Jurisdiction: SUPREME COURT OF WESTERN AUSTRALIA Citation No: [2007] WASCA 14
Court: THE COURT OF APPEAL (WA)
Case No: CACV:36/2006 Heard: 17 NOVEMBER 2006
Coram: PULLIN JA
BUSS JA
Delivered: 2007-01-18
No of Pages: 16 Judgment Part: 1 of 1
Result: Leave to appeal granted
Appeal allowed
Category: A
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On Appeal from: Jurisdiction: SUPREME COURT OF WESTERN AUSTRALIA
Coram: MASTER NEWNES
Citation: FAIRHEAD & ORS -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2006] WASC 46
File Number: CIV 2654 of 2002
Parties: DAVID REGAN & CO PTY LTD
FRANCIS BARRON STEPHENSON HAYGARTH
WEST AUSTRALIAN NEWSPAPERS LTD
SOUTH WEST PRINTING AND PUBLISHING
Catchwords: Defamation
Whether imputations capable of being conveyed by words complained of
Legislation: Nil
Case References: Al Rajhi Banking & Investment Corporation v The Wall Street Journal Europe Sprl [2003] EWHC 1358 (QB)
Aspro Travel Ltd v Owners Abroad Group plc [1996] 1 WLR 132
Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9
Bognor Regis Urban District Council v Campion [1972] 2 QB 169
Cinevest Ltd v Yirandi Productions Ltd (2001) A Tort Rep 81-610
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534
Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443
Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris (2000) 179 ALR 738
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morgan v Lingen (1863) 8 LT 800
Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467
Multigroup Bulgaria Holding AD v Oxford Analytica Ltd [2001] EMLR 28
Plato Films v Speidel [1961] AC 1090
Robinson v Quinlivan [2006] WASC 38
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Youssoupoff v Metro-Goldwyn Mayer Pictures Ltd (1934) 50 TLR 581
Aqua Vital Australia Limited & Anor v Swan Television and Radio Broadcasters Pty Limited & Anor (1995) Aust Torts Reps 81364
Askew v Morris & Ors [2005] WASCA 59
Buckeridge & Anor v Walter [2006] WASCA 22
Capital and Counties Bank v George Henty & Sons [188182] 7 AC 741
Clairs Keeley (a firm) v Treacy (2004) 29 WAR 479
Favell v Queensland Newspapers Pty Ltd (2005) 74 ALJR 1716
HallGibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84
Jones v Skelton [1963] 1 WLR 1362
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Taylor v Jecks (1993) 10 WAR 309
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Last Updated: 2007-01-19
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION : DAVID REGAN & CO PTY LTD & ANOR -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2007] WASCA 14
CORAM : PULLIN JA
BUSS JA
HEARD : 17 NOVEMBER 2006
DELIVERED : 18 JANUARY 2007
FILE NO/S : CACV 36 of 2006
BETWEEN : DAVID REGAN & CO PTY LTD
First Appellant
FRANCIS BARRON STEPHENSON HAYGARTH
Second Appellant
AND
WEST AUSTRALIAN NEWSPAPERS LTD
First Respondent
SOUTH WEST PRINTING AND PUBLISHING
Second Respondent
(Page 2)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER NEWNES
Citation : FAIRHEAD & ORS -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2006] WASC 46
File No : CIV 2654 of 2002
Catchwords:
Defamation - Whether imputations capable of being conveyed by words complained of
Legislation:
Nil
Result:
Leave to appeal granted
Appeal allowed
Category: A
Representation:
Counsel:
First Appellant : Mr N D C Dillon
Second Appellant : Mr N D C Dillon
First Respondent : Mr S M Davies
Second Respondent : Mr S M Davies
Solicitors:
First Appellant : Slee Anderson & Pidgeon
Second Appellant : Slee Anderson & Pidgeon
First Respondent : Edwards Wallace
Second Respondent : Edwards Wallace
(Page 3)
Case(s) referred to in judgment(s):
Al Rajhi Banking & Investment Corporation v The Wall Street Journal Europe Sprl [2003] EWHC 1358 (QB)
Aspro Travel Ltd v Owners Abroad Group plc [1996] 1 WLR 132
Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9
Bognor Regis Urban District Council v Campion [1972] 2 QB 169
Cinevest Ltd v Yirandi Productions Ltd (2001) A Tort Rep 81-610
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534
Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443
Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris (2000) 179 ALR 738
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morgan v Lingen (1863) 8 LT 800
Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467
Multigroup Bulgaria Holding AD v Oxford Analytica Ltd [2001] EMLR 28
Plato Films v Speidel [1961] AC 1090
Robinson v Quinlivan [2006] WASC 38
The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Youssoupoff v Metro-Goldwyn Mayer Pictures Ltd (1934) 50 TLR 581
Case(s) also cited:
Aqua Vital Australia Limited & Anor v Swan Television and Radio Broadcasters Pty Limited & Anor (1995) Aust Torts Reps 81364
Askew v Morris & Ors [2005] WASCA 59
Buckeridge & Anor v Walter [2006] WASCA 22
Capital and Counties Bank v George Henty & Sons [188182] 7 AC 741
Clairs Keeley (a firm) v Treacy (2004) 29 WAR 479
Favell v Queensland Newspapers Pty Ltd (2005) 74 ALJR 1716
HallGibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84
Jones v Skelton [1963] 1 WLR 1362
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Taylor v Jecks (1993) 10 WAR 309
(Page 4)
1 PULLIN JA: This is an application for leave to appeal against the order of Master Newnes which struck out paragraphs in the statement of claim alleging defamation.
