Bracks v Smyth-Kirk

[2010] HCATrans 145

[2010] HCATrans 145

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S369 of 2009

B e t w e e n -

NOEL FRANCIS BRACKS

Applicant

and

ROSS SMYTH‑KIRK

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 MAY 2010, AT 12.49 PM

Copyright in the High Court of Australia

MR T.S. HALE, SC:   If the Court please, I appear with my learned friend, MR J.O. HMELNITSKY, for the applicant.  (instructed by Noel F. Bracks & Company)

MR A LEOPOLD, SC:   May it please the Court, I appear with my learned friend, MR J.S. EMMETT, for the respondent. (instructed by Esplins)

HAYNE J:   Yes, Mr Hale.

MR HALE:   Your Honours, this special leave application raises two related questions.  The first concerns the circumstances of liability for republication in defamation law - and I should say, under the uniform Defamation Act 2005 - and the second, as to what is meant by “the same damage” in section 5 of the Law Reform (Miscellaneous Provisions) Act in the circumstances of republication.

If I could take your Honours to the supplementary bundle, page 1.  We are concerned here with a campaign leaflet which we see at page 1 and page 2.  In the present proceedings, if I might call it that, the applicant seeks to sue on the letter, both pages.  If your Honours go to page 2, your Honours will see – this is on the rear of the pamphlet – a number of testimonials and your Honours see on line 50 a testimonial from Mr Denoon which is part of the campaign letter.

The way one would interpret that, we would submit, is that what has occurred is that Mr Denoon has provided to Mr Smyth‑Kirk that particular testimonial in the knowledge that it is likely to be published in a larger campaign material.  Adopting the languages of the well‑known authority of Speight v Gosnay it picks up the first three categories, namely Mr Denoon has authorised the respondent to republish it, intended the testimonial to be republished and the republication was the natural and probable consequence.

In these circumstances, on the face of it, Mr Denoon would be responsible for any repetition of what is contained – the repetition of that testimonial, but on the face of it it could hardly be said that he could be liable for the totality of the leaflet.  If your Honours go to the Denoon proceedings because what is said to be is the damage on the whole of the leaflet is the same as that in relation to the Denoon proceedings – if your Honours go to page 11 of the supplementary book, your Honours will see that on page 11 at paragraph 2 what is pleaded is the publication of schedule A and if your Honours go to page 13, schedule A is the testimonial.  Then your Honours will see in paragraph 4:

The Defendant authorised [Mr Smyth‑Kirk] to republish –

or it was a natural and probable consequence and then we see Mr Smyth‑Kirk did republish the words in schedule A as part of schedule B, which is the pamphlet as a whole and the republication of the words in schedule A, that is that the Denoon testimonial conveyed certain imputations, and then if we go over the page to page 12, paragraph 7, your Honours will see that:

By reason of the publication of the matter referred to in Schedule A –

certain damages flowed.

BELL J:   Mr Hale, Justice McColl at application book 78, paragraph 138, said that the consent judgment decided in your client’s favour included that the letter conveyed the third imputation.  Her Honour was referring to imputation 6(c) on page 12 of the supplementary book, as I understand the reasons, and that carried with it that Mr Denoon had published that part of the campaign letter which supported that third imputation, that being the assertion contained on the front page of the campaign letter and not merely Mr Denoon’s testimonial.  How do you meet that?

MR HALE:   I meet that in this way.  If one looks actually at the pleading, it defines the matter.  It actually identifies what the matter is if your Honour goes to page 12 of the supplementary book.  As we have made plain, and it is in the materials we have provided, the cause of action under the uniform Defamation Act is the matter which we have specifically defined.  What her Honour has said, and it must be said she has reinforced in that view that is not her primary reason for coming to the conclusion, but she is reinforced in her view by the fact that the imputation pleaded could not have arisen simply out of the Denoon.

Now, what we were prepared to do is concede in the Court of Appeal that really that imputation could not stand, although perhaps on reflection it might do on the basis of BBC v Slipper.  Nonetheless, we are dealing with a cause of action which is the matter which is specifically identified and, to put it colloquially, the tail cannot wag the dog.  When one looks at it, it is clear, particularly in the context of the earlier pleading, that what was being sued for was schedule A and only schedule A, as your Honour sees at paragraph 7 on page 12 of the supplementary book and as I ‑ ‑ ‑

HAYNE J:   What was the purpose of the amendments then, following the decision of Mr Justice Nicholas?

