Favell v Queensland Newspapers Pty Ltd

• Jurisdiction: Australia Federal only
• Judge: Gleeson CJ,Kirby J.
• Judgment Date: 27 September 2005
• Neutral Citation: 2005-0927 HCA A,[2005] HCA 52
• Docket Number: B19/2005
• Date: 27 September 2005
• Court: High Court

[2005] HCA 52

HIGH COURT OF AUSTRALIA

Gleeson CJ, McHugh, Gummow, Kirby, AND Heydon JJ

B19/2005

Paul Joseph Favell & Anor

Appellants

and

Queensland Newspapers Pty Ltd & Anor

Respondents

Favell v Queensland Newspapers Pty Ltd

Defamation — Pleading and practice — Application for summary judgment or alternatively to strike out part of a pleading — Test to be applied — Whether matter published capable of conveying defamatory imputations.

Words and phrases — ‘defamatory meaning’.

1 Gleeson CJ, McHUGH, GUMMOW AND HEYDON JJ. The issue in this appeal is whether a newspaper article, published by the first respondent and written by the second respondent, was capable of bearing certain defamatory meanings. The article was published in The Sunday Mail, a newspaper with a wide circulation mainly in Queensland, on Sunday 19 January 2003. It was in the following terms:

A MULTIMILLION-dollar Brisbane home which is the subject of a controversial development application burned down early yesterday morning.

Owners of the house on the Brisbane River at New Farm, which has views across the city, had applied to build a five-storey block of units.

Barrister Paul Favell, his lawyer wife Diana and his three teenage children will return home from holiday in Rome to find the Griffith St home gutted.

Firefighters took almost two hours to extinguish the blaze which started about 4 am yesterday morning and caused severe structural damage. Speaking from Rome, a distressed Ms Favell toldThe Sunday Mail: “We are devastated and we're just trying to get home as soon as possible. “We had some cousins house-sitting and we're just so glad they weren't in the house at the time.”

Relatives arrived to see the multi-storey house — which has security gates and a private river pontoon and boat — gutted.

Mr Favell's sister, who did not wish to be identified, said: “I'm just in shock. The women who were house-sitting would usually have been home but they decided to stay somewhere else instead.”

It is understood neighbours had planned a meeting to protest against the impending unit development.

Neighbour Margaret Morrisey said: “None of us are happy about the application.

“The ambience of New Farm is being destroyed because of all these units going up.”

Another neighbour, Peter Campbell, said about a dozen residents had planned to attend the meeting.

“People want to keep the character of the street and keep it the way it is,' he said.

Asked whether the planned meeting would go ahead Mrs Morrisey said: “No, the meeting won't go ahead now. It's all gone.”

Asked about the reaction from neighbours to the application for development on the property Ms Favell said: “We provided copies of the plans to both neighbours and they were fine about it.”

Police said investigations into the cause of the fire were continuing.

Detective Senior Constable John Kilburn from the arson investigation unit said the cause of the fire was not known.

“All fires are treated as suspicious until otherwise disproved and we will follow all lines of inquiry,' he said.

A Queensland Fire and Rescue spokesman said security, the location of the house and debris had hindered firefighters.’

Gleeson CJ

‘DEVELOPMENT SITE DESTROYED — FIRE GUTS RIVERSIDE MANSION

2 One of the most obvious features of the article is the connection it makes between the destruction of the appellants' house and the existence of what is said to have been a controversial plan to redevelop the site. Although the article does not say so in terms, it appears that the redevelopment proposal involved demolition of the existing house. The article may be taken to imply that the destruction of the house by fire facilitated the redevelopment, and thwarted local opposition to it. The headline, and the first paragraph, link the two topics, and a substantial part of the article is devoted to the development proposal. It is that link that is at the centre of the appellants' case.

