Barbaro v Amalgamated Television Services Pty Limited

[1989] HCATrans 311

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S88 of 1989

B e t w e e n -

DOMINIC BARBARO

Applicant

and

AMALGAMATED TELEVISION SERVICES

PTY LIMITED

Respondent

Application for special leave to

appeal

Barbaro

MASON CJ
BRENNAN J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 DECEMBER 1989, AT 11.06 AM

Copyright in the High Court of Australia

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MR C.R. EVATT:  Your Honours, I appear with MS J. GIBSON

for the applicant.	(instructed by Teakle Ormsby &
Associates)

MASON CJ: Yes, the matter was called on earlier, Mr Evatt,

and you were not here.

MR EVATT:  I do apologize to Your Honours. There was a

misunderstanding. I was to come immediately the

preceding matter was called and unfortunately,

Your Honour, it apparently only went a few minutes.

I do apologize to the Court.

MASON CJ: Yes, very well. Yes, Mr Rares?

MR S.D. RARES:  I appear for the respondent. (instructed by

Mallesons Stephen Jaques)

MR EVATT:  Your Honours, the imputations of which the

applicant complains are on page 28 of the application

book and Your Honours will see that they are

serious imputations:

The plaintiff was implicated in the disappearance and murder of Donald Mackay.

The plaintiff is a murderer.

The plaintiff is a wrongdoer.

And so on.

BRENNAN J:  They all depend on an innuendo based upon the

plaintiff being the Dominic Sergi mentioned in the

Woodward Commission.

MR EVATT:  Yes, that is so, Your Honours, but if I could just

show you that segment in isolation on page 31. What

happened is that the television people went to the farm

believing that Dominic Sergi, the bad one, was there

when, in fact, it was the applicant, Dominic Barbaro,

and the sequence took place as set out on page 31.

The reporter said:

We are looking for Dominic.

Yes, I Dominic.
Dominic Sergi?
Yes, what do you want?

You are the one that was in the Royal Commission.

Put the thing down -

and then the screen went blank. Now, on its own - that

is the segment and only segment involving the plaintiff,

the only part on which he appeared - that would not be

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capable of conveying any defamatory imputations whatsoever.

I mean, it does not even say, "You are the one in the

royal commission." It does not even say what royal

commission. So, nothing could be conveyed by the segment in which the plaintiff was depicted. The

defamatory imputations come from the remainder of the

programme set out in the application book at page 27

about line 22. In other words, if this segment had

been used in some other harmless telecast there would

be no action but the segment was used, as Your Honours

will see at line 21:

Mr Michael Willesee introduced the segment

by stating that a Dominic Sergi was one of

the six men who had been named by Woodward J

in his Royal Commission Report as being

responsible directly or indirectly for the

murder of Donald Mackay -

and he goes on, line 27:

Mr Willesee pointed, out that these men were

still walking around the same town as the family of the victim. They had no chance

to clear their names.

And so on. Down the end, the last three lines:

She was unsuccessful in obtaining interviews

with any of the six men themselves.

And then comes the segment complained of.

Now, the judgment of the Court of Appeal and the

judgment of His Honour at first instance, but

particularly the judgment of the Court of Appeal

introduces three principles of law, at least two of

which are novel and it is about those that we complain

and about those that we seek leave to appeal. If I

could just take you very briefly to the judgment of

the Court of Appeal. At the bottom of page 36 it is

pointed out that:  The defendant having called no evidence

and I do hasten to say that it is not the applicant's

contention that a defendant must call evidence. It is

the defendant's contention that the defendant who has the onus of proof of establishing qualified privilege or statutory qualified privilege under section 22 of

the DEFAMATION ACT - it is the applicant's contention

that the defendant must be able to point to evidence

adduced at the hearing to establish that defence. Now,

it may not be necessary for the defendant actually to
go into evidence if the defendantcan point to evidence

but in this particular case there was no evidence

whatsoever that would support a defence of qualified

privilege.

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The defence was found established only by a

reference to the television programme and what the

court has said, in effect, is that viewing the programme

as a whole, a court can come to the conclusion, even

though that programme conveys false and defamatory

imputations because it is necessary to make that

assumption where the jury has not given a decision,

this being an application at the close of the plaintiff's

case before it went to the jury, then what the court

is saying is that notwithstanding that the material

complained of conveys these false defamatory

imputations, we can deduce from the nature of the

programme itself that it was reasonable to convey

those defamatory imputations.

BRENNAN J:  But is that not the problem?

MR EVATT: Well, it is the problem.

BRENNAN J: What makes the reasonableness arguable, one would

think, is the fact that the programme is susceptible

of conveying those imputations.