MR HALE:   The reason for the amendments was, Justice Nicholas, if we go back to the original statement of claim which is at page 3 of the supplementary book, your Honours will see that on page 4 there was the reference again to schedule A and the applicant was there suing in respect of schedule A only and Justice Nicholas, in a judgment, said there had to be an identification of the vehicle in which schedule A was published.  Hence, in order to comply with his judgment there was the clear distinction in the amended statement of claim to identify the vehicle on pages 11 through to 13 as being schedule B, but making it absolutely clear in paragraph 2 or at least paragraph 5 on page 11, that it was the republication of the words in schedule A that was being sued upon and hence paragraph 7 on page 12.

What her Honour did - her primary reasoning is to be found in paragraph 134 on page 76 of the application book where she says it is the use of the word “authorised” where it says in the second line “authorised the respondent to republish” that is her primary reason and she says that means that there is engaged in Webb v Bloch publication.  Our proposition is, firstly, that that the extent of the authority can only mean the extent of the authority to publish schedule A and one cannot by applying general labels in the Webb v Bloch sense say because the word “authorised” is used, that necessarily means an allegation of publication of the totality because Speight v Gosnay of course picks up the use of the word “authority”.  That is the way she has primarily approached the matter.

BELL J:   As I understand it, a strand of her Honour’s reasoning was to say one identifies the cause of action by reference to an assessment of the pleading and the pleading is one that includes an imputation in paragraph 6(c) which necessarily invites attention to the front page of the campaign leaflet.

MR HALE:   But even if that is the case – and it may very well be untenable, it may be arguable on the BBC v Slipper basis, but at the end of the day, what is absolutely clear from the pleading, as I have been seeking to emphasise, in paragraph 7, page 12, it is by reason of the publication of the matter picking up section 8 of the Defamation Act.  What her Honour has done, with respect, is simply because the word “authorised” is used, she has taken that to mean authority for the totality.

What appears to have, in part, crept into defamation law of recent times is a number of what is though to be immutable defamation principles which she has again referred to in Sims v Wran, and also in terms of the reference to Speight v Gosnay and that, with respect, is not accepted these days as the way one approaches these matters of republication.  Really there is no direct concept of republication.  One publishes and one is liable for the repetition. 

We make these submissions that what her Honour is failing to appreciate is the role - in republication or repetition - that this is nothing more than issues of causation and remoteness.  If I could invite the Court’s attention to the materials that we have provided and the decision of Slipper v British Broadcasting Corporation.  It is at page 142 of the materials, Slipper v The BBC, and if your Honours go to page 290 of that judgment which is 149, your Honours will see how Lord Justice Stocker between B and D has referred to the various categories in Speight v Gosnay, and then at the bottom of the page refers to:

all these three cases are relevant both to the question of liability . . . of remoteness . . . Whether or not these cases, which were all concerned with liability for defamatory statements, state any principle of law which . . . is another matter which I will consider.

Then his Honour does consider those matters at the bottom of page 295 going over to 296, and identifies that these matters of repetition are nothing more than examples of the rules of causation and remoteness that apply in all other torts, which is very much consistent with this Court’s approach in the case of Palmer Bruyn.  So what her Honour should, with respect, have been looking at was to say this is a causation issue and just as was the complaint in Slipper, what her Honour has done is rigidly applied principles.  Sorry, your Honour wanted to ask me something.

BELL J:   It is just as I understood it, her Honour went on to say, if one is to view it as a republication as damages case one achieves the same result.

MR HALE:   That is what I might come to, and if I could come to that, but before passing from this could I say that the reference to Sims v Wran and how you have to plead is something which appears to have crept into defamation procedure of relevantly recent days and if your Honour goes to the materials, 163, your Honours will see Gatley on Libel and Slander.  If your Honours go to 164, your Honours will see “Liability of the original publisher”.  The two‑stage step is under 6.36 and footnote 277 where your Honour will see the reference in Gatley as being the source of the need to concentrate on these two steps as being the two New South Wales judgments of Justice Hunt.  That is what we say -what her Honour’s error is focusing on fixed labels rather than seeing this simply as a matter of causation or indeed remoteness of damage.  To take Justice Bell to the other ground which your Honour, I think, was referring to - page 79, paragraph 142.

