Case Summary: Radio 2UE Sydney Pty Ltd v Chesterton

Note, [x] = case paragraph number. 

Citations

Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; 238 CLR 460; 83 ALJR 654; 254 ALR 606

Facts

A journalist at Radio 2UE Sydney during the John Rawls Morning Show said:

Well that bombastic, beerbellied 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 70yearold 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 because I doubt you'd have any, and those that you do have call you 'Ankles' and for a very good reason. I don't know. Why can't you get over it, Ray? I mean, you used to enjoy going to my farm and I used to give you the house and you used to take your family and your children up there. I was very happy that all that took place. But why can't you get over it? Well, I suppose you have some kind of inferiority complex. Well, I have to tell you, I have never met a man who deserved one more. [13]

The pleaded imputations are as follows:

(a) the plaintiff is a creep in that he is an unpleasant and repellent person;

(b) the plaintiff is a bombastic, beerbellied buffoon;

(c) that as a journalist the plaintiff is not to be taken seriously;

(d) the plaintiff was fired from Radio 2UE;

(e) the plaintiff falsely accuses John Laws of being responsible for his dismissal from Radio 2UE;

(f) the plaintiff is an ungrateful person in that he accepted the hospitality of John Laws and then attacked him. [14]

Case History

Trial: Trial, the judge held that the imputations were capable of being conveyed, and the imputations were capable of being defamatory. The jury held that the imputations were conveyed, and the imputations were defamatory. [15]

New South Wales Court of Appeal: Radio 2UE submitted that the trial judge erred in her directions to the jury. The trial judge applied the case Aleksandra Gacic & Ors v John Fairfax Publications Pty Limited & Anor [2006] NSWCA 17528 in her jury directions. Radio 2UE Sydney submitted that the decision in Gacic was incorrect and the Court should not follow Gacic. [28] The appeal was dismissed.

Issues

1. “…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.” [12]

2. “…whether the hypothetical referees are to be drawn from a class of persons who have particular knowledge associated with the business or profession.” [12]

Ratio Decidendi

This case is very dense and in my opinion, many principles can be extracted. The following is my compilation of principles and the case extracts which form the principle. I note that many principles overlap with each other. 

The 'general test' for defamation: 

The majority rephrased the general test several times throughout the case.

At [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. 

At [36]:

...whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.

At [60]: 

The likelihood that the ordinary reasonable person may think the less of a plaintiff...

Principle: The imputation must damage the plaintiff's reputation. 

At [32], the majority stated that the court of appeal in Aleksandra Gacic & Ors v John Fairfax Publications Pty Limited & Anor [2006] NSWCA 175 incorrectly assumed that damage must occur to the person’s business, not necessarily to the person’s reputation. The majority held corrected the assumption and held at [32], ‘It is disparagement of reputation which is the essence of an action for defamation.’ 

Principle: To determine whether a person's reputation is damaged, the general test must be applied. 

The majority stated at [36]:

A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff.

Principle: The general test applies to a person's personal reputation and a person's business reputation. 

At [36] the majority held:

The concept of "reputation" in the law of defamation comprehends all aspects of a person's standing in the community. It has been observed that phrases such as "business reputation" or "reputation for honesty" may sometimes obscure this fact. In principle therefore the general test for defamation should apply to an imputation concerning any aspect of a person's reputation. A conclusion as to whether injury to reputation has occurred is the answer to the question posed by the general test, whether it be stated as whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or simply whether the imputation is likely to cause people to think the less of a plaintiff. An imputation which defames a person in their professional or business reputation does not have a different effect. It will cause people to think the less of that person in that aspect of their reputation. For any imputation to be actionable, whether it reflects upon a person's character or their business or professional reputation, the test must be satisfied.

Also at [46]:

That moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation does not suggest a true dichotomy as between imputations of that kind and those as to character, with different standards applying to each. Rather it confirms as practicable the general test as applying in all cases involving all aspects of reputation.

And at [60], 'The general test for defamation is relevant to all imputations which are said to have injured a plaintiff's reputation in some respect.'

Principle: An imputation that damages a person's business, or occupation, or profession does not constitute defamation. The imputation must damage the person's business reputation, or occupational reputation, or professional reputation. Damage to reputation is at the heart of defamation. 

