Griffin v Australian Broadcasting Commission (No 1) [1974] PGSC 12; [1974] PNGLR 141 (7 November 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 141 - Griffin v Australian Broadcasting Commission (No. 1)

[1974] PNGLR 141

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GRIFFIN

V

AUSTRALIAN BROADCASTING COMMISSION (NO. 1)

Port Moresby

Denton AJ

29-30 July 1974

7 November 1974

DEFAMATION - Publication - Reference to plaintiff - Radio news broadcast - Plaintiff not identifiable - Necessity for proof of knowledge of special circumstances - Barrister referred to as “one of two solicitors” - No proof of publication.

In a news broadcast relating to court proceedings, the plaintiff, a barrister, was described as a “second solicitor” or “one of two solicitors” without further identification. In an action for defamation,

Held

N1>(1)      Publication of defamatory matter must refer to the plaintiff as an identifiable person. E. Hulton & Co. v. Jones [1909] UKLawRpAC 57; [1910] A.C. 20 applied.

N1>(2)      Where the matter complained of does not refer by name to the person defamed and the identity of the person defamed would be apparent only to persons who had knowledge of special circumstances, it is necessary to prove that the matter was published to a person who had knowledge of those circumstances.

Consolidated Trust Company Limited v. Browne [1948] NSWStRp 71; (1948) 49 S.R. (N.S.W.) 86, applied. Cross v. Denley (1952) 52 S.R. (N.S.W.) 112, and Mitchell & Others v. Australian Broadcasting Commission (1958-1959) 60 W.A.L.R. 38, referred to.

N1>(3)      An admission on the pleadings that the matter was published and referred to the plaintiff did not amount to an admission of publication to a person with special knowledge. Consolidated Trust Company Limited v. Browne [1948] NSWStRp 71; (1948) 49 S.R. (N.S.W.) 86, and Cross v. Denley (1952) 52 S.R. (N.S.W.) 112, referred to.

N1>(4)      There being no suggestion that the circumstances were of such notoriety that anyone hearing the publication would know to whom it referred and no proof of publication to any person who realized that the plaintiff was being referred to, publication had not been proved and accordingly the plaintiff failed in his action.

Trial

The plaintiff sued for damages for defamation of him contained in a number of radio news broadcasts, on 18th September, 1972 and 1st November, 1972. The action was heard together with the case reported herein at p. 152 as Griffin v. Australian Broadcasting Commission (No. 2). This report deals only with whether the publication referred to the plaintiff.

Counsel

R. V. Gyles, for the plaintiff.

F. J. Gormley, Q.C. and P. A. Benson, for the defendant.

Cur. adv. vult.

1 November 1974

DENTON AJ: The plaintiff sues in this action upon four occasions of publication of alleged defamation in radio news broadcasts.

The first three of these occurred on 18th September, 1972, and the statement complained of on the first two of these occasions was as follows:

“A second solicitor has been charged on summons in connection with the Boxtel case. A police spokesman said today that the solicitor was due to appear in court on 9th October on a charge of having attempted to obstruct the course of justice by suggesting to a witness that he withhold information from police.”

The third publication on this date did not differ materially from the above.

The second date upon which the plaintiff charges that he was defamed is 1st November, 1972, when an evening broadcast was as follows:

“In Port Moresby today, a Supreme Court Judge, presiding at the hearing of a rape charge, ruled as inadmissible, police evidence secured by tapping telephones.

A Port Moresby insurance consultant, Cornelius John Boxtel, is charged with the rape of a woman in Port Moresby earlier this year.

Mr. Justice Raine ruled on a defence objection to the admissibility of taped evidence of the defendant’s telephone conversations following the alleged offence. Boxtel and another man and two solicitors also face charges of having conspired to pervert the course of justice in regard to the rape charge against Boxtel. In his judgment, Mr. Justice Raine said that the phone tapping appeared to him to have been directed not at the rape charge, but at the alleged conspiracy that arose from it. He said that he did not object to phone tapping where police expected to obtain immediate or near immediate results. However, in this case Boxtel’s telephone had been tapped around the clock for fourteen days and the phones of his legal advisers had also been tapped. Such an unusual operation went ‘much, much too far’. His Honour said that his judgment was limited to the case of rape. He added that neither himself or the Crown Prosecutor had been briefed in the conspiracy matters and he was not judging them. The hearing is continuing.”

