Curtain Wonderland Pty Ltd, Furnishing Imports Pty Ltd & Ors v Dollar Curtains Pty Ltd & Ors [1992] QSC 287

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) · -"' •) ' .-; ·• ' n .,~ •. ,._ .. ~-. ;-· _:...~ . ·SUPREME COURT OF·QUEENSLAND . (':. . CIVIL JURISDICTION ( \ AMBROSE J No 389 of 1992 CURTAIN WONDERLAND PTY LTD and FURNISHING IMPORTS PTY LTD and CURTAIN CALL QLD PTY LTD and INSTANT CURTAINS BRISBANE and DOLLAR CURTAINS PTY LTD and MICHAEL PHILLIP MONSOUR and KEVIN CARROLL and LE MURA DE PASQUALE ADVERTISING 1 First Plaintiff Second Plaintiff Third Plaintiff Fourth Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant -- 1 of 15 -- •• DATE 10/08/92 •• JUDGMENT 2 10 20 30 40 50 60 0 0 0- 0 -- 2 of 15 -- r . 100892 HIS HONOUR: In this matter I order that paragraphs 2 and 4 of the Statement of Claim be struck out, and I publish my reasons. I give the parties liberty to apply. I order the plaintiffs to pay to the defendants the costs of and incidental of this application, to be taxed. JUDGMENT 3 10 20 30 40 50 60 -- 3 of 15 -- --·- ( ' ', / ( IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Ambrose BETWEEN: AND: AND: AND: A N D: AND: AND: No. 389 of 1992 CURTAIN WONDERLAND PTY. LTD. (First Plaintiff) FURNISHING IMPORTS PTY. LTD. (Second Plaintiff) CURTAIN CALL QLD. PTY. LTD. (Third Plaintiff) INSTANT CURTAINS BRISBANE (Fourth Plaintiff) DOLLAR CURTAINS PTY. LTD. (First Defendant) MICHAEL PHILLIP MONSOUR (Second Defendant) KEVIN CARROLL (Third Defendant) LE MURA DE PASQUALE ADVERTISING (a firm) (Fourth Defendant) REASONS FOR JUDGMENT- B.W. AMBROSE J. Delivered the 10th day of August 1992. .~·· -- 4 of 15 -- n ( . ,.._- / Counsel: Solicitors: 2 R. Lilley for the Plaintiffs. D. Cooper for the First and Second Defendants. M. Martin for the Fourth Defendant. John M. O'Connor & Co. for the Plaintiffs. Lyons t/a for Corser Sheldon & Gordon for the First and Second Defendants. P.L. De Pasquale & Co. for the 4th Defendant. Hearing date: 24th July 1992. ~ ·-·· -- 5 of 15 -- ( (/ IN THE SUPREME COURT OF QUEENSLAND BETWEEN: AND: AND: A N D: AND: AND: No. 389 of 1992 CURTAIN WONDERLAND PTY. LTD. (First Plaintiff) FURNISHING IMPORTS PTY. LTD. (Second Plaintiff) CURTAIN CALL OLD. PTY. LTD. (Third Plaintiff) INSTANT CURTAINS BRISBANE (Fourth Plaintiff) DOLLAR CURTAINS PTY. LTD. (First Defendant) MICHAEL PHILLIP MONSOUR (Second Defendant) KEVIN CARROLL (Third Defendant) LE MURA DE PASQUALE ADVERTISING (a firm) (Fourth Defendant) REASONS FOR JUDGMENT- B.W. AMBROSE J. Delivered the 10th day of August 1992. This is an application by defendants in an action for defamation to have paragraphs of the statement of claim struck -- 6 of 15 -- 2 out on the grounds that they tend to prejudice, embarrass or delay the fair trial of the action. Their objection is to a number of paragraphs of the statement of claim on the basis that they are not sufficiently precise to give the defendants a clear understanding of certain factual issues pleaded against them. The second objection goes to the very crux of the plaintiffs' case against the defendants. It is the plaintiffs' case that certain words published of the (' plaintiffs are defamatory "in their natural and ordinary ( ,_- meaning". The words in issue are set forth in para. 2 of the statement of claim. They appear to have been the content of a notice published in a newspaper which reads as follows: "PUBLIC NOTICE Dollar Curtains have no association whatsoever with the Curtain Wonderland Group of companies - Curtain Wonderland, Furnishing Imports, Curtain Call and Instant Curtains. Dollar Curtains is a wholly owned Queensland company which is owned by the Monsour Family who have been honest retailers in Queensland for 130 years. Dollar Curtains manufacture all their products exclusively in Queensland helping to supportour growing State. The company has been built upon providing the best possible quality, service and price. In meeting Queensland's growing and changing market, Dollar Curtains offer a fully trained team of decorators who will come to your home and offerspecialised advice on fabric, designs, colours and making styles. Dollar Curtains also offer a written guarantee on all work performed by their professional workroom. Kevin CarrollGeneral Manager Dollar Curtains the Retailer you can trust." In para. 4 of the statement of claim it is pleaded: ,.,.,. . . ~···· I ,,,•"..,~ -- 7 of 15 -- I "- - 3 "4. By the said words in their natural and ordinary meaning the defendants and each of them meant and