Chakravarti v Advertiser Newspapers Ltd

[1997] HCATrans 237

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A41 of 1996

B e t w e e n -

MANOBENDRO CHAKRAVARTI

Appellant

and

ADVERTISER NEWSPAPERS LIMITED

Respondent

BRENNAN CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON WEDNESDAY, 3 SEPTEMBER 1997, AT 10.16 AM

(Continued from 2/9/97)

Copyright in the High Court of Australia

BRENNAN CJ:   Yes, Mr McClintock.

MR McCLINTOCK:   Thank you, your Honour.  Your Honours, could I step back just brieflyand tie up a couple of loose ends that arose yesterday.  One arises out of the questions your Honour Justice McHugh put to me about the obligation of the ordinary reasonable reader to take into account the whole of the article.  The first, however, is I omitted to give your Honours a reference to the Chief Justice’s judgment in Stephens v West Australian Newspapers 182 CLR 211 on the question of whether the report was the subject of common law qualified privilege. It is a significant passage, if I may say so with respect. I do not wish to read it to your Honours, given the time limits I have set myself, but the relevant passage in your Honour the Chief Justice’s judgment is at 247 to 248 and, in my submission, establishes that there was a common law qualified privilege to report the evidence before this royal commission, the Jacobs Royal Commission.

The second loose end, your Honours, is the point that I mentioned, the obligation of the ordinary reasonable reader to take the whole of the material into account.  The authority, your Honour, is World Hosts v Mirror Newspapers Limited (1976) 1 NSWLR 712. That is a decision of the New South Wales Court of Appeal in which your Honour Justice McHugh persuaded their Honours there, and especially Mr Justice Glass, that the proposition that I have advanced was correct. The relevant passage appears at page 725 in Mr Justice Glass’ judgment.

KIRBY J:   It is quite a difficult point this, I think, to reconcile on the one hand fairness to a media outlet that has given a fair and balanced report, but on the other hand the fact that most people are like Justice McHugh said yesterday he is, and I certainly am, they flick through it, look at the headlines, look at the captions, maybe read a bit of it.  It is quite a ‑ ‑ ‑

MR McCLINTOCK:   Your Honour, I think your Honour and Justice McHugh may have done yourselves a slight injustice because the rule here is a corollary of the rule that the ordinary reasonable reader is a fair‑minded person who does not jump to conclusions and considers the whole of the material before he comes to a decision as to the defamatory matter.  If your Honour was reading an article - take this article for example.  If your Honour read the headline and then stopped at the first paragraph, your Honour, in fact, would not come to a conclusion about any defamatory meaning, but if there was something defamatory about a plaintiff in the first paragraph, your Honour would read, if I may say so with respect, the entirety of the article before coming to a conclusion that the material conveyed a serious defamatory imputation.

KIRBY J:   But that would be what a judge might do or what a lawyer trying to be fair might do, but an ordinary citizen is not so motivated.  They will just glance at it and think, “Oh, isn’t that a scandal.”

MR McCLINTOCK:   No, your Honour, a fair‑minded person, any fair‑minded person will read the entirety of the material because they know that the first paragraph may be qualified by something that comes later, but in any event ‑ ‑ ‑

McHUGH J:   But I do not think that really reflects the way people deal with these matters.  Take the second article.  You see the heading, you read the caption under the photograph.  Now, you just may pass on.  You do not really form any judgment, but a year later or six months later when there is some discussion or maybe even a month later, human memory being what it is you have got registered in your mind this allegation that it was criminal rather than civic, so you have a recollection of the four people as being involved in criminal rather than civic conduct.

MR McCLINTOCK:   Your Honour, there are two answers to that.  The first answer is that newspapers can only be liable for what they say, not what people mistakenly think they say.  If there is a qualification that is made by the newspaper, it is simply unfair and wrong ‑ ‑ ‑

McHUGH J:   No, it is not unfair because if newspapers want to follow the modern form, which for good commercial reasons they do, then they may have to pay damages accordingly.  You have a look at some newspaper reports in the last century, particularly papers like The Times, they are just there in columns.  There were no captions, there were no photographs.  If you wanted to read, you had to read the whole article to get any sense out of it.  There was not anything to grab.

KIRBY J:   I do not think we are going back to that.

MR McCLINTOCK:   Well, one would hope not, your Honours.  The Times also had its front page covered with classified advertisements last century, your Honours, but the fact is that it is unfair.  Newspapers publish an article.  One cannot, just like when one is dealing with any other document, say, “Oh, that part of it has more impact than that part.”  One must take the whole into account.  The second ‑ ‑ ‑

McHUGH J:   No, it is a question of what ordinary reasonable readers will do and if most reasonable people in the community read it in a particular way, in a lot of cases, well, newspapers have got to wear it.

MR McCLINTOCK:   Your Honour, it is an unreasonable thing to do not to read the entirety of the material before coming to a conclusion that it is defamatory of a particular person.  The second answer, your Honour, is given by Sir Anthony Mason in Harrison v Mirror Newspapers 149 CLR 293 where his Honour said that the newspaper is to be judged by what it says, not by what the prejudices of the reader in respect of that material is. I can give your Honour a reference to that point in Harrison. The relevant passage is at page 301. It is the paragraph there, but I do not need to read the - well, unless your Honours wish me to, I will not read it to your Honours, but the point is that a newspaper is to be judged by what it says, not by what people erroneously through a process of prejudice or simple mistake think the newspaper said.

KIRBY J:   One of the problems is that if generally responsible journalists write the stories they are quite balanced, but different people do the headings and they try to catch the eye and get the reader in and this leads to a certain imbalance between the content and the headline.

MR McCLINTOCK:   It can, your Honour, and in some ways when one is dealing with it - that is not to say that a headline cannot have an impact.  Of course it can and I would not dispute otherwise, but it is a question of whether one reads the whole of the material - and, in fact, in the World Hosts decision the Court of Appeal was dealing there specifically with a headline and said that one had to read the entirety of the material.  Their Honours there gave it the status of a rule, as they described it there.  But take the headline here, your Honour.  It says - this is the second article - “Loans may be criminal:  bank chief’s diaries”.  Your Honour, that is, in fact, an absolutely accurate description of one aspect of what Mr Simmons’ diaries actually said and there can be no dispute about that.

While the article itself starts off with the words “Sensational allegations”, there is, in fact, nothing sensational in terms of the yellow press type article in this article.  It is an accurate headline that deals with, no doubt in striking form on the front page of The Advertiser, something of great importance to the people of South Australia, that is, the destruction of their bank and their finance company, and, your Honours, the newspaper cannot be fairly criticised for trying to draw the attention of the readers to something such as that and especially when they do it in terms that are, in my submission, perfectly fair and perfectly accurate.

Your Honours, I do not think it is necessary for me to read the passage from World Hosts in the Court of Appeal.  It stands for the proposition that I advance that one must read the whole article.  Your Honour Justice McHugh mentioned yesterday and I think directed me to a judgment of Mr Justice Aickin - your Honour said in Readers Digest v Lamb.  Mr Justice Aickin did not sit in Readers Digest v Lamb.  I think the decision your Honour was referring to was World Hosts when it got to the High Court where Sir Keith Aickin did sit and there is a passage there that your Honour may have had in mind, but I will hand up the copies of the judgment. The particular passage in Sir Keith Aickin’s judgment is at 646 of the report, but there his Honour was dealing with - it is the passage that appears commencing with the - or the first paragraph beginning on the page where his Honour said:

It is clear that in determining whether the statement published was capable of being defamatory it is necessary to consider not merely the headline, conspicuous though it was, but the publication as a whole -

and so on down the page.  It has to be said, though, that his Honour there was dealing with the question that in New South Wales law reserves to the judge as to the capacity of the material to be defamatory, not the question as to whether it was, in fact, defamatory, which, in fact, is the question that was being dealt with by their Honours in the Full Court here. 

Your Honours, those are my submissions in relation to those two loose ends.  Could I then go back to the question of whether the second article fairly reproduced the diary note given in evidence before the Jacobs Royal Commission and, in my submission, as I was coming to say to your Honours yesterday, it does.

Your Honour, it is convenient for me to deal with this by dealing with two bases in the courts below upon which this report was said not to be accurate.  The Chief Justice in his judgment, and I read the passage to your Honours yesterday, gave two reasons why it was not an accurate report.  In response to those two reasons, your Honours, I would say that the first of them involved both a misreading of the diary note and a misreading of the article and the second of them involves a misreading of the article.  The first reason given by the Chief Justice - and this appears at page 936 of volume 4 of the appeal book and it is at line 23, that is:

But I consider that the first paragraph of the article suggests a more active form of conspiracy, and one which has more serious overtones than a “conspiracy of silence” - which in common speech often means little more than a failure to disclose.

The misreading of the diary note, your Honour, is this:  his Honour failed to advert to the fact that there are two references in the diary note to conspiracy and the article is clearly referring to the second such reference.  That appears from page 854c and d of volume 4 which, if I could take your Honours to that reference, paragraph 8 says:

The effect of these loans are:
a)  Baker could not exercise proven control over Reichert who arranged structured finance which has proven to be a disaster.
b)  Board presentations were pulled and not accurate.
c)  Internal audit reports were screened.
d)  The Board of Beneficial did not get the true picture.
e)  Accountant was told want $10M. profit and accounts were adjusted.
f)  Conspiracy of silence.
g)  Believe that Baker, Reichert, Martin and Chakravarti will have to go - question when.
h)  Clark, John Sulan, at my suggestion, are seeing Chakravarti - now feel he will be weakest.

