Cinivest Limited and Anor v Yirandi Productions Limited and Anor [1999] NSWSC 1089 (5 November 1999)

Last Updated: 8 November 1999

NEW SOUTH WALES SUPREME COURT

CITATION: CINIVEST LIMITED & ANOR v YIRANDI PRODUCTIONS LIMITED & ANOR [1999] NSWSC 1089

CURRENT JURISDICTION: Civil

FILE NUMBER(S): 20211/98

HEARING DATE{S): 3 November 1999, 4 November 1999, 5 November 1999, 8 November 1999

JUDGMENT DATE: 05/11/1999

PARTIES:

Cinivest Limited (First Plaintiff)

Oscar Scherl (Second Plaintiff)

Yirandi Productions Limited (First Defendant)

Ted Egan (Second Defendant)

JUDGMENT OF: Adams J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr T S Hale SC with Mr M S M White (Plaintiffs)

Mr R A Campbell (Defendants)

SOLICITORS:

Picone & Co (Plaintiffs)

Michael Frankel & Co (Defendants)

CATCHWORDS:

Defamation

Section 7A Defamation Act 1974

whether plaintiff identified

whether jury question

ACTS CITED:

Defamation Act 1974

DECISION:

See paragraph 12 of Judgement

JUDGMENT:

Transcript checked

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

ADAMS J

THURSDAY 4 NOVEMBER 1999

020211/98

CINEVEST LIMITED & ANOR v YIRANDI

PRODUCTIONS LIMITED & ANOR

JUDGMENT

(See page 46 of the transcript.)

1 HIS HONOUR: Mr Hale of Senior Counsel has raised, at the close of evidence and at the close of the address to the jury by Mr Campbell on behalf of the plaintiffs, a question as to what issues the jury need to determine under s 7A of the Defamation Act 1974 (the Act) in the context of this litigation.

2 The document alleged to be defamatory refers to the first plaintiff in terms but to the second plaintiff, if at all, inferentially. Mr Hale SC submits that, at this stage of the proceedings, the jury, under s 7A of the Act must be satisfied to the appropriate standard of proof by the plaintiff not only that the material complained of conveys the imputation alleged and is defamatory but that it is defamatory of the plaintiff.

3 It is self-evident - and Mr Hale SC concedes - that, if the imputations alleged are proved and defamatory, Cinevest is defamed but the question whether the second plaintiff Mr Scherl is defamed by that matter, he submits, is one upon which there is uncertainty but which the jury must be satisfied about on the balance of probabilities before they can make findings against the defendants, in respect of the second plaintiff. The imputations which have been placed by agreement before the jury in respect of the second plaintiff, allege in terms that he is defamed.

4 Mr Campbell, however, submits that the only questions for the jury at present are whether the substance of the imputation is made out regardless of the identification of the target, as it were, and whether that imputation is defamatory, again regardless of the target. At first blush there is much to commend this submission. The sense of s 7A of the Act is to obtain the decision of the jury upon the meaning of the publication and the impact which the words complained of would reasonably have on the fair-minded member of the public. These questions are obviously appropriate for a jury to decide and in respect of which a Judge brings no special knowledge to bear. However, it may also be fairly said that whether an imputation refers to a particular unnamed individual is also a matter which the commonsense of the jury might be thought peculiarly apt to determine. Here, as I understand the pleadings, the second plaintiff also seeks to establish that his controlling connection with the first plaintiff is known to people in the film industry and in particular to those to whom the newsletter and prospectus in question were circulated - or some of them.

5 Even so, this is a question of fact and is intimately although not inextricably related to the question of whether the document, as a matter of its ordinary meaning, refers to him. The question, therefore, seems to me to arise at two levels. Looking at the documents as they stand, is there a reference to the second plaintiff? Secondly, if the words are capable of referring to the second plaintiff in the minds of the particular persons to whom it was published, is there material from which the jury could infer an affirmative answer? Even if this is so, is it a matter which they should attempt to answer in the course of determining the questions in terms required by s 7A(3) of the Act?

6 The analysis of the task under s 7A of the Act is not easy. This is not an area of law of which I pretend to have any detailed experience and I suspect that the Act is part of an unstated culture which is not altogether easy for the uninitiated to appreciate. However, I have been much assisted by the submissions of counsel and I think that the matter has been sufficiently argued for me to have formed a judgment on the question in issue.

7 Whilst the simplicity of approach proposed by Mr Campbell for the defendants has a great deal of charm, I think that it over-simplifies the actual elements which a determination of the issues under s 7A of the Act requires. Of course, where the defamatory imputation is aimed at a named person, there is no problem but, beyond that, where on its face the uninitiated may not identify any individual - and, as this case shows, this can be a matter of degree - it is very difficult to draw a clear line between whether something is defamatory regardless of the person to whom it is directed on the one hand and identification of the individual on the other.

8 The form of the imputations in this case demonstrate precisely this point. They were clearly drafted in accordance with conventional approaches. I was referred by Mr Hale SC to Consolidated Trust Co Limited v Brown (1948) 49 SR 87 at page 88 where Chief Justice Sir Frederick Jordan said:

"In order that one person may establish against another a civil cause of action in libel, it is essential that he should prove:

(1) that a statement or other representation has been made, otherwise than orally, of a kind likely to lead ordinary decent folk to think the less of the person about whom it is made;

(2) that it was about him that it was made; and

(3) that the other has published it to at least one third party (who is not the husband or wife of the other)."

It did seem to me that this readily separated on the one hand the question of defamatory content and on the other that of identifying the individual about whom the imputation was made and I was therefore initially of the view that it is precisely this separation of which s 7A of the Act was a reflection.

9 However, s 7A(4) of the Act confines the Court to the question of defences. An allegation that the plaintiff is not the person defamed by the publication is not a defence in this sense. It is a matter for the plaintiff to establish that the plaintiff was the person of whom the defamatory imputation is made.

10 The role of juries in fact-finding in litigation is an important traditional role and I would be loath to interpret this legislation as excluding the jury from determining matters which otherwise appear to be appropriate for them to determine unless I was constrained to do so by its express provisions.

11 I therefore consider that the question of identification of the person to whom it is alleged the defamatory imputation refers is part of the function of the jury in its consideration of whether it is satisfied that the matter complained of carries the alleged imputation and, if so, whether it is defamatory. I propose to direct the jury accordingly in this trial.

**********

LAST UPDATED: 08/11/1999