The pleadings concede that the first three publications were made in reference to the plaintiff, although he was not named, but the defendant denies that the statements were defamatory of the plaintiff, denies that the imputations relied on by the plaintiff were open, or were made by the defendant, and relies also on the defence of truth and public benefit.

As to the fourth publication, in which also the plaintiff was not named, the defendant again admitted publication in reference to the plaintiff, denied that the matter was defamatory and further pleaded that all the material in the publication, except the words “Boxtel and another man and two solicitors also face charges of having conspired to pervert the course of justice in regard to the rape charge against Boxtel” was a fair report of judicial proceedings and was true and for the public benefit. The course taken by the plaintiff at the hearing was to indicate that the plaintiff did not rely on all of the report of the proceedings before Mr. Justice Raine as being defamatory but relied only upon the one sentence, that is, the statement as to which no defence other than that it was not defamatory in nature was raised. It was agreed that this portion of the publication was not in fact a report of judicial proceedings; therefore no defence other than that it was not defamatory could be raised in relation to it because it was not only not a report of the public proceedings of a court but was also not accurate and also, therefore, could not be said to be true and for the public benefit. The inaccuracy lay in the fact that it referred to the plaintiff and other persons as facing charges of having conspired to pervert the course of justice, whereas the charge against the plaintiff appearing in the evidence was one of attempting to obstruct the course of justice.

The Defamation Act 1962, s. 5 provides that “defamatory matter” means the matter of an imputation referred to in s. 6 of the Act and the Act further provides:

N2>“s6(1) An imputation concerning a person ... by which the reputation of that person is likely to be injured or by which he is likely to be injured in his profession or trade or by which other persons are likely to be induced to shun or avoid or ridicule or despise him is a defamatory imputation.

N2>(2)      An imputation may be expressed either directly or by insinuation or irony.

N2>(3)      The question of whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning is a question of law.

N2>s7       A person who publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.

N2>s8       For the purposes of this Act, publication is:

(a)      in the case of spoken words or audible sounds, the speaking of such words or making of such sounds in the presence and hearing of a person other than the person defamed; and

(b)      in the case of signs, signals or gestures, the making of those signs, signals or gestures,

so as to be seen or felt by, or otherwise come to the knowledge of, a person other than the person defamed, and:

(c)      in the case of other defamatory matter, the exhibiting of it in public, or causing it to be read or seen, or showing or delivering it, or causing it to be shown or delivered, with a view to its being read or seen by a person other than the person defamed.

N2>s9       It is unlawful to publish defamatory matter unless the publication is protected, justified, or excused by law.

N2>s15     For the purposes of this Act it is lawful to publish defamatory matter if the matter is true and if it is for the public benefit that the publication complained of should be made.

N2>s18     For the purposes of this Act whether defamatory matter is or is not relevant to any other matter and whether the public discussion of a subject is or is not for the public benefit are questions of fact.”

The first question to be considered is whether the plaintiff has established his case as to publication. The pleadings admit publication “of and concerning the plaintiff”.

During argument it was put by counsel for the defendant that although this admission is made on the pleadings, it does not follow that publication is sufficiently proved where the publication does not refer by name or description to the plaintiff so as to make his identity clear; that it was not established that any person to whom the publication was made knew that it referred to the plaintiff, it being necessary in this type of case to prove by evidence from a witness that he associated the plaintiff with a publication, e.g. because of knowledge of extrinsic facts such as his connection with the Boxtel case. Counsel for the plaintiff, during his address, argued that this fact bore only on damages and this point was then conceded on behalf of the defendant, i.e. that the question did in fact go only to damages.

After reserving judgment, I raised this matter with both counsel, being doubtful whether this was in fact so and I invited submissions in writing or otherwise on the question.

I have since received written submission from both parties, which on the defendant’s part withdraws the concession which was made. I therefore propose to consider the matter as one in issue.

