Bellino v Australian Broadcasting Corporation

[1999] HCATrans 192

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B21 of 1998

B e t w e e n -

VINCENZO BELLINO

Applicant

and

AUSTRALIAN BROADCASTING CORPORATION

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 24 JUNE 1999, AT 10.21 AN

Copyright in the High Court of Australia

MR K.C. FLEMING, QC:   If the Court pleases, I appear with MS P.E. SMITH for the applicant.  (instructed by Terry Fisher & Co)

MR R.A. MULHOLLAND, QC:   If the Court pleases, I appear with my friend, MR D.K. BODDICE, for the respondent.  (instructed by Biggs & Biggs)

GLEESON CJ:   Yes, Mr Fleming.

MR FLEMING:   Your Honours, the short background in respect of this matter is that a jury found that Mr Bellino, who was a brother of some other Bellinos who were subsequently quite notorious in Queensland, had been defamed in a Four Corner’s ABC broadcast which was made on 11 May 1987.  It was repeated again on 17 May 1987.          In the first instance there were about 780,000 viewers and in the second, there were about 79,000 viewers.  The jury at the trial, which we have to add is the second trial because Bellino v ABC in the High Court gave rise to a second trial, found that the publication did not exceed what was reasonably sufficient for the occasion.  They had to have found that to give rise to the privilege point.  They found that there was defamation.  They found, however, that it was privileged and then damages were assessed at $90,000.  They also found that the publisher was not actuated by ill will or other improper motive.

Your Honours, the sole question that we raise for this Court is the application of Langev Australian Broadcasting Corporation (1997) 189 CLR 520 to a jurisdiction which has codified the common law in this respect and the specific passage we refer to in Lange is at page 574 and that passage - and we acknowledge it is in respect of the common law because it is New South Wales which, it seems, keeps common law defences alive. It is only Queensland and Tasmania who have codified the defences, it seems, in respect of common law. That passage is:

Whether the making of a publication was reasonable must depend upon all the circumstances of the case.  But, as a general rule, a defendant’s conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue.

Then the Court went on to say:

Furthermore, the defendant’s conduct will not be reasonable unless the defendant has sought a response from the person defamed – - -

McHUGH J:   Is not your problem that you went to trial on the pleadings which threw up issues under the Code?  If those defences, as pleaded, were too narrow constitutionally it required you either to demur or strike them out, did it not?  You now, having gone to trial, having had issues determined in accordance with the pleadings, seek to in some way say that those defences as pleaded were not appropriate.

MR FLEMING:   That is one element of what we say, your Honours.  However, there is a second element of what we say and that is that even though that is a statement of the common law principle, that still falls within the ambit of section 16(1)(h) which, I understand, your Honours have, and 16(2) and it ought to have been left to the jury that first, whether or not there was a belief in the truth and second, whether or not the publisher had taken reasonable steps to verify the accuracy of it.

McHUGH J:   Yes, but do you not also have the problem that, I assume, you pleaded in your reply the matters that you relied on to negative good faith.  I mean, the jury were never asked, were they, to rule on a Lange defence because it was never an issue at the trial.  They were asked to rule on issues raised what, in other times, are called a replication.

MR FLEMING:   Yes, we accept that, your Honour.  Lange, then, was decided after the trial but before the appeal and at the appeal it was sought to amend the grounds of appeal on the basis that the Lange issue had not been left to the jury.  That application was rejected and it was rejected, we say, on improper grounds because their Honours basically said that you could not win on that anyway.

Now, their Honours, and particularly Mr Justice McPherson, said, of course, the defence narrowed the plaintiff’s entitlement and certainly one is entitled to say that, but for some reason he then said because the defendant’s entitlement is broadened, you could not plead this defence in Lange anyway.

GLEESON CJ:   But how could the Lange issue have been left to the jury if it was not raised by the pleadings?  There was no application to amend, was there?

MR FLEMING:   No, there was not because the Lange issue was not alive.  We have to accept that.

GLEESON CJ:   That is the point.  What can you leave to a jury except the issues raised by the pleadings?

MR FLEMING:   Yes.  Your Honour, we accept that.  However, the pleadings still raised the issue on whether or not the occasion had been properly investigated.  That was always there and that went to the jury.  I will double check on that point, your Honours.

McHUGH J:   That went to the jury but you had an adverse finding of fact on it.

MR FLEMING:   There was not a direction, as one would expect, post‑Lange.  Our problem is always, of course, your Honours, that Lange arose after the trial and before the defence.

GLEESON CJ:   That is a fairly elliptical statement.  The decision of this Court in Lange was given after the trial.

MR FLEMING:   Yes.

