Born Brands Pty Ltd & Ors v Nine Network Australia Pty Ltd & Ors

[2015] HCATrans 111

[2015] HCATrans 111

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S294 of 2014

B e t w e e n -

BORN BRANDS PTY LTD

First Applicant

HAYLEY BIRTLES‑EADES

Second Applicant

SALLY BIRTLES‑EADES

Third Applicant

and

NINE NETWORK AUSTRALIA PTY LTD

First Respondent

GABRIELLA ROGERS

Second Respondent

GEORGIE GARDNER

Third Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MAY 2015, AT 11.10 AM

Copyright in the High Court of Australia

____________________

MR G.O’L. REYNOLDS, SC:   May it please the Court, I appear for the applicants with my learned friends, MR C.A. EVATT and MR R.K.M. RASMUSSEN.  (instructed by Beazley Singleton Lawyers)

MR T.B. BLACKBURN, SC:   May it please the Court, I appear with my learned friend, MR A.T.S. DAWSON, for the respondents.  (instructed by Johnson Winter & Slattery)

FRENCH CJ:   Yes, Mr Reynolds.

MR REYNOLDS:   There should be some books of authorities which we made available to your Honours.

FRENCH CJ:   Yes.

BELL J:   We have those.

MR REYNOLDS:   Your Honours, in my submission, there are five important issues of principle that are raised by this application.  The first I will call for shorthand the Mizikovsky point.  It arises in relation to imputation (a) which is set out at the application book at page 133 at line 26.  Now, there was a contextual truth defence to this imputation which is set out at page 134 at line 20.  The Court of Appeal upheld that defence in paragraph 88 of their reasons.  If your Honours go to that paragraph which is in the application book, your Honours will see, at page 112, a quote there from the primary judge and it is there noted that:

imputation (a) cannot further injure the plaintiffs’ reputations.

In the third line there is reference to the evidence.  The important point about the words “imputation (a)” in the first line and “evidence” in the third line is that it demonstrates a particular view of the law which is being adopted, that is, that the comparison is to be made only in relation to plaintiffs’ imputation (a), not (b), (c) and (d) and, secondly, in relation to the evidence of truth, not a contextual imputation.

So it is that finding that lies at the core of both the first and second points that I want to rely on.  The first point I have called the Mizikovsky point raises this question of principle and the interpretation of section 26.  Does the section involve one, weighing all of the plaintiffs’ imputations, including those proved to be true, on the plaintiffs’ side of the scales or, alternatively, does it involve simply looking at the imputations relied upon by the plaintiff which are not proved to be true. 

Now, there is a very clear split in the authorities on this point.  The Queensland Court of Appeal opted for the first view and that is referred to in the application book at page 136 at line 5.  The second view was adopted, probably obiter, and it is referred to in the application book at page 110 at line 37 and it has also been adopted by Justice McCallum in a case called McMahon.

There may be a third view which is adverted to by Justice Basten at paragraph 86 on page 111, that is about line 42 and following where he refers to an alternative reading of the legislation which involves a holistic comparison between:

the effect of the defamatory matter . . . by reference to the imputations pleaded by both plaintiff and defendant –

Now, I do not know, to be candid, whether that is different or whether that is closer to the Mizikovsky point. 

BELL J:   I must say, Mr Reynolds, the sense I got from Justice Basten was on either view and, perhaps if you are right, a possible third view, on the facts of this matter, really nothing of weight turned. 

MR REYNOLDS:   Your Honour, I agree with that.  That is the flavour you get from it.

BELL J:   What is wrong with that flavour?

MR REYNOLDS:   What is wrong with it is that that is not the reasoning if you go to paragraph 88.  He there plumps, in the most unambiguous terms, on this first point, for a comparison between only imputation (a) not (b), (c) and (d).  So I agree that what one might call a general – what you expect to find in there as you are reading these paragraphs is as your Honour suggested, but when it comes to the punch, he does not find that no matter what test is applied, it does not matter in this case because the same result is reached.  Moreover, if one looks at the four plaintiffs’ imputations and compares them here with the two contextuals, it is going to be a very difficult ask for the defendant to succeed but, importantly, that is not covered by what his Honour says there at paragraph 88. 

