Robinson v Australian Broadcasting Corporation
[2003] QSC 462
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- Unreported Judgment
- Robinson v Australian Broadcasting Corporation[2003] QSC 462
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Robinson v Australian Broadcasting Corporation[2003] QSC 462
Robinson v Australian Broadcasting Corporation[2003] QSC 462
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
WHITE J
No 597 of 1994
ROBERT RAYMOND LLOYD ROBINSON | Respondent/Plaintiff |
and |
|
AUSTRALIAN BROADCASTING CORPORATION | Applicant/Defendant |
BRISBANE
DATE 10/12/2003
JUDGMENT
HER HONOUR: The applicant, the ABC, seeks an order that the plaintiff further amend his statement of claim to incorporate into it the whole of the transcript of the words and sounds and pictures of a television broadcast story about the respondent, Robert Raymond Lloyd Robinson, transmitted by the ABC on the 26th of April 1994, as a segment of its “7.30 Report” programme.
In his statement of claim, delivered on the 16th of January 1995, Mr Robinson alleged that he had been defamed in that broadcast. The transcript of the whole text was Schedule A to the pleading.
By paragraph 5(a) to (d), Mr Robinson alleged;
“5.The telecast, according to its natural and ordinary meaning, meant and was understood to mean that:
- the Plaintiff was unfit to hold office on the Aboriginal and Torres Strait Islander Commission (ATSIC);
- the Plaintiff had conducted himself in relation to his election as an ATSIC commissioner for the region of Roma so as to warrant a Federal Police investigation;
- the Plaintiff had conducted himself in relation to his election as an ATSIC commissioner for region of Roma so as to warrant criminal charges for vote rigging;
- the Plaintiff improperly received $6,000 from the Aboriginal Legal Service for work in relation to the case of Robyn Kina.”
The ABC admitted the programme and the words in Schedule A, and denied that the telecast bore or was capable of bearing the meanings alleged, or was defamatory of Mr Robinson, and pleaded qualified privilege in its defence.
On the 9th of July 2003, an amended statement of claim was filed and served, which significantly reduces the areas of alleged defamation. The reference to the whole programme is deleted. Schedule A has gone. The words pleaded are reduced to those spoken about the ATSIC elections, held in December 1993.
In respect of them, Mr Robinson alleges in paragraph 4(a) to (d);
“4.The words in their natural and ordinary meaning meant and were understood to mean that:
- the plaintiff won the election as a result of vote rigging organised by him;
- the plaintiff had encouraged ineligible voters to vote in the election in an attempt to better his election prospects;
- the plaintiff had employed vote rigging during the election in an attempt to ensure he would be elected as a representative of ATSIC;
- reasonable grounds existed to charge the plaintiff criminally with vote rigging in relation to the election.”
Mr Barlow, for the ABC, submits that this is impermissible, and if left unamended, the statement of claim will prejudice the fair trial of the proceeding.
The ABC contends that the whole programme about Mr Robinson, the words, the sounds and the pictures, should be pleaded by Mr Robinson.
The point is a relatively narrow one; does the context in which the alleged defamatory words appear dictate that the whole of the story must be pleaded?
Mr Barlow refers to a passage by Asprey JA in Ron Hodgson (Trading) Pty Ltd v. Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 172 at 477:
“…if the alleged defamatory matter be contained within other written material, it is sufficient to set forth in the declaration the libellous passages only, provided that their meaning be clear and distinct. But, if the meaning of the passages taken singly is not clear or if the complexion of the imputation conveyed by the libellous passages is materially altered or qualified by other passages in the written material, the plaintiff must set out all of the passages in the written material which affect the sense of the alleged defamatory matter.”
His Honour was careful to limit that proposition only to those words of the contentious article which affected the complexion of the defamatory matter.
Mr Barlow referred to two other decisions of the New South Wales Supreme Court, Tsvangirai v. The Special Broadcasting Service [2002] NSWSC 532 BC200203180, a decision of Levine J of the 14th of June 2002, and Reading v. Australian Broadcasting Corporation, a decision of Cripps AJ of the 5th of November 2002, Number 20206/02.
In the first case, the plaintiff pleaded only the introductory statement by the TV programme anchor person. The defendant wanted the whole programme included in the statement of claim.
Levine J quoted Hunt J in Gordon v. Amalgamated Television Service Pty Ltd [1980] 2 NSWLR 410, where Hunt J said:
“…the rule remains that the capacity of the matter complained of to convey particular defamatory imputations of and concerning the plaintiff must be judged by what the ordinary reasonably viewer or listener of average intelligence would have understood from the broadcast as a whole.
This is made clear by the judgment of the Court of Appeal in Morosi v. Broadcasting Station 2GB Pty Ltd. That judgment firmly refutes the suggestion that a plaintiff is entitled to succeed because some viewers, or listeners, might have left the room momentarily or had their attention distracted by a current activity upon which they were then engaged, and thus missed the qualifying passages in the whole matter which was broadcast.
…
In either case (again, leaving aside the situation in which the plaintiff disputes what else was said), the defendant will be entitled at the trial to require the plaintiff to prove the full context, if that context affects the imputation complained of by the plaintiff.”
