Bingle v Emap Australia Pty Ltd (No. 1) [2006] FCA 1704

FEDERAL COURT OF AUSTRALIA

Bingle v Emap Australia Pty Ltd (No. 1) [2006] FCA 1704 LARA BINGLE v EMAP AUSTRALIA PTY LIMITED NSD 886 OF 2006

EDMONDS J

8 DECEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 886 OF 2006

BETWEEN: LARA BINGLE

Applicant

AND: EMAP AUSTRALIA PTY LIMITED

Respondent

JUDGE: EDMONDS J DATE OF ORDER: 8 DECEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The respondent's motion, notice of which was filed on 22 June 2006, be dismissed. 2. The applicant have leave to file an amended statement of claim giving effect to these reasons on or before 15 December 2006. 3. Costs of the motion be costs in the cause. 4. The proceedings be adjourned to 9:30 am on Tuesday, 12 December 2006 for future directions. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 886 OF 2006

BETWEEN: LARA BINGLE

Applicant

AND: EMAP AUSTRALIA PTY LIMITED

Respondent

JUDGE: EDMONDS J

DATE: 8 DECEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT (NO. 1)

Introduction 1 On 9 May 2006 the applicant filed an application in this Court seeking relief under ss 80, 82 and 87 of the Trade Practices Act 1974 (Cth), ss 115 and 116 of the Copyright Act 1968 (Cth), damages under the Defamation Act 2005 (NSW) and for an injunction and damages or an account of profits for passing off. The relief sought is in connection with claims made by the applicant that the respondent published or caused to be published certain publications featuring photographs of the applicant and certain other publications advertising or otherwise promoting the first-mentioned publications (all of which publications are referred to in the applicant's statement of claim as 'the Materials') which involved contraventions of the Trade Practices Act, copyright infringement, the tort of passing off and which were defamatory of the applicant.

Motion 2 By notice of motion filed 22 June 2006 the respondent gave notice of its intention to move the Court for orders that pleadings in respect of the claims of defamation be struck out; alternatively, an order pursuant to O 29 r 2 of the Federal Court Rules that the capacity of the three matters complained of to convey certain of the imputations be heard and determined separately and in advance of all other issues in the proceeding; alternatively, an order pursuant to O 12 r 5 that the applicant provide further and better particulars in respect of certain pleadings.

The Statement of Claim 3 The relevant portion of the statement of claim filed 9 May 2006 complains of the publication of three matters: (1) A press release dated 17 March 2006 contained in or attached to an email published on or about 19 March 2006, both of which provided: 'BLOODY HELL! LARA BINGLE POSES TOPLESS FOR NEW MEN'S MAGAZINE IN A WORLD EXCLUSIVE … Australia's next biggest "bloody" export like you've never seen before! How good is this? One minute Sydney babe Lara Bingle is asking the world "where the bloody hell are you?" in a Tourism Australia television advertisement. And the next she is appearing in her first ever men's magazine photo shoot for Australia's newest men's magazine. So here she bloody is, Zoo Weekly Magazine's next cover star, on sale Monday 20 March, 2006.' (The first matter complained of.) (2) A banner advertisement published on or about 20 March 2006 containing, inter alia, the following words: 'WORLD EXCLUSIVE! BLOODY HELL! TV ad girl, LARA BINGLE'S first ever men's mag shoot.' (The second matter complained of.) (3) The Zoo Weekly 27 March 2006 edition published on or about 20 March 2006. (The third matter complained of.)

