Winnel v Snow [2007] ACTSC 34 (1 June 2007)

Last Updated: 8 May 2008

WINNEL v SNOW

[2007] ACTSC 34

DEFAMATION - letter to ACT Government Minister subsequently attached to press release - whether defamatory on its ordinary and natural meaning - whether defamatory as a true innuendo - context of vigorous political debate

EVIDENCE - newspaper article published under Minister's name and concerning portfolio issues as evidence of government policy

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Farquhar v Bottom [1980] 2 NSWLR 380

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

Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682

John Fairfax Publications v Rivkin [2003] HCA 50; (2003) 201 ALR 77

Lewis v Daily Telegraph [1964] AC 234

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293

Morgan v Odhams Press Ltd [1971] 1 WLR 1239

Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500

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

No. SC 780 of 2002

Judge: Stone J

Supreme Court of the ACT

Date: 1 June 2007

IN THE SUPREME COURT OF THE )

) No. SC 780 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT WINNEL

Plaintiff

AND: TERRENCE SNOW

Defendant

ORDER

Judge: Stone J

Date: 1 June 2007

Place: Sydney (heard in Canberra)

THE COURT ORDERS THAT:

1. The application is dismissed with costs.

Background to these proceedings

1. This is an action in defamation between two prominent businessmen in the Australian Capital Territory. The plaintiff, Mr Robert Winnel, is a director of and shareholder in several property development companies, most notably The Village Building Company. He claims to have been defamed in a letter sent by the defendant, Mr Terrence Snow, to Mr Simon Corbell on 19 November 2002. Mr Snow is Executive Chairman of the Canberra International Airport. At all relevant times, Mr Corbell, who is not a party to this proceeding, was the ACT Minister for Education, Youth and Family Services, Minister for Planning and Minister for Industrial Relations.

2. Mr Snow's letter to Mr Corbell was prompted by an advertisement that appeared in the Canberra Times newspaper on that day (19 November 2002), opposing the ACT Government's policy concerning land development in the ACT. The letter, which was on the letterhead of Canberra International Airport, was addressed to Mr Corbell in his ministerial capacity and signed by Mr Snow as Executive Chairman. The text of the letter was:

I would like it clearly understood that the nonsense advertisement inserted in today's Canberra Times by the Master Builders' Association and the HIA and the Village Building Company in no way reflects the views of the private sector in Canberra. This has Bob Winnel's fingerprints all over it.

If this document was meant to somehow put pressure on the ACT Government to abandon its approach to planning and the forthcoming Spatial Plan, Social Plan and White Paper, then it should say so but it does not. They do not seem to have any constructive suggestions to offer for the benefit of our community.

I believe that your Government is now, for the first time in many years, coming to grips through the implementation of its policy on planning reviews, to give the Territory a sound basis to move forward for the next ten or fifteen years and, until that is in place, wholesale land release shouldn't be undertaken willy nilly. We would all like to see more land in the market, but not at any cost.

From other comments in today's paper, we can understand why people call for robust action to get land into the market in parallel with solving the longer term planning issues, as your Government quite correctly identified.

This advertisement, in my opinion, vindicates the action the ACT Government has taken in handling its own land releases and I encourage you to continue on your present course in the interests of a better Canberra for all.

3. Mr Snow's letter refers to the ACT Government's new policy for dealing with previously undeveloped government land in the ACT and the way in which it is released for development. The policy was outlined in an article by Mr Corbell published in the Canberra Times of 4 September 2002. In this article Mr Corbell describes the policy as being:

... to introduce government residential land development through a mixed program of full government development and public/private partnerships, starting in full in 2003-4.

....

The Government will utilise the skills of the private sector, with the sector providing project management, market analysis and marketing, civil engineering, estate planning and civil works.

4. The advertisement referred to in Mr Snow's letter was placed by the Master Builders Association (MBA) and the Housing Industry Association (HIA) who opposed the policy. It alleged that a number of "costly `mistakes'" had been made by "our local governments" and then asked, "and what's next? Government Land Development".

5. Following receipt of the letter, Mr Corbell wrote to Mr Snow requesting permission to quote from the letter. Mr Snow responded by letter dated 21 November in the following terms:

Further to your letter of 19 November, I would be most happy for you to quote any part of my letter of the same date that you thought would advance the Government's cause for a rational, well thought out plan for the long-term benefit of the ACT community.