2 The case is one in which the appellants have sued the first respondent in respect of words which the appellants allege were published by the first respondent on 14 November 2002 in "The West Australian" newspaper. The appellants allege that the same words were published by the second respondent on 21 November 2002 in the "South West Times". The words allegedly published were:
"A Donnybrook real estate agency has been fined $9000 under the Real Estate and Business Agents Act.
The Real Estate and Business Agents Supervisory Board levied the fines against David Regan and Co., trading in the South-West town as Donnybrook Real Estate.
It imposed a $3000 fine and $1000 in costs on a sales representative still employed by the agency, Alan Fairhead, for failing to act fairly and honestly.
Other fines were imposed on the agency's licence holder, Jenni Nabein, and the company itself, owned by Donnybrook resident Frank Haygarth.
REBA found that Mr Fairhead deliberately failed to tell a Donnybrook couple, who bought a 5.2 ha Donnybrook home and orchard through him for $287,000 in November 1998, that figures given by the vendors for that year's apple harvest figures included figures for another property not included in the sale.
REBA inspector Michelle Wakka found that the vendors gave Mr Fairhead documents which showed $94,600 was banked as a result of the 1998 harvest but between 20 and 30 per cent of the sum should have been deducted to take into account the harvest of the other property.
Documents which would have revealed the figures were for both properties were not passed on to the vendors [sic purchasers].
The purchasers of the property said they did not wish to comment.
(Page 5)
Mr Haygarth said an appeal period was still open and the matter was in the hands of his solicitors."
3 The first appellant pleads that it was at the material times a real estate agency based in the Donnybrook area and which for the purpose of its business relied upon a reputation for the honesty of its principal, agents and representatives. The second appellant pleads that he was at the material times the principal of the first appellant.
4 The appellants pleaded against the first respondent that, in their ordinary and natural meaning, the words meant, and were understood to mean:
"9.2 Donnybrook Real Estate employs an agent who has been found guilty of acting:
(a) dishonestly.
(b) further or alternatively, deceptively.
9.3 Donnybrook Real Estate does not disapprove of:
(a) dishonest;
(b) further or alternatively, deceptive,
conduct by agents employed by Donnybrook Real Estate.
9.4 Mr Haygarth is the proprietor of a business which employs an agent who has been found guilty of acting:
(a) dishonestly.
(b) further or alternatively, deceptively."
5 The same pleas are made against the second respondent in pars 17.2, 17.3 and 17.4. The Master struck out pars 9.2, 9.4, 17.2 and 17.4.
6 The respondents' application to strike out pars 9.3 and 17.3 was dismissed.
7 In his reasons for decision at [23] to [28], the Master correctly set out the test to be applied in determining whether defamatory imputations are capable of being conveyed by the published words.
(Page 6)
8 The reasons the Master gave for striking out pars 9.2, 9.4, 17.2 and 17.4 read:
"15 In relation to par 9.2, counsel for the plaintiffs drew particular attention to the third paragraph of the words complained of, namely '[the Real Estate and Business Agents Supervisory Board] imposed a $3000 fine and $1000 in costs on a sales representative still employed by the agency, Alan Fairhead, for failing to act fairly and honestly.' Counsel referred to the Shorter Oxford Dictionary definition of 'still' as follows: 'constantly, habitually; then or now or for the future; nevertheless, for all that, on the other hand, all the same; even, yet'. He relied particularly on the definition 'nevertheless, for all that'. I should say that I do not understand the word 'still' to be used in that sense in the words complained of, but rather in the sense of 'then and now'.