BELL J:   But to succeed you would need to establish, would you not, that if one did look at all four imputations it would be, as you say, well, not difficult for the defendant to succeed but you would need to show that contrary to what you describe as the flavour a different result is likely for ‑ ‑ ‑

MR REYNOLDS:   Well, your Honour, we submit there is not much doubt about it.  When you look at the four imputations, page 133 at about line 25, and you there compare it with the only two contextuals at page 134 at about line 20, then there are at least two aspects of the plaintiffs’ imputations that are not going to be proved true by the contextuals.  The first is if you go to plaintiffs’ imputation (a) it says the product has been “subject to recall” and when you go to (c) it says the product has been “linked to 12 deaths in the United States”. 

Now, to use the metaphor that your Honour will be familiar with, there is no way that those two contextuals will swamp those two elements in those two imputations.  So this issue is live and I submit very live.  I am prepared to submit that if a test is adopted as I submit, my client will win. 

So far as the second point is concerned, again, referring to paragraph 88 and this point about the evidence, we submit that that is wrong as a matter of law that there is a comparison between the plaintiff’s imputation on the one hand and the defendant’s evidence on the other.  We submit that the appropriate comparison is not between plaintiffs’ imputations and defendants’ evidence but between plaintiffs’ imputations and all four of them as against the plaintiffs’ – the defendants’ contextuals. 

Now, there is a, what might colourfully be called, red hot dispute about that.  On the authorities, it is most clearly demonstrated by referring the Court to our authorities behind tab 4.  There is a very good discussion of this issue by Justice Beach in a decision of Setka v Abbott.  This is at page 25 behind tab 4 - using the numbers at the bottom of the page.  At paragraph 65 his Honour refers to a quote from Justice Kaye where there is said to be a conflict in the authorities as to the correct test. 

This is paragraph 65 - and the internal quote says on the one hand various decisions say you weigh imputations against imputations.  On the other hand in Blake Chief Justice Spigelman “disagreed with that approach”.  Right at the bottom of the page, not in the footnote, he says I will look at both tests in looking at this.  At the bottom of the following page, that is 26, in the footnote, his Honour ventures the view in the third last line that the issue may actually have been:

resolved in favour of the view that it is the imputations that fall to be compared –

and he then refers to a couple of New South Wales Court of Appeal cases.  So your Honours know what I am going to say here and that is that insofar as paragraph 88 relies on the evidence rather than the defendant’s contextual imputations, it is inconsistent with a number of authorities. 

Can I say that so far as the defence under the 1974 New South Wales Act was concerned, for more than 25 years the approach was as I have attempted to articulate and adopt and it was not until Blake’s Case was decided on the old legislation in about 2001 - I might add without either party arguing for it, I know that because I appeared in it - but Chief Justice Spigelman decided that everyone who had been interpreting the section was wrong. 

Now, that debate, Justice Hodgson dissented, is still live but in relation to this new Act.  So the short point is I have one point of law on contextual truth which we submit is important and a second point of law which I also submit is important and I submit that this case, particularly in relation to imputation (a) is likely to be decided on that point.

Can I move to what I will call my third point which, for want of a better description, I will call the Polly Peck point?  This is in relation to imputation (c) and the defence of truth which was upheld in relation to that defence.  Contrary to what is put in the applicants’ submissions, the Court of Appeal in paragraph 27 held that this imputation (c) was conveyed.  But they held that it was defeated by a defence of truth. 

Then there is some most unusual reasoning, we respectfully submit, because instead of focusing on the precise imputation which my client pleaded, there is a focus on an alternative meaning which we have set out at page 135 of the application book at about line 8.  If your Honours look at there – this is the alternative imputation upheld by the Court of Appeal and found to be true - your Honours will see that that is very different from imputation (c) which you will find on page 133 of the application book at about line 32, quite different.  Indeed, in paragraph 67 of the Court of Appeal’s reasoning, it was held unambiguously that this alternative imputation is different in substance from the plaintiffs’ pleaded imputation.

BELL J:   Different in substance?

