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- Unreported Judgment
Russell v Queensland Television Pty. Ltd. QDC 60
DISTRICT COURT OF QUEENSLAND
Russell v Queensland Television Pty Ltd & Ors  QDC 60
QUEENSLAND TELEVISION PTY LTD (ACN 009 674 373)
NINE DIGITAL PTY LTD (ACN 077 753 461)
District Court at Ipswich
24 April 2019
9 April 2019
Horneman-Wren SC DCJ
1. Judgement for the first defendant against the plaintiff in respect of the plaintiff’s claims against the first defendant.
2. Judgement for the third defendant against the plaintiff in respect to the plaintiff’s claims against the third defendant.
3 I will hear the parties as to costs.
4. The parties are to file any submissions on the issue of costs within 7 days.
DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – PARTICULAR STATEMENTS – whether statements were of or concerning the plaintiff – whether published by the defendant – where published matter not of or concerning the plaintiff – where matter not published by the defendant
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY JUDGEMENT – where the plaintiff has no real prospects of succeeding in claim against the defendant – where no need for a trial
Amalgamated Television v Marsden (1998) 43 NSWLR 158
David Syme & Co v Canavan (1918) 25 CLR 234
Deputy-Commissioner of Taxation v Salcedo  2 Qd R 232
Jones v E Hulthon Co  2 K.B. 444
Knupffer v London Express Newspaper Ltd  AC 116
Mohareb v Fairfax Media Publications Pty Ltd (No. 3)  NSWSC 645
Morgan v Odhams Press Ltd  1 WLR 1239
Queensland Newspapers Pty Ltd v Palmer  2 Qd R 139
Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in Liq)  1 Qd R 259
Sadgrove v Hole  2 K.B.1
Wagner & Ors v Harbour Radio Pty Ltd & Ors  QSC 201
Uniform Civil Procedure Rules 1999 – rr293 and 295
Mr P McCafferty QC for the applicants
Ms Russell self-represented
M&K Lawyers Group for the applicants
- The second defendant is a television journalist. On 14 February 2017 she attended at premises occupied by the plaintiff. She was accompanied by two cameramen. At the premises the second defendant engaged in exchanges with the plaintiff. Those exchanges were audio-visually recorded by the cameramen. Other footage of the plaintiff was also taken.
- That evening an episode of “A Current Affair” (“ACA”) was broadcast in which there was a segment relating to what was referred to as a “barcode scam”. The recordings of the exchanges between the second respondent and the plaintiff and the other footage taken at the plaintiff’s premises was used in the segment. The segment was subsequently made available online.
- The first defendant is a commercial broadcaster responsible for broadcasting ACA. The third defendant is an entity responsible for making episodes of ACA available online.
- Prior to the broadcast of the segment on ACA, promotional material for the episode was published on Facebook. The following day an article appeared on the website www.msn.com which included a photograph of the plaintiff which was a still shot taken from the footage shown in the segment.
- The plaintiff claims that the segment, the promotional material and the MSN article are each defamatory of her. Relevantly, she claims damages against the first and third defendants.
- Each of the first and third defendants have applied for summary judgment against the plaintiff pursuant to r 293 of the Uniform Civil Procedure Rules 1999 (UCPR).
- In the alternative, they seek a preliminary determination of whether the segment as broadcast and as published online, and the promotional material published on Facebook, were capable of conveying the defamatory imputations alleged by the plaintiff. In the further alternative they seek that a number of paragraphs in the statement of claim be struck out.
- The basis for the application, and for the relief sought in each alternative, is that neither the segment nor the promotional material published on Facebook can reasonably be understood as referring to the plaintiff in the defamatory way alleged by her in the form of the pleaded imputations.