6. On 10 December 2002 Mr Corbell issued a media release referring to Mr Snow's letter and quoting from it. The media release states that Mr Snow's letter is attached. Although there is no direct evidence to show that the letter was attached it seems highly likely that this was the case as, in giving his evidence, Mr Snow was prepared to accept.

7. Mr Winnel gave evidence that he was alarmed by this turn of events. He described his first reaction thus:

I was pretty well horrified at the potential impacts on Simon Corbell of receiving a letter from ... someone in the know in the private sector, purporting that the campaign in the press was in fact a campaign by myself, which was so grossly untrue, and anyone who with any cursory interest could have found out how grossly untrue that statement was. And in fact, not only untrue but I took a view which was actually quite opposite to the view that was stated in the letter.

8. Mr Winnel commenced this proceeding within a few days of the letter coming to his attention. He claims that in its natural and ordinary meaning the imputations arising from the letter are defamatory of him. In paragraph 4 of the third further amended statement of claim (which for convenience I will refer to as the Statement of Claim) Mr Winnel gave the following particulars of the imputations which he claimed arose from the natural and ordinary meanings of Mr Snow's letter:

(a) The plaintiff had manipulated the Master Builders Association and the Housing Industry Association so as to cause those bodies to publish an advertisement ... in the Canberra Times of 19 November 2002 which, while purporting to reflect the views of the members of those bodies, actually did not do so but instead would covertly further his own private interests associated with land development by the private sector.

(b) The plaintiff concealed his central role in placing a newspaper advertisement, which he knew misrepresented the views of the private sector.

(c) The plaintiff arranged the publication of the advertisement for a discreditable purpose.

9. In the alternative to his claim that the natural and ordinary meanings are defamatory, in paragraph 5 of the Statement of Claim, Mr Winnel relies on an allegation of true innuendo arising by reason of facts and matters particularised in the Statement of Claim and which are said to be within the knowledge of people to whom the matter complained of was published. The true innuendo, which depends on the reader being apprised of certain extrinsic facts discussed below, is said to arise from each of the above meanings together with the following meaning:

(d) The plaintiff was a hypocrite in that he had participated in the publication of the advertisement, which was critical of the land development policies of the ACT Government and which did not disclose his identity, while himself obtaining financial benefit from those very policies,

10. In defence to paragraph 4 of the Statement of Claim Mr Snow denied that the matter complained of was capable of bearing or did bear the defamatory meanings asserted by Mr Winnel. In relation to paragraph 5, Mr Snow denied the innuendos asserted by Mr Winnel.

11. Mr Winnel gave extensive evidence in which he described his reaction to the letter and the media release, the reaction of those around him and the effect on his health and his marriage. Before considering that evidence it is necessary to consider whether the matter complained of is defamatory of Mr Winnel.

Defamation arising from the ordinary and natural meaning of Mr Snow's letter

12. There have been many judicial formulations of what is necessary for the ordinary and natural meaning of a statement to be defamatory. Inevitably most formulations are directed to the matter that is under consideration however it is accepted that the process involves determining whether the imputations pleaded arise from the ordinary and natural meaning of the matter complained of and, if so, whether any or all of them would tend to lower the reputation of the plaintiff in the opinion of ordinary reasonable people. In Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 at 505-6, Brennan J expressed it thus:

Where no true innuendo is pleaded and the published words clearly related to the plaintiff, the issue of libel or no libel can be determined by asking whether hypothetical referees - Lord Selborne's reasonable men ... or Lord Atkin's right-thinking members of society generally ... or Lord Reid's ordinary men not avid for scandal ... - would understand the published words in a defamatory sense. That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation ... being a standard common to society generally.

[citations omitted]

13. In addition to the descriptions referred to by Brennan J, the hypothetical referees have been variously described as "ordinary decent folk" (Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171 at 172 per Jordan CJ), "of fair average intelligence" (Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7 per Griffith CJ) and "ordinary reasonable people" (Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 686 per Hutley JA).

14. In Farquhar v Bottom [1980] 2 NSWLR 380 at 386, Hunt J referred to this "ordinary reasonable reader" in the following terms:

This ordinary reasonable reader does not, we are told, 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. ... It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer ....

[citations omitted]

In Lewis v Daily Telegraph [1964] AC 234 Lord Devlin also referred to the difference between implications drawn by lay people and lawyers. His Lordship observed, at 277:

... the layman's capacity for implication is much greater than the lawyer's. The lawyer's rule is that it must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory...

15. Thus, in the context of defamation, an implication need not be necessary or reasonable, and may be more likely to be made when derogatory; John Fairfax Publications v Rivkin [2003] HCA 50; (2003) 201 ALR 77 at 82 per McHugh J.