MR REYNOLDS:   Absolutely, that is stated at paragraphs 66 and 67 that it is different in substance from the plaintiffs’ pleaded imputation.  Now, once one says that, then we are talking about a very big jurisprudential issue in the law of defamation about whether or not it is possible for a defendant not to justify the precise imputation pleaded by the plaintiff but an altogether different imputation which the plaintiff did not rely on which is not a defence of contextual truth. 

We submit a defendant has two options.  You either justify the plaintiff’s imputation in substance or you plead an offence under section 26 of contextual truth.  What is not open is for a defendant to rely on an unpleaded imputation which is different from the plaintiff’s and then to justify that.

BELL J:   Is this the minority view in Chakravarti?

MR REYNOLDS:   Well, not the minority, we say the unresolved view because Justice Kirby did not deal with it and that is, with respect, a very important point I would like to develop because what is abundantly clear – I can take you to the passages, if necessary, is that Justices Brennan and McHugh said unambiguously that a defendant cannot justify an imputation that is different from that pleaded by the plaintiff.  If your Honours go to tab 2 in the authorities to page 528 of the report of Chakravarti about eight lines down, the line beginning “by surprise” they there state:

A plea of justification . . . in respect of an imputation not pleaded by the plaintiff does not plead a good defence.

BELL J:   Indeed, their Honours had a very clear view about the importance of pleading and the potential for embarrassment were that to be departed from.  Justice Kirby, as I recollect it, spoke of the need for a degree of flexibility.

MR REYNOLDS:   The other view – I beg your Honour’s pardon, I interrupted your Honour and I apologise.

BELL J:   Not at all, but the point I am raising with you, Mr Reynolds, is simply to inquire whether you are, in the arguments that you are now developing, seeking to raise a point in relation to what I would characterise as the minority view in Chakravarti?

MR REYNOLDS:   Can I say, your Honour, the answer is yes, I am, but I would, with respect, dispute the characterisation.  Moreover, there is not any statement made in any other judgment that would go as far as the defendant would need in this case.  They would need to show two things that are not here.  One is that the defendant can rely on an imputation which is different in substance from the plaintiff’s.  There is no suggestion of that in this case at all.  Second of all, that a defendant can rely on such an imputation even when it is not pleaded. 

I mean, this, in my respectful submission, is verging on the heretical.  Even if one looks at the Polly Peck Case, which is the high‑water mark, I might add, not followed anywhere here and said by Justices Brennan and McHugh to be wrong, but in that case the Court of Appeal said you can rely on an imputation that is different in substance but you have got to plead it.  That is not the case here.

In the Hore‑Lacy line of cases in Victoria, they say you can plead an alternative imputation but it has got to be the same in substance.  Then, the third view, of course, is what I call the Brennan/McHugh view which is it is not open to run any alternative imputation.  Now, which of those is right is, we say, an important question.  On one view there is a fourth view ‑ ‑ ‑

BELL J:   …..maybe whether this is the case to analyse that important question.

MR REYNOLDS:   I submit it is because you have two features.  One, it is not pleaded and two, it is different in substance.  Now, my learned friend to succeed in this case, to uphold this, is going to have to get your Honours to adopt Polly Peck in all its grandeur and then add to it and say and not only can we rely on a defence – of an imputation which is different in substance but we do not even have to plead it. 

All we need to say is that when you look at the plaintiff’s imputation in the light of the matter complained of, then we can formulate on the run in the Court of Appeal, or at the end of the trial, an imputation which more accurately encapsulates what the article is about.  What that involves doing is reading section 25 of the Act as if the issue is not whether the plaintiff’s imputations as pleaded must be justified, but whether the imputations conveyed by the matter are true without ever having told in the pleading – ever stated what the alternative imputation is. 

Now, we submit that is highly problematical for reasons I have partly indicated.  First, it is not supported by any authority and, second of all, there are some basic fairness problems with this.  This alternative imputation was never put as an alternative to my learned friend, Mr Evatt, in the Court of Appeal.  He had no opportunity to say, well, that does not arise and there is this problem and this problem and what have you.  This is a matter which fell out, as it were, when Mr Evatt read the judgment of the Court of Appeal for the first time. 

