Advertiser Newspapers Ltd v Peterson

[1995] HCATrans 330

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A26 of 1995

B e t w e e n -

ADVERTISER NEWSPAPERS LIMITED

Applicant

and

NORMAN PETERSON

Respondent

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON THURSDAY, 23 NOVEMBER 1995, AT 12.11 PM

Copyright in the High Court of Australia

MR J.R. SACKAR, QC:   If your Honours please, I appear for the applicant with my learned friend, MR A.R. HARRIS.  (instructed by Minter Ellison Baker O’Loughlin)

MR R.J. WHITINGTON:   If the Court pleases, I appear for the respondent.  (instructed by Sykes Bidstrup)

BRENNAN CJ:   Yes, Mr Sackar.

MR SACKAR:   Your Honours, we say import questions of law arise here; not just a division of the judges below on the question of the factual basis of the allegation of malice.  We say the questions of law that arise are really these:  this case gives rise to questions which were not considered in Theophanous or Stephens, namely, the relationship or interrelationship between the constitutional defence and common law qualified privilege. 

We say that the findings of the Full Court, either the readiness for them to disavow and reject the findings of the learned Master, and/or disagree with Justice Cox on that issue, were brought about either by a misunderstanding of the nature of that relationship, and we put it on two bases.  The Full Court seems to have assumed that the High Court in Theophanous said, in effect, that the constitutional defence would be easier to comply with, or satisfy, from the point of view of the defendant than, indeed, the common law qualified privilege would be and, for reasons I will come to in one moment, we say that is perhaps an underestimation of certain aspects of the common law qualified privilege.

The second aspect, we say, is this, and it is really interrelated with the first.  There is a real issue that arises in terms of what is required to prove unawareness of falsity.

GAUDRON J:   But how does that arise in this case?

MR SACKAR:   It arises, we say, this way:  if unawareness of falsity was really intended by the majority in Theophanous to impose a burden on the defendant to, in fact, prove a positive belief in the truth of the facts, then that would indeed involve a reversal of the onus on the issue of malice, for this reason, that traditionally a plaintiff would seek to allege a lack of honest belief.  If the plaintiff succeeded, then there would be a finding of malice because, as Lord Diplock says in Horrocks v Lowe, “A finding that somebody did not have an honest belief in the truth of what they published will generally be conclusive evidence of malice”.           Now, may I develop both of those points ‑ ‑ ‑

GAUDRON J:   But I still do not see how it arises in this case, it having been found against you, in effect, that you did know it was false, that the papers ‑ your library showed that it was false.

MR SACKAR:   Yes.  Your Honour,  I do not wish to trouble your Honour with the detail of our submissions in our outline which take issue with those facts, but we certainly do submit that there is a quantum leap between a finding that material which was published was inaccurate and false, and finding, indeed, that we deliberately published falsehoods, and that required, of course, the majority of the Full Court to reject the findings of the Master which, in part, involved findings of credit of the witness, Jory, who came along, and, in part, rejected findings of the Master and indeed findings of Justice Cox as to the role played by Jory in the article.  What we say is this, your Honour, there is a real issue that ultimately would arise but on a limited factual issue of malice.  If malice is here we lose, we accept that.

GAUDRON J:   Well, that is right.  So that the first issue you have got to tackle really is whether there was any evidence on which it could be found.

MR SACKAR:   With respect, we say, for reasons I shall not go to in detail, that there was no evidence upon which their Honours in the majority could have found the malice, because inaccuracy alone will not lead to a finding of a deliberate untruth.

BRENNAN CJ:   Now, that is really your hurdle, is it not?

MR SACKAR:   Yes.

BRENNAN CJ:   You say you will not go to it in detail, and we are indebted to you for that sensitivity, but it is the very problem that you face because, if there is material on which the Full Court was entitled to reach that conclusion, that is the end of the matter.