BELL J:   Yes.

MR HALE:   That goes to a different question because what her Honour is doing is she is assuming, in our favour, namely it was a repetition of schedule A, but what her Honour says is nonetheless we would be caught by section 5.  If your Honour sees in the materials at page 8, section 5(c) is the relevant provision which is dealing with the same damage.  Now, what her Honour does, and this really comes into the second point, what her Honour does is she says that it is the same damage because of the level of generality or abstraction to which she adopts in the use of “damage”.  She says on page 79, about line 33:

Thus the damage the appellant suffered to his or her reputation as a result of the publication of Schedule A -

What her Honour is saying is – because in both cases they were suing for harm to reputation, that is relevantly the damage.  One does not descend beyond that.  The fact that there might have been different publications, as it were, is not to the point in determining “same damage”. 

In our submission we have dealt with this in writing.  When it comes to defamation, of course, damages is different from damage.  But damage, in the context of defamation, will be different if the extent of the damage is different.  For example, here different parts of the pamphlets, the extent of publication because what we do in defamation law, damages are to vindicate reputation.  Therefore, the reputation may be harmed in different ways and ultimately what damage means, for the purpose of section 58 in a defamation matter, must be determined by reference to the extent of that defamation, the extent of the harm to reputation.  That is where, on the second ground, her Honour erred by dealing with it at that high level of generality.

BELL J:   What her Honour said at application book 67 in paragraph 113 was that for the purposes of section 5(1) of the 1946 Act “damage” is to be understood as:

what the plaintiff suffers as the foreseeable consequence of the tortfeasor’s act or omission.

MR HALE:   Yes, that may have difficulty in defamation because foreseeability does not apply, but yes.  But that is the distinction.  If, for example – we have used this in our written submissions – if there were two people made the allegations; one happened to be the Archbishop of Canterbury and the other was a notorious liar, then the extent of the damage would be different, depending on the individuals. 

But could I finally go back, seeing I am almost at the end of my time, go back and look at what the consequence of what her Honour has done in terms of saying whenever one pleads authorisation one is not in the Speight v Gosnay sense looking at repetition.  One is alleging publication and authority and that extends to the totality of what is published.  So, for example, one writes a letter to the letter’s editor – we have used this example – where there is clearly authority for the repetition of that letter in

the letters column.  But it could hardly be said that that amounted to authority for the publication of all the other letters, hence to make ‑ ‑ ‑

BELL J:   It seems to me difficult to suggest that that is the correct way to characterise the decision of the Court of Appeal.  It seems to me that what the court decided was that whether you characterise the amended statement of claim as one pleading republication of the letter, or as pleading the original publication and its repetition going to the question of damages, on either view the damage that was being contended for by the plaintiff in the Denoon proceedings was that which flowed from the publication of the campaign letter and that takes into account the pleading, including of imputation 6(c).

MR HALE:   That is what paragraph 142 is directing attention to because on page 79 that is the finding there.  That ultimately comes down to is it the same damage because if we are suing on the Denoon testimonial, clearly the only damage, if one looks at it specifically, can be the damage flowing from that so far as Mr Denoon is concerned.  When one is looking at the damage flowing from the publication as a whole it is all of the other testimonials and so forth and it comes back to what her Honour has held at 142 as being the same damage.  She simply says damage to reputation at that level of generality and they are therefore the same, without going the next step – and this is where we say they are in error and which gives rise to this critical issue – without going to see well, what is that damage?  Is that damage different?  That is where, in our submission, there is the second special leave point arises.

HAYNE J:   Yes, thank you, Mr Hale.  We will not trouble you, Mr Leopold.

An appeal to this Court would not enjoy sufficient prospects of success to warrant a grant of special leave to appeal.  Special leave is refused with costs.

Court will adjourn until 2.00 pm.

AT 1.12 PM THE MATTER WAS CONCLUDED