The plaintiff’s case
- The plaintiff pleads the following in respect of the segment being defamatory matter:
“13. The segment:
13.1 commenced with an image showing a supermarket aisle on which the following words were superimposed in red and blue colours: “Barcode scam mum”;
13.2 then showed Tracey Grimshaw, the presenter of the ACA announcing that the first story of the ACA would be about “a mum who swindled groceries worth almost $5,000 from supermarkets” and stating that “she did it by painstakingly photocopying the barcodes from packets of 65 cent noodles and then gluing them on everything from lamb chops to rolls of toilet paper; even a couple of coffee machines”’
13.3 immediately thereafter showed the plaintiff, and no one else, at the front door of the house;
13.4 immediately thereafter showed Bradshaw facing the plaintiff, and stating to the plaintiff the following words: “we just wanna ask you some questions about the barcode scam you got going”;
13.5 the focussed on the plaintiff’s face;
13.6 then showed a man (later introduced as “tech expert Charlie Brown”) (“Brown”) who stated the following words: “the lengths that this customer has gone to had required a lot of planning and a lot of set up”;
13.7 while Brown said the aforementioned words, twice showed the plaintiff;
13.8 showed, immediately after Brown finished the above mentioned words, images of self-checkout areas in supermarkets, while Bradshaw stated the following words: “She is the cunning mum convicted of running a self-serve racket at her local supermarket using little more than some packets of noodles, glue and sticker labels”;
13.9 then showed the plaintiff attempting to close the front door of the house, while Bradshaw stated the following words: “and today, Kylie Milner did her best to avoid our cameras”;
13.10 later showed a shopping list showing the following items: “bulk lamb culets, frozen seafood, roast lamb, bacon, two coffee machines ($200+), makeup remover pads, Pantene shampoo, Finish dishwasher tablets”;
13.11 towards the end, showed the plaintiff shutting the front door of the house, while Bradshaw was facing the plaintiff and stating the following words: “We’re here to ask why you defrauded Coles and Woolworths”;
13.12 was approximately 4 minutes 20 seconds in duration;
13.13 Did not at any time show Kylie Miler (the person in fact convicted of the barcode scam);
13.14 Showed the plaintiff six times at varying lengths.”
- She pleads that the pleaded matter contained the following imputations defamatory of her:
“14.1 The plaintiff committed the barcode scam described in the segment;
14.2 The plaintiff stole groceries worth $5,000 from supermarkets;
14.3 The plaintiff ran an elaborate fraudulent scheme;
14.4 The plaintiff ran an elaborate fraudulent scheme;
14.4 The plaintiff is a dishonest person;
14.5 The plaintiff committed a crime;
14.6 The plaintiff has been convicted by a court.”
- The plaintiff pleads the following in respect of the promotional material on Facebook being defamatory matter:
“21. Later on 14 February 2017, approximately one hour before the segment was broadcast by the first defendant, the third defendant published on the Facebook page a matter of an concerning the plaintiff, which was in the form of a second video (“the Facebook video”) of approximately 20 seconds in duration which:
21.1 showed the plaintiff;
21.2 had text superimposed on it with the following words: “barcode scam mum”;
21.3 served to advertise that the segment will be broadcast that evening on television as part of the ACA program.”
- She alleges that this pleaded matter contained the following defamatory imputations:
“22.1 The plaintiff committed the barcode scam;
22.2 The plaintiff is a dishonest person;
22.3 The plaintiff committed a crime.”
- As to the article which was published on the www.msn.com website, the plaintiff pleads the following:
“23 On 15 February 2017, an article (“the msn article”) appeared on the website www.msn.com, and which:
23.1 was entitled “Ipswich mother defrauds supermarkets of almost $5,000 through barcode scam”;
23.2 underneath the title had the following words: “ninenews.com.au”;
23.3 showed a close up picture of the plaintiff, which picture was taken from the segment;
23.4 immediately under the picture of the plaintiff had the following text: “© A Current Affair the Queensland mother who swindled groceries worth almost $5,000 from supermarkets”;
23.5 stated, amongst other, that:
- (a)‘A Queensland mother has pleaded guilty to defrauding two major supermarket chains of almost $5,000 by gluing on barcodes before scanning her items through self-serve checkouts’;
- (b)‘Milner has been convicted of 31 counts of fraud, three counts of attempted fraud and one count of possessing a drug related utensil’.”
