Bureya P/L v Mackay Printing & Publishing Co P/L [2002] QSC 359

SUPREME COURT OF QUEENSLAND CITATION: Bureya P/L –v- Mackay Printing & Publishing Co. P/L [2002] QSC 359 PARTIES: BUREYA PTY LIMITED ACN 008 294 540 (respondent/plaintiff) v THE MACKAY PRINTING AND PUBLISHING COMPANY PTY LIMITED ACN 009 657 550 (applicant/defendant) FILE NO/S: S282 of 2002 DIVISION: Trial PROCEEDING: Application for Directions ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 29 October 2002 DELIVERED AT: Townsville JUDGES: Cullinane J ORDER: 1. Paragraph 16 of the amended statement of claim be struck out. 2. Application is otherwise dismissed. 3. Each party’s costs be costs in the cause. CATCHWORDS: PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS - where applicant seeks order that a preliminary issue be tried under r 483 of the Uniform Civil Procedure Rules 1999 DEFAMATION - whether amended statement of claim is capable of bearing the imputations alleged and whether imputations alleged are defamatory of the respondent Defamation Act 1889 (Qld) s 4, s 18 Uniform Civil Procedure Rules 1999 (Qld) r 483 Sungravure P/L v Middle East Airlines Airliban SAL (1975- 76) 134 CLR 1 The Hall-Gibbs Mercantile Agency Ltd v Dun & Ors (1910) 12 CLR 84 COUNSEL: ME Pope for the applicant/defendant S Doyle SC with RA Quirk for the respondent/plaintiff SOLICITORS: Connolly Suthers for the applicant/defendant Suthers Taylor Lawyers for the respondent/plaintiff -- 1 of 5 -- 2 [1] The Applicant/Defendant seeks an order pursuant to rule 483 of the Uniform Civil Procedure Rules 1999 (Qld) that a preliminary issue be tried namely whether the words used in paragraphs 7, 11B and 16 of the amended statement of claim are capable of bearing the imputations alleged and also whether the imputations are capable of being defamatory of the respondent. [2] Alternatively an order is sought striking out those paragraphs on the grounds that the words referred to therein are not capable of bearing the imputations alleged or that the imputations are not capable of being defamatory. [3] The question of whether material alleged to be defamatory is capable of being defamatory is a question of law. See section 18 of the Defamation Act 1889 (Qld):- “18.(1) The question whether any matter is or is not defamatory is a question of fact. (2) The question whether any matter alleged to be defamatory is or is not capable of bearing a defamatory meaning is a question of law.” [4] The Respondent/Plaintiff is a land developer at Mackay. The Applicant/Defendant prints and publishes a daily newspaper at Mackay “The Daily Mercury”. [5] The Applicant published in its newspaper in January 1999 a series of articles dealing with the threat and effects of flooding in the Mackay area. [6] The Respondent in paragraph 6 of its amended statement of claim alleges that on the 15th January 1999 the Applicant published the following words:- “Australian geological survey researcher Ken Grainger has been surveying and modelling the numbers and types of buildings that would be inundated under various flood circumstances. Mr Grainger said Mackay was extremely vulnerable because large areas of urban housing land were prone to flooding from the river and storm surge. He said large areas of north Mackay, including Greenfields, were at risk. Certainly a repeat of the 1918 event would put water through much of it.” [7] Greenfields is a development in Mackay being undertaken or which was then being undertaken by the Respondent. It is not contested on this application that the articles concerned are capable of being understood by persons reading the articles as referring to the Respondent. [8] It is alleged in the amended statement of claim that the words set out above in their natural and ordinary meaning meant and were understood to mean that the person expressing an opinion was an expert and that he believed that the Respondent’s development at Greenfields was: (a) prone to flooding; (b) prone to storms surge; (c) extremely vulnerable to flooding from the river and storm surge. It is also alleged that in their ordinary and natural meaning they meant that the Plaintiff’s development at Greenfields was of that character. -- 2 of 5 -- 3 [9] In paragraph 11A the Respondent pleads that in the newspaper of the 16 th January 1999 the Applicant published what is described as Part 4 of the series under the title “Insurance Little Help in Flood Prone Areas” which included the following: “Houses on high ground were a sure bet – and they were usually granted flood insurance. Houses on low ground were an unsafe bet and were usually rejected. He said most homes in Mackay would not be eligible for cover against storm surge or flood.” [10] The Respondent alleges that in their natural and ordinary meaning the words meant either the Plaintiff had developed and was developing property at Greenfields that was unsafe, that the Plaintiff had developed and was developing property at Greenfields that would be rejected for flood insurance and that the Plaintiff had developed and was developing property at Greenfields that would not be eligible for cover against storm surge or flood. [11] The amended statement of claim goes on to allege that the Respondent forwarded a press release to the Applicant concerning the levels of the Respondent’s lands at Greenfields. The Applicant published an article on the 26th March, 1999 under the heading “Developers Deny Claims”. The publication was pleaded in paragraph 14 of the amended statement of claim: “Developers Deny Claims Greenfield developers, the Keam Group, have hit back at perception the area was susceptible to flooding ahead of the release of the final 22 allotments today. Development supervising engineer Peter McLean, of Johnstone and Associates, said Greenfields was at a higher level than many other well known parts of the city. He said Greenfields was at RL8:15, a level significantly higher than the Sydney-Victoria Street intersection (RL6) and Macrossan Street and Evans Avenue (RL7). Mr McLean said the development was designed to be two centimetres above peak 50 year flood levels and drainage could also handle a one in five year storm.” [12] In paragraph 16 it is alleged that those words in their natural and ordinary meaning meant and were understood to mean that the Respondent’s development at Greenfields was only two centimetres above peak 50 year flood levels, that it had developed and was developing lands susceptible to flood and that it had developed and was developing land that was susceptible to storms. [13] The amended statement of claim alleges that by reason of each of the publications the Respondent is likely to be injured in its profession or trade. -- 3 of 5 -- 4 [14] Defamatory matter is defined in section 4(1) of the Defamation Act in the following terms: “4.