The principle that the publication must refer to the plaintiff as an identifiable person is not in doubt (Hulton v. Jones[cxc]¹). Consolidated Trust Company Limited v. Browne[cxci]² deals with the situation where the plaintiff is not identifiable by his name or description in the publication, as was the case here. In that case, the plaintiff was referred to as “the new owners of a block of flats”. It had been admitted that the plaintiff was the new owner but no further admission had been made; the trial judge and the Full Court of New South Wales on appeal held that where the matter complained of does not refer by name to the person defamed and the identity of the person defamed would be apparent only to persons who had knowledge of special circumstances, it is necessary to prove that the matter was published to a person who had knowledge of those circumstances.

The plaintiff here was described in the publications as “a second solicitor” or as “one of two solicitors”.

Consolidated Trust Company Limited v. Browne[cxcii]³ was followed in Cross v. Denley[cxciii]⁴ and in Mitchell & Others v. Australian Broadcasting Commission [cxciv]⁵. The principle was also referred to with approval in Uren v. Consolidated Press Limited [cxcv]⁶, Hatfield v. Associated Newspapers Limited [cxcvi]⁷, Magnifax Publishers Pty. Ltd. v. Incentive Pty. Ltd. [cxcvii]⁸, Ware v. Associated Newspapers Ltd.[cxcviii]⁹ and Livingstone-Thomas v. Associated Newspapers Limited [cxcix]¹⁰.

In Consolidated Trust Company Limited v. Browne[cc]¹¹ Jordan C.J. said at p. 89:

“If the matter complained of is ex facie defamatory and refers by name to the person defamed, it is necessary to prove only that is was published, and publication to one person is enough. It is unnecessary to prove that the person to whom it was published had any knowledge of the person defamed, or that the matter complained of led him to think the less of that person. If, however, the matter complained of is not ex facie defamatory, or does not refer by name to the person alleged to be defamed, and the defamatory character which is attributed to the matter, or the identity of the person defamed, would be apparent only to persons who had knowledge of special circumstances, it is necessary, in order to prove publication, to prove that it was published to a person or persons who had knowledge of those circumstances.”

And at p. 90 after citing Isaacs J. in David Syme & Co. v. Canavan[cci]¹² said:

“The rules appear to be based on a view that if matter, which on the face of it is capable of being regarded as defaming a particular person who is mentioned by name, is proved to have been published to anyone whomsoever, the tort of libel is committed and the complainant is entitled to a verdict; but if the matter, on the face of it, is not capable of being regarded as defamatory, or if defamatory as defaming a particular person, it cannot be regarded as having been published unless it is proved to have been published to someone possessing knowledge which would suffice to enable him to realise that the matter was defamatory, or defamatory of the plaintiff, as the case may be. This is not to say that the mere fact that the name is not mentioned makes it essential to call a witness to prove that he identified the complainant by the description. To take an example used in argument, in an action against a widely circulated newspaper for an alleged libel upon a plaintiff contained in an article which described him only as ‘the Prime Minister of Australia’, it would be unnecessary to call a witness to prove that he had received the issue of the newspaper and knew who the Prime Minister was. In such a case the nature of the description would be such that special knowledge would be unnecessary to identify the person indicated: Jones v. E. Hulton & Co. ([1909] 2 K.B. 444, at pp. 454, 477). But the less revealing the description the greater the danger of omitting proof of identification.”

The defendant claims that (as is the case) there being no proof of publication to any person who realized that the plaintiff was being referred to, he has not sufficiently proved publication. Against this the plaintiff relies on the remarks of Owen J. in Cross v. Denley[ccii]¹³:

