David v Abdishou  NSWCA 109
New South Wales Court of Appeal1
- The Court discussed the underlying principles that must be proved to establish any case in defamation.
- Often a defamation case can rely on the presumption that where a document has been made publicly available someone is likely to have read and understood it.
- However, in certain factual circumstances this presumption can be defeated with sufficient evidence.
This appeal arose from a claim in defamation that was heard before a jury and raised issues regarding the basic elements that need to be shown in order to establish a claim in defamation.
The plaintiffs, Fred and Suzy David were solicitors who, along with many, if not all, of the defendants, were of Assyrian origin. The Davids represented Karl Suleman who had induced many members of the Assyrian community to invest in his business. This business collapsed and many members of the Assyrian community lost their investments.
The defendants, Youeil Abdishou, Joseph Saliba Dadisho, Charles Kochou and Henrick Isaac (collectively the Defendants), had decided over the course of several meetings that they should complain to the Legal Services Commissioner (LSC) about what they believed was the Davids' involvement with Mr Suleman. Mr Isaac drafted a petition which set out their grievances and was to be given to the LSC.
At trial there were significant issues surrounding the evidence given as to how the publication of allegedly defamatory statements had occurred. The primary allegation related to a meeting at which various members of the Assyrian community were present. The Davids alleged that the petition was circulated at the meeting, founding a case in libel, and Mr Kochou had read the petition aloud with the consent of others, founding a case in slander.
At trial, the jury rejected the libel case as the Davids had not established that anyone had published the petition by circulating it at the meeting. The jury also found that none of the imputations complained of were conveyed by the written document.
Regarding the slander case, the Jury found that, whilst the petition had been published by reading it aloud, only Mr Kochou and Mr Dadisho were responsible for this publication, with Mr Kochou reading it and Mr Dadisho consenting, but the jury maintained that none of the imputations complained of were conveyed in that reading.
Along with considering the role that an appellate court has following a jury trial, the Court of Appeal looked in great detail at what was needed to prove publication for the purposes of defamation, the question of who may have authorised the publication, and the test for finding that particular imputations have been made following publication.
The question of whether any publication of the petition had occurred for the purposes of defamation was of key importance in this matter. There was evidence that many of the persons attending the meeting did not read or understand English and contradictory evidence was led as to whether anyone had actually picked up or read the petition at the meeting.
Counsel for the Davids argued that to prove publication it was sufficient to show that the petition was made available by the Defendants for a third party's comprehension without proving that such comprehension took place.
McColl JA, with whom the other judges agreed, noted that the classic statements of publication focus on its bilateral nature. That is, not only must a party communicate the relevant matter but it must also be comprehended by at least one person other than the complainant.
McColl JA referred to High Court authority2 which stated that the tort of defamation focuses on publications causing damage to reputation. As such, a person other than the complainant must comprehend the publication so that it can be shown that some damage to reputation occurred. It is not enough to claim that the publication was capable of being comprehended by someone. Someone must have actually comprehended it.
McColl JA said that publication can be inferred without having to call particular evidence in many circumstances (for example, where the contents of a defamatory matter are published in a book) but, with sufficient evidence, a presumption of publication can be displaced.
In the current matter, the Defendants gave evidence both that they had not seen anyone pick up the petition, which was sitting at a table at the general meeting, and that many of the people at the meeting would not have been able to understand the petition as it was in English.
McColl JA confirmed that it was open to the jury to find that no publication had taken place. The Defendants had provided sufficient evidence for a jury to find that no one other than them had actually read the petition. Thus, the appeal regarding the libel case was not successful.
Counsel for the Davids tried to argue that when Mr Kochou read the petition aloud it had effectively been published to him. McColl JA found that as Mr Kochou was a principal in the act of publication and defamation requires comprehension by a third party and not comprehension by the party conveying the publication. This argument could not establish a publication for libel.
Even though the jury were informed at trial that they were not required to answer any further questions once they had established that there had been no publication, it was noted on appeal that the jury had found that the claimed imputations had not been proven. This was challenged by the Davids.
McColl JA cited several key principles for how a court is to determine whether an imputation has been conveyed. It was noted that the means of publication is of importance, so a more sensational book will be less likely to see a reasonable reader read it with a high degree of analytical care. This is particularly clear with electronic broadcasts, such as on television, where a reasonable viewer may not have devoted the same degree of concentration that one would give to a written article.
Furthermore, while each publication has to be considered as a whole, the ordinary reasonable reader may pay more attention to matters that have been emphasised. Such emphasis can occur through headlines, colourful and seductive language, or simply through repetition of a theme.
It is implicit in these tests that an ordinary reasonable reader may place a different construction on a matter than a trained lawyer.
Given this, McColl JA found that it was reasonable for the jury to consider that the emphasis of the petition was on calling for an investigation into the Davids' conduct. Thus, it was not unreasonable for a jury to find that the document was drawing material to the reader's attention and inviting that person to consider and characterise the conduct without imputing that particular conduct had, in fact, occurred.
This decision shows that, whilst in most circumstances the issue of publication in a defamation case may be presumed and will not be of critical importance, publication can become a contentious element in some cases.
It needs to be noted that this decision did not rule out that at an average general meeting the availability of a document to be read may give significant weight to the claim that it was published. It was simply the extraordinary nature of the evidence and the factual circumstances in this matter that allowed the Defendants to succeed on the publication issue.
Persons who hold general meetings will need to be careful of material that they make available at any such meeting to ensure that they do not render themselves liable to a claim in defamation.
1 Beazley and McColl JJA and Sackville
2 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575
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