Levine J further added from Hunt J:
“I see no reason why it should not be a sufficient basis for an order to replead that the additional passages relied upon by the defendant may be understood by the ordinary reasonable reader as materially altering or qualifying the complexion of the plaintiff's imputation… Principle demands, however, that if a plaintiff is entitled to set out those passages from which the imputations of which he complains are capable of being conveyed, then the defendants should similarly be entitled to have set out those additional passages which are capable of materially altering or qualifying any such imputation. It is, in my view, unnecessary for a defendant to have to show that the additional passages must change the complexion of the imputation complained of.”
At paragraph 12 of his judgment, Levine J added:
“It is quite clear to me that the principle to which reference is made in Hodgson and Gordon applies to the “transient” publication on radio or television. The ordinary reasonable viewer is taken to have viewed the whole of the programme with the variation in concentration to which his Honour refers in Marsden. The defendant is entitled to have pleaded by the plaintiff the proper context of the matter complained of as it may affect the complexion of any imputation pleaded. In a case involving a current affairs television program, in most cases one would anticipate that the whole of the relevant segment should thus be pleaded. If an issue arises as to whether the plaintiff has impermissibly omitted material from the publication (the whole of which the viewer is taken to have seen) the test to be applied is whether any of the omitted parts is reasonably capable of materially altering or qualifying the complexion of the plaintiff's imputation. It will be for the tribunal of fact - the jury - to determine whether any such material in fact has that effect.”
To similar effect is Reading. Mr Barlow contends that a reasonable viewer may well be materially affected by the context in which the words were spoken. He proposes a number in his outline, at paragraph 10:
“In this case, the meaning that a reasonable viewer of the programme may deduce from the words complained of may well be materially affected by the context in which they were spoken. That context comprised the whole of the programme, including the sounds and pictures that the viewed would have seen and the other words spoken during the programme. For example, a reasonable viewer of the entire programme may well have understood it, including the words complained of, as simply meaning that the plaintiff was not fit for office as an ATSIC Commissioner, or that he was a fighter who always faces battles and fights them aggressively, or even that ATSIC itself and the system of elections and administrative oversight might need changing, or at least public discussion. The “sting” of the words complained of may be affected, in the eyes of a reasonable viewer of the whole of the programme, by other parts which, for example, describe the plaintiff as someone who has “been in aboriginal affairs a long time [not] for self gain [but] for the advancement of [his] people,” or which describe his efforts to have a woman freed from jail, or which describe the support that he enjoys among the aboriginal community in voting for him.”
Miss Spence for Mr Robinson relies upon the well-established principle that where a single publication contains a number of distinct and severable defamations, a plaintiff is entitled to limit his claim to one of them. See Polly Peck Pic v. Trelford [1986] 1 QB 1000 at 1,020.
In other words, as noted by the Chief Justice in Robinson v. Laws [2003] 1 Qd R 81 at paragraph 52, civil litigation is plaintiff driven.
I have seen the television programme. It is a feature about Mr Robinson, and clearly made with his cooperation. It commences with him boxing at a punching bag, and ends in the same way.
There are a series of events or incidents in his life about which people on the programme make comment, much of it adverse. The ATSIC election process, the only one in respect of which Mr Robinson has now chosen to sue, is reasonably distinct.
As has been said in cases to which I have already referred, it must be assumed that the viewer watched the entire television programme. It may well be that a reasonable viewer would see these individual stories as linked to a life about which there is controversy, and that Mr Robinson does not stop fighting.
Because of the way in which the programme is constructed, this application does not admit, at least to me, of an obvious answer. It is not clear, however, how the whole of the programme is made relevant in the plaintiff's case, unless it is incorporated into the pleading, because if it is not, then it is not relevant, and if it is relevant because of the context, then it ought to be pleaded.
In Robinson v. Laws, the full text was annexed to the statement of claim, but the issues for trial were confined by the precise pleadings.
I have concluded that there may be an exculpatory context, and therefore, the whole programme should be incorporated into the statement of claim.
There is no suggestion that in some way this will allow the ABC impermissibly to plead justifiable defamatory imputations about which there is no complaint.
The other part of the application is that the matter should be placed on the Supervised List of cases. Miss Spence submits that since the pleading now confines the area of controversy, it would probably be completed within five days. The ABC contends that it will take between 10 and 15 days. If that be the case, then it will automatically go on the Supervised Case list.
The only other justification for placing it there is that the plaintiff has not prosecuted his action diligently. That is obvious from the lapse of time since the apparent close of the pleadings before this present amended statement of claim was filed and served.
I am not persuaded at this stage that it is a matter which ought to go on the Supervised Case list. If the ABC is still of that mind, then it can make application to the Supervised Case list manager for mention before that Judge.
…
HER HONOUR: On the question of costs, quite clearly the thrust of the application was the first part to which almost the entire time of the Court and the material in the application was devoted. It seems to me that costs ought to follow that event, and I would order that the respondent/plaintiff pay the applicant/defendant's costs of and incidental to this application, to be assessed on the standard basis.
…
HER HONOUR: I order that the plaintiff deliver to the defendant a further amended statement of claim by 27 January 2004.