Tcn Channel Nine Pty Ltd v John Fairfax Publications Pty Ltd & Anor [2004] ACTSC 54 (25 June 2004)

Last Updated: 17 September 2004

TCN CHANNEL NINE PTY LIMITED v JOHN FAIRFAX PUBLICATIONS

PTY LIMITED & ANOR [2004] ACTSC 54 (25 June 2004)

DEFAMATION - newspaper article - no identification of plaintiff - particularised imputations not made out in any event.

No. SC 44 of 2000

Judge: Whitlam J

Supreme Court of the ACT

Date: 25 June 2004

IN THE SUPREME COURT OF THE )

) No. SC 44 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TCN CHANNEL NINE PTY LIMITED

Plaintiff

AND: JOHN FAIRFAX PUBLICATIONS PTY LIMITED

First Defendant

FRED HILMER

Second Defendant

ORDER

Judge: Whitlam J

Date: 25 June 2004

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the first defendant with costs.

1. This is an action for defamation. The matter complained of was published by the first defendant in its newspaper, The Sydney Morning Herald, on 17 December 1995. The `Stay in Touch' page edited by Bernard Zuel included a column entitled `THE GOOD OIL'. The matter complained of appeared in that column as follows:

"YOU SIT THERE ON YOUR LOATHSOME SPOTTY BEHINDS SQUEEZING BLACKHEADS, NOT GIVING A TINKER'S CUSS ABOUT THE STRUGGLING ARTIST. YOU EXCREMENT.

At 9's Christmas party. Maybe."

2. The statement of claim alleges that that matter was defamatory of the plaintiff. Pursuant to an order of Crispin J made on 6 October 2000, the plaintiff provided the following further and better particulars of all defamatory meanings of the matter complained of:

"1. The plaintiff had behaved in such a way in conducting its business as a television broadcaster that it deserved to be smeared by the defendants in the following way:

"You sit on your loathsome spotty behinds squeezing blackheads, not giving a tinker's cuss about the struggling artist. You excrement".

at Nine's Christmas party ... maybe'

2. The plaintiff had behaved in such a way in conducting its business as a television broadcaster that it deserved to be smeared by the defendants' suggestion that the following statement may have been made at the plaintiff's Christmas party:

"You sit on your loathsome spotty behinds squeezing blackheads, not giving a tinker's cuss about the struggling artist. You excrement".

3. The plaintiff is an irresponsible television broadcaster because it does not have any concern for struggling artists.

4. The plaintiff is a disgrace to journalism.

5. The plaintiff by the actions of its servants or agents is rude and threatening

6. The plaintiff by the actions of its servants or agents is guilty of grossly insulting conduct.

7. The plaintiff by the actions of its servants or agents expresses libellous and slanderous statements.

8. The plaintiff tolerates a hostile and oppressive work environment for its employees."

3. In its defence, the first defendant does not admit that the matter was published of and concerning the plaintiff. Its counsel also submitted that the matter was incapable of conveying the alleged meanings.

4. I cannot improve on what Crispin J said of the matter complained of when ordering the plaintiff to provide particulars of all defamatory meanings and imputations upon which it proposed to rely. His Honour said:

"The words complained of consist primarily of what appears to be a vehemently expressed accusation in quotation marks coupled with a note which suggests that they may have been said at `9's Christmas party'. There is no indication as to who might have made such an accusation nor as to the person to whom it might have been addressed. It does appear to reflect a view that the person to whom it was addressed cared nothing for struggling artists and the language is clearly denigratory of such a person. However, the context in which these words may have been spoken and the nature of any act or omission which might have prompted them remains to some degree a matter for speculation. The accusation is not explicitly directed to the plaintiff and there is in my view scope for doubt as to the nature of any defamatory imputation said to arise against the plaintiff by reason of an offensively worded accusation made by an unidentified person against other unidentified persons at its Christmas party."

That remains the case. The position has not been clarified by the particulars furnished.

5. The statement of claim does not allege that the plaintiff is a television broadcaster. The corporate name of the plaintiff includes the call-sign and the number of the analog channel assigned to a well-known commercial television broadcaster in the Sydney metropolitan area. Even if I assume that the plaintiff is that broadcaster and that it is the `9' referred to in the column item, I am entirely unable to see how it can be said that the piece in question says anything of and concerning the plaintiff. The word `Maybe' is used in everyday English to suggest a possibility. To posit the suggestion that someone at a Christmas party held by the plaintiff might utter the words in quotation marks does not, in my opinion, involve the making of any imputation about the plaintiff.

6. The matter complained of is gibberish. It makes no sense and it is quite incapable of conveying any of the meanings relied on by the plaintiff. That would require speculation upon speculation, an exercise which is not required by the pleading or the evidence. It is hard to contemplate the very idea of an ordinary reasonable person wasting time to read the drivel on the page in question. The subject item in the column may be an attempt at humour, but I cannot tell.

7. The first defendant is entitled to judgment in its favour with costs.

I certify that the seven (7) preceding paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Date: 25 June 2004

Counsel for the plaintiff: B R McClintock SC with M Richardson

Instructing solicitors: Phillips Fox

Counsel for the defendants: T K Tobin QC with R D Glasson

Instructing solicitors: Sparke Helmore

Date of hearing: 2 June 2003

Date of judgment: 25 June 2004