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Federal Court of Australia |
Last Updated: 21 May 2004
FEDERAL COURT OF AUSTRALIA
Kannegieter v Hair Testing Laboratory Pty Limited
[2004] FCA 639
NICHOLAS
JOHN KANNEGIETER v HAIR TESTING LABORATORY PTY LIMITED, TROTTING INDEPENDENT PTY
LIMITED, THE AUSTRALIAN STANDARDBRED PTY
LIMITED and MARSHALL NORMAN
DOBSON
N 49 of
2002
WHITLAM
J
21 MAY 2004
SYDNEY
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NICHOLAS JOHN KANNEGIETER
APPLICANT |
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AND:
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HAIR TESTING LABORATORY PTY LIMITED
FIRST RESPONDENT TROTTING INDEPENDENT PTY LIMITED SECOND RESPONDENT THE AUSTRALIAN STANDARDBRED PTY LIMITED THIRD RESPONDENT MARSHALL NORMAN DOBSON FOURTH RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The respondents pay the applicant $25,000 in respect of his causes of action under the Trade Practices Act 1974 (Cth).
2. The first, second and fourth respondents pay the applicant $70,000 in respect of his causes of action in defamation relating to the July 2001 edition of Turf Monthly.
3. The first, third and fourth respondents pay the applicant $30,000 in respect of his causes of action in defamation relating to the July 2001 edition of The Australian Standardbred.
4. The respondents pay the applicant’s costs of the proceeding.
Note: Settlement and
entry of orders is dealt with in Order 36 of the Federal Court Rules.
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AND:
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REASONS FOR JUDGMENT
1 This proceeding arises out of an advertisement placed by the first respondent, Hair Testing Laboratory Pty Ltd (‘HTL’), in two magazines. They are Turf Monthly, which was published by the second respondent, and The Australian Standardbred, which was published by third respondent. The fourth respondent, Marshall Norman Dobson (‘Mr Dobson’), is a director of HTL and the director of the other two corporate respondents.
2 The applicant, Nicholas John Kannegieter (‘Dr Kannegieter’), alleges that the advertisement contains imputations defamatory of him and that its publication contravened ss 52 and 53 of the Trade Practices Act 1974 (‘the Act’). It is admitted that Mr Dobson was the author of the advertisement, and it is alleged that he was involved in the contraventions for the purposes of Part VI of the Act.
3 Dr Kannegieter is 44 years old and a specialist equine veterinary surgeon in private practice in Sydney. He was awarded a Doctorate of Philosophy by Massey University in 1989 and has been a Fellow of the Australian College of Veterinary Scientists since 1990. Dr Kannegieter is a registered specialist in equine surgery in New South Wales, the Australian Capital Territory and Queensland. He has been actively involved in the affairs of the Australian Equine Veterinary Association (‘AEVA’), a specialist interest group within the Australian Veterinary Association (‘AVA’). Dr Kannegieter was the President of the AEVA in 1994-1995 and served on its executive until 2001. He was the AEVA representative on the executive of the AVA from 1996 to 2001.
4 Dr Kannegieter wished to provide people involved in the horse racing industry with basic information about the care and management of horses. Horse races in New South Wales are broadcast on the Sydney radio station 2KY. On 2 July 1998 he commenced participating in a segment of 2KY’s Racing Radio program presented by a Mr Kim Stewart on Thursday mornings. The segment was called ‘The Horse Doctor’, it commenced after the 10.00 am news bulletin (which was about five minutes in duration) and it ran until 10.30 am.
