Australian Broadcasting Corporation & Anor v Hodgkinson

[2005] HCATrans 852

[2005] HCATrans 852

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S342 of 2005

B e t w e e n -

AUSTRALIAN BROADCASTING CORPORATION

First Applicant

NORMAN SWAN

Second Applicant

and

SUZANNE HODGKINSON

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 7 OCTOBER 2005, AT 11.20 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR A.T.S. DAWSON, for the applicants.  (instructed by ABC Legal Services)

MR R.G. McHUGH:   May it please the Court, I appear with MS V.E. WHITTAKER for the respondent.  (instructed by Banki Haddock Fiora)

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the question which was decided against us in the Court of Appeal arises under section 16 of the Defamation Act 1974 (NSW) and in particular in relation to the stipulation by that statute as a matter, we submit, of plain and unqualified enacted law that it will be a defence to any imputation complained of that, and to paraphrase, one or more imputations contextual to it and then jumping to the matter of instant concern, are matters of substantial truth.

Our application does concern then the meaning and the force which should have been given to the content and fact of that being enacted law in New South Wales; it is a New South Wales statute.  I do not rely upon the fact that New South Wales is not only the largest State in population but also has probably more than a fair share of defamation litigation, rather, we submit that that notion informing the New South Wales legislation is commonly understood as highly likely to be reflected in the proposed, I stress not enacted but proposed, national model of similar State legislation as part of the latest bout of the long spoken of and sometimes acted upon project of national reform of defamation by statute.

In particular, the question of substantial truth of the contextual imputations finds a place verbatim in the current draft New South Wales Bill which has, it is hoped, national exemplary force.  So for those reasons, in our submission, the issue is one which is well capable of having general public importance for not only New South Wales defamation litigation but also for publications and causes of action and defences arising across the country.

The error, in our submission, emerges from the departure represented first from authority, as we have put in our written submission, but also from those plain and unvarnished words of the statute, which I have quoted.  If your Honours could pick the matter up, for example, at page 27 of the application book, in our submission, it is in paragraph 31 that the error intrudes and it is a serious one.

The position to this point is that it has been held that the matter complained of was capable of conveying the relevant contextual imputation.  It is also clear from paragraph 35 on page 28 that it was accepted that the particulars then extant are the particulars which were before the court and are the only ones which ought to have been considered, were matters which, to quote Justice Hodgson:

do not extend beyond matters referred to in the broadcast -

However, in paragraph 31 on page 27 the ratio appears, and I pick it up at about line 17:

it could well be unjust ‑

words which, in our submission, are inappropriate when applying a statute as prescriptive as the one I have quoted –

to allow the appellants to defend on the basis of this contextual imputation by ranging widely over alleged discreditable conduct of the respondent having nothing to do with matters raised by the broadcast.

GLEESON CJ:   When he says “this contextual imputation” this is in a context of a pleading summons in which this particular imputation was struck out with leave to replead.

MR WALKER:   That is right.

GLEESON CJ:   Why would we get involved in that?

MR WALKER:   Because, your Honour, leave to replead is within the strictures laid down by these reasons, that is we must still plead so that the contextual imputation is such as can be supported as to substantial truth only by matters which are contained within the broadcast itself so that it cannot be cured by us taking advantage of what appears, in general terms, as leave to replead.  We obviously must replead in accordance with the new law, extra statutory law, in relation to a statutory defence held by the Court of Appeal.

We cannot cure the matter for ourselves by repleading.  We can only conform to the novel constriction of a defendant’s capacity to defend by saying, “But this matter complained of also conveyed the following imputation as to which we can prove its substantial truth”, and that formula is a formula which we are not permitted to follow by the leave to replead. 

The reason the Court of Appeal is saying that if you particularise matters or worse, as your Honours have seen by the reference to a possible amendment, if you may one day in the future, by leave of a court, amend particulars which would then permit you to range over matters called in support for substantial truth, matters not referred to in the broadcast, then that contextual imputation may not be pleaded, may not be relied upon, as a defence, so that this is, on grounds of substantive principle, not a matter of practice and procedure or an interlocutory discretion. 