were understood to mean:- a) The Curtain Wonderland Group of companies were dishonest; b) Those who managed the Curtain Wonderland Group of companies were dishonest; c) The Curtain Wonderland Group of companies could not be trusted; d) The quality, service and price of the Dollar Curtains' product was better than the product of Curtain Wonderland; e) The Curtain Wonderland Group of companies did not offer fully trained staff; f) The Curtain Wonderland Group of companies did not offer to guarantee their work." For the applicant/defendants it is argued that the imputations pleaded in para. 4 are unsustainable; counsel for the plaintiffs did not attempt to support (d), (e), and (f) of para. 4 and argument was confined to the imputations asserted in 4 ( a ) , ( b ) , and ( c ) . Basically it is contended for the plaintiffs that the imputations pleaded are reasonably open on the basis that: i) The notice forcefully disclaims any association between the plaintiffs and the defendants. ii) The defendant company is described as being "owned by the Monsour Family who have been honest retailers in Queensland for 130 years", and finally iii) Dollar Curtains is described as "the retailer you can trust". For the plaintiffs it is contended that having regard to the context in which those statements of fact are made, a reasonable person reading the notice would attribute the imputations ,..,._,,,; ' .•. ·'-'. -- 8 of 15 -- 4 specifically pleaded in para. 4(a), (b) and (c) of the statement of claim. Publication is alleged to have been made in the "Courier- Mail" newspaper published in Queensland on 13th March 1992. No other facts or circumstances are pleaded or referred to in the affidavit material read upon this application. The question is whether persons reading that notice would, as reasonable people, understand the words in their ordinary and (~ natural meaning to impute to the defendants the matters, or any of them, pleaded in para. 4. If the contention of the defendants that the words specified in para. 2 of the statement of claim are not as a matter of law capable of attributing to the plaintiff the imputations alleged in para. 4 of the statement of claim, then a determination to that effect at this stage will save a great deal in costs. In many cases, it might be inappropriate to make a ( ·. ~-- / determination of the sort I am asked to make at this stage. On the facts of this case however, the point seems to be a very short one and not to involve a consideration of matters of fact. The law is clear that there are two questions to be answered having regard to paras. 2 and 4 of the statement of claim. The first question is whether as a matter of law the words complained of are capable of attributing the imputations alleged. The second question however for the fact-finding tribunal - is whether in fact the words complained of bear the imputations alleged. It is convenient at this stage to turn to observations made in Lewis v. Daily Telegraph Ltd. [1963] 1 Q.B. 340. In that -- 9 of 15 -- 5 particular case a newspaper article was published. The article was itself defamatory of the plaintiff, but the defendant contended it was justified. The only issue for the jury, it was held, should have been whether justification had been made out. In considering this point it was necessary to consider whether in any event the words appearing in the article were reasonably capable of meaning that the plaintiff was guilty of fraud. The essence of the article had been that members of the Police Force ( \, (the Fraud Squad) were "inquiring into the affairs of" a company ( ( with which the plaintiff was associated. At p. 369 Holroyd Pearce L.J. observed: "Secondly Mr. Faulks argues that as a matter of construction and commonsense the words 'the Fraud Squad are inquiring into the affairs of the company' cannot ordinarily mean that Lewis has been guilty offraud or that the affairs of the company have been conducted fraudulently. Clearly it is not enough that some suspicious-minded person might read that meaning into them. The onus is on the plaintiffs to show that they are capable of and would reasonably have such a meaning to the average reader (Capital and Counties Bank v. Henty 7 App. Cas 741 at 776, 778, 782, 785, 788)." His Honour then applied what Lord Porter had said in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. (1950) 66 T.L.R. (Part 1) 342, 348: "It is the judge's duty to make up his mind and save in very exceptional circumstances he can decide on