5 By the start of 2000 Dr Kannegieter had become aware of advertisements in horse racing industry magazines for hair testing. Copies of these advertisements are in evidence. The advertisers are HTL whose contact details are shown as a post office box in the Brisbane suburb of Fortitude Valley, Barry Templeton of Ballarat and Colin Ogle of the Brisbane suburb of Upper Mount Gravatt. HTL advertised that hair testing could help in the detection of nutritional balances, toxicities and inadequacies in the racing horse and that each analysis would cost $50. HTL advertised that samples of hair submitted to it were analysed by ‘radionics, a non-scientific procedure’ and that, based on the analyst’s report, it would recommend ‘a range of natural feed supplements whose main aim is to return your horse to peak health and fitness.’ Mr Ogle’s advertisement in the January 2000 edition of Turf Monthly said under the heading ‘What the Hair Test Can Answer for You’:
‘• If your horse is carrying a virus, and how to treat it.
• If and where there are any muscle problems.
• Any digestive problems, including acid overload.
• Any joint problems, including vertebral, hip, shoulder and legs.
• Why your horse is pulling up short in its race.
• Dull coat and not eating well.
• As a matter of fact, anything that is worrying you about your horse.’
(Counsel for Dr Kannegieter later tendered in their client’s case from the respondents’ discovered documents copies of advertorials and publicity in racing columns and racing industry journals about hair testing, which contained personality endorsements by trainers and drivers, published around the same time.)
6 At the same time in 2000 Dr Kannegieter became aware through his involvement with the executive of the AEVA of the concerns of veterinarians that nutritional supplements were being marketed on the basis of such hair testing. His professional colleagues were concerned that there was no scientific evidence that this testing procedure was effective to diagnose medical conditions. Dr Kannegieter considered the hair testing procedure to be bogus and unscientific. This opinion was based on his own research of the relevant scientific literature. Two such papers in evidence rely extensively on reports in the Journal of the American Medical Association. No attempt was made at trial to suggest that Dr Kannegieter’s opinion was not honestly held or soundly based.
7 In August 2000 the AEVA complained about HTL to the Queensland Government’s Office of Fair Trading. In March 2001 the AEVA complained to the Veterinary Surgeons Board of Queensland about HTL purporting to diagnose illnesses in horses.
8 Dr Kannegieter used his segment on 2KY’s Racing Radio program to voice his concerns about marketing feed supplements by hair testing. He wanted to tell listeners that paying money for hair testing services would not provide an indication of a horse’s need for feed supplements. He considered it important that they understood that any diagnosis of liver diseases, joint problems or digestive problems made by hair testing was misleading. Dr Kannegieter discussed hair testing on the program on 27 January 2000, 7 September 2000, 17 May 2001 and 28 June 2001. Tapes of these broadcasts have been received in evidence, but I have listened only to that of 17 May 2001. Transcripts of parts of the broadcasts on 7 September 2000 and 17 May 2001 are in evidence.
9 The transcript of 7 September 2000 shows that Dr Kannegieter was extremely critical of hair testing. He ridiculed Mr Ogle’s advertisement and described hair testing as ‘pretty dodgy’, said that the advertisers ‘get an awful lot of money out of you’ for the natural ingredients they recommend, and that the analysts’ reports were ‘garbage’. The transcript concludes with a reference to personality endorsements:
‘KANNEGIETER: But there will be trainers and owners who will say look we’ve had it done they gave us this feed additive and gee the horse has done well. They’re certainly going [to] pick people that are going to say that. And that’s great, they’re happy with it, the horse has improved with it, that’s fine. But don’t actually believe for a minute that there was any science involved.
STEWART: No
KANNEGIETER: It was either coincidence or the nutritional substance that are, the substances that are being provided with the supplements have helped the horse along and balanced whatever was missing. But if you’ve got a horse on a really good diet and it’s being feed properly, it’s unlikely to have nutritional deficiencies ah and so that the supplements probably aren’t going to help but there are at times when the oats that you get or the feed that you get may be low in a certain mineral because of weather conditions where it was growing. So there might be times when the nutritional supplements will help but I suggest just cut out the hair and 50 bucks um and get down the produce store and just buy it straight off the shelf and you’ll do just as well.’
