Australian Broadcasting Corporation v Hanson

[1999] HCATrans 191

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B40 of 1998

B e t w e e n -

AUSTRALIAN BROADCASTING CORPORATION LTD

Applicant

and

PAULINE LEE HANSON

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 10.36 AM

Copyright in the High Court of Australia

MR R.A. MULHOLLAND, QC:   If the Court pleases, I appear with my learned friend, MR D.K. BODDICE, for the applicant.  (instructed by Biggs & Biggs).  I understand there is no appearance by the respondent.

GLEESON CJ:   Yes, Mr Mulholland.

MR MULHOLLAND:   Your Honours, this application raises, in our submission, an issue of public importance concerning the correct approach to the grant of an interlocutory injunction in a defamation action where the publication employs political satire.  If there is merit in our contention that the Court of Appeal here erred in finding that one or more of the alleged defamatory imputations undoubtedly arose from the words complained of and that any jury finding to the contrary would be set aside as unreasonable.  There is also the question of the interests of justice in this case because, in our submission, the Court of Appeal’s judgment has effectively denied the applicant the opportunity of having a jury determine the major issue in the case, whether one or more of those imputations were conveyed to the ordinary reasonable listener.

In the result, Queensland law, as it stands, prevents the song from being played.  That affects not only those wishing to exercise their freedom to play the recording but also those wishing to exercise their freedom to hear it.

GLEESON CJ:   Did you want us to listen to this?

MR MULHOLLAND:   No, your Honour.  We did understand, at one point, that the other side was going to ask the Court to hear it but we are not asking your Honours to.  Implicit in the court’s judgment is that an Australian audience could not reasonably have concluded that the respondent’s words had been rearranged and yet, in that respect, the judgment of his Honour the Chief Justice, which was the only judgment delivered in the Court of Appeal - the other members of the court, the President of the Court and Justice McPherson agreed in his Honour’s judgment - referred to it as a “cut and paste” job.

Your Honours, the judgment of the Chief Justice sets out the text of the song at page 12 and 13 of the record and also sets out from about line 36 of page 13 the imputations relied upon.  The approach of the court is set out in the record at page 17, commencing at about line 9, where his Honour said this:

There is no real room for debate but an ordinary sensible listener not avid for scandal would conclude that at least one or more of these imputations arose.  If a jury were to find the opposite I am satisfied that this Court would on appeal set aside its verdict as unreasonable.  One or more of these imputations do arise and they are plainly defamatory for exposing the respondent to ridicule and contempt.

Contempt is not part of the definition of “defamatory matter” in section 4 of the Defamation Act but certainly equates with that provision’s inclusions of an imputation:

by which other persons are likely to be induced to shun or avoid…..or despise the person –

referred to.  However, the reference to “ridicule” seems inappropriate in terms of the offending words being taken literally, that is to say, seriously.  Judging by what his Honour said at another point of his judgment, he appears to have been influenced by what he regarded as the unfair and grossly offensive nature of the material, particularly its sexual references.  That appears, for example, at the foot of page 17 of the record, line 27, in that sentence but more so on page 18, at line 15, described as “grossly defamatory” and then in the next paragraph, his Honour says:

These were grossly offensive imputations relating to the sexual orientation and preference of a Member of Parliament and her performance which the appellant in no degree supports as accurate and which were paraded as part of an apparently fairly mindless effort at cheap denigration.

It is uncertain, in our submission, what his Honour there intended to convey by reference to “and her performance”.  Presumably, that would not be political performance because it would be really inconsistent with the way in which his Honour approached this song but, of course, that was our point that this was a song which was a piece of political satire and what it really attempted to do was to satirise the way in which the respondent put her political arguments.

It is submitted that in the context of political satire it is not particularly helpful to describe the material as “grossly offensive” or in similar terms.  Many, if not most, attempts at political satire could be regarded similarly, depending on the subjective views of reader, viewer or listener as the case may be.

To deliberately distort the features, mannerisms or words of a politician for satirical effect is not necessarily defamatory, we would submit.  It is no different from, say, a cartoon showing a male politician with features closely resembling those of a four‑legged animal or a female politician shown in bed with a male politician.  In each case there is an attempt at humour where no reasonable person would take the work literally, even if some people did not see the joke or disagreed with any political message conveyed, even if the publication causes personal hurt or embarrassment.  If an interlocutory injunction is sought in a defamation action the question remains whether a jury must necessarily find that the publication was, in fact, understood in the relevant defamatory sense.

