AustLII [Home] [Databases] [WorldLII] [Search] [Feedback]

Supreme Court of the ACT Decisions

You are here:  AustLII >> Databases >> Supreme Court of the ACT Decisions >> 1993 >> [1993] ACTSC 103

[Database Search] [Name Search] [Recent Decisions] [Noteup] [Help]

Kerry Francis Bullmore Packer v the Australian Broadcasting Corporation, Kerry O'Brien, Mark Bannerman, Vivian Vivian, Peter Rothwell, Mark Avis, David Webb, Sue Spencer and Ian Carroll [1993] ACTSC 103 (25 November 1993)

SUPREME COURT OF THE ACT

KERRY FRANCIS BULLMORE PACKER v. THE AUSTRALIAN BROADCASTING CORPORATION,
KERRY O'BRIEN, MARK BANNERMAN, VIVIAN VIVIAN, PETER ROTHWELL, MARK AVIS, DAVID
WEBB, SUE SPENCER and IAN CARROLL
No. SC 620 of 1990
Number of pages - 10
Defamation - Damages - Imputation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Defamation - publication of defamatory matter - assessment of damages - aggravated circumstances - manner of apology - admitted falsity of allegations - refusal to acknowledge slur cast upon plaintiff's reputation.

Damages - lack of evidence of cause of hurt to feelings.

Imputation - defamatory - as to respectability - link to failed entrepreneurs and dishonest or unethical business practices.

Baffsky v John Fairfax and Sons Ltd (1991) Aust Torts R 69, 379

Johnston v ABC (ACTSC; 7/4/93; Higgins J; unreported)

Smith v John Fairfax and Sons Ltd (1987) 81 ACTR 1

HEARING

CANBERRA, 6 September 1993
25:11:1993

Counsel for the Plaintiff: R. A. Conti QC with

B. R. McClintock

Instructing Solicitors: Messrs Phillips Fox

Counsel for the Defendants: M. G. Sexton

Instructing Solicitors: Messrs Colquhoun Murphy as
agents for Bruce Donald

ORDER

The Court Orders that there be judgment for the plaintiff in the sum of $47,700.00.

DECISION

HIGGINS J On or about 11 October 1990, a program entitled "The Horse has Bolted" was telecast throughout Australia. It was part of a program entitled "Lateline" and was published by the firstnamed defendant.

2. The theme of the program was the influence previously enjoyed by now failed entrepreneurs. Messrs Bond, Skase and Ansett were held out as examples. They were depicted as enjoying access, through financial patronage, to government leaders. In the course of that moralising, a picture of the plaintiff was shown dining with former Prime Minister, Bob Hawke. The source of that footage was a news tape of an "Australian Business Awards" dinner held on 10 June 1987. In my opinion, the plaintiff's image is so well known that no viewer would have been in any doubt as to who it was that was so depicted.

3. The plaintiff is well known as a media magnate and entrepreneur. He is, of course, a spectacularly successful businessman in contradistinction to those expressly singled out for comment in the course of the program.

4. The presenter of the program was the secondnamed defendant. Promotional clips preceding the program referred to losses in company collapses and the failure to "lock up" our "company bosses".

5. The program alleged that corporate fraud was rife. The failure to control it had led to "tough new laws" being introduced belatedly by the Federal Attorney-General. Practices used by unscrupulous corporate controllers to "rip off" shareholders, such as "skimming", "window dressing", "insider trading", are then described.

6. The reporter then went on to say,

"It's now clear in the heady boom times of the 1980's, many
major corporations used these practices and many more were
tempted to use them. But what is not clear is why no-one in the
Labor government did anything to seriously investigate them or
stop them.
The immediate reason can be found in the events of the time."

7. At this point in the telecast, a background shot displays the plaintiff engaged in dinner conversation with the then Prime Minister. It lasts approximately four seconds, during which time the following words are uttered by the reporter,
"Before the crash, entrepreneurs were national heroes, their
deals were barely questioned. They might, if you were lucky,
even assist you in your re-election."

8. The clear implication from this concatenation of words and pictures is that the plaintiff was one of the class of entrepreneurs being referred to. It was also to be concluded that he was a person who had engaged in assisting Mr Hawke to be re-elected.

9. Of course, by themselves, those inferences are not defamatory. However, the preceding words had accused "major corporations", that is, those corporations which were the trading vehicles of the entrepreneurs, of the shady and illegal practices referred to.

10. The program continued. Mr Alan Bond of The Americas Cup fame, is depicted thanking the Government for its help.

11. The implication is that such "help" manifested itself in failing better to regulate corporate behaviour and/or to fund the National Companies and Securities Commission (NCSC) to police the regulations which were in place.