Over the page on page 854d your Honours will see a heading that says “Board’s Position”.  Paragraph 8 below that says “Beneficial conspiracy”.  Now, if I can then go back to the article, your Honours, the article itself in this respect starts off with:

Sensational allegations of a conspiracy within the State Bank group and multimillion‑dollar unauthorised loans involving senior executives have been revealed in diary notes kept by former bank chairman Mr David Simmons.

The article then for the new two paragraphs deals and deals only with the loans:

Mr Simmons says the circumstances surrounding the loans “may be criminal”.
           The loans include unapproved loans to four senior Beneficial Finance Corporation executives and a $37 million joint venture arrangement with a Melbourne developer.
           Mr Simmons’s diaries also refer to a “Beneficial conspiracy”, how board presentations had been “pulled” and how internal audit reports were “screened”.

The reference to the conspiracy in the first paragraph is a reference to the quoted words “Beneficial conspiracy” in the fourth paragraph and that refers to the item on page 4 of the diary note, not, in my submission, to the item on page 3 of the diary note and his Honour the Chief Justice never considered whether the reference to “Beneficial conspiracy” on that page was accurately encapsulated in the first paragraphs, the opening paragraphs, of that article.  In my submission, it was.  Even if that is not a fair reading of the diary note and the article, what his Honour the Chief Justice said at page 936 about the conspiracy in relation to “conspiracy of silence” is simply not a fair reading of that paragraph of the diary note where the words “Conspiracy of silence” are actually used.  His Honour says that:

the article suggests a more active form of conspiracy.....than a “conspiracy of silence” - which in common speech often means little more than a failure to disclose.

But, your Honours, this was not common speech.  This was a note written either before or after the event of a conversation or about a conversation with the Premier and in paragraph 8 of that diary note Mr Simmons was drawing what appears on the face of the note to the attention of the Premier an exceptionally serious and active conspiracy.  It was, as one looks at the entirety of paragraph 8, a conspiracy to conceal matters from the Board of Beneficial Finance, that is:

b)  Board presentations were pulled and not accurate.
c)  Internal audit reports were screened.
d)  the Board of Beneficial did not get the true picture.
e)  Accountant was told want $10M. profit and accounts were adjusted.
f)  Conspiracy of silence.

ie, a cover up, that is what it is there.  That paragraph simply is not fairly characterised and is not referring to an active conspiracy, that is, Mr Simmons there is referring to an active conspiracy of the most serious kind and, in my submission, that is the only meaning that that paragraph, paragraph 8 and those subparagraphs, can bear.  For that reason that part of the Chief Justice’s judgment saying that this article was inaccurate should, in my submission, be rejected. 

The second basis that his Honour relied upon is that - and this appears at 937 lines 2 to 4, again, which I read to your Honours yesterday.  His Honour said that:

the first three paragraphs of the article imply that the joint venture arrangement did involve all four executives.

But the article does not say that and is not capable of saying that.  The article says in relation to those paragraphs that, when one looks at it, it is in fact the third paragraph:

The loans include unapproved loans to four senior Beneficial Finance Corporation executives and a $37 million joint venture arrangement with a Melbourne developer.

It does not say and cannot be taken to say simply because of the word “and” that the four executives are involved in the $37 million joint venture.  For those two reasons, your Honours, the Chief Justice, in my submission, was wrong on the bases he gave for not finding this article was accurate.  The learned trial judge and Mr Justice Williams ‑ ‑ ‑

BRENNAN CJ:   I am sorry, I am not quite with you on that first proposition.  I am not sure why you say it was not accurate.  You say paragraph 8 on page 854c was an allegation of a conspiracy, is that right?

MR McCLINTOCK:   Yes, your Honour.

BRENNAN CJ:   Conspiracy involving Chakravarti?

MR McCLINTOCK:   Yes, your Honour, because (g) - one can get this ‑ ‑ ‑

BRENNAN CJ:   All I want to know is whether you say it is a conspiracy involving Chakravarti.

MR McCLINTOCK:   Yes, your Honour, I do.

BRENNAN CJ:   And that because Chakravarti was referred to in subparagraph (g)?

MR McCLINTOCK:   And because paragraph 8, the opening lines of it, refer back to the effect of these loans and that is a reference to what is in paragraphs 6 and 7 and which indicates that he is referring there to the loans to, amongst others, Chakravarti.

BRENNAN CJ:   That is an inference that you draw from the fact that Chakravarti allegedly had a loan and that Chakravarti would have to go and that Chakravarti was involved in everything which appears between those two passages.

MR McCLINTOCK:   Yes, your Honour, and, in addition, there is subparagraph (h) as well.

BRENNAN CJ:   Yes.  That is an inference to be drawn from it, is it?

MR McCLINTOCK:   Your Honour, in my submission, it is not an inference.  It is a direct statement to that effect when one ‑ ‑ ‑

BRENNAN CJ:   But there is no direct statement to that effect.  Where is the direct statement?

MR McCLINTOCK:   I am sorry, your Honour, your Honour is quite correct in saying there is no statement there that says that Mr Chakravarti was involved in a conspiracy and in that sense, yes, your Honour is right, if I might say so with respect, that it is an inference to be drawn, but, in my submission, it is the only available inference from this material for those reasons.  Mr Simmons here was talking about a conspiracy involving these men and, given  the wording of those paragraphs it is, in my submission, the only inference that can be drawn from that, paragraphs 6, 7 and 8 of the diary note, for the reasons I have put to your Honour in paragraph 6 and ‑ ‑ ‑

BRENNAN CJ:   Even though the author regards it as simply a conspiracy of silence.

MR McCLINTOCK:   Your Honour, he does not regard it as simply a conspiracy of silence.  When one takes into account the earlier material such as the pulling of board presentations, the board not getting the true picture, the accountant was told that they want $10 million profit and the accounts were adjusted and so on then it says “Conspiracy of silence” but, in my submission, it is not fair to the diary note to say this is simply a conspiracy of silence.  What is being said there was there was an active conspiracy to conceal matters from the board of Beneficial Finance.  In any event, over the page there is the further reference to “Beneficial conspiracy” and that is what the article is, in fact, referring to because it uses the words in inverted commas “Beneficial conspiracy” in those materials there.

I might say this, your Honour, that when one actually looks at it, there is, in fact, nothing to tie in, in those first paragraphs, the four executives in question with the conspiracy in the first four paragraphs of the article because it says:

Sensational llegations of a conspiracy within the State Bank group and multimillion‑dollar unauthorised loans -

“and multimillion‑dollar unauthorised loans”.  It does not say that the conspiracy involved the unauthorised loans.

BRENNAN CJ:   Now we are back to the same sort of arguments we had with article one.  What is your argument in relation to this and is it put in the alternative?

MR McCLINTOCK:   Your Honour, it is put in the alternative.

BRENNAN CJ:   So the first alternative is what?

MR McCLINTOCK:   The first alternative is on a fair reading of those first paragraphs there is no suggestion that Mr Chakravarti was involved in the conspiracy.  The second is, if there is such a suggestion, it is a fair representation of the material that appears in the diary note reproduced at 854c and d.  That is the submission and it fairly reproduces the effect of what appears in paragraphs 6 to 8 on page 854c and the numbered paragraph 8 on page 854d.

Your Honours, the other basis for rejecting the defence of fair report in relation to this article was that of the trial judge, Mr Justice Williams, which relies upon the graphic that appears below the photograph there and the suggestion was that because of the omission of the words that appeared in the diary note between the two sentences quoted in that material, that an inaccurate impression was given of the diary note.  In my submission, that proposition was wrong for two reasons.  The first is that the suggestion was by Mr Justice Cox that the diary note was ambiguous in the sense that it did not necessarily mean that the loans to the four men referred to were being referred to by the words “criminal rather than civic.”

In my submission, when one looks at the diary note, that is not a fair reading of it.  There is no ambiguity there.  The last sentence, in my submission, clearly refers to all the other loans there.  For that reason I would say there is no ambiguity that my client resolved adversely to Mr Chakravarti by the graphic.  The second aspect of the matter ‑ ‑ ‑

GAUDRON J:   Well, what exactly is it that you point to in the diary note, I am sorry?

MR McCLINTOCK:   If your Honour goes to the top of page 854c, your Honour will see that paragraph 6:

Preliminary audit reveals Baker, Reichert, Chakravarti and Martin have all loans which were not approved, and were not authorised and are in excess of agreed benefits.

Now, the graphic stops there and omits the next sentence:

The loan I looked at was a joint venture and it appears that this joint venture with a Melbourne developer, Tribe and Crispaulie is in default and the account is in default at a level of $37M. rather than within the approved Board 30M.  May be criminal rather than civic.

In my submission, that last sentence is referring to all the loans referred to there.

GAUDRON J:   Well, there is an ambiguity, is there not?

MR McCLINTOCK:   No, your Honour.  I am submitting that there is not.  I am submitting that last sentence applies to both the two earlier sentences.  On the assumption though that there is an ambiguity, the ambiguity is resolved and resolved so that there is no doubt what the diary note actually says.  When one looks at it, and I submit a fair‑minded reader would do this, one sees that there are four dots which is, of course, the standard way of indicating an omission from material, so the reader as soon as he reads that is told that something has been left out.

Now, when he reads the whole of the article, as, in my submission, he is bound to, he sees what has been left out.  He can then make his own judgment as to whether the sentence “criminal rather than civic” qualifies the first sentence or qualifies the middle sentence only and the material appears - and your Honours will see that in this respect it is a verbatim quote of that paragraph.  It appears in the fourth paragraph of the article, verbatim except in the sense that the Christian names or the given names of the individuals are inserted.  It says:

“Preliminary audit reveals (John) Baker, (Erich) Reichert, (Manob) Chakravarti and (Garry) Martin (all Beneficial Finance executives) have all loans which were not approved and were not authorised and are in excess of agreed benefits.