16. Two other aspects of the test bear mention. They are that the imputation must arise from the language used and not from the prejudices of the reader, and that appropriate account must be taken of the context in which the matter is published; Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293.

Publication and republication

17. To the extent that Mr Winnel relies on the natural and ordinary meaning of the matter complained of, Mr Snow admitted publication of the letter to Mr Corbell. There was also no issue as to the fact of republication by the Minister's media release although Mr Snow did take issue with the extent of the republication. The onus in respect of this issue lies on the plaintiff, Mr Winnel.

The first imputation

18. As mentioned above, Mr Winnel claims that in its ordinary and natural meaning Mr Snow's letter is defamatory of him and gives three particulars to support this. The first imputation that is claimed to arise from the natural and ordinary meaning of the letters is that:

The plaintiff had manipulated the Master Builders Association and the Housing Industry Association so as to cause those bodies to publish an advertisement ... in the Canberra Times of 19 November 2002 which, while purporting to reflect the views of the members of those bodies, actually did not do so but instead would covertly further his own private interests associated with land development by the private sector.

19. It was submitted for Mr Winnel that the "imperative and purportedly authoritative tone of the opening of the letter", the description of the advertisement as "nonsense", and the assertion that it "in no way" reflects the views of the private sector in Canberra indicate that this is "not merely a note to the Minister that Mr Snow holds differing views". Moreover, it is submitted, the reference to "fingerprints" (as well as the express mention of The Village Building Company) evokes the impression of some discreditable and covert involvement of Mr Winnel in the advertisement. It was submitted that the style of language was capable of leaving the reader with a powerful negative impression even if it is difficult to discern exactly what is implied; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 per Gleeson CJ.

20. In my view Mr Winnel's submissions do not allow for the context of vigorous debate about government policy in which the matter complained of arose. It is true that in the opening paragraph Mr Snow states trenchantly that the advertisement does not reflect the views of the private sector in Canberra and that there is a strong element of hyperbole in his language. He does not suggest, however, that the advertisement does not reflect the views of the MBA and the HIA. The assertion is that the views of these organisations and of Mr Winnel and The Village Building Company differ from those of the MBA and HIA members and from the private sector as a whole. I can see nothing in the letter that suggests that the MBA and the HIA had been manipulated into placing the advertisement.

21. Similarly there is no suggestion of Mr Winnel's interests being advanced covertly. It is clear that Mr Snow is asserting that Mr Winnel opposes the ACT policy but the letter has nothing to say about Mr Winnel's private interests or those of The Village Building Company.

22. In my view an ordinary reasonable reader would see this letter for what it is - a forceful statement of a strongly held political view in which Mr Snow is lobbying for a continuation of a policy with which he agrees and which the advertisement opposes. The ordinary reasonable reader who "does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs" (Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 per Hunt AJA at 165) would, in my view understand it as such.

The second imputation

23. The second particular alleges that the defamatory meaning is that:

The plaintiff concealed his central role in placing a newspaper advertisement, which he knew misrepresented the views of the private sector.

24. In my view the imputation complained of is incapable of being conveyed. There is nothing in Mr Snow's letter to suggest that Mr Winnel concealed any role he had played in the publication of the advertisement. Moreover, the statement that the advertisement does not reflect the views of the private sector does not suggest that there was any deliberate misrepresentation of that sector's views.

The third imputation

25. The third particular alleging a defamatory imputation arising from the natural and ordinary meaning of Mr Snow's letter is that:

The plaintiff arranged the publication of the advertisement for a discreditable purpose.

26. The matter complained of does not refer, expressly or implicitly, to any discreditable purpose of Mr Winnel in placing the advertisement. The only purpose that an ordinary reader would discern from the advertisement would be to oppose ACT Government policy. That is not a discreditable purpose. It is the right of every citizen. The defendant suggests that the formulation of the imputations that the plaintiff claims to arise has been coloured by the plaintiff's special sensitivity to the issues that are the subject of the defamatory meanings relied on. Whether or not this is so is strictly irrelevant and cannot bear on the issues I must decide.

Conclusion as to ordinary and natural meaning

27. In summary, I conclude that none of the imputations set out in the pleading are defamatory. In oral submissions, Senior Counsel for Mr Winnel, Mr Gray, emphasised that, at common law, the question is not merely whether the particulars of each imputation are made out, but rather whether the matter complained of is, as a whole, defamatory. This may be so but ultimately, I must be satisfied that the matter complained of raises a defamatory imputation. It does not follow that the defendant has to negative every possible imputation. If the imputations on which the plaintiff relies are addressed, and no other imputations have been put to me, that is sufficient. It is not the task of the Court to scrutinise the matter complained of in search of defamatory imputations. In any event, there is none that occurs to me.