12. The segment following was an interview with the Hon Michael Duffy, Federal Attorney-General, on the role of the NCSC. The opening question from the second defendant reinforces the tone of the program,

"If Malcolm Fraser and John Howard presided over the era of the
tax evader and the avoider, it would be fair to say, would it
not, that your Labor Government has presided in the 80's over
the era of the corporate crook?"

13. Another question later in the interview reinforced this inference that corporate entrepreneurs are "crooks".
"Talking for obvious reasons in general terms, do you believe
that there are business people walking around in Australia now
who should be behind bars and, secondly, if so, how confident
can you be that that is where they will end up?"

14. The reference to business people presiding over corporate losses which follows would not, without more, have been understood by viewers to refer to the plaintiff. At the end of the interview, as the program closes, the image of the plaintiff and Mr Hawke is telecast again. That reinforces the program's reference, so far as it is capable of so doing, to the plaintiff.

15. Following the telecast, the plaintiff's lawyers wrote to the firstnamed defendant complaining of the defamatory inferences that they alleged flowed from the program concerning the plaintiff.

16. The letter asserted that those inferences were that the plaintiff,

"1. was guilty of corporate fraud;
2. had acted dishonestly in stripping companies of their assets
for his personal benefit;
3. had bribed politicians to ensure they did not investigate
his criminal activities;
4. had engaged in disreputable financial dealings in connection
with public companies under his control;
5. had acted deceitfully in manipulating company accounts."

17. They also pointed out that the plaintiff was suffering bad health at the time of telecast.

18. Ms Judith Walker replied on behalf of the firstnamed defendant that,

"... I fail to see how any of the specific imputations set out
in your letter are capable of arising from the broadcast. In
these circumstances, I do not believe that an apology to your
client in respect of any such imputations, is warranted."
(15.10.90)

19. Nevertheless, on 18 October 1990, Ms Walker wrote to advise that a statement would be broadcast on "Lateline" that evening. The suggested statement was,
"Welcome to the program ... before we start tonight I'd like to
refer back to our program last Thursday.
You may be aware that lawyers acting for Mr Kerry Packer have
complained to the ABC about the Lateline program.
It was called "The Horse has Bolted" and examined why the Hawke
Government had failed to properly regulate the corporate
sector.
The report included three seconds of well-known file footage of
Mr Packer at a dinner with Prime Minister Hawke.
Mr Packer's lawyers have complained that some viewers may have
concluded that Mr Packer was in some way involved in corporate
fraud.
We didn't intend any such meaning and we don't believe viewers
would have drawn this conclusion, but if any viewer did so, we
apologise to Mr Packer for that."

20. The plaintiff was not assuaged by this offer. Not only was the offensive imputation not withdrawn and acknowledged to be groundless, but the entire complaint seemed to be attributed to the peculiar sensitivity or perception of the plaintiff's solicitors in placing a strained interpretation upon the matter complained of.

21. The plaintiff's solicitors replied suggesting a different form of words,

"In last Thursday's ABC "Lateline" program entitled "The Horse
has Bolted", we broadcast a report by Mark Bannerman on large
scale corporate fraud in Australia. The report featured film
footage of businessman Kerry Packer at a dinner with Prime
Minister Hawke and, through our oversight, viewers may have
concluded that Mr Packer was in some way involved in corporate
fraud.
We acknowledge that such a suggestion was totally false and
without any foundation in fact. The ABC unequivocally
apologises to Mr Packer and acknowledges the immense
contribution he has made to Australian business and Australia.
The Managing Director of the ABC has today written to Mr Packer
apologising, on behalf of the Directors and staff of the ABC,
for the broadcast. For our part, all the production team on
Lateline sincerely regret the offence caused to Mr Packer and
his family and apologise for the distress and embarrassment
they have suffered."

22. On 18 October 1990, the firstnamed defendant's version was broadcast by the secondnamed defendant. The only substantive difference was to substitute "four seconds" for "three seconds".

23. The Writ of Summons herein had already been issued on 15 October 1990.

24. At the hearing, evidence was given by Mr James Packer, the plaintiff's son, of the plaintiff's reaction to the broadcast of the matter complained of. He said that on 11 October 1990 the plaintiff was in hospital. He was recovering from the effects of a severe heart attack suffered by him during a polo match.