Moreover, if the issue is some issue of lack of clarity, the authorities on that are very clear.  What they say a defendant should do is apply to strike it out and if the judge of his own or her own motion is unhappy with the form of the imputation then he or she can ask that it be repleaded.  This imputation was not ambiguous and it was not the role of the Court of Appeal, as stated in paragraph 69 of the judgment, to formulate an alternative imputation and see if that was conveyed.  The Court of Appeal’s job was to determine whether the plaintiff’s imputation was conveyed and that is the way this case was conducted at first instance.

BELL J:   In terms of how this case was conducted, the application for special leave seems to be entirely directed to the issue concerning the admission of the expert evidence.

MR REYNOLDS:   No, no, your Honour ‑ ‑ ‑

BELL J:   I am referring to application book 125, 126.

MR REYNOLDS:   No, your Honour, that is the tailpiece in this case, that is not the principal feature.

BELL J:   I rather inferred that from your submissions.

MR REYNOLDS:   If you go to the first page, page 132, that sets out the points and really I have covered it all.

BELL J:   Yes, well, I am directing your attention to 125 and 126.  The matter I am raising with you, Mr Reynolds, is you are making submissions about how the matter was developed before the Court of Appeal.  It seems as though there may have been some development of the argument from the time the special leave application was filed.

MR REYNOLDS:   Your Honour, I submit that I have covered every point that I am articulating.  I am starting to run out of time.  Can I indicate ‑ ‑ ‑

FRENCH CJ:   I think you had better say – well, I do not want to stop you, Mr – on the imputations question but the question of the evidence is of some importance in terms of the respondents’ submissions.  Are you going to address that - Professor Byard’s evidence?

MR REYNOLDS:   I am going to address that in a moment, though if I can just mention what the fourth point is?

FRENCH CJ:   Yes.

MR REYNOLDS:   It is whether there is only a seek the defence of truth under section 25 or whether there is both a common law and a section 25 defence.  Now, I just mention that.  I could develop it in greater detail.

BELL J:   Was that not raised before the Court of Appeal as ‑ ‑ ‑

MR REYNOLDS:   No, but if your Honours are going to deal with the third point, you will have to, as part of that exercise, deal with this point because you cannot determine the metes and bounds of the truth defence unless ‑ ‑ ‑

BELL J:   Would that be a good reason to not deal with it?

MR REYNOLDS:   I submit not because all of the other points were raised at some level and are discussed in the judgment.  I agree that fourth point was not.  As far as the expert evidence is concerned, your Honours know that our point is whether Makita is correct or whether the alternative view in the Full Federal Court should be applied, we simply – there are only three paragraphs in the Court of Appeal, paragraphs 47 to 49, that deal with this issue. 

In my learned friend Mr Evatt’s submissions, this was put in great detail and these seven points that are raised in Makita – not all of them are dealt with.  Not only that, if you go to pages 138 to 139 of the application book at paragraph 32 there are about 11 submissions which were put.  The bottom line is really the whole of Mr Evatt’s attack on Professor Byard’s evidence has not been dealt with in the judgment of the Court of Appeal, either in the initial judgment or on the application to reopen but can I add this ‑ ‑ ‑

BELL J:   On the application to reopen, the Court of Appeal noted that the primary judge had dealt with these issues applying principle that their Honours considered to be correct and that it was unnecessary in their principal judgment to refer to Makita and Dasreef.  When one goes back to Justice Adamson’s judgment, there is a cogent account of the reasons for her acceptance of Professor Byard. 

MR REYNOLDS:   Yes, but our point is that these issues needed all to be dealt with by the Court of Appeal and they were ‑ ‑ ‑

BELL J:   The Court of Appeal in its supplementary judgment on the reopening at paragraph 6 dealt with them, did it not?

MR REYNOLDS:   I submit, not at all.  It did not go close and with the greatest of respect the treatment of these issues has been perfunctory but might I add that these other four points are stand alone?  They do not – the issue about the expert evidence can be cut off and if I can still succeed in this case - I should just make this clear, that points 1 and 2 were unambiguously taken in this case as was point 4.  There is a doubt, it would seem the other two were not raised in terms but I submit that they should be dealt with as part of the agitation of the other issues I have mentioned.  I see my time is up.  Those are my submissions.

FRENCH CJ:   Yes, thank you, Mr Reynolds.  Yes, Mr Blackburn.