Defamation arising from a true innuendo within Mr Snow's letter

28. My rejection of the claim that the defamatory meanings considered above are the natural and ordinary meanings of Mr Snow's letter brings me to the claim made in paragraph 5 of the Statement of Claim:

Alternatively, to the extent to which it is held that any of the defamatory meanings do not arise as a natural and ordinary meaning, then each such meaning, together with the following meaning, namely:

(d) The plaintiff was a hypocrite in that he had participated in the publication of the advertisement, which was critical of the land development policies of the ACT Government and which did not disclose his identity, while himself obtaining financial benefit from those very policies,

is a true innuendo which arises by reason of such of the facts and matters particularised below which are found to be within the knowledge of people to whom the matter complained of was published.

29. In his submissions in reply, Mr Gray said that despite the terms of paragraph 5, Mr Winnel only advanced paragraph 5(d) as true innuendo and did not press paragraph 4 (a), (b) and (c).

Publication and republication

30. There is a live issue between the parties as to the publication of the alleged true innuendo. A plaintiff who relies on true innuendo must prove both the objective truth of the extrinsic facts and that the matter was published to a person who knew those extrinsic facts. In this case, Mr Winnel must also establish that publication to a person with that knowledge occurred before 12 December 2002, when these proceedings were commenced. I note, however, that it is not necessary to prove that the person understood the alleged defamatory meaning or innuendo. The test, as I have already explained, is what the ordinary reasonable reader would have understood.

31. As with the allegation of defamation arising from the natural and ordinary meaning of the matter complained of, in relation to the allegation of true innuendo Mr Winnel relies on publication to Mr Corbell and republication by way of the media release issued by Mr Corbell which attached the letter. To the extent to which Mr Winnel seeks to rely on publication and republication, he must establish knowledge of the extrinsic facts by the Minister and the person who received it by way of republication.

The extrinsic facts

32. Seven extrinsic facts are identified in the Statement of Claim. Mr Winnel's claim of true innuendo depends on his establishing both the existence of those facts and that the matter complained of was published to someone with knowledge of those facts; Morgan v Odhams Press Ltd [1971] 1 WLR 1239.

33. The facts as set out in the Statement of Claim are:

(a) The plaintiff is a shareholder in and director of several companies engaged in property development in the private sector including in the ACT and New South Wales.

(b) One of those property development companies is The Village Building Co Limited ... of which the plaintiff was and is the managing director.

(c) The defendant is a property developer and also the Executive Chairman of Canberra International Airport Pty Limited.

(d) The ACT Government had announced that it intended to undertake all future land development in the ACT itself, as opposed to the previous Government practice of selling sizeable areas of land for development by the private sector.

(e) The Master Builders Association ... and the Housing Industry Association ... were and are associations of builders, developers and other private sector interests in the housing industry.

(f) The MBA and the HIA had published an advertisement ... in the Canberra Times on 19 November 2002 (the date of publication of the matter complained of) which was critical of what it called "Government Land Development".

(g) Village had been engaged by the Gungahlin Development Authority, an ACT Government agency, as a paid consultant in connection with land development by that Authority, after the introduction of the new Government policy on land development.

Findings on defamation arising from a true innuendo within Mr Snow's letter

34. In order to succeed on the basis of true innuendo as is alleged, it is necessary (although not sufficient) for Mr Winnel to show that an ordinary reasonable person who was in possession of the extrinsic facts set out in (a) to (g) above, would have understood from the matter complained of the imputation set out in paragraph 5(d) of the Statement of Claim. As noted above, it is also necessary for the objective truth of the extrinsic facts to be established and for it to be shown that the matter complained of was published to at least one person who knew those facts.

35. Mr Winnel's case on true innuendo fails for a number of reasons. First, bearing in mind that the plaintiff has the burden of proof and that all of the extrinsic facts must be objectively proved, I am not satisfied that extrinsic fact (d) has been proved. That fact is said to be that:

(d) The ACT Government had announced that it intended to undertake all future land development in the ACT itself, as opposed to the previous Government practice of selling sizable areas of land for development by the private sector.