3 The appellants commenced proceedings for defamation in the Supreme Court of Queensland. An Amended Statement of Claim, in pars 19, 20 and 21, pleaded a large number of imputations, the differences between some of them being trivial. Not surprisingly, there were complaints about prolixity and a failure properly to distinguish between alternative imputations. Those complaints remain unresolved. The respondents' primary contention, addressed to the three most serious imputations pleaded, was that the words complained of were incapable of conveying the defamatory meanings alleged. Those three imputations are:

• (a) the appellants committed the crime of arson;

• (b) the appellants were reasonably suspected by the police of committing the crime of arson; and

• (c) the second appellant (Mrs Favell) lied about neighbourhood reactions to the proposed development of the Griffith Street property.

4 The respondents pursued that contention in an interlocutory application heard by Helman J. The orders sought in the application were, relevantly, twofold. First, the respondents sought an order that pars 19, 20 and 21 of the Amended Statement of Claim be struck out. This application was made under r 171 of the Uniform Civil Procedure Rules (Q), which empowers the court to strike out a pleading or part of a pleading which discloses no reasonable cause of action. Additionally, the respondents sought an order under r 293(2), which empowers the court to give summary judgment for a defendant if satisfied that no reasonable cause of action is disclosed. The first part of the application was successful; the second failed. Helman J struck out pars 19, 20 and 21, but did not enter summary judgment against the appellants. It appears to be common ground that he contemplated that the appellants would re-plead. This reflects a view that there may have been some defamatory imputations conveyed by the article, but not those pleaded, and, in particular, not any of the three imputations set out above.

5 The appellants appealed to the Court of Appeal of Queensland1. The appeal was heard by McPherson and Jerrard JJA and Philippides J, and was dismissed. However, the Court of Appeal considered that an imputation similar to that set out in (b) above was capable of being conveyed. Jerrard JA, with whom the other members of the Court of Appeal agreed, concluded that the article was ‘capable of conveying to an ordinary reasonable reader the imputation that there are reasonable grounds for suspecting that the Favells may have been responsible for causing the fire to happen, because of their apparent motive and the circumstances in which the fire occurred.’ No doubt it was contemplated that, subject to any challenge to the decision of the Court of Appeal, that imputation would appear in any re-pleading of the case. It will be necessary to return to the question whether there is any difference in substance between imputation (b) as framed by the appellants, and the imputation framed by Jerrard JA.

6 Bearing in mind the dual nature of the application to Helman J, seeking both a striking out of certain paragraphs in the Amended Statement of Claim, and the entry of summary judgment for the respondents, on the ground that the pleading disclosed no reasonable cause of action, the question for decision was whether the material published was capable of giving rise to the defamatory imputations alleged. In the Court of Appeal, McPherson JA correctly said:

‘Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.’

7 Helman J's reasoning was less favourable to the appellants than that of the Court of Appeal. His main reason for rejecting imputations (a) and (b) (in the sense of concluding that the article was not capable of conveying those meanings) was that ‘[t]he article reports the fact of, and the circumstances surrounding, the fire without comment, and records that an investigating police officer had said that investigations were proceeding and that all fires were treated as “suspicious” until it could be demonstrated otherwise.’ He said that ‘the article goes no further than recording that the fire was under investigation by the arson investigation unit and that its cause was an open question.’

8 With respect to the learned judge, this reasoning is factually erroneous. The article does not simply report the fire without comment. On the contrary, the main thrust of the article is to link the fire with the contentious development proposal. What could have been the relevance of the development proposal to the story about the fire? The development proposal was not just an interesting background fact. The headline makes clear the point of the story: ‘Development site destroyed’. The first paragraph repeats that emphasis. The article does not simply give an account of the fire ‘without comment’. And if, by ‘the circumstances surrounding’ the fire, Helman J had in mind the development proposal and the surrounding controversy in the neighbourhood, an ordinary reasonable reader might well ask why that was given such prominence. If the fact of the fire and the fact of the controversial development proposal were merely coincidental, and not causally related, then no inference of wrongdoing would follow....