The second paragraph is then set out and then after that:

“May be criminal rather than civic -

and then it sets out the reference to “Pegasis” and so on and there are other references down the pages as well quoted from the diary note.  In my submission, that concludes all I wish to put to your Honours as to why this article was accurate as a report of that diary note.  In my submission, it was accurate and that, therefore, the defence of qualified privilege, the defence of fair report applied in relation to this publication.

Your Honours, that takes me to the last two topics that I wish to address to your Honours which is the equivalent letter that is said to be reasonable.  I will do that very briefly by putting to your Honours that the letter in question which appears in this case at 867 of volume 4 was again not a reasonable request for - a reasonable statement requesting an explanation or contradiction.  There are three reasons.  They are briefly the reasons given by the trial judge and relied upon by the Full Court to reject this defence.  They are the reference to purported diary notes, the reference in the last sentence of the first paragraph of the letter at about line 7 that “The article was grossly unfair and inaccurate” and the last part of the third sentence which says:

it is not only imprudent on your part to subject myself and my family to the inevitable repercussion of your inaccurate and unfair reporting, but also demeaning to the Commission’s role.

In my submission, this letter was intemperate and not, for those reasons, reasonable.  It also, in my submission, may have conveyed by the use of the word “purported” a misleading impression as to the diary notes.

BRENNAN CJ:   Why do you say that is unreasonable?  Let us take the words “inaccurate and unfair” and look at the part which is underneath the photograph in the second article.  May not a person who is described as having taken a loan which may be criminal entitled to say that that is inaccurate and unfair, having regard to the total text which was put in the fourth paragraph as you point out?

MR McCLINTOCK:   Your Honour, in my submission, no, and one also has to bear in mind that the newspaper would have known when it was responding to this letter that the material in question that Mr Simmons had put beyond any doubt, the question as to what he told the Premier about the plaintiff’s involvement in criminal conduct.  As is said in the first article, the Premier had in fact said that there was a question of criminal misconduct to be looked at in relation to the plaintiff and that would have been in the mind of the newspaper.  So in that sense the newspaper behaved reasonably in not responding to that request.

BRENNAN CJ:   It is not a question of whether the newspaper behaved reasonably.

MR McCLINTOCK:   Your Honour, the test is to be viewed objectively and that involves considering it equally from the position of someone in the position of the newspaper as well as someone in the position of the plaintiff.  It is an objective test and it does not ‑ ‑ ‑

BRENNAN CJ:   But the test being objective is objective as to the quality of the letter.  The newspaper and its conduct is as irrelevant as the conduct of Mr Chakravarti.

MR McCLINTOCK:   Your Honour, I would accept that as an accurate construction of the document.

BRENNAN CJ:   Not of the document, of the statute.

MR McCLINTOCK:   I am sorry, the statute.  Your Honour, but when one applies that to the letter, one cannot ignore the actual circumstances as to whether the request is reasonable.  One of the factors that would test whether the request is reasonable is the objective facts as they exist at the time the letter arrives.  One of those objectives facts is the fact that the witness had given evidence that there was a question of criminal misconduct.  That is one basis of examining whether the letter is reasonable.

BRENNAN CJ:   Well, that seems to me to be the very purpose of the statute.  Here A says that there is some defamatory matter to be published of B and B says the defamatory matter is untrue.

MR McCLINTOCK:   Your Honour, the other aspect of the matter is this, that when one comes to test this, one has found that the report is by that stage accurate.  As I put in relation to the first letter, it is not reasonable - or the purpose of the proviso is to attack the substance of the evidence, not to attack the fact that it was given in evidence because it is by that stage adjudged to be a fair and accurate report.  When one judges this letter here, and I know that there may be a fine difference between them, it is asserted that the article was grossly unfair and inaccurate.  If the article by that stage has been found to be fair, that is not reasonable to make that assertion.

If it had said, as it does in the second paragraph and nothing else, that it was not true that he engaged in criminal conduct and so on, there would be no answer.  That would be a reasonable response because that is the purpose of the section, to put the man’s point of view about what has been said about him, not to challenge the accuracy of the reporting.

BRENNAN CJ:   Now, if the report is fair and accurate because the article sets out in the full that which was abbreviated in the highlighted section and only on that account, why is not the person defamed entitled to write a letter saying that the reporting which highlighted the portion underneath the photograph was unfair and inaccurate?

MR McCLINTOCK:   Because it has been found by that time that it is not unfair and inaccurate and that ‑ ‑ ‑

BRENNAN CJ:   That the whole article is not, but what about the extraction and highlighting of that passage?

MR McCLINTOCK:   Your Honour, that does not, but there may be something in what your Honour said, but that is not what this letter in fact says.  The letter says:

The article was grossly unfair and inaccurate.

Paragraph 2 goes on to deal with the objective facts and, again, in my submission, that is perfectly reasonable.  Then in the third paragraph there is a reference to:

your inaccurate and unfair reporting, but also demeaning to the Commission’s role.

No point is made there.  Then in the second‑last paragraph the point to which your Honour referred is made, but these letters have to be treated as a whole and it is at least doubtful - in fact, it is beyond doubtful - that my client is entitled to edit a letter such as this before publishing it.  That would probably be a constructive refusal of some sort to publish.  One has to take the entire letter as a whole and examine that entirely to see whether it is reasonable in the circumstances of the matter and, again, your Honour, if it had stopped there, I would accept the force of what your Honour the Chief Justice puts to me, but this letter did not stop there. 

Your Honour, unless there is anything your Honour wishes me to assist with so far as I am able in relation to that point, could I go then to damages.  Your Honours, there is an attack made on the Chief Justice ‑ ‑ ‑

KIRBY J:   Can I just ask finally on that point, can you conceive of a letter that would have fallen within the proviso and, if so, what would it have said?

MR McCLINTOCK:   Is your Honour asking specifically in relation to the second one ‑ ‑ ‑

KIRBY J:   Yes.

MR McCLINTOCK:   ‑ ‑ ‑ because in relation to the first one, the letter without the middle paragraph I would say would have fallen within the proviso.

KIRBY J:   So that is all that needed to be omitted?

MR McCLINTOCK:   In relation to the first article, yes.  In relation to the second article, if one omitted the word “purported”, the last sentence of the first paragraph and the paragraph that begins “Secondly”, it would come very close to being a reasonable request, but those paragraphs make the difference and make it, in my submission, unreasonable. 

Your Honours, there is an attack made on the Chief Justice’s approach to damages in this case and the suggestion is that he erred by putting aside the parts of the article that he found to be a fair report and dealing only with the parts that he found not to be a fair report.

The proper approach, in my submission, is to excise the parts as to which a defence succeeds and give only damages in relation to the remainder of the article and, in my submission, that in fact is what the Chief Justice did here, although the language using the word “subtract” and so on may give a slightly different impression, but the fact is, in my submission, his Honour the Chief Justice approached it correctly.

GAUDRON J:   But can you isolate this question now from the question whether it must be a fair report in its entirety?

MR McCLINTOCK:   Yes, your Honour, your Honour can because if one takes the first article, for example, there is a distinct allegation based upon what Mr Simmons said in his evidence and there is no question, in my submission, that that distinct allegation has been fairly reported.  One can then put that aside and if one came to give damages for the other parts of the first article which involved differences of opinion with the board over appropriate conduct, one can isolate them as distinct defamatory stings and say nothing for the fair ‑ ‑ ‑

GAUDRON J:   No, but the defence is a defence of fair report of a meeting either at common law or under the statute.  Now, can a report of a meeting be fair in part and answer the terms of the statute?

MR McCLINTOCK:   The answer is, in my submission, yes, your Honour, it can.  It certainly can at common law.

GAUDRON J:   What is the authority at common law?

MR McCLINTOCK:   Your Honour, the authority is Associated Newspapers v Dingle (1964) AC 371. It is in our volume of authorities and I will find the page reference. I am sorry, it is in the appellant’s volume of authorities, your Honour. It is No 9 in the appellant’s bundle of authorities, your Honours. The relevant passages appear in the speeches of Lord Radcliffe and Lord Radcliffe dealt with the matter at page 394. In his speech there his Lordship said about point 5 on the page where he said this:

The judge’s task in arriving at a figure of damages for the defamation contained in the article of June 16 was not a simple one.  He had first to eliminate from his mind that small part of the imputation that he found to have been justified - the statement that the respondent was still, though only in a very formal sense, in negotiation with Mr Bromley and Mr Evans when he wrote his letter of December 2, 1957.  No one thought that this was a point of any weight one way or the other, and I do not touch on it further.  Next the judge had to eliminate that part of the article that consisted of extracts form the select committee’s report, since under the Act of 1840 such extracts could not in law be treated as a libel.  Having done all this, he had to ascertain and measure what was the actionable defamation and assess a figure of damages in relation to the injury it had caused.  It is not disputed, I think, that he had to do this much to arrive at a proper figure:  the question is whether he did something more and, if so, whether he went wrong in what he did.

Then his Honour went on to deal with the other aspect of ‑ ‑ ‑

GAUDRON J:   But that does not answer my question.  The question is can a report which is fair in part and unfair in part or accurate in part and inaccurate in part answer the description of a fair and accurate report for the purposes of the statute and of fair report for the purposes of the common law?

MR McCLINTOCK:   Your Honour, there are three places in the speeches of their Lordships where this is dealt with.  Your Honour, in my submission, the answer to that question is yes.  It would follow, in my submission, from what Lord Radcliffe says, by parity of reasoning, that if one of the extracts was accurate that could not be a proper basis for ‑ ‑ ‑

GAUDRON J:   What was the defence there and were they sued on separately or the entire article?  I mean, different considerations might apply if, for example, they sued on parts only of the article.  I do not know.