On a matter of substantive principle, the Court of Appeal has held that what appears on the face of it, to fit the plain words of a statutory defence, may not be allowed, not because it crosses a line laid down by the enacted words, but because something could well be unjust by reference to the notion of material facts, matters and circumstances particularised in support of substantial truth being themselves not narrated or presented in the matter complained of, a requirement which, as we have demonstrated in our written submissions, has hitherto never been hinted at and presents, obviously enough, a contrast between the treatment of plaintiff’s imputations on the one hand, and defendant’s imputations on the other hand, which represents a striking anomaly, a striking anomaly because section 16 relevantly bestows the possibility of a defence which allows, in the court’s decision, a balance for comparison to be conducted between the damage to reputation by one thing as opposed to another.

That other, the contextual imputation, is one which will prevent liability on the part of a defendant by the defence being available if it is simply substantially true.  It is for those reasons, in our submission, that the ratio found at paragraph 31 goes far beyond simply a complaint that we should not have been given leave to replead.  It is a complaint that this is an artificial, extra or contrary to the statute limitation that has been placed upon us as it happens manifest in the leave to replead.

The reasoning which imposes this restriction on us contrary to enacted law is found on page 28 of the application book at the foot of paragraph 34, about lines 26 or so where his Honour said that he thought that authority, I should say an authority that as we have explained in the written submission does no such thing, an authority required that:

a contextual imputation be formulated so that facts, matters and circumstances –

those are the particulars –

that can be relied on to establish its truth bear a reasonable relationship –

not a concept that is found in the statute and not one which is easy to apply as to limitations, as to limits –

both to the contextual imputation itself –

One can say there by interpolation, well, of course they must be those which, if proved, would show its substantial truth, that they are matters of substantial truth.  One does not need and one should not have inserted a judicial gloss about a reasonable relationship.

The second part which is, in our submission, a vice of the new principle, found from invisible words in a statute “and to the published material relied on by the plaintiff” and in our submission, there is simply no call for that at all. The relationship between the plaintiff’s imputations and the contextual imputations pleaded by the defendant is quite simple and set out in section 16(2)(c):

by reason that those contextual imputations are matters of substantial truth, the imputation complained of –

the plaintiff’s imputation –

does not further injure the reputation of the plaintiff.

That is the only relationship and it does not call for the artificial restriction of material in support of truth that the Court of Appeal has held and thus has imposed by way of a constraint on any amendment that we might formulate pursuant to the leave granted.

At page 29, paragraph 38 in his Honour’s reasons finally, at about line 22, it appears part of the reasoning in support of those conclusions to which I have taken your Honours, Justice Hodgson refers to what he terms:

the unfairness of allowing the particulars to extend to matters in the plaintiff’s life that go beyond what is fair and reasonable having regard to the content of the material complained of and the imputations relied on by the plaintiff.

Bearing in mind how a contextual imputation defence arises, this, in our submission, is a remarkable misstep in the law of defamation.  The plaintiff, by hypothesis, chooses not to sue for a contextual imputation which is capable or is conveyed by the matter complained of.

Second, it is a contextual imputation, it may be supposed for the purposes of argument, gravely damaging to the plaintiff’s reputation but because the matter complained of spoke about, in detail, only one of the

discreditable episodes, namely the one that supports the plaintiff’s imputation, and simply referred in bald terms to other discreditable episodes in the plaintiff’s life, namely those which would support from outside the matter complained of, the contextual imputation, then the plaintiff can mount a case in which the defendant is powerless to say, “But your reputation was damaged by the accompanying contextual imputation which I can prove is substantially true”.

There is no principle, in our submission, nor rhyme or reason to be gathered from section 16 as the enacted law in the area, which justifies that having been the approach to the relationship between particulars in support of substantial truth and the right of a defendant to plead a contextual imputation. It is for those reasons, in our submission, that this presents, as a matter of great substance and importance to the law of defamation, bearing in mind that it is plaintiffs who select and juries who decide on what the plaintiff’s imputations are, which justifies this as one of those exceptional cases for the Court to intervene on an interlocutory basis. May it please the Court.

GLEESON CJ:   Thank you, Mr Walker.  We do not need to hear you, Mr McHugh.

The primary judge in a defamation case struck out part of the defendant’s pleading of a contextual implication giving leave to replead.  The Court of Appeal unanimously upheld the decision of the primary judge.  Having regard to the reasons of the primary judge and the Court of Appeal and to the leave to replead, this is not one of those unusual cases that would warrant the intervention of this Court in an interlocutory matter involving a question of practice and procedure.

We are not persuaded that any wider question of principle calling for the attention of this Court is involved.  The application is dismissed with costs.

We will adjourn for a moment to reconstitute.

AT 11.34 AM THE MATTER WAS CONCLUDED