The end-of-year revue that landed in the Supreme Court.

Case reviewed: Bishop v State of New South Wales, Supreme Court, New South Wales, Australia
[2000] NSWSC 842; [2000] NSWSC 1042

Background

In 1997, 60-year-old Noel Bishop was a woodwork teacher at Farrer Memorial Agricultural High School in rural northern New South Wales.  Following a three-minute revue-type skit performed by Year 12 boys, Bishop sued the State of New South Wales for defamation.

The compère of the show, the school’s vice-captain, had introduced two students on stage: one, wearing hot-pink shorts, which was said to represent Bishop; the other, wearing a white dress, which was said to represent a female mathematics teacher.

None of the teaching staff were involved with the show’s scripting or presentation.

Bishop alleged the two students walked hand-in-hand up on to the stage, and then put their arms about each other and pretended to engage in groping, kissing, spanking, oral sex and sexual intercourse.

Arising from these alleged actions, Bishop said that audience members interpreted the performance to mean that he (a) engaged in lewd sexual activities with another teacher, and (b) had an adulterous relationship with another teacher.

Interlocutory ruling

At an earlier pre-trial hearing, Bishop had complained that the show also was taken to mean that he “so conducted himself as a teacher he did not have the respect of his students who held him up to ridicule”.  However, Simpson J struck out that meaning for adding an unnecessary layer to the substance of Bishop’s complaint – “that the plaintiff was defamed because he was defamed”, as the Judge put it.  Accordingly, Bishop’s claim was left resting on whether the performance carried the two meanings mentioned earlier.

Trial

One problem Bishop faced was that the defendant challenged the accuracy of the actions the students were alleged to have performed.

Both parties presented evidence to the four-person jury.  Two students gave evidence verifying what Bishop had alleged to be the impugned acts performed on stage.  Another witness gave evidence that the boy portraying Bishop had put his hands on the other boy’s rear and made a pumping motion.

However, three teachers and the headmaster said no such things took place, and that the most notable thing was that the boy portraying Bishop pretended to ride the other boy like a horse.

Trial ruling

At the close of the evidence, the defendant sought an order that the matter be taken away from the jury and judgment be entered for the defendant, on the basis the defendant could not be held liable for the performance.

The Judge noted that the students were neither agents nor servants of the school.  This meant vicarious-liability principles (for instance, in relation to an employer’s responsibility for their employee’s actions) were not applicable.  However, the Judge held that it was open to the jury to find the defendant liable for the performance if the jury was satisfied that the headmaster:

• became aware of the impugned gestures during the performance;

• had the opportunity and ability to terminate the performance;

• failed to terminate it; and

• in failing to terminate it, acted so as to be regarded as consenting to, authorising or approving of, or acquiescing in, the contents of the performance.

Verdict

In the end, the jury found that, while indeed the performance was defamatory of Bishop, the State of New South Wales (through the Department of Education) could not be held liable.  Evidently, the jury could not satisfy itself of the four criteria to which the Judge referred them.

Comment

This is one of those rare cases where the defamatory publication arises from gestures rather than words.  In such cases where there is no incontrovertible record of the allegedly defamatory publication—such as a newspaper clipping upon an ordinary case of libel—the plaintiff must overcome the additional hurdle of proving the defamatory publication itself.

In this case, Bishop was successful in this regard, with the jury evidently rejecting the defendant’s argument that the performance portrayed only rather innocuous actions.

But of course, the jury ultimately refused to find the defendant liable.

Following the verdict, defamation barrister Judith Gibson—who is now a Judge—was interviewed for case comment on ABC Radio.  When asked by the interviewer whether, since the school could not be held liable for the students’ actions, the plaintiff might sue the students themselves, Gibson gave the rejoinder:

“He’d be very sorry if he did. What’s he going to do, garnishee their pocket money for the next 20 years?”