- She alleges it contains the same imputations as alleged in respect of the segment. She alleges that the publication of that article was the natural and probable consequence of, and was caused by, any or all of the publication of: the segment on ACA; the segment published online; and the Facebook promotional material.
The defendant’s contentions concerning the segment and the promotional material
- The first and third defendants contend that the segment, as broadcast and as published online, concerned the actions of a Kylie Milner who had perpetrated a criminal scam on several supermarkets. They contend that the second defendant attended at the premises for the purposes of interviewing Kylie Milner but that she did not participate in the interview, the plaintiff engaging with the second defendant instead.
- The defendants emphasise that there is no suggestion, either express or implied, that the plaintiff is Kylie Milner. They contend that there are at least five reasons why on a viewing of the segment it is abundantly clear that the plaintiff is not Kylie Milner.
- First, they contend that the opening moments of the segment, which include some footage of the exchanges between the plaintiff and the second defendant, show a person standing behind the plaintiff out of clear view of the camera. They contend, however, that while out of clear view the footage shows that there is in fact another person present.
- I have watched the footage on several occasions. The parties requested that I view it in chambers before the hearing of the application. I did so; twice. Next, the footage was played several times, either completely or in sections, in the course of the hearing. Finally, I have reviewed it, again several times, in chambers in the course of preparing these reasons.
- Having watched it on all those occasions, with the benefit of being able to rewind and review, I would not accept that it would appear to a viewer who saw the footage on a single occasion that there was in fact another person behind the plaintiff out of clear view.
- Secondly, the first and third defendants submit that the exchanges between the plaintiff and the second defendant include the second defendant asking the plaintiff, and no one else, questions such as “She’s happy with the way she’s acted?” and “Does she want to apologise to the people she ripped off to the stores she ripped off?”. They submit that it also includes the plaintiff responding to the first of those questions saying “How did she act?”. The first and third defendants contend that those questions, by the use of the pronoun “she”, are being asked of the plaintiff about Kylie Milner and are not questions asked of the plaintiff about her own conduct.
- In my view, this exchange, and particularly the use of the pronoun “she” by both the journalist and the plaintiff, clearly demonstrate that the person being spoken of who had engaged in the scam was someone other than the plaintiff.
- Thirdly, the first and third defendants submit that the narrative provided by the journalist as broadcast, which is overlayed or interposed as part of the exchanges between the plaintiff and the journalist, includes statements such as “And today Kylie Milner did her best to avoid our camera, leaving her family to defend her actions”. They submit that the “family” defending Kylie Milner’s actions is the plaintiff.
- In my view, this part of the segment again makes clear that the person being shown in the footage, the plaintiff, was not the person Kylie Milner who is named in the segment as the person responsible for the scam.
- In this regard, it should be observed that it is not part of the plaintiff’s pleaded case that she is identified in the segment as someone other than Kylie Milner, but that the segment is defamatory of her because, for example, it imputes that she is dishonest because she would defend the actions of a fraudster.
- Fourthly, the first and third defendants submit that the narrative provided by the second defendant journalist also included the statements “Kylie Milner wasn’t interested in answering our questions today leaving her family members to do the talking”. They submit that those words were broadcast accompanied by an image of the plaintiff which again clearly depicts another person standing behind the plaintiff, and that is Kylie Milner. They contend that at one point the plaintiff turns to look at the person behind her.
- Again, having watched the footage several times, I would not conclude that it clearly depicts another person standing behind the plaintiff. Although I do accept that at this point of the footage the plaintiff does turn away from the camera as if to look at someone behind her and that moving shadows can be seen, which may be presumed to be a person. Again, however, I would doubt that this would be perceived by a viewer who saw it fleetingly on only one occasion.
- Fifthly, the applicants refer to an exchange between the plaintiff and the second defendant as follows:
Plaintiff: “I’m not Kylie”
Second defendant: “Well she’s obviously here”
Plaintiff: “It doesn’t really matter”
Second defendant: “Does she want to say anything, set the record straight at all?”