MR BLACKBURN:   May it please the Court.  Your Honours, in our submission, no special leave question is raised at all in this application.  Can I go first to what my learned friend described as point 3 - I think he called it the Polly Peck point?  Your Honour, this proposed appeal on this application does not raise, in our submission, any issue of the correctness or otherwise of The Age Company and Hore‑Lacy or of Setka v Abbott.

In my learned friend’s written submissions the issue was characterised as being that the Court of Appeal endorsed what her Honour Justice Adamson did, that was to permit us to rely on an alternative imputation.  Your Honours, the Court of Appeal did no such thing.  In fact, the Court of Appeal identified what I might call the Hore‑Lacy or the Chakravarti point as a false issue.

Can I just take your Honours to that passage?  It is at application book 104 and, in particular, at paragraph 70 in the judgment.  You see the problem was, your Honours, just before I go there ‑ that what his Honour Justice Basten did was not to take up the point about Hore‑Lacy at all but to say imputations (a) and (c) are ambiguous.  That is very unsatisfactory and normally it would be resolved at the interlocutory stage but it has not been done here but I have to resolve the ambiguity because the imputation has to mean something.  His Honour dealt with it at paragraph 70 of the judgment, in particular, at about line 40 on the page.  His Honour said:

Where (as in this case) there is an ambiguous imputation and the respondents expressly undertook the task of justification on both meanings, there will be no unfairness to either party in allowing the matter to be determined on that basis and without further pleading.  Whether the respondents were entitled (under s 26) to plead a contextual implication –

which probably should be “imputation” -

would have depended on a finding as to the meaning of the applicant’s imputation, which was not resolved before the final judgment.  As the defence succeeds in relation to the imputation conveyed, the issue falls away.

Your Honours, the Court of Appeal just did not have to deal with the issue of Hore‑Lacy or Setka for that matter and it is just a false issue.  What the Court of Appeal did was to take two imputations which on their face had a degree of ambiguity in them and the Court of Appeal was forced to decide what the correct meaning of those imputations was and then handed down its judgment on that basis.  But nowhere in their judgment did they need to or did they examine the applicability of the principles in Hore‑Lacy or Chakravarti.

What the Court of Appeal did was simply to construe two imputations which had a patent ambiguity in both of them and say, right, we cannot decide this appeal unless we work out what this imputation really means.  This is what it means and they gave judgment on that basis. 

But, your Honours, I will say very clearly, that this proposed appeal does not raise any issue at all, in our submission, of the correctness of the Hore‑Lacy principle.  It just does not.  The Hore‑Lacy principle, as we understand it, is to be fully ventilated in Setka v Abbott which is the, as we understand it, subject of a forthcoming special leave application in this Court. 

I might also add that the correctness of Hore‑Lacy was ventilated a couple of weeks ago by the Court of Appeal in a case called Bateman v Fairfax Media and the Court of Appeal is reserved on that question.  Once again, not only is Hore‑Lacy directly in issue but the correctness of Hore‑Lacy and Setka are in issue in Bateman v Fairfax which is reserved in the Court of Appeal and obviously then there is potential for a conflict there but the Court of Appeal has not yet handed down its decision.  But it is an issue that simply does not arise on the Court of Appeal’s judgment.

Can I move to the first point that my learned friend dealt with, the Mizikovsky point?  In practical terms, your Honours, no issue at all, in our submission, arises as to whether Mizikovsky is correct as to whether one compares all of the – sorry, the contextual imputations with all of the plaintiffs’ imputations or just those that have not been proved true.  The reason it is an arid debate, in our submission, in this case, is that the evidence led to prove the truth of the contextual imputations was the evidence of Professor Byard and that evidence was precisely the same as the evidence led to prove the truth of the plaintiffs’ imputations. 

So, your Honours, the question of whether Mizikovsky is correct or the contrary decisions are correct does not arise insofar as – let me go straight to my friend’s other point about contextual truth defence - insofar as my learned friend says, well, there is a live issue as to whether in determining whether because of the truth of the contextual imputations the plaintiffs’ reputation was not further harmed by his or her imputations, in determining whether that is so, do you look at the evidence that was tendered and accepted to prove the truth of the contextual imputations or do you look at the imputations?  Your Honours, may I just say, that when one looks at section 26(b) which is the operative section of the Defamation Act, it is in these terms:

the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. 