MR McCLINTOCK:   But, your Honour, in one sense one cannot sue upon parts only of one article.  One is bound to plead and certainly bound to tender the entirety of the publication or at least any parts of it that qualify or that are capable of qualifying or materially altering the impression of the ‑ ‑ ‑

GAUDRON J:   What you have got there is extracts, not fair report.

MR McCLINTOCK:   Your Honour, the defence is analogous to ‑ ‑ ‑

GAUDRON J:   I do not know that it is.

MR McCLINTOCK:   Your Honour, the analogy is the analogy of two defamatory stings, one of which has been justified successfully and the other of which has not been justified successfully.

BRENNAN CJ:   That is where there is no analogy.  If you have got justification in respect of part of a defamatory statement, you can justify to that extent, but if the question is, is the entirety of the statement a fair and accurate report, you have got to look at the whole of it.

MR McCLINTOCK:   One has to look at the whole of it, your Honour ‑ ‑ ‑

BRENNAN CJ:   And one does not pick and choose then to see whether there are some parts of it which, if carved out from the rest, might have been fair and accurate.

MR McCLINTOCK:   Your Honour, if it comes down to questions of separate defamatory stings, the answer is one can and should, in my submission.  If, for example, the report had been published on one day and had dealt with evidence given, say, before lunch in a court and then in another aspect on a different topic evidence given after lunch the day before, provided there was a differentiation between the two matters dealt with to say the evidence was given that someone in the court had said the plaintiff was a murderer in the morning, the same person had said the plaintiff was a thief in the afternoon in his evidence, if it turned out that the report was accurate in relation to the murderer that the person had said, but inaccurate in relation to the fact that they reported he said he was a thief, in my submission, one would certainly not get damages for the accurate reporting of the earlier point.

GAUDRON J:   Because you would have two reports.

MR McCLINTOCK:   Your Honour, but that may in one sense be the answer here.  There was one report in the first article, one report of what Mr Simmons said in evidence there and then it went on to deal with separate topics.  There is a suggestion that the imputation was that the plaintiff had come into collision with the board as to appropriate conduct for officers, but if that is inaccurately reported - and, in my submission, for the reason I put it is not there - but if that is inaccurately reported, it is quite distinct from the true suggestion that Mr Simmons had said that there was a question of civil and criminal misconduct in relation to this man to the Premier, in my submission.  They are, in my submission, distinct and, therefore, can fairly be judged.

The point, your Honour, is this, that report in this sense does not mean that the whole article must be a report.  Very rarely is any one article in its entirety a report of a protected matter.  Very often journalists put in additional material so that information can be explained.  For example, here in the first article the fact that there was no explanation of the Melbourne joint venture was added.  Now, that cannot be said to be in that sense a report but, in addition, journalists are entitled to express opinions based on reports that they have.  It is not the entirety of the article.  It is whether the defamatory sting that is conveyed by the article - and this is the approach taken by the Full Court - accurately represents what occurred in the courtroom and it is not the entirety of the article.

Your Honours, the other reference is in the speech of Lord Denning at page 409 where his Honour dealt not with the report point, but with justification.  It is paragraph 3 on page 409 of Dingle:

The judge found that one of the phrases in the article “letter while we were still negotiating” was justified.  This was a matter for him and I see no reason to interfere in his conclusion.  If he thought fit to give less damages on that account, he was entitled to do so:  for a defendant is entitled to justify a part if he can.

Page 414 is where Lord Morris dealt with the matter and his Lordship said at about point 6:

The judge had approached the case with two broad questions in mind which he framed as follows:  (1) To what extent was the plaintiff wrongfully defamed by the defendants? and (2) How much damage to his reputation was caused by this?

In regard to the first of these questions I think that the approach of the judge was entirely correct:  he excluded from consideration those parts of the article which were privileged and he excluded those parts which were true.  He held that the extracts contained in the article which came from the select committee’s report were published without malice.  He held that some parts of the article though only of slight materiality were true.  He proceeded therefore to isolate those matters from “the indefensible part of the libel” and then posed the second question in the words:  “How much damage is attributable to so much of the libel as is neither privileged under the Act nor true?”

Your Honour, that, in my submission, shows that the proper approach is to isolate those parts of the article that are accurate and, therefore, privileged and exclude them from consideration in relation to damages.  Your Honours, therefore ‑ ‑ ‑

BRENNAN CJ:   Where do you get the proposition “accurate and, therefore, privileged” in the context of a defence of fair report?  Are not all the cases contrary to that?

MR McCLINTOCK:   I missed the first part of your Honour’s question, I am sorry.

BRENNAN CJ:   Where do you derive the proposition that something that is accurate is, therefore, privileged in the context of a defence of fair report?  I thought all the cases were to the effect that one looked at the entirety of the article even if one restricts it to the entirety of the article related to a specific imputation.

MR McCLINTOCK:   Yes, one must look at the entirety of the article, your Honour.

BRENNAN CJ:   And if one looks at the entirety of the article, it may be that there are some parts of it that are true and some that are false.

MR McCLINTOCK:   It may be, your Honour, but if there are separate defamatory stings conveyed in there, if.

BRENNAN CJ:   But if not?

MR McCLINTOCK:   If there is one defamatory sting and only one defamatory sting that is inaccurately conveyed, the defence fails.  I accept that, but that cannot be said here.  The defamatory sting and the main defamatory sting in the first article was the defamatory sting that arose from the true passage that Mr Simmons had told the Premier there is a question of civil or criminal misconduct.  That was truly reported.  It is, in fact, the major defamatory sting in the article.  The other statements, if they are there and if they are defamatory, which, in my submission, as I put to your Honours yesterday, they are not, if they are there and they are defamatory, they pale into insignificance beside the main thing that was accurately reported, that is that Mr Simmons had told the Premier that there was the relevant question. 

That, in my submission, is a separate defamatory sting from such matters as coming into collision with the board or leaving Beneficial Finance under a cloud and, your Honours, when one thinks about it, the fact is that that is accurately reported and, in my submission, it would be wrong to give damages against a newspaper defendant or any other defendant for something that they have, in fact, done right in that respect, done accurately.

Your Honours, it may well come down to whether one can separate out defamatory meanings.  All their Honours below thought one could.  That is the basis upon which they approached it.  Mr Justice Cox set out three.  The Chief Justice set out two.  The Chief Justice found one was a fair report, but the other was not.  In the ‑ ‑ ‑

GAUDRON J:   But does not that assume that you are suing on the innuendo, which, of course, is correct in New South Wales?

MR McCLINTOCK:   No, with respect.  It looks to the nature of the defence, your Honour, rather than the nature of the proceedings brought.  One sues, of course, on the matter complained of.  I do not dispute that.  The debate about Slim and so on does not affect that proposition, but the question is whether a defendant can rely upon material that is in some respects accurate and some respects inaccurate and whether he is only liable for the inaccurate parts as opposed to the accurate parts.  In my submission, he can, because the accurate parts themselves are a fair report.  If one approached the matter by asking whether one could excise the inaccurate parts and rely upon the defence in relation to that material ‑ ‑ ‑

GAUDRON J:   The difficulty I have with that, though, is when you write a report like this and things are interlinked in a sense, if you take what happened with respect to the dismissal or the resignations and you read that ‑ ‑ ‑

MR McCLINTOCK:   Is your Honour dealing with the first article?

GAUDRON J:   Yes, and you read that as relating to the four rather than to the two, that does relate back to the sting in the first  - what you say is accurate, the first accurate report.  It gives it substance.  It gives it a substance that would be missing, in a sense, if you left it just as a report that that is what Mr Simmons told the Premier.  It seems to me, at least in that context, you cannot really divide it up and say to the extent that it says that it is fair and accurate, to the other extent it is not, because the two meld together to give the suggestion that we are talking about a matter of substance, a matter of substantial misconduct.

MR McCLINTOCK:   Your Honour, the matter of substantial misconduct would come from the mere fact that the chairman of the State Bank had told the Premier about this.  That is the level of the seriousness that would come.  The fact that the other material appears there does not make the original allegation, in my submission, any more serious, but could I answer your Honour’s question like this:  in one sense because they are in the same article they are in that sense - perhaps not melded together, but they are to be read together, but there is - and this is how it was treated below by the plaintiff himself and by their Honours in the courts below - there are, if anything, separate defamatory stings and that is the question.

The first defamatory sting, as your Honour correctly puts to me, comes from column one where it deals with what Mr Simmons told Mr Bannon, but in the fourth column there there is a question about “a difference of opinion between these officers” and so on.  One cannot read back, in my submission, that material so as to make the material in the first column inaccurate.  It is and it remains accurate once the finding that the answer “Yes” was given by Mr Simmons is made.

Your Honour, the remainder of my submissions I can put briefly.  There was, in my submission, no proof that the defamatory parts of these articles, the actionable parts, if I can call it that, resulted in any loss to the plaintiff here.  I put the propositions yesterday, your Honour, about the evidence, or the lack of evidence, in relation to the link between the publication of the article and the dismissal of the plaintiff, and I need not go back over that. 

There is a further point, which is this.  The plaintiff has to prove here, and failed to prove, that it was the actionable parts of the article, that is the parts that were inaccurate that resulted in the dismissal.  That follows as a corollary from what appears in the speeches in Associated Newspapers v Dingle.  There was, in fact, no such evidence.  More significantly, the article itself may ‑ ‑ ‑

GAUDRON J:   Again, why do you restrict it to dismissal?  It is dismissal, surely, and inability to obtain subsequent employment.  Why has this matter been approached really on the basis of special damages rather than as an indication of the sort of money that this man could command in that climate and hence as an indication of the range of general damages that should be awarded?