- In my view, this is the clearest demonstration that the plaintiff is not the person Kylie Milner who is said to have carried out the scam. It includes a statement by the plaintiff herself that she is not the person being spoken of and an implicit acknowledgement of that by the journalist.
- In respect of the promotional material, the applicants contend that contrary to the plaintiff’s allegation, neither of them operates or controls the relevant Facebook page, and neither, therefore, is responsible as a publisher for what appeared on that page. They contend that the relevant publisher was, in fact, Nine Network Australia Pty Ltd. They plead that fact in their defence; so the plaintiff has been informed of that fact since that time. On the application, the defendant’s solicitor deposes to that fact.
- Furthermore, they contend that, in any event, the promotional material made no reference to either the plaintiff or Kylie Milner. Nor did it show either person.
- Mr Svilans deposes to the video which is Exhibit PS2 to his affidavit being the only promotional video for the segment uploaded onto Facebook. The plaintiff deposes only to having been told by her sister on the afternoon of 14 February 2017 that she had “just seen another segment on Facebook and you are going to be on TV tonight”. When asked by the plaintiff what it showed, her sister told her “It just showed you on TV connected to the Bar scam”. The plaintiff’s sister deposes to having seen two promotions on Facebook on 14 February 2017. One of those showed video footage of the plaintiff but the other did not.
- The applicants contend that the imputations pleaded in respect of both the segment and the promotional material require the plaintiff to establish that she is Kylie Milner; the person who in fact engaged in the barcode scam.
Applicant’s contentions concerning the www.msn.com website publication
- The applicants contend that neither of them control the website on which the article was published. Mr Svilans deposes to that fact. Mr Svilans also deposes to having conducted a registrant search for the www.msn.com website utilizing the ICANN WHOIS website, which provides registrant information. That search revealed that the registrant contact and the registrant organization for the site are both Microsoft Corporation.
- The applicants further contend that the article is not simply a cut and paste of the broadcast segment or the promotional material. They contend that the article published on the www.msn.com website has been put together by someone exercising editorial control over it, particularly in putting a still shot of the plaintiff’s face within the published article; but whoever that was it was neither of them.
- Whilst they concede that this article might be defamatory and that the plaintiff might have a cause of action against Microsoft Corporation, they contend that neither of them can be responsible as publishers of the article. They contend that the publication of an article defamatory of the plaintiff by a third person could not be the natural and probable consequence of their having published matter which was not defamatory of her.
The approach to be taken on an application for summary judgment
“Summary judgment will not be obtained as a matter of course and the judge determining such an application is essentially called upon to determine whether the respondent to the application has established some real prospect of succeeding it at trial; if that is established then the matter must go to trial.”
- In the same case, McMurdo P observed that the well-established principle that proceedings will only be determined summarily in the clearest of cases continued to apply under Chapter 9, Part 2 of the UCPR.
- In Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in Liq), Holmes J (as Her Honour then was) said:
“The more appropriate enquiry is in terms of the rule itself: that is, whether there exists a real, as opposed to a fanciful prospect of success”.
Has the plaintiff a real prospect of succeeding in her claim against the first and third defendants?
(1) The claims arising out of the broadcast and online publication of the segment
- In order for the plaintiff to succeed in her claims against each of the applicants in respect of the broadcasting of the segment and its publication online, she must prove the publications were of or concerning her. That is an essential element of the cause of action.
- The test to be applied in circumstances in which the plaintiff is not specifically named in a publication is whether the words used are such as reasonably would lead persons acquainted with the plaintiff to believe that she was the person referred to. The test is objective. Whether the words are capable of referring to the plaintiff is a question of law. The question is whether the ordinary reasonable viewer could draw the inference that the words complained of referred to the plaintiff.