16 It was submitted that a reasonable reader would think less of a real estate agency which employed an agent who had been found guilty of acting dishonestly or deceptively.
…
29 I do not consider that pars 9.2 and 9.4 of the statement of claim are capable of being defamatory of Donnybrook Real Estate and Mr Haygarth respectively. In my view, an imputation that a real estate agency employs a licensed representative who has been found guilty of acting dishonestly or deceptively, or an imputation that Mr Haygarth is the proprietor of a business which employs such a representative, is not, without more, capable of defaming the plaintiffs.
30 … I do not consider that a reasonable reader might think less of a real estate agency simply because it chooses to continue to employ a licensed representative who had been found guilty of dishonest or deceptive conduct.
31 To conclude otherwise would, in effect, be to accept that there might be attributed to the ordinary reasonable member of the community the view that, regardless of the circumstances, a real estate agent should not employ, or continue to employ, a licensed real estate representative if
(Page 7)
that person has been found guilty of any dishonest or deceptive conduct. I do not consider that such a rigid, indeed quite unforgiving, attitude is capable of being so attributed. Something more than is pleaded would be required, but nothing further has been distilled in the imputation."
The reasons for not striking out par 9.3 and par 17.3 read:
"32 I consider that the imputations pleaded in par 9.3 … are arguably capable of being conveyed by the words complained of and are arguably defamatory of Donnybrook Real Estate and Mr Haygarth respectively. In particular, the statement in the article that, although Mr Fairhead had been fined and ordered to pay costs for failing to act fairly and honestly, he was 'still employed by the agency' is arguably capable of conveying to a reasonable reader the meaning that Donnybrook Real Estate and Mr Haygarth do not disapprove of the conduct of which the article says Mr Fairhead has been found guilty."
9 The appellants seek leave to appeal against the orders striking out pars 9.2, 9.4, 17.2 and 17.4.
10 The proposed grounds of appeal read:
"1. Given the first appellant pleaded:
1.1 that for the purpose of its business as a real estate agent it relied upon a reputation of the honesty of its licensed representatives;
1.2 the first respondent and, further, second respondent had published articles publishing the untrue statement that the first appellant employs a licensed representative who has been found guilty of acting dishonestly or deceptively;
1.3 by way of particulars of special damage, that it had suffered substantial special damages, including a down turn in its business, as a result of the said publications;
(Page 8)
the Learned Master erred in law in finding an imputation that the first appellant employs a licensed representative who has been found guilty of acting dishonestly or deceptively was incapable of being defamatory of the first appellant.
2. Given the second appellant pleaded:
2.1 as the principal of the first appellant, for the purposes of the real estate agency business conducted by the first appellant he relied upon a reputation of honesty of the business' licensed representations and, further, in his own dealings as a real estate agent's representative, relied on a reputation for honesty;
2.2 the first respondent and, further, second respondent had published articles publishing the untrue statement that the second appellant was the proprietor of a real estate agency which employs a licensed representative who had been found guilty of acting dishonestly or deceptively;
2.3 by way of particulars of special damage, that he had suffered special damages, including a down turn in business, as a result of the said publications;
the Learned Master erred in law in finding an imputation that the second appellant is a proprietor of a business which employs a licensed representative who has been found guilty of dishonest or deceptive conduct was incapable of being defamatory of the first appellant.
3. The Learned Master erred in law in finding the use of the word 'still' in the words complained of were arguable capable of being understood by a reasonable reader as meaning 'nevertheless, for all that'."
Principles governing application for leave to appeal
11 Leave to appeal is required in relation to an appeal against the Master's interlocutory order. In general leave will not be granted unless the Court of Appeal is satisfied that the decision is wrong or attended with
(Page 9)
sufficient doubt to justify the grant of leave, and that a substantial injustice would be done if it remained unreversed: Wilson v Metaxas [1989] WAR 285 at 294. However, these are not rigid or exhaustive requirements and leave may be granted if, in all the circumstances, it is in the interests of justice to grant leave: The State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 56 - 57.
Is there doubt about the correctness of the Master's decision?
12 In Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678, Hunt J explained that a plaintiff must plead, as the imputation upon which he relies, "the precise act or condition asserted of or attributed to him or with which he is charged".