which side of the line the words complained of are to be placed. If he comes to the conclusion that a reasonable jury would be justified in finding that they had a libellous tendency he must leave it to them even though the words might also bear an innocent interpretation; or to put it from the point of view ofan appellate court the question of libel or no libel should have been left to the jury if it cannot be said that twelve men could not reasonably have come to the conclusion that the words are defamatory. This I think is what Lord Blackburn meant in his observations in Capital and Counties Bank v. Henty when quoting Brett L.J. in the Court of Appeal in that case he said: _,.,, ,..,)'•' .'#>. -- 10 of 15 -- ( ) 6 'It is unreasonable that when there are a .number of good interpretations the only bad one should be seized upon to give a defamatory sense to the document.' And is in accordance with the test put by Lord Selborne L.C. when he said: 'The test according to the authorities is whether under the circumstances in which the writing was made public, reasonable men to whom the publication was made would be likely to understand it in a libelloussense.' That passage was followed in Morris v. Sanders Universal Products (1954) 1 W.L.R. 67 at p. 73." In Lewis, Holroyd Pearce L.J. at p. 373 adopted what Lord Shaw of Dunfermline said in Stubbs Ltd. v. Russell (1913) A.C. 386 at 398: "For I think the test in these cases is this: Is the meaning sought to be attributed to the language alleged to be libellous one which is a reasonable natural or necessary interpretation of its terms? It is productive in my humble judgment of much error and mischief to make the test simply whether some people would put such and such a meaning upon the words however strained or unlikely that construction may be. The interpretation to be put upon language varies infinitely. It varies with the knowledge, the mental equipment and even the prejudices of the reader or hearer; it varies and very often greatly varies - with his temperament or his disposition in which the elements on the one hand of generosity or justice or on the other of mistrust jealousy or suspicion may play their part. To permit in the latter case a strained and sinister interpretation which is thus essentially unjust to form a ground for reparation would be in truth to grant reparation for a wrong which has never been committed." After referring to Henty's case, His Lordship continued: "Out of this variety of expressions I have ventured to gather up what I think to be the result namely thatthe innuendo must represent what is a reasonably natural or necessary inference from the words· used .,.,. , .. , ... I ~;:_,., ., -- 11 of 15 -- c\ (\ ( ,_ / 7 regard being had to the occasion and the circumstances of their publication." His Honour at p. 375 held that: " ... although the matter is not free from difficulty in my judgment the jury should have been directed that the words were not capable of bearing the imputation that fraud had been committed". I refer also to the observations of Davies L.J. in that case at p. 387 and 388: "The question therefore was one for the jury as to what the words would reasonably be understood to mean subject always to the ruling of the judge as to what the words could reasonably be understood to mean." At p. 393 His Honour said: "The onus is upon a plaintiff to show that the words were capable of the libellous imputation (per Lord Blackburn in Capital and Counties Bank v. Henty) and this must be shown with sufficient certainty orreasonably certainty. Lord Shaw in Stubbs Ltd. v. Russell summarised the rule as follows: 'The innuendo must represent what is a reasonable natural or necessary inference from the words used regard being had to theoccasion and circumstances of theirpublication.' Perhaps the most recent statement of the principles upon which a judge should act particularly in border line cases is contained in the words of Lord Porter in Turner v. Metro-Goldwyn-Mayer Pictures Ltd. where he said: 'Some argument was presented to your Lordships as to the attitude which the judge should adopt where in his view the only inference which can be drawn from the words complained of is that they lie on the border line and it is impossible to say whether when properly considered they are capable of libellous meaning or not. It is of course the duty of a judge in the first instance toput an accurate interpretation on the words used and having done so to make up his mind whether they are capable of a defamatorymeaning or not. Theoretically if he is leftin doubt he should rule them incapable of a defamatory meaning but this I think is a .. ~ ... ··•··· ..... :;.