MR McCLINTOCK:   Your Honour, it is not a special damages case; I do not assert it was.

GUMMOW J:   If it is not a special damages case, all this inquiry about the terms of the trust is beside the point, really.

MR McCLINTOCK:   With respect, your Honour, no, because one of the items of general damages relied upon was a general loss of income, and if he cannot prove that he would have got the income, he fails on that point as an element of his general damages.

BRENNAN CJ:   Why is it not a loss of earning capacity, as it would be in the case of a personal injury?

MR McCLINTOCK:   Your Honour, there may be an element of loss of earning capacity there.

BRENNAN CJ:   No, not an element, why is that not the head of damage?

MR McCLINTOCK:   The first answer, your Honour, is that was not the way in that respect it was put below.  It was put below, incorrectly, I accept, as a claim for special damages.  Properly understand what was really being claimed in that respect was in fact a loss of income, not a loss of earning capacity, and that is where the $175,000 came from that was awarded, I might say without any reasons as to why that was an appropriate figure, by the trial judge.  It was put on the basis of loss of actual income from his job, that for the reasons that he was not employed and there was no guarantee or no certainty or even no probability that the income would have flowed to him as opposed to someone else, is the reason why that amount failed.

In relation to earning capacity, yes, there was a claim made for earning capacity, but that does not seem to have been dealt with as part of the $175,000, it seems to have been dealt with in some other way.  One has to take into account ‑ ‑ ‑

GUMMOW J:   That is one of the opponents complaints on his cross‑appeal that has not yet been determined by the Full Court. 

MR McCLINTOCK:   Yes, your Honour.  The way Mr Justice Cox dealt with it appears at pages 896 to 897 of the ‑ ‑ ‑

KIRBY J:   He deals mainly at 896 to 897 with the so-called “special damages”, and then in one line he deals with general damages of $75,000 seeming, thereby, to live in a quite different world from the judges of the New South Wales Court of Appeal in Crampton.  It is not even a different country, it is a different world.

McHUGH J:   A very low verdict.

MR McCLINTOCK:   Your Honour, as your Honour said in Coyne v Citizen Finance, that it was the local judges who were best suited to determining whether ‑ ‑ ‑

McHUGH J:   That is true, that is true, I did say that, but that does not mean that judges in the State courts have got an exclusive jurisdiction over the matter.

MR McCLINTOCK:   It may not mean that they have exclusive jurisdiction, but they are the best judges, your Honour, and they would know.  This was in fact the largest award ever in South Australia.

KIRBY J:   That may say something too.

MR McCLINTOCK:   It may, your Honour.  But the other factor in Nugawela v Crampton was that that was a jury verdict and all the questions about whether jury verdicts are excessive came into play.  Equally, your Honour, there was a very substantial claim, in that case, for general loss of business and custom, because it was a case that the plaintiff ‑ ‑ ‑

GUMMOW J:   This is not a fish shop, this man works in a nationwide industry, the finance industry.

MR McCLINTOCK:   Yes, your Honour.

McHUGH J:   Capable of earning a salary of nearly $300,000 a year.

MR McCLINTOCK:   Had been earning a salary of that, but the ‑ ‑ ‑

McHUGH J:   Had been. 

KIRBY J:   Do you accept that he was a professional man, within the words used in Crampton?

MR McCLINTOCK:   Your Honour, there is a false dichotomy there between the value of professional men and the value of others, and I would say that in fact it does not ‑ ‑ ‑

KIRBY J:   I am not saying I embrace it but it is what apparently stands as the law in New South Wales.

MR McCLINTOCK:   He was a professional -financier is not the right word, I suppose, but, yes, I would not dispute that he was in that sense a professional man.  But, your Honours, there are other factors here that have to be approached realistically.  The effect of one article like this, bearing in mind all the other publicity in relation to the collapse of Beneficial Finance and the State Bank of South Australia, all the other matters that went on in relation to these banks would not make any person who had been a senior executive - and your Honours will be aware that the plaintiff here had been the deputy, or been one of the four deputies, I think, immediately below Baker, the managing director of ‑ ‑ ‑

GAUDRON J:   But he had been able to command a contract at $90,000 a year notwithstanding.  The relevance of that, I should have thought, the relevance of the Leal Boss contract was that that was a measure of the man’s worth, even taking into account the collapse of Beneficial.

MR McCLINTOCK:   Your Honour, there was other evidence about the earning capacity of this man.  For example, your Honours will recall that there is a reference in the judgment of the trial judge to the fact that he had taken a job selling insurance and found that work uncongenial and had left.  The evidence was that he had earned $75,000 - I am sorry, I am told that he was told - this is volume 1, page 215, the question was:

I am not a tax accountant but, trying to work upwards from that, assuming the $1200 is a net figure, what was your expectation of commission income that you would be earning.

It’s not my expectation.  I, again, remind you of what I said.  I said that Norcrest via Ramana Rao - he sent me a letter to say that I should be able to earn $75,000.

And so on.  Your Honours, it is obvious that there was - the man did not like the work, but there was an expectation that he would earn $75,000.

BRENNAN CJ:   That may be so, but the whole point here is that the principle has to be applied, in a case of this kind, that if there is a diminution in earning capacity economic loss must be fully compensated for.  You may say that the assessment was within appropriate limits but that, according to the appellant, is a subject that has not yet been addressed by the Full Court. 

MR McCLINTOCK:   It has not been addressed by the Full Court because of the reason their Honours talk about causation.

BRENNAN CJ:   Then if we are against you on causation and on other issues, it would have to go back to the Full Court.

MR McCLINTOCK:   I do not dispute that, your Honour.  I am sorry.  If I have been missing your Honour’s point, I am sorry.  I would not dispute that.  I would not dispute that at all; it would have to go back. 

BRENNAN CJ:   We are not really concerned then with quantum, is that right?

MR McCLINTOCK:   I think that is right, your Honour, except in this sense:  there is no appeal here - and I do not believe there is any challenge to the quantum of the general damages otherwise, that is the $40,000 that was fixed as general damage for the second article - there is nothing in the notice of appeal, as I ‑ ‑ ‑

KIRBY J:   I think that is because of the way it progressed.  There was to the Full Court, but because of the way the Full Court determined the matter it was not dealt with there; but what Mr Gray said to us yesterday was in the event that he succeeds, he wants to have his cross-appeal on general damages litigated in the Full Court.  I may have misunderstood it, but that is what I took to be the case.

MR McCLINTOCK:   As the notice of appeal stands, your Honour, the only challenge to the general damages ‑ ‑ ‑

GUMMOW J:   Notice of appeal to which court?

MR McCLINTOCK:   To this Court.  The only appeal to this Court on that point is the point that it was wrong to deduct off - to deal with actual parts on one hand and non-actual parts on the other and award damages for one but not the other.  That is ground of appeal No 7, and the point is on page 959.  I did not apprehend there was any challenge to the adequacy of the damages for harm to reputation and harm to feeling in that sense in relation to the second article.

BRENNAN CJ:   The attack thus confined is to the order made by the Full Court which affected the assessment of the damages by the trial judge, but there is an appeal undealt with in the Full Court with respect to damages generally.  So that if the appellant were to succeed on the present attack against the Full Court’s order the matter would then go back to the Full Court for the assessment of damages on the footing, for example, that one must look at the whole of the article, find that it was defamatory and then assess the damages which were the result of the publication of that article.

MR McCLINTOCK:   I do not dispute that, your Honour.

BRENNAN CJ:   Then it seems that everybody is in furious agreement, does it not?

MR McCLINTOCK:   It does, your Honour.  The only thing I had not understood was - and I do not believe there is - that there is a simple challenge on the basis of the inadequacy of the damages.  It is simply saying they are not high enough, not because of the basis your Honour just put to

me but just simply because they are not high enough.  That was the point that I was in fact answering your Honours Justice McHugh and Justice Kirby, because I thought your Honours were putting to me that just viewed in isolation these were not high enough awards, and I did not apprehend that to be a basis for appeal to this Court in any event.

Your Honours, the last thing I wish to say, of course, is that in relation to the second article my challenge, of course, is by way of leave to cross‑appeal.  There are only a few things in addition that I wish to urge in relation to that before I conclude.  There is, in my submission, an issue of principle on the cross-appeal.  That is whether the Full Court correctly applied the authorities in relation to the fair report cases.  The case I am thinking of is Thom v Associated Newspapers, which is referred to in our submissions and the relevant passage is quoted.  Second, the issue comes up in any event of report on the appellant’s case in relation to damages and, therefore, in my submission - and in any event there are significant issues of principle otherwise.  Also, the matter having been argued and raised, I would submit that it is in the interests of justice, the second aspect of the special leave provisions.  Your Honours, those are my provisions.  I am sorry for taking far longer than I told your Honour Chief Justice I would.

BRENNAN CJ:   Thank you, Mr McClintock.  Yes, Mr Gray.  What is your present estimate?  Is it still within half an hour?

MR GRAY:   Still less than half an hour, if the Court pleases.  My learned friend put a submission that the “left under the cloud” imputation was not open because it was not raised on the pleadings.  In our written answer, paragraph 9, we make the point that that point was not taken in the Full Court by my learned friends.  So when the matter went to the Full Court and Justice Cox’s findings were being debated, nobody suggested that the “leaving under the cloud”, the leaving Beneficial, was not fairly raised before all concerned.  The first time that has been taken in this Court, and we provide the particulars of that in paragraph 9 of our written answer.  The second ‑ ‑ ‑

BRENNAN CJ:   Before you proceed, can I take it that you have no objections to the grant of special leave for the cross-appeal?