10 The day after that broadcast Mr Dobson wrote to the general manager of 2KY, claiming that what Dr Kannegieter said ‘was an unfair and defamatory reflection on my business.’ He said that he would ‘assess my options’.
11 The transcript of the program on 17 May 2001 is as follows:
‘STEWART: During the week I spoke with a good old mate of mine whose horse was going nowhere. Things were crook. It looked terrible, and in desperation the trainer – who is a very, very good trainer and one of the country’s leading trainers and has been for many, many years – actually sent a hair sample away to um to the Hair Testing Laboratory. You know, you talked about it before.
KANNEGIETER: Hmmm.
STEWART: They analysed the hair sample and then they sent some stuff back, and apparently the horse is doing brilliantly. It’s never look better – it’s jumping out of its skin, and it was almost instantaneous.
KANNEGIETER: Now, Kim, you’re promoting what can only be described as ordinary technology here, and I don’t want people to rush out and think this is the answer.
STEWART: No, no, I know – we’ve talked about it before, and you haven’t recommended it, but
KANNEGIETER: There’s certainly serious, serious concerns about the technology involved in the hair testing – very serious concerns – and I know that there’s a number of groups of people basically trying to get the whole issue resolved, because it is misleading people but what I think this company would be much better off doing is promoting their feed supplements just purely as feed supplements. Give away this bit about hair testing. There’s nothing that we, that any veterinarian can see scientifically accurate in that, but I think some of their supplements may well be quite useful.
STEWART: Well, apparently it’s working on this horse.
KANNEGIETER: I think this is what they should be promoting, and they’d go a lot further towards gaining a decent reputation, I would think, if they do promote their products as nutritional supplements – and I can almost guarantee that the diagnosis (not having heard during the week, being in Melbourne) would either have been liver disease, or muscle soreness or ...
STEWART: I don’t think there was a diagnosis. I think the stuff just came back (laughs).
KANNEGIETER: Yeah all right. This is the thing and there are some questions being asked at the high levels just about what’s going on in these laboratories, because you can send all the hair you like away – it’s not going to give you the answer.
STEWART: Fair enough.
KANNEGIETER: Look after your horse, feed it well, and that’s got to be it – and give the supplements – and you’ll be much better off.’
(Emphasis supplied)
12 The ownership of radio station 2KY had changed in April 2001, and on 22 June 2001 the new chief executive terminated Mr Stewart’s services. Dr Kannegieter was kept on for a week or so, and then his services were terminated too.
13 Dr Kannegieter’s segment on the Racing Radio program had been sponsored by Vetrapharm, a supplier of horse feed supplements. On or about 4 July 2001 the managing director of Vetrapharm, Andrew Grant, telephoned Dr Kannegieter and told him that the July 2001 edition of Turf Monthly contained a full page advertisement saying that he had endorsed HTL’s products. The advertisement is annexed to these reasons. Soon after Dr Kannegieter became aware that an advertisement with identical text had been placed in the July 2001 edition of The Australian Standardbred.
14 Mr Grant faxed the Turf Monthly advertisement to Dr Kannegieter. When he received that fax, Dr Kannegieter was dismayed and angry. Dr David Lovell, an equine practitioner from Brisbane, contacted him and asked how much he got paid for the advertisement. Dr Kannegieter was upset to think that people had the impression that he had been bought by HTL.
15 On 19 July 2001 the AEVA wrote to the National Registration Authority for Agricultural and Veterinary Chemicals about the possible sale of unregistered products by HTL. On 21 and 22 July 2001 the executive of the AEVA discussed the use of Dr Kannegieter’s name in HTL’s advertisement. The advertisement was also placed on a notice board at AEVA’s annual conference, which was held between 21 and 27 July 2001. Dr Kannegieter was conscious of the AEVA’s policy on product endorsement. Conference attendees asked him how much he had been paid for the advertisement. These included Stephen Rose, a director of a veterinary products firm Nature Vet. More than 50 of over 100 attendees made comments to Dr Kannegieter indicating that they thought he had been paid. In cross-examination, he denied that these people were joking. Dr Kannegieter said that he thought they meant it. It was unpleasant, and he felt he was being ridiculed.