13 An imputation may therefore relate to an act of the plaintiff or it may relate to a condition attributed to the plaintiff. It is defamatory to publish words imputing that the plaintiff murdered someone. That is an imputation concerning an act attributed to the plaintiff. In such a case it is the reprehensibility of the act of the plaintiff which diminishes the plaintiff's reputation because it induces others to "hatred or contempt" for the plaintiff.
14 However, an imputation about the condition attributed to a plaintiff may involve no blameworthy conduct on the part of the plaintiff at all. As Master Newnes said in Robinson v Quinlivan [2006] WASC 38 at [28]:
"… it is not necessary that the imputation reflects adversely on the person's integrity or imputes to them some wrongdoing. Words that tend to diminish the confidence of people in a person or cause them to avoid the person may be defamatory of the person."
In Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443, Hunt J also referred to the fact that a defamatory imputation about certain conditions does not have to assert any moral blame on the plaintiff.
15 Imputing that the plaintiff is the victim of certain crimes or imputing that the plaintiff is insolvent or imputing that the plaintiff is suffering an illness may be defamatory. See Youssoupoff v Metro-Goldwyn Mayer Pictures Ltd (1934) 50 TLR 581 at 587 (attributing to the plaintiff the condition that she was the victim of rape) and Aspro Travel Ltd v Owners Abroad Group plc [1996] 1 WLR 132 (attributing to the plaintiff the condition of being insolvent) or Morgan v Lingen (1863) 8 LT 800
(Page 10)
(attributing the condition of insanity to the plaintiff). The reason why these imputations are defamatory is because they cause others to "shun or avoid" the plaintiff. In the Aspro case, Schiemann LJ (Waite LJ agreeing) said at 137 - 138:
"It is common ground that it can be defamatory to say of a man that he is insolvent or cannot or will not pay his debts or has delayed paying his debts (see Gatley on Libel and Slander (8th edn, 1981) paras 52, 183). This is so notwithstanding that it requires no ingenuity to contemplate circumstances in which a man's insolvency is not attributable to any fault on his part. A reason for this suggested by the editors of Gatley is that such an allegation would tend to injure a man's credit which the law protects as part of his reputation. I consider that to say of a man that he is in charge of a company which continues trading whilst he knows that it is insolvent is capable of being defamatory. The question was put in argument: 'Would you want to do business with another company run by persons of whom you know that they were involved in running an insolvent company?' It seems to me open to a reasonable person to answer that question negatively although he knows that if he researched all the facts it might turn out that the directors concerned were genuinely acting, perhaps in accordance with skilled professional advice, in the best interests of the creditors of the insolvent company which they thought was about to turn the financial corner."
16 In this case the pleaded imputations related to both acts (or rather omissions) and conditions. In pars 9.3 and 9.5 the act or omission of "not disapproving" is attributed to the appellants. These have not been struck out. Paragraphs 9.2, 9.4, 17.2 and 17.4, however, plead imputations concerning conditions attributed to the appellants. As against the first appellant the condition is that the first appellant is an agent which employs a person who has been found guilty of acting dishonestly. As against the second appellant the condition is that he is the proprietor of a business which employs an agent who has been found guilty of acting dishonestly. The imputations do not identify blameworthy action by the appellants but, as in a case involving an imputation of insolvency, this does not mean that the words are not defamatory. The Master, however, considered questions of blame and whether reasonable readers would be forgiving or not. The Master said at [30] and [31]:
(Page 11)
"30 ... I do not consider that a reasonable reader might think less of a real estate agency simply because it chooses to continue to employ a licensed representative who had been found guilty of dishonest or deceptive conduct.
31 To conclude otherwise would, in effect, be to accept that there might be attributed to the ordinary reasonable member of the community the view that, regardless of the circumstances, a real estate agent should not employ, or continue to employ, a licensed real estate representative if that person has been found guilty of any dishonest or deceptive conduct. I do not consider that such a rigid, indeed quite unforgiving, attitude is capable of being so attributed. Something more than is pleaded would be required, but nothing further has been distilled in the imputation."