MR GRAY:   No, we have no objection, if the Court pleases .  If the Court thinks an important point arises, then we have nothing further to add.  If the Court pleases ‑ ‑ ‑

BRENNAN CJ:   There will be a grant of leave for the cross-appeal.

MR GRAY:   If the Court pleases, my learned friend, when dealing with the letters and the position of the newspaper in regard to the reasonable letters suggested, as we heard his submission to the Court, that Ms Read did not have a copy of the then transcript, that is the pre-amended transcript available to her.  Her evidence is explicitly to the contrary, and we deal with that in paragraph 7.2 of our written reply.  It is plain that not only did she have it in her hands at the time before the publication of the first article, but in fact she had taken it to the editor at the time there was some discussion about the reasonable letter. 

So we particularise the references in paragraph 7.2 of our reply - and I do not wish to add to what is there, but I draw attention to it because my learned friend suggested that she did not have that transcript, that is the pre-amended transcript.  It is not in our original submission.  There is a submission we put in, in reply to the two written submissions of my learned friends, and it is in paragraph 7.2 on page 5 of our document. We footnote the pages of the appeal book where the Court will find the evidence of her having that document and I am content to leave it to the Court to read that reference.

KIRBY J:   Are you going to say anything about the letter of resignation that is attached to the reply?  Was that, as it were, a “resignation”?  Is that what was required of your client?

MR GRAY:   Yes, that is so. 

KIRBY J:   The evidence bears that out, does it?  Was this part of the evidence before the trial judge?

MR GRAY:   Yes, it is an exhibit.  I have the reference.

KIRBY J:   Why do you bring it specifically to our notice?

MR GRAY:   It has been done because attached to one of my learned friend’s written arguments is a letter, and to put the matter in its context we brought forth this exhibit that was not otherwise in the appeal book. It is part of D15 before the trial judge.  It was not a “resignation”.  Mr Chakravarti had written Mr Malouf following on in effect his unsuccessful bid to the managing director and it was with regret that he tendered his resignation.  If the Court looks at ‑ ‑ ‑

KIRBY J:   Is this the delicacy of corporate arrangements, that he is not simply sacked, he is required to tender his resignation?

MR GRAY:   No, it is a matter where he resigned, he having moved on having been unsuccessful in his application for the managing director’s position. 

KIRBY J:   I see. 

MR GRAY:   His case was that he had had an excellent performance.  He was very disappointed he did not get the top job and he was moving on.  He thought, his evidence was, that he was not getting anywhere with Mr Malouf and that relationship was not to his long-term advantage and he decided to move on.  The reason why we have included it is that in the respondent’s written submission they put in D15, or part of D15, and they have given the first part of it.  D15 has two parts to it and what we have proffered here is the second part of D15.  So that this material that was not in the appeal books, as far as this exhibit is concerned, is now in completely.

If the Court pleases, I want to go next to a discrete matter, and that was the case of Perera that my learned friend referred to, case No 12 in the respondent’s book of authorities.  We did just want to draw certain matters to the Court’s attention about Perera.  The argument of counsel, in particular Sir Valentine Holmes, pages 9 through to 11, clearly puts the privilege as being one, we would say, of qualified privilege.  He was talking about duty and common interest.  When the Privy Council comes to deal with the matter, at page 12 - I am sorry, within the submissions of page 11, it is 11.2, just to indicate that this is qualified privilege - it is about six lines down:

The word “duty” has to be considered in the sense in which it is used throughout the authorities hand in hand with this public interest. 

So the case has been put by counsel as a qualified privilege issue.  Then at page 12 in the advice of their Lordships at page 12.3, the middle of the second paragraph:

Privilege was relied on upon two grounds, first, that  the proceedings before the commissioner were judicial proceedings and the extract was part of an accurate report of those proceedings -

So it is a case of absolute privilege and the publication of an extract. 

and second, that apart from the supposed judicial nature of the proceedings, the circumstances were such that the publication in the newspaper of the report was made on a privileged occasion. 

It is the second of those grounds that comes to be the subject of the advice.  If the Court works through it - and I will not take time to read it all - but it is very clear that this is a case of duty and public interest and qualified privilege and not a case of fair and accurate report, and hence we say does not support any existence of a common law fair and accurate privilege in 1895, as contended for by the respondent.  At page 20.2 this is said:

Their Lordships’ attention has not been drawn to any case under the Roman-Dutch law or the common law which exactly covers the point at issue.  Both systems accord privilege to fair reports of judicial proceedings and of proceedings in the nature of judicial proceedings and to fair reports of parliamentary proceedings, and much time might be spent in an inquiry whether the proceedings before the commissioner fell within one or other of these categories.  Their Lordships do not propose to enter on that inquiry. 

And did not do so.  Hence this case does not address any point that is relevant to this Court’s inquiry.

McHUGH J:   Why do you say that?

MR GRAY:   Because they did not enter on to an inquiry about that matter, they dealt purely with qualified privilege duty ‑ ‑ ‑

McHUGH J:   But that is all - at common law fair report was qualified privilege.  There was no independent offence of fair report.  That is a misunderstanding of the common law.  It was just an aspect of qualified privilege.

MR GRAY:   But arising out of duty and public interest, or a commonality of interest.  We say this ‑ ‑ ‑

McHUGH J:   Duty was that people have an interest in receiving information concerning reports of court proceedings and as long as it was a fair report under the common law, let us waste no more time on it.

MR GRAY:   But this case was treating with, for example, the royal commissioner’s report, his actual conclusions, adopted into a sessional paper by Parliament and published to the public at large, in regard to what was then obviously a very public issue.  It is in that context that this case goes forward.  At the foot of 21 and the top of 22:

But it would be curious to hold that either the editor or the proprietor of the newspaper was disqualified by the nature of his activities from having the same interest in the public affairs of Ceylon as that proper to be possessed by the ordinary citizen.  In their Lordships’ view the proprietor and printer of the newspaper and the public had a common interest in the contents of the report and in its wide dissemination.  The subject-matter created that common interest.

McHUGH J:   Yes, I know, but at common law reports of judicial and parliamentary proceedings were conclusively presumed to be for the public interest and that every citizen had an interest in receiving it and every citizen had a duty or a right to publish it, and qualified privilege is made out subject to the question of malice. 

GAUDRON J:   But because of the conclusive presumption they became a separate category in their own right.

MR GRAY:   Yes, if the Court pleases, at page ‑ ‑ ‑

GAUDRON J:   Is that not the case?

MR GRAY:   Yes, and at page 21, to put this case in its context, page 21.5, it is a very strong case:

On a review of the facts their Lordships are of opinion that the public interest of Ceylon demanded that the contents of the report should be widely communicated to the public. 

That is the context in which that decision has been made and it is treating the report as being akin to a judgment from a judicial proceeding and a judgment that then becomes part of a sessional paper of Parliament in that context.  We say that one cannot draw from that authority a suggestion there is a common law privilege for newspapers in regard to meetings in 1895; it simply does not support that proposition.

McHUGH J:   No, we are not talking about meetings, we are taking about royal commissions.

MR GRAY:   A royal commission meeting.  Again they do not go into the question of a fair and accurate report of evidence given in such a circumstance.  This is a case of the final report. 

McHUGH J:   Mr Gray, if there were no statutes dealing with fair and accurate report for the reasons that the Chief Justice gave in Stephens, I would have thought it was beyond argument that a fair report of proceedings of a royal commission in this day and age were the subject of qualified privilege at common law.

MR GRAY:   The Court will not find in this case a plea of qualified privilege.  If one looks at the pleadings here there is no plea of qualified privilege.  The matters of duty and commonality of interest are not identified or pleaded in any way, shape or form; it was not an issue. 

McHUGH J:   But fair report was not an aspect of qualified privilege, it was just a particularisation of qualified privilege.

MR GRAY:   We put our submission and we have got the historical context; I do not want to go into that.  Our point here was that Perera does not advance the matter because the Court chose not to address the issue and they dealt ‑ ‑ ‑

KIRBY J:   Of course, Perera was dealing with the report, but it would be pretty hard to say that the people of South Australia did not have an interest in receiving a fair report of what was going on in this inquiry into this tremendous financial disaster which had befallen the State.

MR GRAY:   Indeed, and they had the ability to receive that through section 7 if the newspaper wished to do it.

KIRBY J:   So, are you going back on your contest to the fact that that was a meeting of the royal commission?

MR GRAY:   If the Court pleases, we would say that one has towith the common law in 1895 - and there is nothing in Perera talking about the position in Ceylon that advances that position.

KIRBY J:   That is on the basis that “now” mean now, at the time of the enactment, and not now, from time to time.

MR GRAY:   Yes, it does.  If it was intending to preserve the ‑ ‑ ‑

KIRBY J:   I am not convinced that that is a correct interpretation.

MR GRAY:   If the Court pleases.  So that is what we say in regard to Perera.  We distinguish it for those reasons.  On the rather technical point of the deemed mission I do want to put a short submission to the Court, and it is in these terms.  As far as the plaintiff is concerned, this point was taken during the defendant’s opening.  The judge indicated that he would allow an amendment on terms, which was an adjournment.  He indicated he had commitments in other jurisdictions which would take him away from this case for quite some time.  The plaintiff made a decision and the Court will see what Mr Heywood‑Smith said in the transcript, that the deemed admission was purely within the context of the plea.  It was to a particular in regard to a plea of justification which failed. 

Right through the history of this matter that has not been referred to again and it has never been raised to suggest it has any relevance in regard to the fair and accurate reporting issue or the issue of reasonable letters, the first time it has been suggested that that deemed admission has wider use than in regard to that limited justification plea has been made to this Court, and we say that the deemed admission is strictly limited and is not to be read any wider than that particular.  The plain fact of the matter was that the plaintiff had said, in the clearest terms, he was not admitting it, but by reason of the judge’s view of these rather innovative local rules, a deemed admission arose without an amendment. 