25. Mr James Packer visited his father in hospital the day following the broadcast. The plaintiff was apparently agitated and distressed by the program. He seemed both angry and hurt. He said words to the effect of,

"This is a disgrace. It is totally unfair for the ABC to
associate me with (various depicted failed businessmen). What
are we going to do to take action?"

26. He did later see the "apology". He described that as "a disgrace".

27. In cross-examination, Mr James Packer said that his father seemed upset with being put in association with Mr Bond, who did not, as he perceived it, share his ethical standards. He had the same view of Mr Skase. He "did not enjoy" being associated with Messrs Ansett, Elliott or Hawkins although he expressed no particular adverse view about their ethical standards. He expressed no particular concern about being associated with Mr Holmes a Court.

28. Mr Trevor Sykes also gave evidence about the plaintiff's reaction to the program. He was editor of publications owned by the plaintiff's companies. He had also appeared in the program in question as a commentator. He had not been informed of any intention to use footage depicting the plaintiff in association with the program. He spoke to the plaintiff about it following the broadcast.

29. The plaintiff seemed angry and upset. He wanted redress.

30. The difficulty with this evidence is, of course, that whilst the program clearly affected the plaintiff, there is no evidence as to whether his state of agitation was to a greater or lesser extent due to his perception of association with business people of whom he did not approve, or to his perception that he was being accused of participation in criminal and/or unethical business practices.

31. Evidence was given of the plaintiff's reputation. Mr Phillip Higginson, Manager ICI Australia, considered the plaintiff to be a man of integrity with a reputation for honesty and private generosity to worthy charities. He was regarded as tough but fair in business dealings.

32. Mr Peter Joseph, a Director of BT Australia, expressed a similar view.

33. The plaintiff's interest in and support of sport, particularly Rugby League, was attested to by Mr Royston Masters, a Journalist and Mr Robert Fulton, a well-known and respected Rugby League coach.

34. The reputation evidence was not disputed. It follows that there was not, on the evidence before me, any foundation for any suggestion that the plaintiff engaged in unlawful or unethical business practices such as those referred to in the program in question.

35. Mr Sykes acknowledged that the plaintiff had been embarrassed previously by allegations "leaked" from the Costigan enquiry. He felt that the plaintiff's reputation had recovered from those allegations by the time of the publication now complained of. The allegations conveyed in this case, in his opinion, revived the possibility of that sort of damage.

Defamatory Imputations:
36. The plaintiff contends that the matter broadcast in its "nature (sic) and ordinary meaning" conveyed defamatory imputations of and concerning the plaintiff. Those were,

(a) that the plaintiff was guilty of corporate fraud;
(b) that the plaintiff had acted deceitfully in manipulating
company accounts;
(c) that the plaintiff had acted dishonestly in stripping
companies of their assets for his personal benefit;
(d) that the plaintiff had bribed politicians to ensure they
did not investigate is criminal activities;
(e) that the plaintiff had engaged in disreputable financial
dealings in connection with companies controlled by him.

37. I have already noted that the plaintiff's face and form is well-known. He is known as a business person. Whether people generally would associate him with the corporate activities of Consolidated Press Holdings Ltd is less certain but I have no doubt that he is associated in the public mind with corporate business activity and financial dealings. These facts are sufficiently notorious to require no specific evidence (see Baffsky v John Fairfax and Sons Ltd (1991) Aust Torts R 69,379, 69,391). I would only add that the face and figure of Mr Hawke are and were at least equally well-known.

38. In that respect, at least, the case differs from that of Johnston v ABC (SCACT; 7/4/93; Higgins J; unreported) where there had to be evidence that persons seeing the program would have recognised the plaintiff and associated the defamatory allegations broadcast in the relevant program with him.

39. The defendants' main contention is that the ordinary reasonable viewer would not (or could not) have drawn any of the defamatory inferences complained of. They concede that the juxtaposition of words and pictures would associate the plaintiff with a conclusion that he had aided Mr Hawke in his re-election. That would not, of course, be an imputation defamatory of the plaintiff even if it was untrue.

40. The fact that witnesses called for the plaintiff drew an association between the plaintiff and the allegations of corporate misbehaviour directed against certain entrepreneurs of the 80's is, of course, not conclusive of the question of either the capacity of the matter complained of to defame the plaintiff or the ultimate factual question as to whether, in all the circumstances, it has done so.

41. In my opinion, the words and pictures associate the plaintiff not only with aiding politicians to get re-elected but also with the corporate conduct referred to in the program. Of course, not all those allegations would have been perceived as applicable to the plaintiff. The plaintiff is well-known as a successful business person. He has not presided over corporate collapses or caused apparent losses to such shareholders as may have depended on his business acumen.