16 Dr Kannegieter’s solicitors wrote to HTL on 27 July 2001 complaining about the advertisement. The solicitors then acting for HTL replied on 27 July 2001, complaining of defamatory comments by Dr Kannegieter in his 17 May broadcast and saying:
‘However, our client also acknowledges that while your client was critical of the hair testing process and of our client generally, your client made a number of positive comments about our client’s products during the relevant broadcast. In an attempt to mitigate the damage suffered by our client to its reputation as a consequence of your client’s defamatory conduct, our client chose to quote certain of your client’s comments in an advertisement about its products.
Our client denies any wrongdoing in publishing the advertisement of which your client complains. The comments attributed to your client are direct quotes.’
17 Dr Kannegieter’s solicitors wrote again on 4 October 2001 proposing (inter alia) that HTL insert a full-page advertisement in both magazines apologising to Dr Kannegieter. This proposal was rejected by the respondents.
18 I shall defer dealing with Dr Kannegieter’s further evidence about the effect of the advertisement upon him and his financial position in order to summarize briefly the evidence of six other persons given by affidavit. None of these persons was required for cross-examination. They were Mr Grant, four veterinary surgeons and a surgical assistant.
19 Mr Grant has been involved in the sale and distribution of veterinary pharmaceutical products since 1986. Equine veterinarians are the target market of his company, and he has known Dr Kannegieter since 1995. Mr Grant mixes in the horse racing industry in order to promote his company’s products to owners and trainers, and he says that Dr Kannegieter has a reputation in that industry for ethical conduct of the highest standard. When he saw the subject advertisement, he was astonished. Mr Grant telephoned Dr Kannegieter and told him that he thought it strange that Dr Kannegieter would endorse HTL’s products. Mr Grant knew from hearing Dr Kannegieter on radio that Dr Kannegieter did not approve of HTL’s hair testing to obtain a diagnosis. He said that new pharmaceutical products were generally subjected to trials conducted by veterinarians held in high standing by their peers. Dr Kannegieter had undertaken such trials for his firm. Dr Grant stated that if a veterinarian with a high profile endorsed a product of his company in the equine industry, he would pay the veterinarian in excess of $100,000 for a product endorsement.
20 Four former presidents of the AEVA gave evidence. Dr William Howey, the Director of the Post Graduate Foundation in Veterinary Science of the University of Sydney, has known Dr Kannegieter’s professionally for 20 years. Dr Howey said that Dr Kannegieter’s expertise in equine surgery was highly regarded in academic circles. Professor Reginald Pascoe is a practising veterinarian at Oakey in the Darling Downs in Queensland. He has also known Dr Kannegieter professionally for 20 years and considers that Dr Kannegieter has an excellent reputation for his surgical expertise in academic circles and amongst the members of the AEVA. Dr David Lovell is an equine veterinarian in the Redlands near Brisbane. He has known Dr Kannegieter professionally for 15 years. For the past seven years Dr Lovell has referred virtually all sophisticated surgical procedures to Dr Kannegieter, who has a faultless reputation for ethical conduct and honesty. His son showed him the subject advertisement when the July 2001 edition of Turf Monthly came out. Dr Lovell recalls that at the AEVA conference soon afterwards people were laughing at Dr Kannegieter and ridiculing him. There were numerous references to Dr Kannegieter being ‘in Marshall Dobson’s pocket’. Dr Lovell regarded the concept of hair testing as a diagnostic tool as farcical with no scientific validity. He suspected that what was reproduced in the advertisement was taken out of context. Dr Derek Major is an equine veterinarian at Agnes Banks in the far western suburbs of Sydney. He has known Dr Kannegieter professionally for over 14 years. Dr Kannegieter is held in high regard by clients of his practice as one of the best equine surgeons in Australia. Dr Major refers most of his practice’s surgical work to Dr Kannegieter. He spoke to Dr Kannegieter just prior to the AEVA conference in July 2001 about the advertisement and was told that Dr Kannegieter had not endorsed any product. Dr Major told Dr Kannegieter that his reputation had been tarnished by the advertisement.