The plaintiff says that it was ambushed by this, it was faced with the possibility of an adjournment.  It made an election in regard to that matter but it goes no further than that plea strictly.  It does raise this extraordinary incongruity between a denial of the substantive matter and a deemed admission of a particular that might be inconsistent with that denial.  It is one of the consequences of the way in which that rule has been interpreted and applied in practice in South Australia, and not without concern.  That was a view that was taken at the trial and that is the way it proceeded. We say that there can be no suggestion that that deemed admission can have any wider use.

GUMMOW J:   Can I ask you on another procedural matter, Mr Gray.  You seek the setting aside by this Court of the orders of the Full Court which allowed the appeal from Justice Cox.  If you look at the primary judge’s orders at page 899 of volume 4, what you cannot be seeking is restoration of those orders, really.  The orders are odd in a way.  Perhaps they should have said that there was a verdict for the plaintiff and then gone on to specify an amount for which there was judgment.  What you would really be seeking was a situation whereby, in effect, those orders of the primary judge were modified so as to provide for the entry of a verdict, would you not?

MR GRAY:   Yes.  Your Honour is quite correct.  Procedurally, what we want to achieve ‑ ‑ ‑

GUMMOW J:   What I am asking you is, would that way of doing it be consistent with South Australian procedures?

MR GRAY:   Yes, that would be acceptable.  If the Court pleases, our preferred position, now that this Court’s heard the full argument, is that this Court is in obviously as good a position as any court in South Australia to resolve this matter finally.

BRENNAN CJ:   That is not quite right, is it?  This Court could perhaps assess the economic loss that might be found to have been suffered by the plaintiff, having regard to the evidence.  What we would not be in as good a position to do is to determine general damages for all matters other than economic loss. 

KIRBY J:   Apart from anything else, we have not really heard argument on that, because it is raised in the way the matter developed and it would not be fair to the respondent.

MR GRAY:   We appreciate that and we appreciate that we would not want to burden the Court with that without proper assistance.  Our concern is that - a point has been identified and that is, and it is well known, that the level of damage in defamation cases in South Australia are extremely low; it is common knowledge.  In fact, this case goes almost to the point of showing a tendency to make the tort of defamation in South Australia being one of those torts without a remedy, we say, in something as extreme as this.  It may be a case when this Court would think it appropriate, in terms of uniformity throughout the country on this topic, to step into this matter to ‑ ‑ ‑

BRENNAN CJ:   What you are really seeking is a word of encouragement to the Full Court when the matter goes back, is that right?

MR GRAY:   If the Court pleases, we certainly seek that.

GAUDRON J:   On which topic, however?  I do have some problems.  What about what has been called your special damages which you say are not the subject of an appeal or cross-appeal to the Full Court?  It does seem to me that we were never in the realm of special damages here.

MR GRAY:   If the Court pleases, I have reflected on that, having had the opportunity of looking at the authorities since I last spoke, and I did wish to withdraw from that position.  The way this matter started out ‑ ‑ ‑

GAUDRON J:   What do you mean, “withdraw from that position”?

MR GRAY:   Withdraw from the position of saying that what has been called special damage is not open for review. 

GAUDRON J:   By this Court or by the - worry about the Full Court, in terms of answering my letter.

MR GRAY:   Either this Court or the intermediate court.  What has happened - and this partly comes from my being involved only at this stage of the matter; I did not fully understand the history of the matter - the plaintiff pleaded a case of general damage and it provided certain particulars in regard to the economic consequences.  It did not seek, and it does not seek, as we read the pleading, any special damage.  The matter proceeded on that basis:  the evidence was led about the problems of employment and the general level of wages. 

There were no calculations put up of precise earnings, losses and that type of thing at all.  Justice Cox, when he came to deliver his reasons, has chosen this dichotomy.  When one looks at the various texts that I have had copied, or will provide the Court shortly, there is some support for that; that the various texts do talk about employment losses being treated as special damage.  When one traces it back that does appear to go back to the old history of slander and the need to prove special damage.

GUMMOW J:   That is right, it goes back to Ratcliffe v Evans; but that is not this case.

MR GRAY:   No, but that is what ‑ ‑ ‑

GUMMOW J:   They are actions of injurious falsehood where the damage is the gist of the action; but that is not this case.

MR GRAY:   No, it is not this case.  What happened was that Justice Cox dealt with it in this way, and that put some labels on it, and then the matter proceeded thus far. 

GAUDRON J:   What does your cross-appeal to the Full Court say?

MR GRAY:   The cross-appeal challenges the award for general damages.

GUMMOW J:   Yes, but you want to hang on to the so-called special damages, do you not?

MR GRAY:   Yes, we want to hang on to it, either as a special damage or, alternatively, as part of the general damages to be reassessed.  Can I just pass the Court the bundle of texts that we have looked out that touch on this topic.  We do not say that it is exhaustive.

GAUDRON J:   I do not know that you would need to go to it in detail, it is just a question if there is a problem.  If it goes back with what you call “a word of encouragement” from this Court and it goes back as general damages, you may not hold on to your discrete $120,000 or $175,000, and that is what I am drawing to your attention.

MR GRAY:   Yes, your Honour, I am obliged to the Court.  We do wish to hold on to that.

KIRBY J:   Yes, you want to hang on to your pot of gold, but we have got to look at this as a matter of principle.

MR GRAY:   The Court has identified, with respect, what is obviously a very direct problem.

GAUDRON J:   For you.

MR GRAY:   Because from what has been debated in this Court it is plain that the view being put by both counsel and by the Court, with respect, is that properly these are general damages, but general damages in which there is a particular need to assess a loss of earning capacity.

KIRBY J:   It may be what you have handed up solves it, but for myself, as a matter of principle, if this is a tort, it is a tort of defamation, and if a person as a result of the tort loses a job, and that can be directly traced back to that as a cause, then I do not at the moment see why in principle the person who has been shown to have suffered that economic loss or loss of capacity, should not, as of a tort of negligence, recover that loss.

MR GRAY:   Yes.  And these texts say it is quite appropriate - and some refer to it as being appropriately described as actual or special damage, and others treat it as general damage.  In the United Kingdom, for example, in the Broome v Cassell Case Lord Hailsham is very keen to move away from the label “special damage”, and he explains his reasons why.

KIRBY J:   But what is your submission, that is what I do not understand?

MR GRAY:   Our submission, if the Court pleases, is that in a tort of defamation the plaintiff can recover both general and special damage.  Special damage would be an identifiable expense or in a way akin to a personal injury case.  The case could be presented with an economic loss, a loss of a job where one could calculate it in a parallel way to personal injury cases.  On the other hand, as to personal injury cases, one could treat loss of earning capacity, both pre and post trial, .....earning capacity as general damage.  It is possible to treat it as either.

KIRBY J:   Would it not be desirable that the principles in this tort be the same as the principles in other torts?

MR GRAY:   Yes.  If that is so, in regard ‑ ‑ ‑

KIRBY J:   We are looking at this conceptually.  It ought to, unless there is some reason of principle to distinguish the way damages in this field are to be dealt with, or if history requires it to be dealt with differently.

MR GRAY:   Your Honour will find in Lord Hailsham’s speech in Broome v Cassell an analysis of why it is that damages in defamation are going to be beyond the damages, for example, in an ordinary tort case of personal injury because of the reputation aspect of it. 

KIRBY J:   It is not a question of going beyond, it is a question of the structure of the damages computations.  We, I would assume, have to give some guidance for future cases.  This will not be the first or last case where a person loses his or her job because of a defamation.

MR GRAY:   Our submission to the Court is that under restitution - in integrum is the guiding principle - that there will be a need for a restoring of reputation, and there would be head of damage for that.  In so far as there has been a loss of earning capacity proved or identified, there will be an award of damage for that.  In so far as there has been some special expense identified there will be an award for that, either as general damage or special damage.  If one is dealing with a business circumstance, business losses can be recovered and they would, by and large, fall into general damages save and except where they were identical in a precise money sum.  In this case, what has happened is that there has been identified an amount in regard to, in effect, pre-trial loss of earning capacity and allowed at $175,000, and we wish to maintain that.

GUMMOW J:   I think you are on notice that that may have to go into the pot, into the Full Court, under the general damages considerations.

MR GRAY:   Yes.  We appreciate that one of the consequences of the - on the way to assess damages, maybe that goes into the pot.  That means that when we get back before the intermediate court dealing with the matter that we are going to be saying that this award of $260,000 is manifestly inadequate, for these reasons, and should be at least doubled.  We obviously are hoping for ‑ ‑ ‑

BRENNAN CJ:   You do not have to put a figure on it at the moment, but the fact that it has to go back into the pot certainly has some support from the speech of Lord Hailsham in Broome v Cassell in the passage that you have given us. 

MR GRAY:   Yes.  We have extracted that because we found that to be perhaps the most helpful text we could find ‑ ‑ ‑

KIRBY J:   Did not this Court, on other grounds, disapprove of or not follow what Lord Hailsham said in Broome v Cassell?

MR GRAY:   No, not that we have located.  We have given a number of ‑ ‑ ‑

GUMMOW J:   It says it is on exemplary damages, is it not?

MR GRAY:   Yes. 

McHUGH J:   No, that is Rookes v Barnard. 

MR GRAY:   But the passage about special damage that Lord Hailsham refers to is at the top of page 1073.  We have not extracted the whole case, only the part with the heading “Terminology”:

This brings me to the question of terminology.  It has been more than once pointed out that the language of damages is more than usually confused.  For instance, the term “special damage” is used in more than one sense to denominate actual past losses precisely calculated (as in a personal injuries action), or “material damage actually suffered” as in describing the factor necessary to give rise to the cause of action in cases, including cases of slander, actionable only on proof of “special damage.”  If it is not too deeply embedded in our legal language, I would like to see “special damage” dropped as a term of art in its latter sense and some phrase like “material loss” substituted.