MR SACKAR:   It is.  We say there is not, your Honour, for a number of reasons.  First, their Honours had to, in effect, reject the trial judge’s findings on an issue of credit.  He believed Jory when Jory said that although he normally held the plaintiff in high regard and as a man of integrity, he changed his mind about him because of the articles which are set out, I think, in Justice Olsson’s judgment and which there is no doubt, no issue, Mr Jory had on each and every occasion accurately quoted the plaintiff and the plaintiff agreed with that proposition.

Secondly, one of the bases upon which the Full Court determined - Justice Mullighan, in particular - that there was malice here was that the fact the newspaper had a political agenda, amounted to evidence of improper purpose.  Now, let me answer that by saying this:  in political discussion, we would say, with great respect, it could never be improper purpose or a misuse of the occasion of qualified privilege, it being an occasion of the exercise of political discourse, for a party, whether it be a newspaper or an elector or anybody else, to have an agenda, politically, and to ‑ ‑ ‑

GAUDRON J:   But if it recklessly or untruthfully publishes false material in pursuit of its agenda, which is what the finding is against you - - -

MR SACKAR:   Well, it is the finding against me, but the finding on malice has to go to our motivation.  You see, a finding of publication of falsity, as I have said, will not amount to a finding of ‑ ‑ ‑

GAUDRON J:   The finding, in essence, is that you either deliberately or recklessly published false material in the pursuit of your agenda.

MR SACKAR:   Yes.  I accept that.  We challenge ‑ ‑ ‑

GAUDRON J:   Why is that not malice in any sense?

MR SACKAR:   First of all, because a political agenda is not an improper purpose; that is the first point.

GAUDRON J:   Well, when you combine it with the reckless or deliberate publication of falsehood.

MR SACKAR:   Yes.  Your Honour, the elements of falsity, which are said to arise, go to two things.  There are two editorials here of course; the latter involved certain inaccuracies about timing, namely the fact that we did not mention that the speaker was under time constraints when he was going to the House that day to discuss the no confidence motion and, with the greatest of respect, we would suggest, on the facts of this case, in so far as there were deficiencies in the factual material, they could not be sufficient to amount to malice, because falsity, we say, of the material, particularly in the context of carelessness, does not give rise, we submit with respect.  There is a quantum leap between falsity or inaccuracy even if it comes about as a result of some irrationality or carelessness.  There is a quantum leap between that and finding that either your dominant motive was to injure or, alternatively, you deliberately and dishonestly published falsehoods, and we say that when analysed on those factual materials, we say there is no evidence of malice in this case on that particular matter.

BRENNAN CJ:   You are also leaving out of account, are you not, the view of the majority that there were material facts that were omitted?

MR SACKAR:   That is obviously a matter for debate.  The material facts are, in essence, those I have mentioned, namely, that I think it was said two other members of the House - the allegation here all along was that Mr Peterson held the balance of power and we failed to mention, for example, that two other independent persons, as it were, were involved in the exercise, but there was no evidence that those gentlemen had ever, like Mr Peterson, said for many months or for, indeed, a great deal of time prior to that what he would or would not do in the event of the Royal Commission report being handed down.

In respect of the first matter, where it was said by the trial judge below that Mr Jory was entitled to have a change of mind in terms of his view of the plaintiff, that turned upon the question of whether one could say that Mr Jory had changed his mind.  The majority said, no, it could not be said that he did, but on, we say, a fair reading of the articles which were extracted in Justice Olsson’s judgment, the point really comes down to this:  Mr Peterson said in those articles that he would, in fact, vote against the government - I am so sorry, Mr Peterson said that he would vote against the government in the event of an unfavourable report.

GAUDRON J:   With respect to Mr Bannon?