Your Honours, I know that there is something of a controversy about whether you compare imputation with imputation or whether you compare, as section 26(b) says, the substantial truth of the contextual imputations, but our submission about that, your Honours, is this.  How likely is it, in view of the wording of section 26(b), which is that:

the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations -

which makes the substantial truth causative of the issue, not the form of the imputation.  Your Honour, in our submission, it is in the highest degree improbable that the majority view in Blake v Fairfax, which my learned friend referred to, is not the correct view. 

There is no warrant in the wording of section 26(b) – section 26(b) does not say because of the form of the contextual imputations the reputation of the plaintiff is not further harmed by his or her imputations.  It says because of the “substantial truth” and that necessarily compels a consideration of the evidence called and accepted on that issue. 

Your Honours, if that is in issue, the submission is it is not one that perhaps your Honours would be persuaded to grant leave on because it does not seem to be a very fruitful line of inquiry.  But, in any event, your Honours, the evidence was the same for both the contextual imputations and the plaintiffs’ imputations and in those circumstances there cannot really be any doubt, in our submission, that the application – any appeal on that point would not be likely to succeed.  So, the flavour, if I may say so, your Honour, is correct, tasty and correct.

May I just say this before I sit down, your Honours, about the Brennan and McHugh view of the world, if that does not sound disrespectful, in Chakravarti, there is actually, when one looks at what their Honours said at paragraphs 21 and 22 of Chakravarti, no difference of great substance between their Honours’ view of how far you can depart from the plaintiff’s imputation and the other judges because although their Honours expressed themselves in the strongest terms to be very opposed to the development in Polly Peck, their Honours did not disagree with the proposition that there is a degree of liberality and a degree of flexibility.  That appears at paragraphs 21 and 22 where their Honours, in effect, agree that a nuance or variation or a less injurious meaning can be found. 

This idea that, I think, if I may say so, your Honour Justice Bell’s view was, with respect, a correct one that Justice Kirby would probably have gone further in the degree of liberality that he would bestow on it but when one really looks at the three different judgments, there is no great disagreement and that an imputation which is a nuance or a variation is able to be relied on by a plaintiff and ergo, we would say, according to Hore‑Lacy a defendant as well. 

So, one wonders really whether there is much of an issue to be thrashed out there.  All the judges in Chakravarti seem to agree that a nuance or variation or perhaps a less injurious meaning where the plaintiff – where the other party is not prejudiced can be relied on.  It follows, in our submission, as night follows day, that if a plaintiff can do that, as Chakravarti says, then a defendant should be able to do it to the same extent and, of course, that is what Hore‑Lacy and Setka say.  But the principles in those cases are not raised for consideration by this case.

Your Honours, I think the only other – and that means that the section 25 and the common law truth defence point falls away too because that is premised upon there being a Hore‑Lacy issue.  In other words, if section 25 is all that is left and it abrogates the common law, do the Hore‑Lacy principles fit into section 25.  That issue goes away if there is no Hore‑Lacy issue. 

Your Honours, the only other issue it seems that is still pressed is in relation to Professor Byard.  Your Honours, the applicant’s position is curious, with respect.  They have not put Professor Byard’s report before your Honours.  Their position seems to be really that the Court of Appeal did not deal with their submissions about Professor Byard’s report.  That comes through very clearly in the catalogue of matters that the Court of Appeal are alleged not to have dealt with in paragraph 32 at page 138 of the application book.

All of those matters are dealt with mostly explicitly but – well, all explicitly, in paragraphs 43, 45, 46, 48 and 52 of the Court of Appeal judgment at pages 95 to 99 of the application book.  To the extent that the complaint is that the Court of Appeal did not deliver a dissertation on the correctness or otherwise of every aspect of Makita, your Honours, this Court dealt quite thoroughly, with respect, with the admissibility under section 79 of material in Dasreef v Hawchar. 

In our respectful submission, there will be no need for this Court to revisit the question of the admissibility of opinion evidence under

section 79.  This Court has expressed itself quite clearly in that case and the issue would not warrant a grant of leave.  If the Court pleases, unless there are other matters that I have not dealt with, those are our submissions.