- In Queensland Newspapers Pty Ltd v Palmer, Boddice J collected the relevant principles drawn from early authority. His Honour said:
“The ordinary reasonable reader is a person of fair, average intelligence who is neither perverse nor morbid nor suspicious of mind nor avid of scandal. However, that person does not live an ivory tower but can, and does, read between the lines in light of that person’s general knowledge and experience of worldly affairs. The ordinary reasonable reader considers the publication as a whole, and tends to strike a balance between the most extreme meaning that the publication could have and the most innocent meaning. That person has regard to the content of the publication. Emphasis given by conspicuous headlines or captions is a legitimate matter the ordinary reasonable reader takes into account. (Footnotes omitted).
- To those principles, the following observations of Hunt CJ at CL in Amalgamated Television v Marsden should be added when considering a publication in transient form, such as the broadcast of the segment on ACA in this case:
“All of these considerations, and more, apply to matter published in a transient form – and particularly in the electronic media. Whereas the reader of the written document as the opportunity to consider or re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant program, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the program as would otherwise have been given to the written article, and may have missed the significance of the existence, earlier in the program, of a qualification of a statement made later in the published material.
The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation effected by any of those circumstances or any similar circumstances peculiar to such type of publication was in fact conveyed, then he or she would in relation to a written document.” (Footnotes and references removed).
- Applying those principles to the broadcast of the segment on ACA I am of the view that the ordinary reasonable viewer could not understand that the segment referred to the plaintiff.
- There are sections of the segment which, if viewed alone and absent the context provided by the whole of the segment, might leave open the inference that the broadcast and the fraudulent scam which it was about referred to the plaintiff. However, when viewed as a whole, the broadcast could not be understood as referring to her.
- I have reached that conclusion bearing in mind each of the observations made above in relation to the five reasons why the applicants assert that it is clear that the plaintiff is not the Kylie Milner referred to in the segment as having perpetrated the scam. Particularly, the clear demonstration by use of the pronoun “she” by both the journalist and the plaintiff, that the person being referred to was someone other than the plaintiff; the reference to Kylie Milner’s family being left to defend her actions, which could only be a reference to the plaintiff as she was the only person otherwise shown in the footage and the only person who spoke to the journalist; and the statement by the plaintiff that “I am not Kylie” in the course of an exchange in which the journalist responded “Well she’s obviously here”, remove any possibility for the inference to be drawn that the plaintiff is Kylie Milner. This is so notwithstanding the opening exchange in which the journalist says “We just wanna ask you some questions about the barcode Scam you got going” and the concluding exchange in which the journalist says “We are here to ask you why you defrauded Coles and Woolworths” when the only person who can be seen clearly (and perhaps on a fleeting viewing, at all) is the plaintiff.
- In my opinion, the plaintiff has no real prospect of succeeding in establishing an essential element of her cause of action: that the broadcast was of or concerning her. As it is a question of law as to whether the ordinary reasonable viewer could understand that the broadcast referred to her, and having concluded that he or she could not, there is no need for a trial on that issue, or on that part of the plaintiff’s claim.
- Because the content of the segment as published online was the same as the broadcast, the same conclusion must be reached: it is incapable of being understood by the ordinary reasonable viewer as referring to the plaintiff. Indeed, that conclusion is even more readily reached in respect of the online publication because it is not transient in the same way as the broadcast segment. It may be re-watched at leisure. Such re-watching would only confirm that the plaintiff is not the person referred to as Kylie Milner who perpetrated the scam. It would also permit the viewer to discern the presence of another person in the house behind the plaintiff which may have been missed upon a single, fleeting viewing.
(2) The promotional material on Facebook
- In the absence of any footage showing the plaintiff having been used in the Facebook promotional material there could be no publication of defamatory matter of or concerning the plaintiff. The evidence of the audio-visual recording which is Exhibit PS2 to Mr Svilans’ affidavit, being the only promotional video uploaded to Facebook, satisfies me that the plaintiff has no real prospect of succeeding in that part of her claim which alleges that there was defamatory matter of or concerning her published in the promotional material on Facebook.
- Furthermore, because neither the first nor third defendants operate or control that Facebook page the plaintiff has no real prospect of establishing a publication by either on Facebook, even if one were to accept the evidence of the plaintiff’s sister that she saw promotional material which showed the plaintiff (although there is no real evidence of the publication). There is no need for a trial on that part of the claim either.