The majority stated:

[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. Lord Esher MR explained the distinction in South Hetton Coal Co Ltd v North‑Eastern News Association Ltd. 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. Gummow J observed in Palmer Bruyn & Parker Pty Ltd v Parsons 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), 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. The 1974 Act reverted to the common law requirements of what is defamatory. 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.

Principle: There is not necessarily a dichotomy between a person's business reputation a person's character. 

The majority stated at [46]:

That moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation does not suggest a true dichotomy as between imputations of that kind and those as to character, with different standards applying to each. Rather it confirms as practicable the general test as applying in all cases involving all aspects of reputation.

Principle: Whether a person has been lowered in the estimation of others, is not restricted to whether a person has been morally or ethically lowered in the estimation of others. It is an open test.

The majority stated:

[37] The reference in the general test, as stated in Sim v Stretch , to a plaintiff being "lowered in the estimation" of the hypothetical referee does not imply the exercise of a moral judgment, on their part, about the plaintiff because of what is said about that person. It does not import particular standards, those of a moral or ethical nature, to the assessment of the imputations. It simply conveys a loss of standing in some respect.

[38] The expression "rightthinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them.
...
[42] Any standards which might be applied by the ordinary reasonable reader will vary according to the nature of the imputation. It should not be assumed that such standards are limited to those of a moral or ethical kind, such as may reflect upon a person's character.
...
[43] There are many standards held within the general community which are not of a moral or ethical kind but which may be relevant to an assessment of whether a person's standing in the community has been lowered.
...
[47] The focus upon moral or ethical standards, in discussions about standards of the community, no doubt reflects the fact that they are the standards most often identified as relevant in actions for defamation. There are obviously other standards, for example as to the behaviour expected of persons within the community, which may not involve a sense of wrongdoing.

Principle: The standards in which the ordinary reasonable reader applies, will vary according to nature of the imputation.

The majority stated at:

[42] Any standards which might be applied by the ordinary reasonable reader will vary according to the nature of the imputation. It should not be assumed that such standards are limited to those of a moral or ethical kind, such as may reflect upon a person's character. It should not be assumed that moral standards have no relevance to imputations concerning a person's business or professional reputation. And it should not be assumed that it will be necessary in every case to apply a standard in order to conclude that a plaintiff's reputation has been injured.

[33] There are many standards held within the general community which are not of a moral or ethical kind but which may be relevant to an assessment of whether a person's standing in the community has been lowered.

Principle: Community standards do not form part of the general test. 

The majority stated at [41]:

It is important to distinguish between the general test for defamation and any general community standards which may be relevant in a particular case. Some such standards may be necessary to the assessment of the effect of an imputation upon the reputation of the plaintiff, but they do not form part of the test. ... This should be restated as a separation of the general test from the standards which the ordinary reasonable person might consider relevant and apply.

At at [60], 'That a particular imputation may not require the application of a community standard does not render the general test inapplicable.'

Principle: The ordinary reasonable reader does not apply particular moral standards, instead, they apply community standards generally. 

At [40], the majority stated the ordinary reasonable reader, 'does not necessarily import a particular social standard.'

The majority provide commentary on the case Reader's Digest Services Pty Ltd v Lamb at [44]:

Reader's Digest Services Pty Ltd v Lamb concerned the admissibility of evidence that the conduct attributed to the plaintiff amounted to a breach of a code of ethics or a standard of behaviour which was required of him as a journalist. The question which arose was whether the standards contained in the code were to be applied in determining whether the publication was defamatory. It was held that they were not admissible for that purpose, as they did not reflect general community standards but rather the attitude of a particular group or class. The general community standards of which his Honour spoke were not expressed to be moral standards but shared moral or social standards.

Principle: The ordinary reasonable reader holds the views of the general community.

At [38]:

It should be taken to describe a person who shares the standards of the general community and will apply them.

At [40]

It confirms that the hypothetical referee is a person who will apply general community standards.

Principle: The ordinary reasonable reader does not apply particular standards, but they exclude the wrong standards. 

The majority stated:

[38] The expression "right-thinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community.
...
[40] ... Such a description may serve to distinguish a person in society who abides by its standards, values and rules, from a person who does not. ... The expression does not necessarily import a particular social standard. It may be seen as a benchmark by which some views would be excluded from consideration as unacceptable.