“But it was not enough for the plaintiff merely to show that the pamphlets were read by members of the public present at the theatre; it was necessary for him to prove also that the defamatory matter contained in the pamphlets was published ‘of and concerning’ him, and this he failed to do, because no evidence was forthcoming that any member of the audience who read the pamphlet connected the ‘Express Print, Auburn’ with the plaintiff. It is not only necessary that the words published should convey a defamatory meaning; they ‘must also convey a defamatory meaning of the plaintiff. If those who read or hear them, though understanding them in a defamatory meaning, do not identify the plaintiff as the person referred to, there is no publication’ (Gatley on Libel and Slander 2nd ed. p. 96). Where a defamatory statement refers to a plaintiff by name or, without mentioning him by name, describes him in such a way that the man in the street reading or hearing it would know to whom it referred— as for example where without mentioning names the statement is defamatory of a person who is described as the holder of a particular office— and it is a matter of general notoriety who the holder of that office is— evidence that some one or more persons who read or heard the statement understood it as referring to the plaintiff is unnecessary. But where, as here, the plaintiff could only be identified by that small percentage of the community which happened to know that he was a printer using the imprint ‘X-press Printery’, it must be shown that some one or more of those to whom the pamphlet was published had that special knowledge. The case in this respect is on all fours with Consolidated Trust Co. Ltd. v. Browne ((1948) 49 S.R. 86; 66 W.N. 7; Australian Digest (1949) 122), and, so far as publication at the theatre is concerned, the plaintiff failed to prove an essential element necessary to establish the tort of defamation.”

From this the plaintiff argues that with an admission that the publication was of and concerning the plaintiff, Owen J.’s judgment indicates that no more is necessary. He points out, probably correctly, although this is not made clear by the report in Consolidated Trust Company Limited v. Browne[cciii]¹⁴ that probably the plea of not guilty was pleaded, and so would put in issue whether the publication was of and concerning the plaintiff, there, therefore, in that case, not being any admission that publication was of and concerning the plaintiff.

These two contrasting statements of Jordan C.J. and Owen J. are, in my opinion, expressions of the same principle put different ways. Although the fact of publication of and concerning the plaintiff may be taken to have been in issue in Consolidated Trust Company Limited v. Browne[cciv]¹⁵ it was, in my view, accepted as fact in that case that the plaintiff and the company referred to in the publication were identical and therefore at the time of judgment it was not in issue that the publication was of and concerning the plaintiff. No questions such as arose in Hulton v. Jones [ccv]¹⁶, another aspect of the meaning of this phrase, entered into the matter. The situation referred to by Jordan C.J. was applicable in Cross v. Denley[ccvi]¹⁷ not because the person referred to in the pamphlets in that case was not the plaintiff, but because it was not proved that any person to whom it was published understood the publication as referring to the plaintiff.

I do not accept the submission that as a tribunal of fact I am bound for all or indeed for any purpose to accept that all persons acquainted with the plaintiff would believe that he was the person referred to and clearly the case is not one where the publication to the general reader, not knowing of the plaintiff’s existence, is defamatory as in the common case where the plaintiff is named.

There is no suggestion that the circumstances were of such notoriety that anyone hearing the publication would know to whom it referred. The authorities establish that the admission made was merely an admission that the matter was published and referred to the plaintiff and does not amount to an admission of publication to a person with special knowledge. I do not consider that s. 8 of the Defamation Act as to publication alters the situation.

On this view the plaintiff fails in the action and in normal circumstances it would be unnecessary for me to deal with the other questions which arose in the hearing. However, in the present case, due to the plaintiff’s occupation as one of a few advocates practising before this Court there have been practical problems in having the matter heard. There may be similar problems in future should my opinion on the question so far dealt with be in error. I therefore propose to deal with such other issues as would need to be dealt with if publication had been sufficiently proved.

[His Honour then dealt with the question as to what imputations were made in the publication and as to whether such imputations were defamatory, finding— that there were in the published matter of 18th September, 1972 imputations that the police had grounds for charging the plaintiff with a crime and that there was material available from which the police could say that the plaintiff had committed a crime, in each case a crime related to the course of justice. I do not think that actual guilt was imputed, or that any other of the imputations than those found by me were made and it is not necessary in respect of imputations which I do not consider were made for me to consider whether they would be open to me to find as a tribunal of fact. I further am of opinion that the two imputations which I accept were made are defamatory. The imputations which I find would be defamatory in my view of any person, not only a legal practitioner, although they are, I believe, defamatory to a greater degree of a legal practitioner.

His Honour then dealt with the question whether these imputations were true and whether it was for the public benefit for them to be published, finding:— that the imputations insofar as they bear a meaning of police belief or suspicion were true but that considered as imputations of objective fact there is no evidence to support them; as to those imputations the defence must fail.