21 Rebecca Wilson, a surgical assistant at the Warwick Farm Equine Centre, also gave evidence. She has known Dr Kannegieter for nine years. Ms Wilson said that in horse racing circles, around stables and at the races, Dr Kannegieter was held in very high regard for his professional expertise, credibility and honesty. She knew that Dr Kannegieter had made negative comments on radio about the hair testing. When she saw the subject advertisement, she thought that the advertiser was ‘having a go’ at Dr Kannegieter.
22 I turn now to the alleged contraventions of the Act. The conduct impugned under s 52 of the Act and the relevant representations under s 53(c) and s 53(d) are pleaded with great precision as follows:
‘In or about July 2001 the First, Second and Third Respondents reported to members of the public that:
(e) the Applicant had endorsed both the First Respondent and its services and products;
(f) the Applicant had said that the First Respondent’s products may well be quite useful;
(g) the Applicant had suggested that those dealing with horses would be much better off if they used the First Respondent’s products;
(h) the Applicant was associated with the First Respondent;
(i) the Applicant approved the First Respondent’s services and products; and
(j) the Applicant had approved the First Respondent’s products on a radio broadcast on 24 May 2001
("the representations").
Particulars:
The representations were in writing and were published to the public in the July 2001 editions of the "Turf Monthly" and "Standardbred" as an advertisement, a copy of which is annexed hereto as the Schedule.’
23 I find that all these representations are made out. The advertisement must be read as a whole. The overall tone and impression is one of endorsement. Moreover, the advertisement suggests that the endorsement embraces HTL’s services, not simply those products described as feed supplements. The boxed reference to the ‘Hair Testing Laboratory Product Range’ is apt to extend to hair testing which, the evidence shows, is an integral part of HTL’s marketing. Such an impression is not only not undone, but is reinforced, by the invitation at the foot of the advertisement to contact HTL for ‘the complete product range’. The corporate and trading name of the advertiser is also of central importance. The allegations in subparagraphs (h), (i) and (j) of the pleading are implicit in the advertisement’s layout. The expression ‘just what the doctor ordered’ is a well-known catch-phrase of approval: see Partridge’s Dictionary of Slang and Unconventional English, 8th ed, p 633.
24 These representations were, in my opinion, misleading and likely to mislead. Dr Kannegieter had not endorsed HTL’s services and products. He did not say in other than a very qualified way that HTL’s products may be ‘useful’, but it may be that that particular representation does not fall within s 53(c) or (d). The representation about persons being ‘better off’ does, however, fall within s 53(c), and it was not made by Dr Kannegieter. The other representations plainly contravene s 53(c) or (d). These conclusions are unavoidable when one looks at the whole of the transcript reproduced in [11] with the words of the advertisement that I have highlighted. The drift of Dr Kannegieter’s comments is that HTL is not a reputable company. The advertisement omits all the adverse remarks about HTL. The marks placed at the end of the line after the word ‘useful’ in the advertisement are of no avail to the respondents. If they are points of ellipsis, they would not convey to the ordinary reader the omission of words. (Indeed, such points may be used to convey faltering speech.) In any event, any intended use of the marks as a grammatical sign in an advertisement addressed to the horse racing industry is undoubtedly likely to be misleading. The date of the broadcast is, of course, wrong. But the important point is that, by its selective extraction of a few words, the advertisement gives an entirely misleading impression to the reader of what it is Dr Kannegieter said about HTL in the context of the usefulness of feed supplements generally. In my view, the advertisement contravened the pleaded provisions of Pt V of the Act.