··· -- 12 of 15 -- 8 theoretical and not a practical difficulty.'" Havers J. in the course of his judgment in Lewis v. Daily Telegraph at p. 407 observed with respect to the words in issue: "I cannot find in the article any accompanying words which directly or indirectly suggest that the outcome or probable outcome of the inquiry would be that the company or its chairman was guilty of fraud ... It is not enough that to a suspicious mind the words might impute fraud. An imputation of fraud is certainly not a necessary inference nor is it in my opinion a natural or reasonable inference from the words used regard being had to the occasion and circumstances of their publication... " In Jones v. Skelton (1963) 1 W.L.R. 1362 in the course of the judgment delivered by Lord Morris of Borth-Y-Gest it is observed at p. 1370: "It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning. In deciding whether words arecapable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation." His Lordship then referred to what had been said in Capital ~ / and Counties Bank v. Henty and continued: "The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic factspassing beyond the general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. (See Lewis v. Daily Telegraph Ltd.) The ordinary and natural meaning may therefore includeany implication or inference which a reasonable readerguided not by any special but only by generalknowledge and not fettered by any strict legal rulesof construction would draw from the words. The testof reasonableness guides and directs the court in itsfunction of deciding whether it is open to a jury in ,..,.,, ........ ' ',,:,. -- 13 of 15 -- a particular case would understand defamatory sense. 11 9 to hold that reasonable persons the words complained of in a Applying the tests and principles to be found in Lewis v. Daily Telegraph Ltd. and Jones v. Skelton I conclude that it would not be reasonably open to an ordinary reader of the 11 Courier-Mail 11 newspaper published on 13th March 1992 to infer from the terms of the notice that either the plaintiffs or those who managed and controlled the Curtain Wonderland Group of (' companies were dishonest as asserted in paras. 4(a) and (b) of the statement of claim. I would read the allegation in para. 4(c) that the companies 11 could not be trusted 11 as asserting that the imputation in the notice was that they could not be trusted because they were not honest. In my view the notice is not reasonably capable of imputing such a meaning. While perhaps the innuendos pleaded in (a), (b) and (c) in (_./ para. 4 of the statement of claim may cross the mind of a reader with a mistrusting or suspicious disposition, I take the view that that possibility is insufficient to make the words in issue ( ~ / reasonably capable of bearing the defamatory meanings pleaded. In the ordinary day-to-day activities of traders it is not unusual for a trader to publish a notice that it is not associated with another trader. Again, it is not unusual for traders to assert in advertisements etc., the fact that they are honest and reliable in their dealings. In my view the defamatory imputations pleaded in para. 4(a), (b) and {c) of the statement of claim could not reasonably be drawn by any person who might read the notice pleaded in para. 2 of the statement of claim. .~ ... ~··· , ·r· -- 14 of 15 -- 10 I order therefore that para. 2 and 4 of the statement of claim be struck out. The striking out of those paragraphs of the statement of claim seems to me to make it unnecessary to deal with the other more minor matters of . which the defendants complained with respect to the content of the statement of claim. It seems to me that the survival of paras. 2 and 4 of the statement of claim is essential to the further pursuit of the / ( plaintiffs' action. An application to strike out the whole statement of claim on the basis that it is fails to disclose any cause of action in the plaintiffs has not yet been made and in the circumstances I will simply strike out paras. 2 and 4. I order the plaintiffs to pay to the defendants their costs of and incidental to the application to be taxed. I will not .~·· ....... make any order with respect to the costs of the action. The parties may make submissions on that matter if they so desire ... ( -- 15 of 15 --