McHUGH J:   But is there any question of principle that really arises in this case?  The relevant principles are those set out by Justice Walsh in Stocker v McElhinney.  Could this Court do any more than say that, in the circumstances of this case, the interlocutory injunction should not have been ordered or made?

MR MULHOLLAND:   Depending on, your Honour, any argument which does not present itself, we cannot complain about the statement of principle.

McHUGH J:   I am sure this song is very hurtful to Ms Hanson but it is another matter altogether whether a jury would necessarily find it defamatory and it does concern me that, as you say, you have been prevented from having a jury determine the issue, but does the case come to anything more than a question of fact in which the Court of Appeal has taken a particular view about the case?

MR MULHOLLAND:   Your Honour, what we are really submitting is that if this judgment is allowed to stand uncorrected, if, in the view of your Honours there is some prospect of us succeeding on an appeal in relation to the judgment, then it would make examples of political satire extremely difficulty, at least in this State.

GLEESON CJ:   But the issue that was determinative in the Court of Appeal, as I understand it, was that thrown up by the competing arguments:  your opponent is saying this is grossly defamatory and you saying, “It’s all nonsense.  It’s all fun.  Nobody would possibly have taken it seriously.”  Well, that is an issue that fell to be determined having regard to the particular circumstances of the case.  It does not sound like an issue that has general application.

MR MULHOLLAND:   Your Honour, we submit that it is a little more than that.

GLEESON CJ:   In fact, it is a straight issue of fact, is it not?

MR MULHOLLAND:   Your Honour, can I just address the first matter to which your Honour referred.  We would submit that no reasonable listener could take these words literally.  No reasonable listener could.  All of them, quite obviously, do not apply, as soon as one realised - and the Court of Appeal acknowledged this - that they were a cut and paste job.

GLEESON CJ:   That is part of the problem.  There are listeners of widely varying degrees of sophistication.

MR MULHOLLAND:   Yes.  This is youth radio, of course, your Honour.

GLEESON CJ:   Yes.

McHUGH J:   There are some complicated youth around.

MR MULHOLLAND:   So, the context and circumstances are important.

McHUGH J:   I am surprised that you have not attempted to play it to us because we do not know whether the words and sentences are presented, in effect, in a seamless web or whether there is some incongruous phonetic emphasis, inflection and intonation in it.  We just have a transcript.  One does not need much experience of scripts to know that the finished product, the spoken product, frequently is very different from the impression that you get from reading.

MR MULHOLLAND:   In view of what your Honour says I would ask that the recording be played.

GLEESON CJ:   All right, it will be part of your 20 minutes, but go ahead and play it.  Play it.

McHUGH J:   I raise these questions, but I have to say, as the Chief Justice said, it seems to me that this is a question of fact and, for my part, I could see many members of the community thinking that this was not defamatory although it might be offensive which is not the same thing as it being defamatory but the Court of Appeal judges seem to have taken a different view.  So did the trial judge.

MR MULHOLLAND:   Yes.

McHUGH J:   I think they took the view that it would be perverse not to find it defamatory.

MR MULHOLLAND:   Well, your Honour, that much being acknowledged, there is still the situation, so far as the interest of justice in this case is concerned, that we are in the position of having the Court of Appeal saying that any verdict to the contrary by jury would be set aside as unreasonable.  That will, naturally, if the matter were possible to go to trial now, except on the issue of damages, affect how the jury were directed because the trial judge would be directing the jury in conformity with the Court of Appeal.

McHUGH J:   I appreciate that but we have a discretion, in any event, in special leave and if the Court thought that the matter, although arguably not certainly defamatory was nevertheless offensive, it seems to me, at least on determining whether we should exercise our discretion or grant special leave on what is a question of fact, that that is a factor that we would have to take into account.

MR MULHOLLAND:   Can I simply go on to submit this, that what we submit was required here was for the court to do more than simply look at the literal meaning of the words and in that respect, that is something that would be suggested by Yarwood which is referred to in our list where, of course, it was the plaintiff who was submitting it was the indirect meaning, not the defendant.