25 The cause of action under s 82 of the Act requires loss or damage. On this issue Dr Kannegieter’s evidence was not completely satisfactory. In his affidavit Dr Kannegieter said that he believed that there was a drop in his practice income in August and September 2001 and that this was ‘referable to the advertisement’. Senior counsel for the respondents carefully cross-examined Dr Kannegieter on his financial records and showed that such a drop in income could not be demonstrated. I should say that Dr Kannegieter did not accept this fact, but the true variations in his practice income are shown in exhibit 11 (which must be read bearing in mind the impact of the goods and services tax.) This finding does not mean, of course, that Dr Kannegieter has not suffered loss or damage because no precise arithmetical calculation can be made of the loss in practice income for a finite period. Dr Kannegieter allowed that he was unable to identify any specific jobs that he had missed out on as a result of the advertisement. I am conscious that any such damage may be subtle, but it can hardly be indiscernible. The income of most professional people fluctuates from year to year, although it is natural enough that a specialist surgeon in his mid-forties would in the normal course expect his income to increase. Dr Kannegieter was paid a modest fee of $250 per session for his participation in the Racing Radio program. He said that he was worried that the termination of his services by 2KY was caused by the advertisement. There is no evidence whatsoever to sustain any suggestion that that termination was caused by the respondents’ contraventions of the Act.
26 The evidence raises for consideration (though in a very confused way) two other possible sources of financial loss. In the past Dr Kannegieter had conducted trials of new products for veterinary pharmaceutical companies such as Virbac, Boehringer Ingelheim, Marlab and Vetrapharm. This activity was carried out for a budgeted contract price and also permitted Dr Kannegieter to produce papers for publication in scholarly journals, thus enhancing his professional reputation. Dr Kannegieter has had no offers of such work since the publication of the advertisement. Again, without more evidence, such as opportunities offered to others, it is impossible to quantify in a precise pecuniary way such loss or damage. The other topic is more confusing. On the one hand, Dr Kannegieter says that the AVA disapproves of product endorsement by veterinarians (although that broad proposition is not supported by the AVA policy document in evidence). On the other hand, reliance is placed on Mr Grant’s evidence to suggest that Dr Kannegieter has now lost the opportunity to earn large fees for endorsing veterinary products because he has been falsely associated with a ‘dodgy’ company like HTL and its services and products. I am bound to say that I cannot find on the evidence any such loss or damage.
27 On 22 July 2001 Dr Kannegieter ceased to serve on the executive of the AEVA. Dr Kannegieter suggested in his affidavit that this course was prompted by the publication of the advertisement and what he called the consequent ‘adverse publicity’ and reflections on his ‘credibility’. I regret to say that, following his cross-examination on this topic, I was left with the firm impression that Dr Kannegieter exaggerated the importance of the advertisement in his deciding to ‘step back’ from the AEVA executive. There were other factors which informed that decision.
28 Nonetheless, Dr Kannegieter conducts a specialist surgical practice dependent on referrals from equine practitioners. The evidence from such persons suggests that they continue to think highly of Dr Kannegieter, but the advertisement plainly made something of an impact on attendees at the AEVA conference in July 2001. Equine practitioners also, no doubt, pay some regard to the wishes of their clients, the owners and trainers, in deciding who should provide treatment for their horses. They may not be such a sophisticated audience, and it is they who comprise a large part of the readership likely to be directly influenced by the respondents’ conduct. Section 4K of the Act extends the concept of loss or damage to include injury. In Marks v GIO Australia Holdings Ltd [1998] HCA 69; (1988) 196 CLR 494, it was said (at 515, [53]) that a person does not suffer injury ‘simply because a hoped for advantage does not materialise’. Nonetheless, damages for commercial loss under s 82 of the Act are not confined to loss of income. They may include compensation for damage to goodwill and reputation: RAIA Insurance Brokers Ltd v FAI General Insurance Co Ltd (1993) 41 FCR 164 at 178-181. The evidence here is not extensive, but common sense is not to be ignored in the exercise of ascertaining what the position of Dr Kannegieter would have been had there been no contravention of the Act. No precise measure of loss can be calculated. The damage will have been subtle, but not great. I am satisfied that, nonetheless, it has already been suffered. I assess the amount of such damages as $25,000 and propose to award judgment for that amount against all the respondents in respect of the counts under the Act. (It was not in dispute that, if such liability were found, Mr Dobson was involved in any contravention within the meaning of s 75B of the Act.) I do not think that in the circumstances interest should be awarded on that sum. I will come back to the other relief sought under the Act.