The First Matter Complained Of 4 Paragraph 25 of the statement of claim pleads that in its ordinary and natural meaning, the first matter complained of contained the imputation that the applicant agreed to pose topless in a world exclusive for a new men's magazine called Zoo Weekly and this was defamatory of the applicant. 5 The respondent submits that in its natural and ordinary meaning, the first matter complained of is not reasonably capable of defaming the applicant. It is not suggested that the imputation as pleaded in [25] is incapable of being conveyed by the first matter complained of. Rather, the challenge is as to whether it is reasonably capable of defaming the applicant – that is, whether the matter complained of would have caused ordinary right-thinking members of the community to think the less of the applicant, or if it held her up to ridicule or contempt, or would have caused her to be shunned or avoided. In Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, Gleeson CJ, McHugh, Gummow, Kirby and Heydon JJ (at [6]) accepted as correct the following statement of principle by McPherson JA in the judgment of the Queensland Court of Appeal: 'Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.' See also Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 164 – 167. 6 The applicant submits that an allegation that a woman agreed to pose topless for a world exclusive in a men's magazine is clearly capable of causing ordinary right-thinking members of the community to think the less of her. The degree to which this imputation alone (in contrast to some of the others) caused damage to the applicant's reputation is irrelevant. Once reasonable minds might differ on the issue of defamatory meaning then the issue is properly one for the tribunal of fact. 7 I agree with this submission and I agree notwithstanding that the applicant is described in the statement of claim as 'a fashion model'. 8 Paragraph 26 of the statement of claim is the true innuendo plea in relation to the first matter complained of. It pleads, further and in the alternative to [25], that, with the aid of certain extrinsic facts, the first matter complained of conveyed the imputation that the applicant agreed to pose topless in a world exclusive for a smutty men's magazine and this imputation was defamatory of the applicant. In support of this plea, the applicant relies '… as both a matter of general notoriety and as a matter known to the recipients of the press release, upon the general content and character of the whole of the Zoo Weekly magazine'. 9 The first objection the respondent makes to the pleading at [26] is that the extrinsic facts relied upon post date the first matter complained of – the publication of the email (and attached press release). The respondent submits, correctly in my view, that the applicant cannot rely upon after-acquired facts – extrinsic facts not known at the time of publication – to support a true innuendo plea and refers, in this regard, to what was said by Lord Denning in Grappelli v Derek Block (Holdings) Ltd (1981) 1 WLR 822 at 825 A – D with whom Lord Templeman agreed. See too Dunn LJ at 828 – 830. However, by letter dated 17 July 2006 the applicant's solicitors provided the respondent's solicitors with particulars of the alleged 'smutty' nature of the 20 February 2006 edition of Zoo Weekly and it was common ground that the motion should be determined on the basis that the extrinsic facts particularised in pars (a) – (cc) in the applicant's solicitors' letter of 17 July 2006 to the respondent's solicitors pre dated the publication of the first matter complained of. 10 The second objection the respondent makes to the pleading at [26] is that even assuming earlier editions of the magazine are added, the imputation is not capable of being conveyed because no reasonable member of the community could describe the magazine as 'smutty'. The respondent sought to make this good by reference to dictionary definitions of the word 'smut' as being synonymous with some level of indecency or obscenity. However, the word used is 'smutty' and the same dictionary definitions of that term refer, inter alia, to something which is 'vulgar, but without strong connotations of indecency'. The example given is 'a smutty novel'. Having regard to my review of the 20 February 2006 edition of Zoo Weekly, specifically the material referred to in the particulars (a) – (cc) of the applicant's instructing solicitors' letter of 17 July 2006 to the respondent's solicitors, I am not persuaded that the imputation pleaded in the innuendo plea is not capable of being conveyed because no reasonable member of the community could describe the magazine as 'smutty'. 11 The third objection which the respondent has to this pleading is the reliance (in the alternative) by the applicant on the smutty content and character of Zoo Weekly as being a matter of general notoriety. No objection is taken to the alternative reliance by the applicant on the smutty content and character of Zoo Weekly as being a matter known to the recipients of the press release. I have formed the view that a magazine which was only first published in Australia during the week of 20 February 2006 could not, by 19 March 2006, have acquired, as a matter of general notoriety, a content and character of being smutty. In coming to this view, I accept that there was, for the first issue, a very wide free distribution of the magazine. 12 It follows, in my view, that the words 'as a matter of general notoriety' should be excluded from the particulars of extrinsic evidence to the plea in [26]. 13 Paragraphs 27 to 29 of the statement of claim plead republication of the first matter complained of in subsequent media publications. While the respondent expressed some uncertainty as to whether the applicant's pleading relies upon the republication as a new cause of action, or whether she relies upon subsequent publications in support of her claim for damages, the applicant, in her submissions, submits that it is apparent from the statement of claim that she relies upon each republication as a separate cause of action. With respect to the applicant, I am not convinced that the statement of claim makes that conclusion so apparent. 14 The first objection to this pleading is that the first matter complained of, in its natural and ordinary meaning, is not reasonably capable of defaming the applicant. The same conclusion would hold true in respect of any republication of that matter. As I have already concluded otherwise in respect of [25] of the statement of claim, the objection cannot stand. 15 The second objection is that the applicant has failed to specify, with any precision, the 'sense and substance' upon which she places reliance. As such, the respondent does not know the case which it must meet as to the effect of republished material. In response the applicant says that upon a review of the particularised articles it is obvious where the 'sense and substance' of the first matter complained of was republished. The applicant indicated that the articles referred to in particulars (c) and (d) were not pressed and by its letter dated 17 July 2006 the applicant's solicitors provided to the respondent's solicitors particulars of the portions of the remaining articles upon which reliance is placed. 16 The third objection to this pleading is framed such that to the extent that the applicant relies upon the publication of a meaning that she agreed to pose topless for Zoo Weekly, that suggestion is not conveyed (and in at least one instance is expressly repudiated) in the articles particularised. Whether or not that be so, it is clearly a matter which should go to the tribunal of fact. It provides no basis for strike out at this threshold level.