McHUGH J:   Yes, I remember Yarwood very well.  I was counsel in Yarwood.

MR MULHOLLAND:   Yes.

GLEESON CJ:   I do not think anyone would quarrel with the proposition that you have to do more than look at the literal meaning of the words.

MR MULHOLLAND:   The Court of Appeal’s judgment did not deal with other than literal meanings of the words, your Honour, and we submit that as soon as it is appreciated that this was a cut and paste job, that it was the words of the plaintiff taken out of context, rejigged or reassembled, as soon as that conclusion is reached, which the Court of Appeal did reach, then the words could not be taken literally and, of course, the introduction to the song was that it was to be regarded as a piece of satire and not to be taken seriously.

McHUGH J:   This is a case in which I do not think you could say that no jury could find that this was not defamatory.  It is certainly capable of being regarded as defamatory and, that being so, why do the interests of justice require the grant of special leave on a question of fact?

MR MULHOLLAND:   Because, your Honour, here the meanings that are pleaded and relied upon are very different from the only imputations which, of course, have never been referred to which might arise from the publication.  Any meaning that was taken by the jury would not be one of those serious meanings.  They are very serious meanings.  The case will now go forward upon a basis that these serious meanings might be regarded by the jury.  That would have a very serious effect so far as damages is concerned and, what is more, it has also put out of reach of the applicant any defences that might apply in relation to less serious meanings.

McHUGH J:   One thing I am not quite clear about is, is there a defamation action on foot in this?

MR MULHOLLAND:   Yes, there is, your Honour.  Yes.

McHUGH J:   Well, these issues will then be determined by a jury and, if you succeed, no doubt, the injunction will be dissolved.

MR MULHOLLAND:   Your Honour, that is our point.  We cannot succeed.  Effectively, we cannot succeed.  We cannot plead defences because the only imputations that are relied upon, we say, are the imputations which can not be gained from this material.

McHUGH J:   Then, if a jury finds out, the plaintiff will fail in her action.

MR MULHOLLAND:   But a jury, your Honour, in relation to that will be directed in accordance with the Court of Appeal judgment.

GLEESON CJ:   Directed, directed what?  Directed to find a verdict for the plaintiff?

MR MULHOLLAND:   No.  One would hope not, your Honour, but certainly directed to reflect the flavour of the Court of Appeal’s judgment in observations made by the trial judge.

GLEESON CJ:   I do not understand what you have in mind, Mr Mulholland.

McHUGH J:   No, neither do I.  I mean, it is a question for the jury.  If the trial judge directed them as a matter of law to find these imputations, well, you would be up here in a flash.

MR MULHOLLAND:   If, however, the trial went ahead on this basis, it goes ahead on a basis where the only meanings which, we submit, might be gained would be less serious meanings than those pleaded to which there might be defences.

GLEESON CJ:   You seem to have in mind that in some way the jury would be shown a copy of the judgment of the Court of Appeal and told to bear it in mind.

MR MULHOLLAND:   No, I am not suggesting that, of course, your Honour, but I am submitting that the jury will be directed after the trial judge has paid reference to the Court of Appeal judgment saying that any verdict by the jury to the contrary would be set aside as unreasonable.

GLEESON CJ:   I just do not understand it.  The jury will not be directed by the trial judge that their verdict would be unreasonable if it went against the plaintiff.

MR MULHOLLAND:   No.

GLEESON CJ:   Well then, what is the direction that you are contemplating?  I am afraid I just do not understand it.

MR MULHOLLAND:   Your Honour, what I am referring to is that a trial judge has a role, in addition to directions on law, to make observations on facts and here, those observations can be quite confidently predicted to reflect the fact that the Court of Appeal considers that any verdict to the contrary would be set aside as unreasonable.  Those are our submissions.

GLEESON CJ:   Thank you, Mr Mulholland. 

The Court is of the view that this matter does not raise any issue appropriate to the grant of special leave to appeal and the interests of justice do not require such a grant.  The application for special leave to appeal is refused.  Can you resist an order for costs, Mr Mulholland?

MR MULHOLLAND:   No, your Honour.

GLEESON CJ:   And the applicant must pay the respondent’s costs.

AT 10.56 AM THE MATTER WAS CONCLUDED