29 This brings me to the defamation counts. The imputations pleaded as defamatory of Dr Kannegieter are:
‘(a) That he, a leading veterinary surgeon, acted unethically – in that he endorsed for reward the goods and services of Hair Testing Laboratory Pty Limited, a company he believed to be trading on a bogus diagnostic technique;
(b) That he, a leading veterinary surgeon, had sold out his credibility by endorsing the goods and services of Hair Testing Laboratory Pty Limited, a company he had publicly asserted to be trading on a bogus diagnostic technique;
(c) That he, a leading veterinary surgeon, was a hypocrite, in that he endorsed the goods and services of Hair Testing Laboratory Pty Limited, a company he believed to be trading on a bogus diagnostic technique;
(d) That he, leading veterinary surgeon, had compromised his credibility by endorsing the bogus diagnostic technique of hair testing.’
30 These imputations are said to be conveyed by the relevant and ordinary meaning of the words used in the advertisement. But the pleading also relies on extrinsic facts said to be known to readers of Turf Monthly and The Australian Standardbred, as follows:
‘(a) The Applicant is and was at all material times a well-known and well-respected specialist equine veterinary surgeon;
(b) The First Respondent is and was at all material times in the trade of selling feed supplements for horses, which it prescribed and sold on the basis of first purporting to diagnose a horse’s ailments by analysing samples of its hair;
(c) The diagnostic technique of hair testing for horses has, at all material times, been rejected as scientifically worthless by veterinary surgeons of good professional standing;
(d) No veterinary surgeon of good professional standing in Australia has endorsed hair testing as a diagnostic technique for horses;
(e) Public figures, such as the Applicant, are customarily paid a fee as a reward for endorsing goods and services in advertising material;
(f) The Applicant had made a number of radio broadcasts and other statements prior to the publication of the matter by the Respondents, in which he rejected the diagnostic technique of hair testing for horses as scientifically invalid.’
31 Notwithstanding the pleading, counsel for Dr Kannegieter accepted that extrinsic facts were required to establish the imputations. I am satisfied that the facts pleaded in subparagraphs (a), (b), (e) and (f) have been established. Subparagraph (e) requires no evidence from a witness. I may be permitted to know that. Subparagraphs (c) and (d) are more problematic. I think that I may infer subparagraph (c), standing by itself, simply from the position adopted with public authorities by the AEVA. However, that may not be known generally to readers of the magazines in question. The inferences available from the scientific literature in evidence are all one way, namely, that hair testing is a fraudulent diagnostic tool, but that may not be known to the readers. In any event, it does not matter because subparagraph (f) is sufficient to sustain the imputations. On that basis I find that the pleaded imputations are made out.
32 The defamation counts rely on publication in all Australian States and Territories and in New Zealand. That publication is admitted. It is agreed between the parties that 8,500 copies of the July 2001 edition of Turf Monthly and 1,750 copies of the July 2001 edition of The Australian Standardbred were distributed. However, counsel for the respondents submit that there is no evidence of knowledge of the extrinsic facts in any jurisdiction other than New South Wales and Queensland. I accept that submission with one qualification. I am prepared to find that they are also known in the Australian Capital Territory, where Dr Kannegieter is registered as a specialist equine surgeon and where the Racing Radio program was heard.
