Brisbane TV Ltd & Ors v Wells

[1997] HCATrans 79

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B47 of 1996

B e t w e e n -

BRISBANE T.V. LTD, CHRISTOPHER ADAMS and ROBERT BUTLER

Applicants

and

DEAN MacMILLAN WELLS

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 APRIL 1997, AT 11.17 AM

Copyright in the High Court of Australia

MR R.N. CHESTERMAN, QC:   If the Court pleases, I appear with my learned friend, MR J.C SHEAHAN, for the applicant.  (instructed by Freehill Hollingdale & Page)

MR W. SOFRONOFF, QC:   If the Court pleases, I appear with my learned friend, MR D.K. BODDICE.  (instructed by Goss Downey Carne)

BRENNAN CJ:   Yes, Mr Chesterman.

MR CHESTERMAN:   May it please your Honours, the point raised in the application is what is the proper test to determined whether a publication is capable of being defamatory of a plaintiff.  There are, in our respectful submission, three possible tests.  The first is for the jury to determine the single true meaning that ordinary reasonable persons should understand the publication to convey and whether that is defamatory of the plaintiff.  The second ‑ ‑ ‑

GUMMOW J:   You are really asking whether it sufficiently identifies the plaintiff, is that not the ‑ ‑ ‑

MR CHESTERMAN:   Yes, your Honour, whether the defamatory material refers to the plaintiff; is defamatory of the plaintiff.  The second test is whether the jury could conclude that ordinary reasonable persons should understand that one of the meanings which the publication conveyed is defamatory of the plaintiff.  The third test is whether the jury could conclude that some ordinary reasonable persons should understand the publication as defamatory of the plaintiff.

The applicants contend that the first is the proper test and they base that contention upon the decision of the House of Lords in Charleston v News Group Newspapers Ltd (1995) 2 AC 65, especially at 71. Your Honours, the Court of Appeal in this case rejected the Charleston test, although it is not quite clear what test the court in fact applied.  The decision of the court appears at application book page 18A, really going to page 18 first, reading from line about 15:

Thus, the class of persons to whom the paedophilia allegations are capable of referring are those extremely influential people in positions of power in the State identified by photograph in the programme, and arguably only those who are Government Ministers.  On either view they include the respondent.  In our opinion, “reasonable persons of ordinary intelligence, drawing on their own knowledge and experience of human affairs and perhaps reading between the lines in light of their general knowledge and experience could conclude that the defamatory material” was intended to refer to each of these persons.

The reference is to an unreported decision of the Court of Appeal, Copley v Queensland Newspapers.  Over the page on page 18A the court made it clear that they did not apply the Charleston test, the test which we contend and we submit is the correct one.  The court refers to the appellants’ submission and the submission to the court that Charleston should be accepted and then comes the rejection by the court of that test.

Your Honours, the application arises in this way:  the applicant broadcast a television programme in November of 1994 entitled “The Report”.  At the time, the respondent was the Attorney-General for Queensland who commenced his action for damages.  The programme consisted really of two segments or two topics.  The first concerns allegations that the respondent was involved in an improper cover-up of an allegedly corrupt former police officer, one Huey.  That topic formed about 90 per cent of the content of the programme and the respondent featured prominently in it.  That part of the programme does not concern this application.

The second topic, which is pleaded in paragraph 6(c) of the statement of claim, which is set out in the application book pages 5A to 6A, concerns allegations that a former Criminal Justice Commission investigator had instructed to report on and write off paedophile activity in Queensland allegedly on the basis that there people in positions of power in the State who were involved in paedophile activity and those persons had brought pressure to bear to stifle the investigation. 

Mr Justice Moynihan, who heard the matter at first instance, noted that the material in the second category, the second topic, does not refer to the plaintiff at all, expressly, by reference, or by implication, until the commencement of remarks which close the entire programme.  Those remarks can be found in his Honour’s judgment in the application book at page 6A, the three paragraphs against the narrator.  It starts off by saying:

The motives of those who attempted to write off any investigation and suppress any knowledge of paedophilia in Queensland are as strange as those of the people who’ve spent a small fortune on the John Huey cover up.

That passage refers to both topics.  The first part of the passage refers to the second topic, that of stifling investigation into paedophilia, and the second part of it refers to the larger part of the programme, the topic dealing with Mr Huey.