42. The accusations which do seem to me to be levelled at him as well as all the other business people named or depicted are that he engaged in the illegal or unethical practices in question.

43. It follows that the first imputation (engaging in corporate fraud and crime) is conveyed. That conclusion includes imputations (b) and (c). However, although the program imputes the influencing of politicians by donating or assisting their re-election, I do not see that as constituting an allegation of bribery of politicians for the purpose alleged or at all. It is neither unlawful nor unethical for business people to donate to funds for the re-election of politicians. It is only if a further imputation of unlawful or improper purpose in doing so is made out that the aiding in re-election would itself be wrongful. I do not think the matter complained of in fact conveys that imputation. It follows that imputation (d) is not made out.

44. Imputation (e), however, is a sub-set of (a), (b) and (c). That defamatory inference is made out.

45. It follows, in my opinion, that the plaintiff has been defamed. He has been held out as a person who has engaged in illegal and improper business practices for his personal gain at the expense of others including shareholders in his companies.

46. That is a serious attack on the plaintiff's reputation. It has not been shown to be justified in any way. Indeed, I am satisfied that the plaintiff has been shown to enjoy a high reputation for honest and ethical behaviour.

47. The extent of publication is conceded. There was no particular issue raised about the role of the various defendants in the production and dissemination of the matter complained of. Some of them may not have known of the proposed use of the film footage depicting the plaintiff. However, that issue was not pursued.

48. The defendants do not suggest that, if defamatory inferences arise, there is any relevant defence of truth, fair comment or qualified privilege.

49. I turn now to damages.

Damages
(i) Apology
50. The apology was deficient. It did assert a lack of intent to convey the defamatory allegations of engaging in fraudulent and improper business practices. It did assert, albeit obliquely, that the ordinary reasonable viewer should not have drawn any such inferences.

51. However, in so doing, the "apology" scoffed at the suggestion that imputations were conveyed, imputing undue sensitivity to the plaintiff. It also hinted that the complaint was merely that of lawyers, implying that the complaint was not genuine. It thus denigrated the real and valid perception of the plaintiff that the matter complained of was defamatory of him.

52. Most significantly, however, the "apology" did not expressly deny the truth of the allegations the program had made concerning the plaintiff. To that extent, the evasiveness of the apology was effective to continue and repeat the serious imputations the matter complained of made.

(ii) Aggravation
53. I have already noted the effect of the apology. To reject the plaintiff's request for an appropriate apology and instead to publish the inadequate apology broadcast is a matter of aggravation.

54. The admitted falsity of the allegations, of which I am positively satisfied, is a matter aggravating damages. That includes the tone and language of the program.

55. I am not satisfied that the defendants or any of them intended to defame the plaintiff. I believe that they simply failed to appreciate the effect of the juxtaposition of the words and pictures they broadcast.

56. Nevertheless, once the plaintiff's solicitors had pointed out what was, in my view, obvious, the defendants (through their solicitor) stubbornly refused to acknowledge the slur cast upon the plaintiff's reputation.

57. The plaintiff's counsel acknowledged that this was not an appropriate case for exemplary damages.

58. Having regard to the above factors, I consider that an appropriate award for damage to reputation, there being no evidence of actual damage, is $40,000.00. I consider that sum to be appropriately proportionate to the sum I awarded in Johnston v ABC for a similar defamation albeit that the worker in question was less extensively known than this plaintiff. However, it was, for that same reason, more difficult for that plaintiff to remedy the damage to his reputation.

59. Injury to feelings is difficult to assess. The plaintiff was outraged by the broadcast. He must have been outraged in part by the "corporate crook" slur. However, the evidence of Mr James Packer suggests that his major expression of outrage concerned being linked with certain entrepreneurs whose business standards he regarded as inferior to his own. Without evidence from the plaintiff, this uncertainty cannot be resolved. As I have said, some portion of the apparent hurt to feelings must have been generated by the imputations I have found to be defamatory. That hurt was renewed by the appallingly incompetent and arrogant "apology" which was broadcast.

60. I consider that a sum of $5,000.00 is an appropriate sum to add for this aspect of the matter.

61. It is unnecessary to apportion the damages between the various States and Territories in respect of which it is alleged and conceded that the matter complained of was published (see Smith v John Fairfax and Sons Ltd (1987) 81 ACTR 1).

62. I add $2,700.00 for interest.

63. There will be judgment for the plaintiff in the sum of $47,700.00. I will hear the parties as to costs.


AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.austlii.edu.au/au/cases/act/ACTSC/1993/103.html