MR EVATT:  Yes, but if you look at the programme and take

the segment of the interview with the plaintiff alone

there is nothing in that that would suggest that the

plaintiff was guilty of those matters set out in the

imputations. It only arises - - -

BRENNAN J: Assuming that it does, which is the plaintiff's

case, and that is the assumption on which this proceeds,

that programme conveyed those imputations.	Was it
reasonable to let such a programme go to air?

MR EVATT: Well, we would submit that that question can only

be answered if the defendant can point to some evidence

outside the programme that it was reasonable and it is

not sufficient merely just to point to the programme

and say, "Well, look, this programme speaks for itself.

It is true that it does convey these defamatory

imputations. But even so, looking at the programme,

on the balance of probabilities in the defendant's

favour, it is reasonable to publish them." Your Honour,

it is never - with the greatest respect, no court has ever decided qualified privilege merely by reference

to the material complained of. So - - -

McHUGH J:	But that does not mean that it cannot be done.
MR EVATT:	No.
McHUGH J:	If the plaintiff had admitted all the facts,which

made it reasonable, in his evidence - I take it you
concede - I understand you to concede that

that would have been material upon which the defendant

could rely.

MR EVATT:  Your Honour, there are circumstances where that could

happen. If there was an interview with the plaintiff and

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they said to him, "Are you Dominic Sergi, the

murderer?" and he said, "Yes" to that, and they said, programme would certainly convey the defamatory
"Are you responsible for the disappearance of Donald

imputations but one could say that it would be

reasonable to publish it. It would be very hard to

imagine the plaintiff suing under those circumstances.

McHUGH J:  But that is what the defendant does, in principle,

in this case, does he not?

MR EVATT:	No.
McHUGH J:	The defendant says it takes your client's admissions

and it says, "He admitted he was Dominic Sergi" and

therefore they can rely on that admission as evidence

that it was reasonable to publish the programme.

MR EVATT: Well, there are two answers to that: first of all,

they may be entitled to take his admission that he is

Dominic Sergi but he admits no more than that. He does

not admit that he is Dominic Sergi, a wrongdoer, or

Dominic Sergi, the murderer. At the most, he only admits that he is Dominic Sergi, one involved in a

royal commission.

McHUGH J: Yes.

MR EVATT: Well, there are many royal commissions, Your Honour.

That is all he admits. And how is he involved? He

might have been a witness in it. He might have been

called to the royal commission to produce some documents.

McHUGH J: But they do not have to admit - it is not the

imputations that it has got to be reasonable, it is

the matter which has to be reasonable in the

circumstances and the matter is the medium which

conveys the imputations, is it not?

MR EVATT:  Well then, if Your Honour is saying that, that is

contrary to the findings by His Honour at first

instance because His Honour goes out of his way to

say that it is the imputations that have to be

reasonable and not the matter. So, there is a - - -

McHUGH J:  The section itself in terms says that, does it

not? "The conduct of the publisher in publishing

that matter is reasonable in the circumstances"?

MR EVATT:	The section certainly does say that but His Honour, I think, three times in his judgment, reported in the
book, says that is not so and it is the reasonableness
has to go to the imputations and not the material
complained of. So, I would submit even on that ground
alone there could be some need for this Court to clear
up what is a - well, certainly to give guidance as to what is to be taken into account in this defence. The other matter, of course, is that His Honour has said there is

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a special rule for electronic media. That appears

just at the bottom of page 39, line 25:

It may well be the case that proof of

honest belief will often be a critical

element in the proof of reasonableness.

It does not follow that reasonableness

cannot be established without proof of
honest belief.

It is no doubt true of printed publications that a defendant will

generally fail to establish reasonableness

without evidence of belief in the truth

of what was published. But the

proposition will be less convincing in
the case of electronic publications,
such as the telecast of a video tape or

film. The reason is that an article in

a newspaper makes an assertion but does

not itself establish, although it may

refer to, its sources.

And then he goes on with Marshall McLuhan,

"Understanding Media", but then concludes the judgment

of the Court of Appeal with the firm proposition

established that where you get electronic media - I

do not know whether His Honour was including radio

or just confining it to television - that there is either

some special rule for television or it is to be treated

in a different way which, we would submit, just

cannot be so. There can be nothing special.

The other matter is that His Honour in the

Court of Appeal and at first instance both found that honest belief in the truth of what was published was

not a necessary ingredient. We would submit, in normal

circumstances, it is a necessary ingredient. If an
honest belief in the truth of what was published is a

necessary ingredient in establishing a defence of

connnon law qualified privilege or statutory qualified

privilege, then clearly the Court of Appeal was in
error.

McHUGH J:  But is not your point that there was just no

evidence upon which you could find it was reasonable

to publish, for example, that the plaintiff was

implicated in the disappearance and murder of

Donald Mackay?

MR EVATT: Well, yes, none whatsoever; none at all.