The second passage spoken by the narrator is, in fact, a reference to the first topic of the programme because it says:

The CJC has conducted a public investigatory hearing into the Channel 7 allegations. 

The only such investigative hearing was into the matters involved in the first topic of the broadcast.  His Honour goes on to explain - that was the end of the telecast, but as the programme faded to the credits there was a reprise of the faces on a picture board which occurred at the beginning of the programme and one of the photographs on the picture board was that of the respondent, the Attorney, but in addition to his photograph the photographs of the then Minister for Police, Mr Mackenroth, the then chairman of the Criminal Justice Commission, Sir Max Bingham, the then Commissioner of Police, Mr Newnham, and two Assistant Commissioner, Mr Blizzard and Mr Comrie.  Now, they would constitute the class of persons defamed if there were a class.

The law is, in our submission, clear that where defamatory matter refers to members of a class then, unless each member of the class is defamed or some member is particularly identified as being the subject of the defamatory remarks, there can be no action.

GUMMOW J:   Charleston has got nothing to with that situation.

MR CHESTERMAN:   True, but Charleston  was concerned with the test for deciding whether the meaning of the words was defamatory.  The same test is applicable to decide whether the defamatory words refer to the plaintiff.  The Court of Appeal took that approach and, we submit ‑ ‑ ‑

DAWSON J:   Mr Chesterman, can you point to me where Justice Moynihan, in any way, departed from that approach in his judgment

MR CHESTERMAN:   The point we would make is that his Honour did not expressly advert to which test should be applied.  In his Honour’s judgment this point appears at pages 7A and 8 of the application book.  Reading from about line 25, second-last line on page 7A, his Honour said:

It is true that the body of the material complained of down to the end of the response by Mahon, in the extract set out earlier, there is no reference to the plaintiff at all, expressly, by reference, or by implication.  It is also true that the reference in the narrator’s closing remarks to the motives of those who attempted to write off investigations and those who spend a small fortune on a cover-up may, properly construed, be disjunctive.  I also accept the fact that the plaintiff may fit the description of a person in power in Queensland is insufficient to identify him as one of those defamed.

Then his Honour goes on:

There are features of the broadcast such as the tone, the mention of paedophilia in the opening segment, the use of the photo board and the fade-out remarks which have to be taken into account.

Then his Honour referred to the remarks of Lord Devlin in Lewis v Daily Telegraph about “the broad impression conveyed by the libel.  His Honour said:

Applying the test and considerations I referred to earlier, I am not persuaded that it would not be open to a reasonable person -

and so on.

DAWSON J:   What he is deciding is that the words are capable of a defamatory meaning and are capable of being read as referring to the plaintiff.

MR CHESTERMAN:   Quite so, but his Honour, in our submission, did not turn his mind to the correct test.  Your Honour will note that on page 8 his Honour, at line 16 says it would be open:

to a reasonable person of ordinary intelligence -

whereas what Charleston requires is that the test be, “What would ordinary reasonable persons regard as the single true meaning”, not what some people might but what would the notional referee, the notional ordinary reasonable person.  In our submission, the advantage ‑ ‑ ‑

DAWSON J:   It seems to me it is implicit in what his Honour is saying, that if the words are capable of bearing that meaning and that reference, then that may be considered to be, by a jury, the one and only meaning and reference.

MR CHESTERMAN:   The difficulty with that, with respect, is that when the matter got to the Court of Appeal and the point was put, expressly by reference to Charleston, the court, while not making it clear what test it was applying, made it clear that it was  not applying Charleston. That appears at page 18A of the application book.

DAWSON J:   Perhaps it was not, but this is a pleading point.  This is at an interlocutory stage and no doubt the matter could be clarified at trial, but it does not seem to me that anything that the judge at first instance did denies the principle which you are now expounding.

MR CHESTERMAN:   Except that the Court of Appeal, as it appears at page 18A of the application book, made it clear that they were not applying and did not regard Charleston as being authority for the point which was before the Court of Appeal, which is, “Was the material capable of referring to the plaintiff?”