17 In my opinion, [31] reveals error. The reference to an "unforgiving attitude" suggests that the Master considered that some aspect of blame (requiring forgiveness) was necessary before the words would be defamatory. In my view, if it is defamatory to publish words imputing that a real estate agent is insolvent (without any attribution of blame) then it is arguably defamatory to publish words imputing that a real estate agent employs an agent guilty of dishonesty. The fact that this was said of an agent in a country town is pleaded and is significant. As "Gatley on Libel and Slander", 10th ed at 2.4 explains, the position of the plaintiff and the circumstances of the publication is relevant. In my opinion, the imputations under review would "tend to diminish the confidence of people in" the real estate agent in a country town, and the proprietor of such an agency, or "cause them to avoid" them (to use the words of Master Newnes in Robinson v Quinlivan (supra)); to not want "to do business" with the agent (to use the words of Schiemann LJ in Aspro's case; in short to shun and avoid the agent: "Gatley on Libel and Slander", 10th ed at 2.6.
18 Counsel for the respondents referred to "Gatley on Libel and Slander" (supra) at par 2.26, where the author says:
"Any imputation which may tend to injure a person's reputation in a business, employment, trade, profession, calling or office carried on or held by him is defamatory. To be actionable, words must impute to the claimant some quality which would be detrimental, or the absence of some quality which is
(Page 12)
essential, to the successful carrying on of his office, profession or trade. The mere fact that the words tend to injure the claimant in the way of his office, profession or trade is insufficient. If they do not involve any reflection on the personal character, or official, professional or trading reputation of the claimant, they are not defamatory."
19 The respondent pointed in particular to the last two sentences in that passage. On the other hand, the first sentence reflects the point made by the appellant.
20 It is difficult to see why, if imputing insolvency to a real estate agency is damaging to the agent's reputation for credit worthiness and is not merely injurious to his profession, and therefore defamatory, that it would not also arguably be damaging to the reputation for honesty of a corporate entity (which can only operate through its human agents) to impute that it employs a dishonest agent. In my opinion it is arguably defamatory to say so. The argument boils down to the respondent contending that the words are only damaging to the appellants in their business while the appellants contend that the imputation injures the appellants' reputation in their business or profession. In ordinary meaning, the reputation of a person is the estimation in which a person is held by the community or the public generally; a good name; good character. It was in Plato Films v Speidel [1961] AC 1090 at 1137 - 1138 that Lord Denning explained that reputation is what other people think of the plaintiff and that a defamation action is concerned with the plaintiff's reputation. In my view it is arguable that the reputation of a corporate real estate agent in a country town will be injured by the imputation that it employs a dishonest agent. It will be a matter for the tribunal of fact at trial to say whether the published words are in fact defamatory. The second appellant is the principal of the first appellant and so the arguments in relation to both appellants run together.
21 It is settled that an imputation will be struck out only if it is plainly incapable of being conveyed by the words complained of, or if the imputation is so clearly untenable that it cannot possibly succeed. See Buckeridge v Walter [2006] WASCA 22. In my opinion, the imputations in this case are not so clearly untenable that they cannot possibly succeed.
22 Grounds 1 and 2 should therefore succeed.
23 I would dismiss ground 3. It is clear that the Master considered that the word "still" was relevant to the imputations pleaded in par 9.3, 9.5,
(Page 13)
17.3 and 17.5 which were not struck out (see [19] and 21]). The argument advanced by the appellant, and recorded in [15] of the Master's reasons, seems to be in support of an imputation which is not pleaded. In any event, my opinion is that the word "still" has nothing to do with the paragraphs under review in this appeal.
Substantial injustice
24 In my opinion, substantial injustice may be suffered by the appellants if the decision remains unreversed. If the conclusion is that the other pleaded imputations are not defamatory, the appellants may fail because of the absence of the imputations which have been struck out.
25 In consequence, I would grant leave to appeal and allow the appeal.
26 BUSS JA: The material facts giving rise to the application, and the proposed grounds of appeal, are set out in the reasons of Pullin JA.
27 I agree with Pullin JA that leave to appeal should be granted and the appeal allowed, but my reasons are, in some respects, different from those of his Honour.
28 A trading corporation is entitled to sue in respect of defamatory imputations which reflect upon its business reputation. See Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 at 547, where Lord Keith of Kinkel gave these examples of imputations having that tendency:
" … those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it."
29 A trading corporation cannot, however, sue in respect of defamatory imputations which reflect solely upon an individual employee. See Bognor Regis Urban District Council v Campion [1972] 2 QB 169, where Browne J said, at 175:
"Just as a trading company has a trading reputation which it is entitled to protect by bringing an action for defamation, so in my view the plaintiffs as a local government corporation have a 'governing' reputation which they are equally entitled to protect in the same way … I entirely accept the statement made in Gatley on Libel and Slander, 6th ed, 1967, p 409, para 890:
(Page 14)
'A corporation or company cannot maintain an action of libel or slander for any words which reflect, not upon itself, but solely upon its individual officers or members.'