(3) The www.msn.com publication
- The plaintiff also has no real prospect of succeeding on this part of her claim against the first and third defendants. The publication of that article could not be considered to be the natural and probable consequence of the broadcast of the segment on ACA or its publication online.
- It cannot be said that the publication of defamatory matter of and concerning the plaintiff by an unrelated third party is the natural and probable consequence of the publication by the first or third defendants of matter which could not be defamatory of the plaintiff, because it was not of or concerning her. The matter published on www.msn.com, at least arguably, possesses the element essential to a defamation action which cannot be established against either the first or third defendant. It possesses that element because, as the applicants submit, someone unrelated to either of them has exercised editorial control to put the article together and publish it such that it makes the plaintiff the subject of the statements made in a way that she was not in their own publications.
- In my view, not only can it not be said that the www.msn.com republication was the natural and probable consequence of their earlier publications, it cannot be said to be a republication at all. In Mohareb v Fairfax Media Publications Pty Ltd (No. 3) McCallum J said:
“The use of the term re-publication in this context is apt to confuse. If a defamatory statement is repeated verbatim at the request or with the authority of the original publisher, or in circumstances where that is the natural and probable consequence of making the original statement, the original publisher will be liable for the repetition as a separate cause of action. More difficult questions arise when the original statement is altered in the re-telling. The term “re-publication” is ambiguous in that context and so tends to obscure the importance of that issue. It could refer to the act of repeating a statement verbatim but is often used, rather, to refer to the matter complained of as the republication (which may or may not be a verbatim repetition of the original publication).
However….there is a further element that must be established; an original publisher will not be liable for republication by a third party unless the matter complained by way of republication preserves the sense and substance of the original publication.”
- In this case, far from preserving the sense and substance of the original publication, the publication on www.msn.com completely changed both; and changed both so substantially that what was not matter of and concerning the plaintiff in the original publications, became so in the subsequent publication.
- The first and third defendants have established that the plaintiff has no real prospect of succeeding in respect of any part of her claim against them. They have demonstrated that there is no need for a trial in respect of those parts of the claim.
- In those circumstances, each should have judgment against the plaintiff pursuant to Rule 293 of the UCPR.
- It is unnecessary to consider the alternate further bases for relief.
 The application refers to r 292, however, being an application for judgment by defendants it must be intended that the application be brought pursuant to r 293.
 It is Exhibit PS1 to the affidavit of Mr Paul Svilans, the solicitor for the first and third defendants.
 By information and belief which is a sufficient form of evidence on an application for summary judgment: rule 295(2) UCPR. The source of his information is the corporate counsel of the first and third defendants and of Nine Network Pty Ltd.
 The search results were Exhibit PS3 to his affidavit.
  2 Qd R 232 at .
 With whom McMurdo P and Atkinson J agreed.
  1 Qd R 259 at 265.
 Sadgrove v Hole  2 K.B.1. at 4; Knupffer v London Express Newspaper Ltd  AC 116 at 118.
 David Syme & Co v Canavan (1918) 25 CLR 234 at 238; Knupffer v London Express Newspaper Ltd  AC 116 at 119; Jones v E Hulthon Co  2 K.B. 444 at 454; Morgan v Odhams Press Ltd  1 WLR 1239 at 1253.
 Wagner & Ors v Harbour Radio Pty Ltd & Ors  QSC 201 at .
 Knupffer v London Express Newspaper Ltd  at 121; Morgan v Odhams Press Pty Ltd at 1245.
 Morgan v Odhams Press Ltd at 1245; Queensland Newspapers Pty Ltd v Palmer  2 Qd R 139 at .
  2 Qd R 139 at .
 (1998) 43 NSWLR 158 at 165-166.
  NSWSC 645 at 32 – 34.
- Published Case Name:
Russell v Queensland Television Pty. Ltd.
- Shortened Case Name:
Russell v Queensland Television Pty. Ltd.
 QDC 60
24 Apr 2019