GLEESON CJ:   It would always have been open to anybody who wanted to do so to argue for the point of view that ultimately prevailed in Lange.

MR FLEMING:   Yes, we accept that, your Honour, but up until then, the double negative that you do not believe in the untruth of a statement existed and still exists in section 16(2).  In his evidence, the first evidence in cross‑examination, Mr Masters, when asked whether or not he believed in the truth of it, said, “I maintain that I don’t know whether they are true or untrue.  I suppose I maintain they are unproved.”  Now, that might satisfy, on one view, the double negative but we say that also imports an element that he must have discerned whether or not they were true and there was never a direction given.  Again, I have to accept there probably was not a direction given because people before Lange were not conscious of the point.

McHUGH J:   But Lange is not a code.  What Lange says is that the common law or the statute law cannot be at odds with the Constitution. If it be the case that the code, in some respects at least, is more liberal in favour of defendants than the minimum constitutional standard, that is not a matter that is open to you to complain about and that, I gathered, was the reasoning of the judges in the Court of Appeal.

MR FLEMING:   That is so and they went on to say that it was more favourable to defendants, therefore, we could never have pleaded Lange, and we submit that is where the error crept in because the defence always required that there would be negatived the propositions in section 16(1)(h) and 16(2) and they included that double negative on whether or not that a person did not believe in the untruth.  We say that that imported and always did import the propositions that were in Lange and the jury were not given a direction in respect of that.

McHUGH J:   But no objection was taken, was it?

MR FLEMING:   No, and indeed, judgment was entered without objection.  We face that difficulty.  And it was raised for the first time between the trial and the appeal to the Court of Appeal.  But, we say, your Honours, always there has been a requirement in the statute in the codifying of the defence that a person have, first, a belief in the truth of it, as distinct from not a belief in the untruth of it and second, that they have made proper investigation in respect of it.

McHUGH J:   Well, it is a difficult proposition to sustain, is it not?  Take, for example, a police officer who thinks that a matter needs to be investigated and publishes a defamatory statement to a superior officer concerning a third person.  He may not have a belief in its truth but as long as he does not believe it to be untrue he is protected, is he not?

MR FLEMING:   Your Honour, we accept that.  However, we adopt what this Court said in Lange and say that when someone goes to the electronic media now and is able to broadcast something to 780,000 people in one go, then there is a higher responsibility upon them in those circumstances.  We can only say that we embrace Lange and say that always applied to our defence, to defences here.

McHUGH J:   I know, but in many respects the Queensland Code pre‑empted Lange, particularly in respect of necessity for reciprocity of interest.  The Code did not require any reciprocity of interest between the publisher and the reader.  The common law did and Lange destroyed that notion but said that it was subject to certain conditions, but has any of that anything to do with this particular case?

MR FLEMING:   We say it has, your Honour, because if you look at section 16(1)(h):

if the publication is made in good faith –

and we say “good faith” raises issues such as proper investigation and a belief in the truth of it.  We accept that this has not been argued in respect of these provisions since they were introduced in 1889 or whenever it was.

McHUGH J:   I know but more importantly, they were not raised by your client at the trial.

MR FLEMING:   We do face that difficulty, your Honour.  We do say what was raised is that they did not make proper investigation and we say, if you go down further on in (h):

the discussion of some subject of public interest, the public discussion of which is for the public benefit, and if, so far as the defamatory matter consists of comment, the comment is fair.

We say whatever else has happened in the past times have moved on and fairness now requires somebody, if they are going to be publishing material potentially defamatory, to do those things which Lange said, and we take some comfort then from section (2) which defines “good faith” as being:

if the manner and extent of the publication does not exceed what is reasonably sufficient for the occasion –

that can well introduce elements such as that and:

if the person by whom it is made is not actuated by ill‑will to the person defamed, or by any other improper motive, and does not believe the defamatory matter to be untrue.

We also have difficulty with that double negative.  If one does not believe the defamatory matter to be untrue there is a very, very fine line then between that position and having some belief that it is true and we say that if one goes to the public media, as has happened here, then they cannot cross that line without having properly investigated it.  We acknowledge that we face the difficulties that your Honour Justice McHugh has mentioned.  They are our submissions.

GLEESON CJ:   Thank you, Mr Fleming.  We do not need to hear you, Mr Mulholland. 

In this matter the Court is of the view that there is insufficient reason to doubt the correctness of the ultimate decision of the Court of Appeal to warrant a grant of special leave and the application is refused. 

Do you resist an order for costs?

MR FLEMING:   No, your Honour.

GLEESON CJ:   The applicant must pay the respondent’s costs of the application.

AT 10.36 AM THE MATTER WAS CONCLUDED