KIRBY J:   There would not seem to be a reason of principle to do that in the field of defamation only and not to do it in the other fields where special damages undoubtedly exist and are recovered.

MR GRAY:   Yes.  The ‑ ‑ ‑

BRENNAN CJ:   But there is, is there not, if what Lord Hailsham says is right at pages 1071 and 1072, namely that when you see that there is an assessment of damages for the hurt that is suffered and perhaps for the conduct of a defendant, then putting it all in the pot one has to be satisfied that the entirety of the sum meets all the objects of the assessment.

MR GRAY:   Yes.  In that passage Lord Hailsham, is of course ,identifying why the defamation award cannot be compared to personal injury award, because of the extra matters that need to be addressed and compensated for.

BRENNAN CJ:   That, perhaps, is something that does need some further consideration in the light of this Court’s judgment in, what was it?

GUMMOW J:   Carson.

MR GRAY:   Yes, if the Court pleases.

BRENNAN CJ:   Yes.

MR GRAY:   At a factual level one would say that Justice Cox has already made a decision on past and future losses which should not be set aside.  He has made that finding and that finding, we say, should not be disturbed.  I do not propose to go to the other texts.  I do not say they are exhaustive, but we have gathered together, we think, enough to make the point there appears to be a confusion about the whole topic. 

GUMMOW J:   I do not think there is at all, is there?

MR GRAY:   Lord Hailsham is probably the most definitive statement that we can find in contemporary authority on that issue. 

If the Court pleases, may I turn to another topic that was raised, that was on this question about, for example, the headline that catches attention, the reader goes no further, being actionable without the antidote being had regard to. That has been the subject of a learned commentary in a recent publication of the Australian Law Journal. It is 69 ALJ 590. Can I pass the Court a copy of the note. Sir Michael Davies, the commentator, is pointing up some of what he views as being the ‑ ‑ ‑

KIRBY J:   This case is amongst the cases in the compilation?

MR GRAY:   Yes.  Charleston’s Case is in the respondent’s list of authorities.  This article notes a different view being put to Charleston’s Case in an unreported Court of Appeal decision of Mitchell v Faber, and in particular picking up on some remarks of the Court of Appeal of New South Wales in Morosi.  The point that I want to draw attention to is on the second page, the right-hand column; it is the second paragraph after the quote:

With the greatest respect, it is surely arguable that the unanimous view of the five members of the House of Lords in Charleston may not have reflected the realities of the 1990s.  Could it be disputed ‑ ‑ ‑

KIRBY J:   This is where they had a photograph of these two television stars, a married couple, presented as naked, and they superimposed their heads on them, and their Lordships that that was not actionable.

MR GRAY:   Yes, because ‑ ‑ ‑

KIRBY J:   A most curious decision.

MR GRAY:   Yes. That is what this annotator is suggesting, the final paragraph:

It is hoped that courts in Australia will be able to find a way round Charleston or decline to follow it.

That is the invitation we support.

KIRBY J:   It was a unanimous decision of the House of Lords, too, I think.

MR GRAY:   Yes.  The note goes on:

Could it be disputed that many reads of the tabloid press do not go beyond the headlines and the pictures?  And what of the man in the suburban train looking over his fellow passenger’s shoulder?  Or the lady in the paper shop who scans the visible part of a newspaper lying on the counter?  They would be entitled to feel affronted if they were told that they were not “ordinary reasonable and fair minded readers”.

One of the matters that follows is that when the newspaper elects to have a headline or have a photograph it is designed to catch attention and it is designed just for that.  We would say that in the 1990s that the persons choosing that form of publication take with it the good with the bad.  One matter they must recognise is that there is a body of reading audience who will read but the headline or the photograph and not go further, and that forms a body of readers and they, we would say, must be aware of that and must accept the consequences.  That is a decision of the 1990s, and, of course, here we would include the graphic within that.  If the Court pleases, the point is well addressed in the note and by way of reply we put that before the Court and urge the Court to approach the matter in the way the commentator suggests.

If the Court pleases, my learned friend referred to Dingle, and we want to say three things about Dingle.  We say it does not help in this case.  There, there were three parts of the article under consideration and at page - I will not take the Court to the case. I will make the points and give the page references.  The first were extracts from a select committee and they were absolutely privileged.  That is page 390 and 392 and 394.  Then there were some extracts, a small amount, which was justified.  That is page 391 and 394.  Then there was some extraneous matters that were not justified and were not from the select committee report. 

The actionable defamation in that case was that extraneous material.  So the material to be excised consisted either of absolutely privileged material or justified material.  It was in that contest that Dingle’s Case went forward and not in the context of any question of fair and accurate report.  We say, with respect, that if one looks at Chief Justice Doyle’s reasoning following on Dingle - and one can see that, with respect, the reason why the Chief Justice had fallen into error, as he has taken a case of, in effect, “We must ignore because of absolute privilege or justification” and applied that reasoning to a different case and one that it was not intended to apply to..  That is where Chief Justice Doyle fell into error in thinking that he could take part only of what was said to be unfair and inaccurate.  That is why he fell into error.   So we say that about Dingle’s Case.  In fact, the extracted material there, of course, was under the 1840 Parliamentary Papers Act and dealing with a case where, if one did that and published an extract, it was not actionable. 

If the Court pleases, could I turn then to the topic of unfair and inaccurate, and in particular the matters put by my friend.  I do not want to add to our written argument and the Court’s comments to my friend about the first article.  All the points we want to make have been fairly addressed and I cannot add to those.  We have prepared, however, to assist this rather difficult labyrinth of judgments, we have prepared an analysis - which I pass to the Court - of the inaccuracies in the findings of the judges in that regard, as a means of assisting your Honours through this material, and to shorten this reply.

Your Honours, the first page was the first article, the second page, the second article.  Each of the judges below is set out.  The critical findings are identified with reference precisely to the pages where they are dealt with.  The Court can, by that process, see exactly the position from the court below.  We, with respect, obviously adopt each of the findings that are in our favour.  We adopt Justice Cox and Chief Justice Doyle where that arises.  We say - and again I do not want to labour the point - but in regard to the second article, that the omission in the graphic is very telling indeed, and to suggest that the reader should then go away and work out what is missing from the fourth column is unreal.  In fact, if he goes there and looks at that he will not pick up immediately it is the same matter, because there are differences:  Christian names have been added; it does not appear immediately as being the source - one would have to sit down and study it to say, “Well, that is the source.”  The ordinary reader is not going to do that; that is an unreal submission.

We did want to touch a discrete point and that is, my learned friend referred to page 854d in regard to the conspiracy matter.  We say that that matter does call for a little careful attention.  My learned friend relied on the reference in page 854d under the heading “Board’s Position, 8, Beneficial Conspiracy”.  If the Court looks at this file note of David Simmons, lawyer, we say clearly it is not a diary note of a conversation with the Premier ‑ ‑ ‑

GUMMOW J:   We have been up and down this track, Mr Gray.

MR GRAY:   Yes, I was going to this point, at page 4, that is a discrete page dealing with Mr Marcus Clark and the reference to Beneficial conspiracy is in the context of Mr Clark and if the Court reads this page, we say it is quite unfair to take the statement about the board position and link them back to these matters of loans for executives being discussed as a separate and discrete and complete topic.  If the Court looks at this:

Believe that Clark will have problems -

in (a), (b) and (c).

Board  now views with some concern his approach -

Clark’s approach.

(e)  Tim -

that is Tim Marcus Clark -

has asked me about his own position......

2.  Believe that Tim.....-

3  Likelihood that he will retire early. 

Not a word about the executives at all.

GUMMOW J:   Is Mr Marcus Clark the chairman in this, what follows?

MR GRAY:   Simmons was the chairman, Marcus Clark was the managing director and on the board.

GUMMOW J:   Yes.

MR GRAY:   The notes are:

Board’s position.

This is the board’s position in regard to Clark.

Appointed chairman to Bank -

That is Lew referring to a previous chairman.

Came in to a solicitor when was first working and had to ask my own way.
Board was one short.
Beneficial and I met twice a week.
Couldn’t row with Tim.

This is Simmons saying he could not row with Tim Marcus Clark.  It is in that context in dealing with Clark there is a reference to Beneficial conspiracy and it is, we say, at the very least, absolutely ambiguous that it has got anything to do at all with a conspiracy of silence being referred to earlier.  There is a quantum leap being taken by the newspaper that did it and my learned friend, when he puts his submission to the Court, that what appears on 854d has anything to do at all with the loans to executives.  I wish to underscore that point to the Court.

In regard to the second article, if the Court could just have regard to the extract we provided briefly.  We say that in four ways the ambiguity was resolved against Chakravarti on this document and it appears twice with the words in the headings “Loans may be criminal” and that appears at the top of page 1 and it appears leading the extreme right-hand column where the article followed on page 2; then the graphic itself linked all loans, criminal rather than civic, and the fourth reference is in the first column, third paragraph:

“The loans include unapproved loans to four senior Beneficial Finance Corporation executives and a.....joint venture

in Melbourne.  So the ambiguity that was within the diary was resolved by the newspaper on those four separate occasions in the way it presented material against Chakravarti making a claim that the reader was to understand that he was tied in with the Melbourne joint venture and with criminal and civil misconduct.  May it please the Court.

BRENNAN CJ:   Thank you, Mr Gray.  The Court will consider its decision in this matter.

AT 12.07 PM THE MATTER WAS ADJOURNED