33 The respondents rely on the common law defence of qualified privilege. Since this case was argued, the requirements of such a defence have again been considered by the High Court in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 78 ALJR 346. The threshold question is whether the occasions of the publication of the advertisement in the present case are occasions of qualified privilege. The respondents’ particulars allege that they are, essentially, because Dr Kannegieter was a specialist equine veterinary surgeon, who was a regular guest on a radio program and who made ‘no distinction between his criticisms of [HTL]’s promotional methods and the efficacy of [HTL]’s feed/nutritional supplements’. Here the defamatory communications plainly did not address the matters upon which the respondents rely. No extensive examination of the circumstances of the publications is required in order to uphold the submissions of Dr Kannegieter’s counsel that the advertisements were not published on occasions of qualified privilege. The respondents’ further plea that the advertisement was in response to an attack by Dr Kannegieter does not advance their defence. In such a situation the common law may adopt a liberal approach to the question of duty or interest in the recipients, but in this case the false representations that Dr Kannegieter endorsed HTL and its services and products were not relevant. Counsel for Dr Kannegieter also rely on the excerpt from the letter from HTL’s solicitors reproduced at [16] above to defeat this plea. In my view, there was no occasion of qualified privilege in this case.
34 The respondents also rely on the statutory defence of qualified privilege under s 22 of the Defamation Act 1974 (NSW). Counsel for Dr Kannegieter submit that this defence cannot be made out because there is no evidence that any of the respondents had the belief required by s 22(2) of that Act. I accept that submission.
35 In respect of the publication in Queensland, the respondents rely on statutory qualified privilege and fair comment. Here, too, these defences fail, in my opinion, because the information is not relevant to the claimed public interest and the imputations are not comments. The parties are agreed that the respondents did not intend to convey the imputations that I have found. The respondents could not, therefore, have been making any such comment.
36 The approach to damages for defamation in the present case is complicated by the fact that there is no break-up of the two magazines’ distribution by reference to the three relevant jurisdictions. In any event, I am going to assess damages globally on the basis required by Part 4 of the Defamation Act 1974 (NSW). The purposes to be served by an award of such damages have been recently explained in Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 77 ALJR 1739 by Hayne J at 1750-1754 ([59]-[83]). Counsel for the respondents have furnished me with information on recent awards. Counsel for Dr Kannegieter submit that damages under s 82 of the Act do not overlap with defamation damages. I think that submission may overstate the situation in a case such as the present. Nonetheless, Dr Kannegieter did strike me as a sensitive person. His subjective response is very important to the three purposes to be served by the award. In my view, an award of $70,000 is appropriate for the Turf Monthly publication and an amount of $30,000 for The Australian Standardbred publication. This should provide consolation and vindication for the defamatory attacks made about Dr Kannegieter by the respondents. I do not think, however, that an award of aggravated damages is required in the circumstances.
37 Finally, Dr Kannegieter sought an order under the Act that the respondents publish a apology in a form proposed by his counsel. Corrective advertising is appropriate in some cases under the Act. This is not one of them. The respondents offered advertising of a limited sort early on in the piece. That offer was not taken up. It is now much later. Mr Dobson cannot be obliged to advertise an ‘acknowledgment’ or a ‘concession’ of the type sought. Dr Kannegieter’s damages are sufficient salve for his wounds.
38 The respondents must pay Dr Kannegieter’s costs of the proceeding.
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I certify that the preceding thirty eight (38) numbered paragraphs are a
true copy of the Reasons for Judgment herein of the Honourable
Justice
Whitlam.
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Associate:
Dated: 21 May 2004
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Counsel for the applicant:
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S M Littlemore QC with P M Lane
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Solicitors for the applicant:
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Ebsworth & Ebsworth
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Counsel for the respondents:
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Tom Molomby SC with R K M Rasmussen
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Solicitors for the respondents:
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R F Bergagnin & Co
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Dates of hearing:
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27 and 28 October 2003
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Date of judgment:
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21 May 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/639.html