(1) Any imputation concerning any person, or any member of the person’s family, whether living or dead, by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person’s profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person, is called ‘defamatory’, and the matter of the imputation is called ‘defamatory matter’.” [15] So far as the first of the allegations is concerned there can be no question but that the words printed in paragraph 6 give rise to the imputations pleaded in paragraph 7. This was not disputed. Rather it was said that those imputations are not capable of being defamatory since they did not allege that the Respondent in carrying out its development knew that the area where it was doing so was prone to flooding or storm surge. That is it was contended that it could not be regarded as containing anything disparaging of the Respondent. [16] I accept the argument of senior counsel for the Respondent in relation to this. It seems to me that the matter is settled by the judgment of the High Court in Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975-76) 134 CLR 1. [17] The alleged defamatory material in that case was constituted by a work of fiction concerning the hijacking of the fleet of an airline having the same or a similar name to the airline conducted by the Plaintiff in those proceedings. The Plaintiff sued alleging that as an innuendo, the work implied that potential air travellers on the Plaintiff’s aircraft faced a serious risk of hijacking. [18] This issue was withdrawn from the jury by the trial Judge. [19] The proposition that an imputation has to be a disparaging one was regarded as having been rejected by the High Court in The Hall-Gibbs Mercantile Agency Ltd v Dun & Ors (1910) 12 CLR 84. See Gibbs J at page 10 in Sungravure (Supra) Gibbs J earlier had stated: “A statement will not be defamatory of a person within the meaning of section 5 simply because it is likely to injure him in his profession or trade; to come within the section it must be an imputation concerning that person ---.” [20] The section under consideration was in similar terms to section 4 of the Defamation Act 1889. [21] His Honour then went on: “However, the main submission on behalf of the appellant in the present case was that an “imputation concerning any person” within the section must relate to some act or conduct of that person; it must concern something that the person himself has done or failed to do. With all respect, I cannot accept this submission which, like the argument rejected in Hall-Gibbs Mercantile Agency Ltd v Dun, seeks to read into the section -- 4 of 5 -- 5 words that do not appear in it. To make an imputation concerning a person is to attribute some act or condition to him, or in other words, simply to make a statement concerning him: see Hall-Gibbs Mercantile Agency Ltd v Dun & Ors (17).” [22] The Respondent does not have to establish that the imputation was disparaging nor does he have to establish that it was an imputation which ascribed some conduct or state of affairs to him. In my view the imputations alleged are capable of being defamatory of the respondent in the sense of being imputations concerning the respondent by which it is likely to be injured in its profession or trade. [23] The Applicant’s claim in respect of paragraph 7 must therefore fail. [24] The words pleaded in paragraph 11 are on their face innocuous. However viewed with the other publications in the series of publications I think they are capable of giving rise to the imputations pleaded in paragraph 11B and, for similar reasons to those applicable to paragraph 7, are capable of being defamatory of the Respondent. [25] So far as paragraph 16 is concerned as will be seen the Respondent pleads the ordinary and natural meaning of the words. Whilst the imputations as pleaded can be accepted as arising from the publication relied upon it is difficult to see how those imputations can be regarded as defamatory of the Respondent. The bare statement that the development has been designed to be some two centimetres above peak 50 year flood levels cannot in my view give rise to a defamatory imputation. There is nothing in the literal meaning or any implied or inferred or indirect meaning of these words which are defamatory. It may be that a statement that a development is designed to be above the level of an extremely low flood frequency level would be capable (according to the natural and ordinary meaning of the words used) of being defamatory but in my view the publication relied upon here is not standing alone and without reference to extrinsic facts passing beyond general knowledge, capable of being defamatory. [26] It seems that the Respondent’s main grievance in relation to this publication arises from the fact that it has, on the Respondent’s case, misstated the position of the Respondent as set out in the response to the claims in the series. [27] I order that paragraph 16 of the amended statement of claim be struck out. The application is otherwise dismissed. [28] I order that each party’s costs be costs in the cause. -- 5 of 5 --