McHUGH J:	The film does not prove that at all.
MR EVATT:	No, and that is the only evidence on which they

rely. They are my submissions.

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MASON CJ: Yes, Mr Rares?

MR RARES:  Could I hand up an outline of our argument

together with a copy of a section of the Law Reform

Commission report?

Your Honours, we say that the judgment below

in both courts was correct. It was decided on the facts

and there is no question of principle involved such as

my learned friend seeks to carve out of this case.

What the plaintiff is complaining about is that

he said, and he was filmed to say, that he was
Dominic Sergi and he says that that fact in itself

was not something that was reasonable for the defendant

to rely on to publish that fact.

McHUGH J: But that is not the point, is it? I have just

read your outline of argument but it does not

really face up to what is the critical issue, do

they? The critical issue is whether there was any

evidence upon which it could be found it was reasonable

to publish, among other things, that the plaintiff was

a murderer? Was that not the issue that you had to

face?

MR RARES:  Yes, Your Honour.

McHUGH J: We!l"nbw, -mere is there the slightest evidence which would suggest it was reasonable to publish that the

plaintiff was a murderer?

MR RARES: Well, first, Your Honour, it is accepted that we

were the broadcaster but not the producer of the programme

so one looks at it from the perspective of a television

station having some sort of opportunity to check what is

in matter that is produced by somebody else for it to

broadcast. The next question is you have the

incontrovertible findings of fact by Mr Justice Woodward

which were not in issue, namely that a Dominic Sergi

was the murderer. Coupled with that - - -

McHUGH J: Yes, but where is the evidence that your client

had access to those? It would be a different matter,

would it not, if, for instance, there was evidence from

the defendant that they, before publishing this material,

had read the royal commission report - - -

MR RARES: That was in evidence. There was evidence that that

was part of the source material produced and it was
common ground at the trial, Your Honour, that that was

well known and notorious and the trial was fought on

the basis that it was notorious throughout the media;

the plaintiff was cross-examined on it. It was never

in issue that that was not something which was quite

a notorious public fact. It was opened by Mr Evatt

that was. The trial was conducted on the basis that

the findings of the Woodward Royal Commission were matters

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of great public interest in which the whole of the public had notice and, indeed, its findings are rehearsed in the

matter complained of itself. I mean, there is no

suggestion that the findings of Mr Justice Woodward are

inaccurately stated and the defendant's executive

is watching the matter complained of being played

where it accurately asserts what Mr Justice Woodward

finds, so that there is the evidence there, that the

defendant had that available to it. That was how the

trial was fought and it cannot be doubted that

when a programme rehearses all those findings of fact

and no complaint is made that Mr Justice Woodward's

report is being misrepresented, you then couple that

with the fact that there is no suggestion that the

incident involving the plaintiff is inaccurately

depicted. The defendant sees Mr Barbaro on the

television saying, in answer to the question,

"Are you Dominic Sergi?" "Yes". "Are you the one

named in the royal commission?" The next thing

happens: he puts his hand over the lens of the

camera and pushes the reporter into the car, saying,

"Get off" - - -

McHUGH J: Well, you get no finding of fact in your favour on

that point though because the courts took that finding
as neutral. Surely, a finding had to be made in

respect of that matter.

MR RARES:  No, the finding of fact that was made was,

by Mr Justice Hunt - he accepted the plaintiff's

evidence that he did not understand or did not hear

the statement, "Are you Dominic Sergi?", that is so,

but that is not the question. The question is when

the defendant is looking at this film which was
presented to it by an independent contractor

producing this programme, showing the man saying, "Yes, I am Dominic Sergi" and it is not suggested that that is a concoction, what more does the

defendant need to do? If it had to do something else,

that would suggest that the imputations could not

arise and that was, I think, a point Mr Justice Brennan

was making of Mr Evatt. It is the fact that the

ordinary reasonable viewer can get these imputations
out of the programme that means that it is just as

reasonable for the defendant's executive, looking at it,

to conclude, in the absence of any other material to

suggest - and we say there is no other material to

suggest that Mr Barbaro is incorrectly identifying

himself as Mr Sergi - what more can the defendant do?

McHUGH J: Well, except executive on behalf of the defendant

is looking at something that the Willesee people have

said.

MR RARES:  Yes, but it has got to be what is he looking at?

It is not suggested the film is a concoction, so it

is accepted that it is accurately depicting what	happened
at the farm when the Willesee people went there.

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McHUGH J: Yes, but there are two points that are involved,

are there not:  one is whether it was reasonable to

think that Barbaro was Dominic Sergi, and you

rely on the admission in respect of that. The second

point is was it reasonable to publish that he was a

murderer? Now, in relation to that second point

all you can point to is what the Willesee people have

produced.