MR SACKAR:   He uses two expressions.  He says “government” and then he says “Mr Bannon” later and the editorial, in effect, attacked him in strident language, not seeking to hide behind the language, on the basis that he had an unacceptable change of stance and it contrasted, in effect, his position on the Workcover legislation.  We say with respect why the Full Court got to the point of more readily finding malice in this case or, alternatively, coming to the view that we had, in effect, had a dishonest belief was because of what I have said is this interrelationship between the common law qualified privilege and the implied constitutional defence and it arises as I have said shortly this way.  The majority in Theophanous said that the common law qualified privilege as a result of the constitutional defence would be of little practical significance.  With respect we say that is arguably incorrect because it fails to, we say, appreciate the differing onuses that are borne between the constitutional defence where the defendant would bear the onus of proving the three elements, as opposed to the common law qualified privilege where, of course, a plaintiff needs to prove sufficient evidence to overcome the presumption that arises at common law that the defendant had an honest state of mind and/or was not abusing the purpose in the event that he proves that it is an occasion of qualified privilege. 

Now, what the majority in Theophanous said as well was that political discussion would amount to occasions of qualified privilege and we say that that is the first and important thing, but tied in with that, as I said initially, is what is involved in proving unawareness of falsity.

BRENNAN CJ:   I am not sure that I am following that very clearly, Mr Sackar, the first part of your proposition, that is, the part that you deal with Theophanous and the view of the majority about the onus on the plaintiff.

MR SACKAR:   Yes.  Now, what I meant to say more clearly, more directly, was this:  in saying, as the majority did, that the common law defence would be of little practical significance, they must have been saying that it would be generally easier for a newspaper defendant or any defendant engaged in political discourse to discharge the burden under the defence as formulated than it would be under the common law qualified privilege.  We say that is the only reasonable construction of what the majority was saying because otherwise there is no other way of looking at qualified privilege.  It would otherwise have some practical significance, but by saying that the common law had to conform with the federal constitutional defence and by saying that the common law would provide little by way of practical significance to a defendant must have been the majority saying that the constitutional defence would be easier to discharge.

BRENNAN CJ:   What does that lead to?

MR SACKAR:   What flows from that is this:  that fails to appreciate the differing onuses and it fails to appreciate the difficulty that plaintiffs face and have always faced once an occasion of qualified privilege is established in proving express malice because of the presumption which arises upon the proof of the occasion, namely, that the two states of mind are presumed and more than a scintilla of evidence is necessary to rebut that presumption.  So the majority, we say with respect, underestimated the differing onuses and underestimated the significance of the presumption that arises in the case of qualified privilege when an occasion occurs and the Full Court, especially Justice Olsson, we say, spoke about reversal of onus and he spoke about it, we say, because he misunderstood what the High Court was saying about the interrelationship between the two.  He thinking, we say wrongly and to that extent the majority wrongly, that common law qualified privilege in effect had to conform and either that meant in his mind, as we would have it, a reversal of the onus or a greater readiness to infer malice.         Now, that is what we want to say on that.

BRENNAN CJ:   Can you point to any passage in the majority judgments which indicates that the learned judge was imposing the onus of proof of malice of the absence of malice on the plaintiff for the purposes of the common law defences?

MR SACKAR:   Yes, your Honour.  Before I come to it, it is at AB 130 and I will come to it in one second, but may I just go to the second point which is interrelated.  Much may depend on what is involved in any event in a defendant discharging the burden under the new defence, in particular, proving unawareness of falsity.  If unawareness of falsity simply means proving a lack of knowledge, that is one thing, but if unawareness of falsity really does involve a defendant under the new defence proving an honest belief in the truth of the matter published - and there are two passages in the majority I want to go to in one second which give rise to that very cogent suggestion - then it really means, if it is left, that the federal defence so‑called involves - if proof of positive belief in the truth is a requirement ‑ ‑ ‑

GAUDRON J:   But, again, it does not arise in this case unless you get past malice.