36. This formulation indicates that the ACT Government had announced its intention to be the sole developer of the land. In other words, the extrinsic fact that Mr Winnel seeks to prove is not only that the ACT Government planned to undertake land development itself, but that it planned to do so by itself.

37. While there is ample evidence that the ACT Government planned to become directly involved in land development in the Territory, in an article published under Mr Corbell's name in the Canberra Times on Wednesday 4 September 2002, the Minister foreshadowed a "cooperative effort" comprising "a mixed program of full government development and public/private partnerships". I am prepared to accept that a newspaper article which identifies the Minister as author, and which concerns his portfolio responsibilities, can be taken to be a true statement of government policy. All the evidence (and indeed fact (g) asserted by Mr Winnel) suggests that far from undertaking all future land development itself, the ACT Government planned to, and did, involve the private sector in various roles, including The Village Building Company.

38. While a number of witnesses alluded to the ACT Government's changed role in land development, it was to Mr Colin Lamont and Mr David Dawes that the question was expressly put. They were both asked, in slightly different terms, if, in 2002, they were aware that this announcement had been made. They both responded affirmatively. They did not expand on this answer so I am unsure as to the extent of their understanding, particularly, in the light of the evidence mentioned above.

39. Even if I am wrong in this, and the existence of each extrinsic fact has been established, the evidence that there was any one person who knew of all of those facts is less than compelling. Mr Dawes answered "yes" when asked if he was aware of each of the extrinsic facts when they were put to him by Mr Gray. However, as mentioned above such bald affirmatives are not entirely convincing in the absence of further explanation. Mr Dawes was able to expand in relation to some of the extrinsic facts, but others are left to inference. Nor am I entirely convinced that there is clear evidence that the matter complained of was published to Mr Dawes before the commencement of this action on 12 December 2002. The transcript records the following exchange between Mr Gray and Mr Dawes:

Mr Gray: On 10 December, almost 3 weeks later, did you learn - and if so, could you tell us how ... - about Mr Snow having said something about Mr Winnel?

Mr Dawes: Well, I'd heard that the Minister at the time raised something in the Assembly that not all developers shared the view of our group. And then obviously I read in the Canberra Times, I think it was the next day or a day or so later, a copy of a press release that the Minister had put out at the time, with some comments from a letter that obviously had been sent to him.

[emphasis added]

40. Mr Winnel sought to rely on inferences that may be drawn as to the knowledge of Mr Corbell. While the matter complained of was certainly published to Mr Corbell in the requisite time, in the absence of evidence from Mr Corbell, I am not prepared to infer that he had knowledge of each of the seven extrinsic facts.

41. Even if I accept that all of the extrinsic facts were established and that all of them were known to one person, I am not prepared to accept that the matter complained of would, to an ordinary reasonable person armed with those facts, bear the defamatory meaning that Mr Winnel asserts in 5(d). It does not necessarily follow that, if one knew all of the asserted facts, the charge that Mr Winnel was directly or indirectly instrumental in placing the advertisement would lead one to understand Mr Snow's letter as meaning that he was a hypocrite, in that he was criticising Government policy from which he was obtaining some benefit. As Ms McCallum, Senior Counsel for Mr Snow, said in her oral submissions:

Many ordinary, reasonable readers might regard that as an indication of courage and intellectual integrity and common sense. Businessmen don't necessarily espouse views consistent with those of the people from whom they take their paid consultancies.

42. While Ms McCallum's submission might be putting the matter too high, I accept that the matter complained off does not, in the light of the extrinsic facts, take on a defamatory meaning that it does not otherwise have. The warning given by Mason J (as his Honour then was) in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301 is pertinent here:

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.

43. In this case, as I have already remarked, it is my view that the ordinary reasonable person who read Mr Snow's letter would, whether or not armed with the extrinsic facts, recognise it as part of a robust political exchange in which views are expressed strongly and often with some exaggeration. I do not accept that in that context Mr Winnel's reputation would be diminished in the eyes of such a person. Given that I find that the matter complained of is not defamatory, whether in its ordinary and natural meaning or by true innuendo, the question of whether there is any applicable defence does not arise.

44. For these reasons the application must be dismissed with costs.

I certify that the preceding forty four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Stone.

Associate: Click here for Picture

Date: 1 June 2007

Counsel for the plaintiff: P Gray SC, K Smark

Solicitor for the plaintiff: O'Connor Harris & Co

Counsel for the defendant: L McCallum SC

Solicitor for the defendant: Mallesons Stephen Jaques

Date of hearing: 27, 28 & 29 November 2006

Date of judgment: 1 June 2007