particulars of the persons with knowledge of the extrinsic facts simply because innuendo has been pleaded as an alternative to a principal case relying on the facts being within the general knowledge of the community. In some cases, it will be obvious that a claim that specified facts are within the general knowledge of the community must fail. The application for particulars of names and addresses of persons with knowledge of the extrinsic facts was refused.

24. Finally, the plaintiff relies upon a decision of Studdert J in Hall v Jones [2000] NSWSC 39, another media defamation case with a rugby league flavour. The claim by the plaintiffs arose from a radio broadcast. They were identified only as members of the National Rugby League Judiciary, and not by name. They pleaded that, in the first instance, their identity was a matter of common knowledge; and in the alternative, that their appointment as members of the Judiciary had been published extensively in the mass media. In support of the latter proposition, counsel for the plaintiffs tendered an extract from a particular newspaper. Studdert noted that one of the difficulties for the plaintiffs would be that it would by no means necessarily follow that, because a number of people had read such a newspaper item, any one of those readers would have listened to the radio broadcast. His Honour held the defendants entitled to particulars as to identification, and ordered the plaintiffs to provide names and addresses of some persons who had heard the radio broadcast and identified the unnamed plaintiffs. In respect of persons the plaintiffs could not nominate by name and address, they were ordered to nominate them by description as a class, specifying the facts and matters relied upon in asserting that the class had knowledge of the relevant facts. His Honour relied upon Lazarus and Moore, but was apparently not referred to Hughes.

Conclusion

25. With the exception of Hall v Jones, the decisions to which I have been referred in which particulars were ordered are all cases where it would be expected that a relatively small number of people to whom the matter complained of was published would be likely to have had knowledge of the relevant extrinsic facts. In each of the present cases, I am satisfied that it is likely that a large number of those to whom the matter was published (or republished) would be likely to have been aware of the extrinsic facts in question. The publications took place at a time when the dispute between Mr Winnel's company and the Airport company was a matter of public notoriety in the Canberra-Queanbeyan area. In the action arising out of the Canberra Times publication, the major extrinsic fact (the previous advertisement) had been published only six days earlier and would be likely to have been fresh in the minds of large numbers of readers of that newspaper.

26. It seems to me that these cases have most in common with the facts in Hughes v Mirror Newspapers Limited. In both cases, innuendo is pleaded as an alternative to the principal claim based upon the natural and ordinary meaning of the matter complained of. In each case, it is at least arguable that the extrinsic facts pleaded were at the time of publication within the general knowledge of the local community. These are not cases where the class of readers with knowledge of the extrinsic facts is likely to be sufficiently limited in size or composition to enable the defendant to rely upon some defence which would not be applicable to a publication to a wider class or to a different class; or where the size or the composition of that class might dictate to the defendant the amount which it should consider paying into court (cf. Hughes at p 506).

27. In each action, the application will be dismissed. I will hear the parties as to costs.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Decision herein of Master Harper.

Associate:

Date: 14 November 2003

Counsel for the plaintiff Mr B J Salmon QC

Solicitor for the plaintiff J S O'Connor Harris and Co

Counsel for the defendants Ms L McCallum

Solicitor for the defendants Mallesons Stephen Jaques

Date of hearing 31 October 2003

Date of decision 14 November 2003