MR SACKAR:   I will accept that, your Honour, to this extent only, that it, again, may well explain the approach adopted by the Full Court in looking at the evidence of malice and adopting a greater readiness, as it were, to infer or reverse the onus.  May I come back to that latter point in a moment because of what your Honour says and I accept that.  AB 130, this is in the judgment of Justice Olsson in the middle of the page:

Mr Harris went on to submit that, “because the common law has to conform ... [with the implied freedom] ... it can’t operate to impose the greater burden on the publisher than the freedom the immunity provides.  It is, therefore, arguable ... that the common law defence of qualified privilege is now easier to discharge, for a defendant, than the constitutional immunity.  The reason relates to the differing onuses that exist in respect of either, discharging the constitutional preconditions, or, proving malice”.

In my view such reasoning is fallacious and does not derive support from the majority reasoning in Theophanous.  On the contrary, the retention of the common law concepts in this regard is the very reason why the majority made the comment that the existence of the constitutional defence is likely to leave the defence of qualified privilege with little, if any, practical significance.  That remark arose because the High Court rightly saw the constitutional defence, where it was available, being much easier to mount than that of qualified privilege, for the very reason that the latter may not, in many instances, be able to clear the traditional hurdle of express malice - even given that the onus of proving malice is borne by a plaintiff.

Now, talking about hurdles, your Honour, is the problem and a little further down the modification and his expression of:

or the common law requirement that publication be without malice.

Now, that is my best point as to where I say the reversal of onus has been contemplated.  His Honour goes on thereafter to, we say, deal with matters in what apparently is an orthodox fashion but we do submit, with the greatest of respect, the tension between the two defences has been misunderstood and in describing it as a hurdle, the traditional hurdle of expressed malice, it cannot be a hurdle for a defendant.  It is always a hurdle for a plaintiff but reasonableness is a hurdle now for the defendant.

Your Honours, because of the time constraints, may I simply in closing give your Honours a reference quickly to Theophanous to where their Honours in the majority appear to equate the proof of unawareness of falsity to honest belief.  It is pages 137 and 138 of Theophanous in the book that we have handed to your Honours.  The test is annunciated at 137 as being unawareness of falsity but at 138, “The requirement that a publisher publish honestly, not recklessly, and reasonably”, and a little further down, the defendant’s belief in the, “truth or falsity” which is very different, we say, to unawareness of falsity, and what puts it beyond, we say, any doubt is the concluding remarks of the majority in Stephens at 234 namely, “the onus in respect of honest belief”. 

Now, your Honours, there is a very significant distinction qualitatively between the proof of mere, as it were, unawareness of falsity and positive proof in the belief.  If that is right, then there has been, we say, a reversal in terms of malice so far as this constitutional offence is concerned and it therefore means if that is the way it is to be interpreted, and it is an important question, we say, to clarity and partly explains, perhaps, what Justice Olsson and Justice Mullighan did here.  It really does mean that if the defendant bears the onus of proving the position belief, he has to deal with the very issue of malice now by way of onus in the defence in the federal constitutional defence because, as I have said before, proof that you

did not honestly hold the views or you lacked an honest intention generally will conclude the issue of malice against you.  So, your Honours, we say that those issues do arise, both of them, and that they are important issues to resolve, but I do accept that if malice is here we lose, but for the reasons I have shortly developed we say that there is an arguable case here but there is no malice.  If your Honour pleases.

BRENNAN CJ:   Thank you, Mr Sackar.  We need not trouble you, Mr Whitington.

An appeal in this case cannot succeed unless the finding of malice by the majority of the Full Court is set aside.  To displace that finding, it would be necessary to establish either an error of principle affecting the finding or an absence of evidence to support the finding.  We do not read the judgments of the majority as to malice as revealing the error for which Mr Sackar has contended.

The issue of the sufficiency of evidence does not, in the circumstances of this case, enjoy sufficient prospects of success on appeal to justify the grant of special leave.  For those reasons special leave will be refused.

MR WHITINGTON:   I apply for costs, if the Court pleases.

BRENNAN CJ:   Do you have anything to say about that, Mr Sackar?

MR SACKAR:   No, your Honour.

BRENNAN CJ:   Special leave will be refused with costs.

AT 12.34 PM THE MATTER WAS CONCLUDED