BRENNAN CJ:   Even if they turn out to be wrong about that, why should we not, before undertaking a review of Charleston, wait for a jury verdict based upon a direction?  Why should we take on board an interlocutory application which will require this Court to form its own view on whichever test might be appropriate?  Obviously the Court would have to look at the video, one would have to see what the general impression was that is created.  That is the sort of thing that does not make this case a very attractive proposition for a special leave application, Mr Chesterman.

MR CHESTERMAN:   I understand that.  What we would urge, in response, is that these applications are ordinarily determined at the interlocutory level.  It is normally on a preliminary trial, as it were, on whether the material is capable of either being defamatory or, in this case, referring to the plaintiff, that these matters are determined.  Charleston itself was an appeal from such a proceeding.  It was a preliminary trial as to the meaning of the words and whether they were defamatory and it went by leave to the House of Lords.  If there were an appeal, and if it were successful, the result would be a significant abbreviation of the trial.  A number of issues would be removed from consideration and it is for that reason that the application is brought.  But I take the force of what your Honour puts to me but our answer is, as I say, that it is ordinarily the case that these matters are determined by interlocutory proceeding.

Your Honours, can I go back to page 18A of the application book to make the submission that whatever test the court applied, it was not Charleston.  May I digress for a moment to inform the Court that the decision of Mr Justice Moynihan was given before the decision in Charleston was handed down by the House of Lords.  On page 18A of the book, the court records the submission that even if the class were influential people whose photographs appeared in the concluding moments of the programme, that is the plaintiff, the Police Minister, the Police Commissioner, Sir Max Bingham, and two Assistant Police Commissioners:

the paragraphs of the statement of claim in question should nevertheless be struck out.  He urged the Court to accept the test as stated by Lord Bridge of Harwick in Charleston v News Group Newspapers Ltd [1955] 2 AC 65 at 71 that, in deciding whether words are defamatory, one must determine “the single meaning which the publication conveys to the notional reasonable” viewer. This passage, the appellants submitted, means that the jury must be able rationally to conclude that the true meaning of the broadcast is the meaning which the plaintiff asserts. In our opinion, this test is concerned with whether material is actually defamatory; not with determining the present question, namely, whether material which is undeniably defamatory in nature, is capable of referring to the respondent.

Now, it is true, with respect, that Charleston was concerned with whether material was capable of being defamatory but the same test, we would submit, applies to the allied point, “Is the material capable of referring to the plaintiff?”  The court itself, in applying the test it did on the preceding page, by referring to Copley v Queensland Newspapers, was referring to a case, the point of which was, “Was the material capable of being defamatory?”, not “Was it capable of referring to the plaintiff?”  Copley was a case that concerned the former point, not the latter.  So that the test is the same, “Could a jury conclude that the publication was defamatory of the plaintiff?”  But the true test, we submit, is to formulate it in this way, whether the jury could have concluded that the single true meaning that the ordinary reasonable person should understand the publication to convey is defamatory of the plaintiff.  The reason we stress it, your Honours, is that it does give focus to the point that is to be determined.  It, in a sense, perhaps is a harder test or a higher test to pass but, putting it in that way which we submit is the correct way, focuses attention on what the court is to determine, whether the jury could conclude that the single true meaning is defamatory of the plaintiff.

Now, the Court of Appeal has not taken that view.  We submit that it was wrong in not doing so.  Were the proper test applied and answered against the plaintiff, as I say, the trial would be substantially abbreviated.  These matters normally being heard on interlocutory proceeding, we submit

that it is an appropriate case for special leave.  Those are our submissions, may it please the Court.

BRENNAN CJ:   The Court need not trouble you, Mr Sofronoff.

The applicant attacks the decision of the Court of Appeal on the ground that their Honours did not give effect to a principle to be found in Charleston v News Group Newspapers Ltd (1995) 2 AC 65. If that question is to be considered by this Court, it ought not be on appeal from the dismissal of a strike-out application when the plaintiff relies upon the effect of the entirety of a television broadcast in identifying the plaintiff. This is not a suitable vehicle for considering that question. Accordingly special leave will not be granted.

MR SOFRONOFF:   I ask for costs, your Honour.

BRENNAN CJ:   What do say about that, Mr Chesterman?

MR CHESTERMAN:   No, may it please the Court?

BRENNAN CJ:   Special leave will be refused with costs.

AT 11.36 AM THE MATTER WAS CONCLUDED