Principle: Moral standards may be relevant for imputations in relation to a person's business reputation where appropriate. 

At [42], the majority stated, 'It should not be assumed that moral standards have no relevance to imputations concerning a person's business or professional reputation.'

Also, at [45], the majority stated:

Moral or ethical standards may be relevant to imputations about a person's business or professional reputation, for example those concerning a person's honesty or fidelity (Jones v Jones [1916] 2 AC 481 at 491 per Viscount Haldane) in the conduct of a business or profession, failure to conform to relevant ethical standards pertaining to that profession (Angel v H H Bushell & Co Ltd [1968] 1 QB 813 at 825826 per Milmo J) or which suggest misconduct in the discharge of professional duties (Odgers, A Digest of the Law of Libel and Slander, 6th ed (1929) at 46). Some statements may convey more than one meaning and bring into question moral or ethical standards as well as conveying a lack of ability to carry on a business or profession. A charge of unfitness for office furnishes an example. Closer to the present case, a statement that a person has been fired by their employer may provide another.

Principle: It is not necessary to identify the community standard when it is plainly obvious that the imputation will cause people to think less of the plaintiff.

The majority stated:

[47] ... In some cases injury to reputation may appear so obvious that a standard, which may unconsciously be applied, is not identified. And in some cases such a conclusion may be possible without the need to identify a standard. It may be obvious that people will be thought the less of simply because of what is said about them.

[48] The imputations in Gacic were considered to fall within this latter category. Another example may be the attribution of authorship of a work of very inferior quality, which may be taken to affect an established author's high reputation, without more (Ridge v The English Illustrated Magazine (Limited) (1913) 29 TLR 592). Whether a social standard applies to an imputation of a person's lack of competence to carry out a profession or business may not be so clear, particularly where it is also conveyed that the person held themselves out as competent and for reward. It is not necessary to determine such questions; in each case the plaintiff will have been defamed because he or she has suffered a loss of reputation. The applicability of the general test towards that conclusion cannot be denied because a general community standard does not apply in a particular case. The test does not depend for its exercise upon the existence of standards.
...
[60] That a particular imputation may not require the application of a community standard does not render the general test inapplicable.

Also, as another example, see Hardie v H&WT & Anor [2016] VSCA 103 at [44]. 

Principle: The meaning of expression 'right-thinking' from Sim v Stretch:

The majority stated:

[38] The expression "right‑thinking" should not be taken to refer to the application by the hypothetical referee of moral or social standards, those referable to general character. Such an approach might also limit the application of the general test. It should be understood as a rejection of a wrong standard, one not held by the community. It should be taken to describe a person who shares the standards of the general community and will apply them.

[39] The expression has been criticised. Griffith CJ in Slatyer v The Daily Telegraph Newspaper Co Ltd considered it to be ambiguous, but thought that it was intended to refer to a person of "fair average intelligence" and otherwise accepted the test as stated in Sim v Stretch. Murphy J in Reader's Digest Services Pty Ltd v Lamb also thought its meaning was unclear. Bray CJ in Potts v Moran considered that it involved "question‑begging assumptions and circuity of reasoning." 

[40] The term most clearly implies a standard of decency in a person. The references in Gardiner v John Fairfax & Sons Pty Ltd and in John Fairfax Publications Pty Ltd v Gacic to the hypothetical referees as being ordinary decent persons, or folk, appear to accept this to be the case. Such a description may serve to distinguish a person in society who abides by its standards, values and rules, from a person who does not. A difference of perspective about the position of an informer to police illustrates this point. It was said of such a person that "[t]he very circumstances which will make a person be regarded with disfavour by the criminal classes will raise his character in the estimation of right‑thinking men". The expression does not necessarily import a particular social standard. It may be seen as a benchmark by which some views would be excluded from consideration as unacceptable. It confirms that the hypothetical referee is a person who will apply general community standards. It may be taken to refer to ordinary decent persons[81].

Order

Appeal dismissed. 

Read The Law Project’s primary guide on the law of defamation in Australia. This guide covers the elements of defamation, defences to defamation, who can sue for defamation, what can you do if you’re being sued, what to do if you want to sue, how much money you can win, the chances that you will win or lose, and much more.