Radio 2UE Sydney Pty Ltd v Chesterton

• Jurisdiction: Australia Federal only
• Court: High Court
• Judgment Date: 22 April 2009
• Neutral Citation: [2009] HCA 16,2009-0422 HCA C
• Docket Number: S474/2008
• Date: 22 April 2009

Radio 2Ue Sydney Pty Ltd

Appellant

and

Ray Chesterton

Respondent

[2009] HCA 16

French CJ Gummow, Heydon, Kiefel And Bell JJ

S474/2008

HIGH COURT OF AUSTRALIA

Radio 2UE Sydney Pty Ltd v Chesterton

Defamation — Statements amounting to defamation — Test to be applied in determining what is defamatory — Whether general test has application to imputations concerning business or professional reputation — Whether general test limited to imputations concerning character or conduct — Distinction between defamation and injurious falsehood — Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675 considered.

Defamation — Statements amounting to defamation — Standards by which allegedly defamatory imputations to be judged — Distinction between general test for defamation and standards to be applied — Standards imported by describing hypothetical referees of whether person defamed as ‘right-thinking’ — Relevance and applicability of general community standards.

Defamation — Statements amounting to defamation — Standards by which allegedly defamatory imputations to be judged — Whether in cases concerning business or professional reputation hypothetical referees assumed to have special knowledge of business or profession — When plea of true innuendo appropriate.

Defamation — Statements amounting to defamation — Test to be applied in determining what is defamatory — Whether jury misdirected — Whether substantial wrong or miscarriage occurred.

Words and phrases — ‘business defamation’, ‘general community standards’, ‘hypothetical referee’, ‘ordinary decent person’, ‘ordinary reasonable person’, ‘reputation’, ‘right-thinking’, ‘true innuendo’.

Defamation Act 1974 (NSW), s 4(2).

Defamation Act 2005 (NSW), s 6(2).

Uniform Civil Procedure Rules 2005 (NSW), r 51.53(1).

Representation:

R G McHugh SC with J Chambers for the appellant (instructed by Banki Haddock Fiora)

C A Evatt with R K M Rasmussen for the respondent (instructed by Beazley Singleton Lawyers)

1 French CJ, Gummow, Kiefel And Bell JJ. The common law recognises that people have an interest in their reputation and that their reputation may be damaged by the publication of defamatory matter about them to others 1. In Uren v John Fairfax & Sons Pty Ltd2 Windeyer J explained that compensation for an injury to reputation operates as a vindication of the plaintiff to the public, as well as a consolation 3.

2 Spencer Bower 4 recognised the breadth of the term ‘reputation’ as it applies to natural persons and gave as its meaning:

‘[T]he esteem in which he is held, or the goodwill entertained towards him, or the confidence reposed in him by other persons, whether in respect of his personal character, his private or domestic life, his public, social, professional, or business qualifications, qualities, competence, dealings, conduct, or status, or his financial credit …’.

3 A person's reputation may therefore be said to be injured when the esteem in which that person is held by the community is diminished in some respect.

4 Lord Atkin proposed such a general test in Sim v Stretch5, namely that statements might be defamatory if ‘the words tend to lower the plaintiff in the estimation of right-thinking members of society generally’ 6. An earlier test asked whether the words were likely to injure the reputation of a plaintiff by

exposing him (or her) to hatred, contempt or ridicule 7 but it had come to be considered as too narrow 8. It was also accepted, as something of an exception to the requirement that there be damage to a plaintiff's reputation, that matter might be defamatory if it caused a plaintiff to be shunned or avoided, which is to say excluded from society 9.

5 The common law test of defamatory matter propounded by Lord Atkin was applied in Slatyer v The Daily Telegraph Newspaper Co Ltd10, although Griffith CJ expressed some concern about the ambiguity of the expression ‘right thinking members of the community’ 11. The general test, stated as whether the published matter is likely to lead an ordinary reasonable person to think the less of a plaintiff, was confirmed by this Court in Mirror Newspapers Ltd v World Hosts Pty Ltd12, Chakravarti v Advertiser Newspapers Ltd13 and by Callinan and Heydon JJ in John Fairfax Publications Pty Ltd v Gacic14. Gummow and Hayne JJ in Gacic referred to the likelihood that the imputations might cause ‘ordinary decent folk’ in the community to think the less of the plaintiff 15.