Then there is a quotation:
'To merely attack or challenge the rectitude of the officers or members of a corporation, and hold them or either of them up to scorn, hatred, contempt, or obloquy for acts done in their official capacity, or which would render them liable to criminal prosecution, does not give the corporation a right of action for libel.'
I stress the words 'solely' and 'merely' in those passages."
Similarly, in Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9, Hunt J said, at 10 - 11:
"The article identifies the plaintiff company as being the 'latest venture' of Mr Alexander Barton who, it is said, runs the company with his son, Thomas Barton. A great deal of attention is paid by the article to Mr Alexander Barton personally. It is argued by the defendants that matter disparaging of Mr Barton is irrelevant to the question of what is disparaging of the plaintiff company. I accept that, where such matter reflects solely upon a director or an officer of a company, the company itself cannot complain of its publication, but the emphasis must be placed upon the word 'solely': Bognor Regis Urban District Council v Campion [1972] 2 QB 169 at 175. However, an imputation concerning such a director or officer may in many cases reflect also upon the company itself; whether it may or does must depend upon the part that director or officer is alleged to have played in the operations of the company and upon the extent to which the one is identified with or considered to be the alter ego of the other."
Also see Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris (2000) 179 ALR 738 at 747 - 748 [37] - [41].
30 In Multigroup Bulgaria Holding AD v Oxford Analytica Ltd [2001] EMLR 28 at [41], Eady J observed that some defamatory imputations in relation to business practices ordinarily reflect upon one or more individuals who are responsible for the practices, rather than upon a corporation with which they are associated, but circumstances may arise in which the imputations also reflect upon the corporation's business
(Page 15)
reputation. Also see Al Rajhi Banking & Investment Corporation v The Wall Street Journal Europe Sprl [2003] EWHC 1358 (QB) at [6] - [8]; Cinevest Ltd v Yirandi Productions Ltd (2001) A Tort Rep 81-610 at 67,038 [40], [45] - [47].
31 In the present case, the allegations in question concern the publication of words which, it is pleaded, in their ordinary and natural meaning meant, and were understood to mean, that:
(a) Donnybrook Real Estate employs an agent who has been found guilty of acting dishonestly, further or alternatively, deceptively; and
(b) Mr Haygarth is the proprietor of a business which employs an agent who has been found guilty of acting dishonestly, further or alternatively, deceptively.
See pars 9.2, 9.4, 17.2 and 17.4 of the statement of claim.
32 The word "dishonesty" means "a disposition to lie, cheat, or steal". See The Macquarie Dictionary, 4th ed, 2005, at 411. It is defamatory to publish of a person that he or she is dishonest. See Mularczyk v John Fairfax Publications Pty Ltd [2001] NSWCA 467 at [29] - [31].
33 In my opinion, it is an essential requirement of the business life of a real estate agent that the agent act honestly and without deception. In other words, the agent must act honestly and without deception in the performance of his or her duties. If an agent is alleged to have acted dishonestly or deceptively, the allegation impugns his or her personal qualities and professional character. Compare Mularczyk at [32] - [34].
34 Dishonest and deceptive conduct on the part of an officer or a senior employee of a trading corporation may, depending on the circumstances, reflect on the business reputation of the corporation itself and cause people, who become aware of that conduct, to shun and avoid it.
35 In my opinion, it is reasonably arguable that an imputation that a small corporation (such as the first appellant), which carries on business as a real estate agent in a small country town, employs an agent who has been found guilty of acting dishonestly or deceptively, constitutes a reflection upon the business reputation of the corporation. Similarly, in my opinion, it is reasonably arguable that an imputation that the proprietor of a small business (such as the second appellant), which operates as a real estate agent in a small country town, employs an agent who has been found guilty of acting dishonestly or deceptively, constitutes a reflection
(Page 16)
upon the business reputation of the proprietor. It is an issue for the tribunal of fact, in the present case, whether the words complained of, which were struck out by the learned Master, are, without more, defamatory of the appellants. The pleas which were struck out are not so clearly untenable that they cannot possibly succeed. Grounds 1 and 2 of the grounds of appeal have been made out.
36 I agree with Pullin JA in relation to ground 3.
37 I also agree with Pullin JA, for the reasons he gives, that the appellants may suffer substantial injustice if the learned Master's decision remains unreversed.
38 I would grant leave to appeal, and allow the appeal.