The Second Matter Complained Of 17 Paragraph 31(a) of the statement of claim pleads that in its ordinary and natural meaning the second matter complained of contained the imputation that the applicant agreed to pose in a bikini in a world exclusive for a smutty men's magazine. The second imputation pleaded in [31](b) is no longer pressed. 18 Paragraph 32(a) is the true innuendo plea in relation to the second matter complained of and pleads, further and in the alternative to [31](a), that with the aid of certain extrinsic facts, the second matter complained of conveyed the imputation that the applicant agreed to pose in a bikini in a world exclusive for a smutty men's magazine. In other words, the same imputation as in [31](a). Again, [32](b) is no longer pressed. 19 In the face of the abandonment of the pleadings in [31](b) and [32](b) of the statement of claim, there is no longer any substantive objection to the pleadings in [31] and [32]. Moreover, the particulars of extrinsic facts referred to in relation to [32] do not, by reference to temporal considerations, suffer from the problem that confronted the innuendo pleading in [26].

The Third Matter Complained Of 20 Paragraph 34 of the statement of claim pleads that in its ordinary and natural meaning the third matter complained of contained the following imputations, each of which was defamatory to the applicant: (a) The applicant consented to pose in a 'g string bikini' in a world exclusive for a smutty men's magazine; (b) [not pressed] (c) the applicant agreed for photographs of her semi-clothed to appear in a men's magazine for the sexual pleasure of readers; (d) the applicant consented to be photographed for a men's magazine exposing part of her breasts and saying to readers 'I'll make you come'; (e) the applicant is the sort of model who would allow herself to be photographed for a magazine scantily clad and making an overtly sexual invitation; (f) the applicant invited the readers of a smutty men's magazine to achieve sexual pleasure as a result of looking at photographs of her appearing in the magazine; (g) the applicant is the sort of model who would invite the readers of a smutty men's magazine to achieve sexual pleasure as a result of looking at photographs of her appearing in the magazine; (h) the applicant was prepared to demean herself for money by consenting to be photographed scantily clad for a smutty men's magazine. 21 The respondent takes the position that none of the pleaded imputations in [34] are capable of arising from the third matter complained of. The respondent submits that the overwhelming majority of the magazine is concerned with matters unrelated to the applicant namely, cars, sport and humour. Counsel for the respondent submitted that: '… no jury would consider this to be a smutty or obscene magazine. Only a wowser, someone from the extreme – perhaps from the extreme religious right, perhaps someone with morals that are more akin to a different era, might describe it as smutty. Your Honour, all this is is a lads' magazine. It is a humorous magazine … It's got things that the editors assume appeal to the average Aussie bloke, cars and sport and let's face it, pictures of pretty girls … My submission simply put is that the magazine is not an obscene magazine.' 22 My own view is that 27 March 2006 edition of Zoo Weekly is not reasonably capable of being characterised as an 'obscene magazine'. However, for the reasons I have already referred to, it is undoubtedly capable of being characterised as a 'smutty magazine'. In my opinion, the two are not synonymous. 23 The respondent's challenge to the imputation in (a) is predicated on the word 'smutty' and this has already been dealt with. 24 Paragraph (b) is not pressed. 25 The respondent objects to (c) primarily on the basis that there is nothing in the magazine supporting a suggestion that the photographs would be included for the purposes of providing sexual pleasure to readers. The applicant submits that in circumstances where on page 2 of the particular edition the applicant is photographed with a speech bubble coming out of her mouth saying – 'I'll make you come …', that submission is not sustainable. I agree. 26 Paragraph (d) falls into the same category. As does (e). 27 No objection is taken to (f). 28 The objection to (g) is predicated on the word 'smutty' and I have already dealt with this. 29 Paragraph (h) falls into the same category. 30 As matters of pleading, based on my review of the relevant edition of the publication, the first edition of the publication some four to five weeks earlier and the other publications complained of, I have no difficulty in concluding that the imputations set out in pars (a) and (c) – (h) of [34] of the statement of claim are capable of standing as pleadings, that is: (1) That the relevant edition of Zoo Weekly contained those imputations; and (2) each of them is reasonably capable of defaming the applicant in the sense referred to in [5] above. They should go to the tribunal of fact.

Conclusion 31 The applicant has been successful in maintaining the substance of her pleadings subject to certain concessions she has made in the face of the motion of the respondent. Additionally, in the face of the motion, the applicant conceded that her particularisation of certain pleadings was erroneous; its concession prior to the hearing of the motion in those terms does not diminish that fact. 32 Subject to the specific matters I have mentioned, the motion should be dismissed. I will grant leave to the applicant to file an amended statement of claim in accordance with these reasons. 33 In the circumstances, I think costs of the motion should be costs in the cause. Accordingly, there will be no order as to costs. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 8 December 2006

Counsel for the Applicant: Mr M Richardson

Solicitor for the Applicant: Gilbert + Tobin

Counsel for the Respondent: Mr D R Sibtain

Solicitor for the Respondent: Addisons

Date of Hearing: 20 July 2006

Date of Judgment: 8 December 2006