6 Putting aside Lord Atkin's additional requirement of being ‘right-thinking’, the hypothetical audience, that is to say the referees of the issue of whether a person has been defamed, has been regarded as composed of

ordinary reasonable people 16, whom Spencer Bower described as ‘of ordinary intelligence, experience, and education’ 17. Such persons have also been described as ‘not avid for scandal’ 18 and ‘fair-minded’ 19. They are expected to bring to the matter in question their general knowledge and experience of worldly affairs 20.

7 In Reader's Digest Services Pty Ltd v Lamb21 Brennan J explained that any standards to be applied by the hypothetical referees, to an assessment of the effect of imputations, are those of the general community 22:

‘Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation … being a standard common to society generally …’.

8 This appeal raises questions as to whether the general test for defamation has application to imputations concerning a person's business or professional reputation, or whether it is limited to those concerning the character or conduct of that person. If injury to a person's business or professional reputation is to be adjudged having regard to different considerations, referable to the business or profession of that person, a further question arises as to whether the hypothetical referees are to be drawn from a class of persons who have particular knowledge associated with the business or profession.

9 Before turning to these questions, and the decisions which give rise to them, it is necessary to isolate the action for defamation from other actions which concern injury to a plaintiff's business.

Defamation and injurious falsehood

10 It is not in dispute that persons may be defamed in their business reputation. The common law has for some time recognised that words may not only reflect adversely upon a person's private character, but may injure a person in his or her office, profession, business or trade 23. This may be so where the words reflect upon the person's fitness or ability to undertake what is necessary to that business, profession or trade. But in each case the injury spoken of is that to the person's reputation.

11 The remedy which the law provides for injury to a person's business or professional reputation must be distinguished from that for malicious statements which result in damage not to the reputation but to the business or goods of a person. The former is provided by an action for defamation, the latter by that for injurious falsehood 24. Lord Esher MR explained the distinction in South Hetton

Coal Co Ltd v North-Eastern News Association Ltd25. A false statement that a wine merchant's wine is not good, which is intended to and does cause loss to the wine merchant's business, is an injurious (or ‘malicious’) falsehood. A statement reflecting upon that person's judgment about the selection of wine, and therefore upon the conduct of his business, may be defamatory of him 26. Gummow J observed in Palmer Bruyn & Parker Pty Ltd v Parsons27 that the action for injurious falsehood is more closely allied to an action for deceit.

12 The distinction between defamation and injurious falsehood has some relevance to these proceedings, which are brought under the Defamation Act 1974 (NSW). That Act repealed the Defamation Act 1958 (NSW). The 1958 Act imported a meaning of defamation from the Criminal Code (Q) 28, which was extended beyond that of the common law and included injurious falsehood. The common law requirement that the plaintiff's reputation be disparaged, for matter to be found defamatory, was thereby removed. It was sufficient, relevantly, that an imputation concerned the plaintiff and was likely to injure the plaintiff in his or her profession or trade 29. The 1974 Act reverted to the common law requirements of what is defamatory 30. Accordingly for present purposes, a publication must have an effect upon the reputation of the plaintiff rather than upon the business, trade or profession of the plaintiff as such.

The imputations alleged

13 The plaintiff, Mr Chesterton, the respondent to this appeal, was a journalist at the time of the broadcast in question, by Radio Station 2UE on

8 August 2005. The defendant appellant is the licensee of that station. The following words were said of the plaintiff by the presenter of the John Laws Morning Show:

‘Well that bombastic, beer-bellied buffoon Ray Chesterton, writes a column in the Telegraph called “The Final Word”. Well it's not the final word today.

What's the matter with you Ray?

I mean, you know, I always knew you were a bit of a creep, but can't you get over it?

He was fired by 2UE and blames me for it. He's never got over it and he talks about the Joey Johns saga and say (sic) Meanwhile the Johns saga is starting to run out of motivation.

You know that when 70-year-old disc jockeys are drawn into the fray to support the argument.

I talked to Joey Johns because I wanted to, because he is a friend of mine, a word you probably wouldn't understand...