His Honour then examined whether such imputations as he found were made by the defendant and were true, were for the public benefit, continuing as follows]:—

My finding as to whether the publication was for the public benefit must be made in the light of the imputation with which I am dealing, i.e. the imputation which I have found to be true. This is the imputation that the police had a belief in there being material against the plaintiff. I do not regard it as for the public benefit to publish the fact of a police belief of this nature. I therefore would find for the plaintiff on this issue. The substance of the other imputation is that there was material against the plaintiff giving rise to such a belief and it may be, in all the circumstances, for the public benefit to publish the material giving rise to that imputation; but as this latter imputation is not the imputation which has been proved to be true this question does not arise; had there been evidence to support that it was true I would find that it was for the public benefit to publish it in the form in which it was published.

The defendant argued that his position was stronger as to the fourth publication than it was as to the others because what did appear included Raine J.’s remarks referring to the “alleged” conspiracy and adding that he was not judging that, both of these being additional indications that guilt of conspiracy was not imputed.

I accept that guilt of conspiracy was not imputed but, in my view, the statement is defamatory because it bears the two imputations which I had already indicated that I accepted in relation to the first set of publications and bears the additional imputations of “conspiracy” related to the plaintiff’s preparedness to conspire with another lawyer and two laymen to obstruct the course of justice. I do not accept that it imputes corruptness to the plaintiff or that he was guilty of the charge but I accept that there is an imputation that the police believed or had material which led them to come to the conclusion that the plaintiff had conspired with other people for the purpose mentioned. In my opinion such imputations are defamatory and there being no other defence to this paragraph in the statement of claim the plaintiff would be entitled to a verdict were it not for my earlier findings in relation to publication.

I have dealt at length in a judgment delivered this day between the same parties, No. 157 of 1973, in circumstances which are similar in many respects to those of the present case with the problem of assessing damages. In the present case, there are additional features which make it apparent that any sum of money awarded by way of damages must be a minor one. These circumstances are that in addition to the features to which I referred in my other judgment, in the present case it is not shown that any person whatever knew that the plaintiff was referred to in the defamation. Were it necessary to deal with the question of damages, I would do so on the basis that the defence of truth and public benefit fails as to all imputations contained in the present three publications, and that all publications are defamatory as indicated. I am quite unable, however, to see how any sum of money other than a nominal one could be awarded in a case of this nature because of the want of evidence that any person understood the defamation as referring to the plaintiff, and were I to find a verdict for the plaintiff it would be in a sum of $50.00.

For the reasons stated earlier in this judgment, I dismiss the action and I order the plaintiff to pay the defendant’s costs.

Action dismissed.

Solicitors for the plaintiff: McCubbery, Train, Love & Thomas.

Solicitor for the defendant: P. J. Clay, Crown Solicitor.

[cxci](1948) 49 S.R. (N.S.W.) 86.

[cxcii](1948) 49 S.R. (N.S.W.) 86.

[cxciii](1952) 52 S.R. (N.S.W.) 112.

[cxciv](1958) 60 W.A.L.R. 38.

[cxcv](1963) 80 W.N. (N.S.W.) 326; [1963] N.S.W.R. 1145.

[cxcvi](1964) 80 W.N. (N.S.W.) 1504.

[cxcvii](1970) 18 F.L.R. 100.

[cxcviii](1969) 90 W.N. (N.S.W.) (Pt. 1), 180.

[cxcix](1969) 90 W.N. (N.S.W.) (Pt. 1), 223.

[cc](1948) 49 S.R. (N.S.W.) 86.

[cci][1918] HCA 50; (1918) 25 C.L.R. 234, at p. 238.

[ccii] (1952) 52 S.R. (N.S.W.) 112, at p. 115.

[cciii](1948) 49 S.R. (N.S.W.) 86.

[cciv](1948) 49 S.R. (N.S.W.) 86.

[ccv][1910] A.C. 20.

[ccvi](1952) 52 S.R. (N.S.W.) 112.

[ccvii]Infra p. 154.