Doan and Ors v Network Ten Pty Limited [1999] NSWSC 141 (5 March 1999)

Last Updated: 9 March 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Doan and Ors v Network Ten Pty Limited [1999] NSWSC 141

CURRENT JURISDICTION: Common Law Division

Defamation List

FILE NUMBER(S): 20478/98

HEARING DATE{S): 19 February 1999

JUDGMENT DATE: 05/03/1999

PARTIES:

CONG THANH DOAN (First Plaintiff)

NHUT LONG TRINH (Second Plaintiff)

VINH TRAN (Third Plaintiff)

v

NETWORK TEN PTY LIMITED ( Defendant)

JUDGMENT OF: Simpson J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr W B Nicholson (First, Second and Third Plaintiffs)

Mr T D Blackburn (Defendant)

SOLICITORS:

Peter Erman (First, Second and Third plaintiffs)

Blake Dawson Waldron ( Defendant)

CATCHWORDS:

Defamation

ACTS CITED:

DECISION:

Imputations pleaded by the second and third plaintiffs struck out.

JUDGMENT:

- 5 -

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

SIMPSON J

Friday 5 March 1999

20478 of 1998

DOAN & Ors v THE TEN GROUP PTY LIMITED & Anor.

Judgment

HER HONOUR :

1 Three plaintiffs sue the defendants, The Ten Group Pty Limited, and Network Ten Pty Limited, each alleging that he was defamed in a news item (or two different news items) broadcast on television station Channel 10 on 26 March 1998. The first plaintiff is Cong Thanh Doan; the second is Nhut Long Trinh; the third is Vinh Tran.

2 It makes no difference whether there was a single news item broadcast more than once, or different news items broadcast at different times. The same questions would arise whichever is the position.

3 The news item showed film images of three men and one woman. The four were shown walking a short distance in an outdoor setting. The face of one man had been subjected to a process called "pixillating" which obscured his face. However, his body could be seen, and he was seen to be holding the hand of the woman who accompanied him and who was obviously pregnant. She was not obscured and her face would have been recognisable to acquaintances. The other two men were also identifiable.

4 It was not disputed that the three men were the three plaintiffs. The first plaintiff was the man whose face was pixillated.

5 The film images were accompanied by the following words (or words to identical effect):

"One of the three men accused of murdering New South Wales MP, John Newman, walked free to-day. Quang Dao was released from prison after his family raised $1.2 million security. In granting bail, the judge took into consideration the fact that Dao's wife is pregnant. The 35 year old is required to report twice a day to police."

6 None of the three men depicted was in fact the person identified in the broadcast as Quan Dao. None of them had been or has been charged with the murder of Mr Newman. The unambiguous implication, however, was that the man with the pixilated face, the first plaintiff, was Quan Dao, the man charged with murder.

7 The first plaintiff alleges that the broadcast conveyed the following imputations, each of which defamed him:

"(a) The first Plaintiff so conducted himself that he has been charged with murder;

(b) The first Plaintiff so conducted himself that he was reasonably suspected by the police of being guilty of murder;

(c) The first Plaintiff so conducted himself that he was imprisoned;

(d) The first Plaintiff so conducted himself that he was released from prison only because his family could raise the large amount of $1.2 million security;

(e) The first Plaintiff so conducted himself that he was required to report twice a day to the police;"

8 The second plaintiff claims that the broadcast conveyed the following two imputations, each of which defamed him:

"(a) The second Plaintiff so conducted himself that he has been charged with murder;

"(b) The second Plaintiff so conducted himself that he was reasonably suspected by the police of being guilty of murder,"

The third plaintiff makes an identical claim.

9 On behalf of the defendant a number of objections were raised concerning the imputations pleaded. It is convenient to deal firstly with those relating to the second and third plaintiffs. The defendant argued that the matter complained of was incapable of conveying either of the imputations pleaded in relation to these plaintiffs.

10 The test to determine whether a publication has the capacity to convey imputations pleaded is well known and has frequently been referred to. It was stated by Hunt J (as he then was) in Farquhar v Bottom [1980] 2 NSWLR 380 and is essentially a test dependent upon the ordinary reasonable recipient of the content of the publication, the person of fair, average intelligence, not perverse nor morbid nor suspicious nor avid for scandal, who is capable of some loose thinking but also of an appreciation of what might be conveyed other than in the literal words (or images) of a publication.

11 Bearing that test in mind, I turn to the arguments put on behalf of the second and third plaintiffs. One argument was that what is conveyed to the ordinary average reader by a television broadcast is to be considered in the knowledge that the broadcast is a fleeting one not (usually) available for repeated, more considered, viewing, as might be the case with, for example, an unclear, ambiguous, or confusing newspaper report. Bearing this in mind, these plaintiffs argued, the presentation of their images with that of the first plaintiff was capable of conveying the imputation that the second and third plaintiffs were the other two men charged with that murder. Although it was coincidental that there were three men depicted in the broadcast, and three men reported to have been charged with the murder, that coincidence reinforced the appearance that these plaintiffs were the men charged.

12 This analysis omits some very important additional factors. The first of these is that the opening words that accompanied the pictorial matter were:

"One of three men accused of murdering ... walked free today."

13 The clear implication from these words is that the other two men charged with the murder remained in custody. It is not reasonably possible, in my view, to torture the language as was suggested on behalf of the second and third plaintiffs to draw from it the meaning that the man identified by the pixillation (wrongly) as Quang Dao, was the third of the three men charged to be released. Both the opening words, and the whole of the text, are reasonably capable only of suggesting that the remaining two men charged with the murder had not been granted bail and remained in custody. Accordingly, the pictorial image showing those two men, outdoors and obviously at large, accompanying the man identified as the man charged with murder and granted bail, could not, consistently with the text, be taken to identify them as men charged with the murder. A viewer who inferred that these two men were the other two men charged with murder would be drawing an inference that contradicted the words in the broadcast.

14 Added to this is the effect of the use of the pixillation technique on the image of the first plaintiff. The ordinary reasonable viewer would infer from this that the man whose image was obscured was the man charged with the murder; those whose images were not obscured would not be so identified.

15 In my opinion the most that any viewer could have drawn from the broadcast, concerning the second and third plaintiffs, was that they were in some way associated with, and supporters of, the man whose image was obscured. I am therefore of the view that neither of the imputations pleaded in relation to the second and third plaintiffs is capable of being conveyed by the matter complained of and they should be struck out.

16 I propose to make such an order, and, unless I am persuaded that leave should be granted to the second and third plaintiffs to amend, the appropriate order which follows is that there should be a verdict for the defendant on the causes of action represented by each of those imputations.

17 After hearing the argument of counsel in relation to the imputations pleaded by the first plaintiff, counsel for the plaintiffs sensibly acknowledged that reconsideration could be given to their drafting, and possible redrafting. It is therefore not necessary at this stage to rule on these objections, although if resolution cannot be reached between the parties, I will do so.

18 The only order I make at present is that the imputations pleaded by the second and third plaintiffs are struck out.

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LAST UPDATED: 08/03/1999