FRENCH CJ:   Yes, thank you.  Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, what my learned friends put to your Honours about Justices Brennan and McHugh, with great respect, is completely misleading, entirely misleading.  …..talk about in that case where the imputation relied on by the defendant is the same in substance, I repeat, the same in substance as that pleaded by the plaintiff.  Here, there is an explicit finding in paragraphs 66 to 67 that this alternative imputation is different in substance. 

By taking your Honours to those passages, my learned friend, with great respect, misleads the Court entirely.  This is an entirely different defence, one where the defendants’ imputation is wholly different in substance.  That is why it raises a substantial issue because unlike even Polly Peck which does support such a plea of truth, this alternative imputation was never even pleaded so this is a step beyond Polly Peck and because of that fact.

That necessarily raises this broader issue of when, if ever, can a defendant justify, by relying on an imputation which is not only different from the plaintiffs’ imputation, but different in substance.  It is not contrary to what my learned friend put to you, part of the role of the judge to construe imputations and come up with new ones by reference to the matter complained of that are different in substance from what the plaintiffs pleaded. 

I told your Honours earlier that the established view from Singleton v French, which is in our authorities, is it is either struck out or the judge says “I want the plaintiff to replead it”.  There is no authority that the judge then goes construing these authorities in finding an entirely different imputation. 

So far as the Mizikovsky point is concerned, with respect, I do not understand what is put against me here.  There is no decision comparing - looking at the four plaintiffs’ imputations.  At paragraph 88 of the Court of Appeal only one is looked at.  Second of all, there is no agitation of a comparison between the plaintiffs’ imputations and the defendants’ contextuals.  That issue has not been dealt with and my learned friend has not responded to the proposition that we have a strong argument to win, at least on that issue. 

My learned friend then says Blake is clearly right.  Apparently, all the judges have thought the opposite of that that I referred your Honours to

in Justice Beach’s judgment - do not know what they are talking about and nor did any of the judges who looked at the matter for more than 25 years before Justice Spigelman had an alternative approach that popped into his head despite the lack of any argument.

BELL J:   I think this particular aspect of the respondents’ argument just depends on 26(b), does it not?

MR REYNOLDS:   Yes, but that is what all the judges have ‑ ‑ ‑

BELL J:   So that going back 25 years ago does not really help us very much.

MR REYNOLDS:   That is what all the judges have disagreed about, is those words.  Let me just try and explain it.  All the view or all the reader receives are the imputations and you compare the damage done by the plaintiffs’ imputations as opposed by the defendants’ contextuals.  Quite simply, the viewer or the reader does not get to see the evidence which, of course, may be quite different from the defendants’ contextual. 

I will give you an example.  If a contextual is that the plaintiff is a bad man, that is a very lower case submission but the evidence might support the proposition that he is a murderer, so there is a very major distinction between these two approaches.  It is fundamentally a causation argument, that is, if the matter complained of has much bigger and more serious imputations, which the plaintiff does not sue on, then he does not have his cause of action.  That is a big point and my learned friend’s attempt to blow it away, with respect, does not carry any water at all. 

Now, my learned friend did not really address the Setka point because he said, and I agree, that that is dependent on what we might call the Polly Peck point.  I agree with that.  I have responded on the Polly Peck point and because there is a lot of force in that argument I submit the Setka point, which is important, necessarily arises. 

The only thing I will say about Makita and Red Bull is that my learned friend does not say that those seven tests were satisfied.  In Dasreef this Court did not resolve the issue of whether Justice Heydon was right.  Justice Heydon, not surprisingly, said he was and has continued to say that in his new editions of Cross on Evidence.  That point remains unresolved.  That is our point.  It is unresolved.  There is a conflict between two intermediate courts of appeal.  If the Court pleases, those are my submissions.

FRENCH CJ:   Thank you, Mr Reynolds. 

In our opinion this application does not raise the propounded special leave questions with sufficient clarity to warrant a grant of special leave.  Moreover, the expert evidence going to the truth of various of the imputations does not suggest a sufficient prospect of success to warrant the grant of special leave.  Special leave will be refused with costs.

AT 11.51 AM THE MATTER WAS CONCLUDED