MR RARES:  That and the fact that the imputations themselves

were found to be capable of arising, that ordinary

reasonable people would make the connection between

the other statements in the matter complained of

and the plaintiff and say, "That means he's the man

Mr Justice Woodward named. ·He's·the Il'Il.lrderer". Now,that

is what it depends on.

BRENNAN J: There is no imputation arising otherwise than

out of the matter published in the circumstances

which are generally known, is that not right?

MR RARES: Precisely.

BRENNAN J: And the question is whether it is reasonable to

publish that matter.

MR RARES: Yes.

McHUGH J:  But was this a true innuendo case or a false

innuendo case?

MR RARES:  There were no innuendoes as such pleaded. There

was an identification issue. The plaintiff found one

witness who identified him as being Dominic Barbaro.

McHUGH J: But did he rely on extrinsic facts outside the -

MR RARES: Yes, he had to rely on his own identification by

somebody to - - -

BRENNAN J: Would not somebody have to prove what the Woodward

Commission said about Dominic Sergi?

MR RARES: That was common ground at the trial, Your Honour.

BRENNAN J: Maybe it was but it is the extrinsic fact, is it

not?

MR RARES:  Well, it was proved in the matter complained of and

the trial was conducted on a basis that -

BRENNAN J:  How do you mean it was in the matter complained

of?

MR RARES:  Pardon, Your Honour?

BRENNAN J: The Woodward Commission report was not in the matter

complained of.

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MR RARES:  A summary of it was and there was no issue that that

summary was inaccurate so far as it concerned

Dominic Sergi.

BRENNAN J:  I see, yes, in the introductory words, yes, that is

right.

MR RARES:  And, indeed, the plaintiff was cross-examined on the

fact that this Dominic Sergi was his wife's uncle and

his father was another one of the murderers,

Mr Franchesca Sergi, and there was some cross-examination

about that and that in fact it was Franchesca Sergi's

farm, and they were all matters that were before

His Honour, although they are not the subject of any

specific finding. But it cannot be suggested against

us that there was no evidence of Mr Justice Woodward's

report or what its findings were relevantly. The

question, the plaintiff says it is a·cas~ of mistaken

identity, and "Because my identity was mistaken

through something I myself said it was unreasonable for

the defendant who gets this programme from somebody'who

there was no evidence to suggest we had any reason to

doubt, an independent contractor, we were unreasonable
in publishing it. What would a defendant have to do,

what could the defendant say? Simply, "I looked at this programme, it looked all right. There was not anything

that seemed untoward." The Court of Appeal have looked
at the programme, so has Mr Justice Hunt; they have both

come to concurrent findings.

McHUGH J: Perhaps the executive might have looked at the report

to see whether Dominic Sergi was one of the six men named.

MR RARES: Well, he was. That was not an issue.

McHUGH J: Well, that is as the case turned out but there is no

evidence that your client even inquired into that.

MR RARES:  But why is that relevant when that is not a matter

of complaint? The complaint is this man was not

Dominic Sergi.

MxHUGH J: What is a matter of complaint is that you took no

steps to ascertain whether the publication was reasonable

and there is no evidence led by you to prove that fact

except, you say, you can draw an inference that the film

was shown, that some executive of ATN saw the film before

it went to air.

MR RARES: Well, the question is whether the conduct of the

defendant was reasonable in the circumstances. Now,

the court just looks at the proved circumstances and

says, "Well, to publish that imputation, given the

plaintiff admits that he is Dominic Sergi, when he is

asked 'Are you the one in the royal commission?', there

is an incident which it is accepted on all sides the

plaintiff became angry about and pushed these people

into the car. Now, in those circumstances, what more

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happens? I mean, if there was evidence that he had

rung up the television station and said, "Now, listen,

I'm not Dominic Sergi. I may have said that but I'm really Barbaro", sure, there is something for us to

call evidence about. But, in our submission, that

would be quite an unreasonable thing to put on to a

defendant, that he has, in every case, to try and

prove when you have got the man on television in an

uncontestedly accurate portrayal of what he said to

the television people.

MASON CJ:  Mr Rares, we need not trouble you further.

Yes, Mr Evatt?

MR EVATT:  Your Honours, I submit there was no evidence that

the defendant had the royal conunission report available

to it although it certainly was not in dispute, it was

well known. There was no evidence that any executive

of the defendant company saw the film or made any

inquiries concerning it.

MASON CJ: Yes, thank you, Mr Evatt.

The Court is not persuaded that the decision

of the Court of Appeal reflects any error of principle. special leave and the application is refused.

MR RARES:  I ask for costs, Your Honour?

MASON CJ: You do not resist costs, Mr Evatt?

MR EVATT:	No.
MASON CJ:	The application is refused with costs.

AT 11.34 AM THE MATTER WAS ADJOURNED SINE DIE

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