Cross v Queensland Newspapers Pty Ltd - [2008] NSWCA 80

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Cross v Queensland Newspapers Pty Ltd [2008] NSWCA 80

FILE NUMBER(S):
40811/06

HEARING DATE(S):
12 and 13 November 2007

JUDGMENT DATE:
7 May 2008

PARTIES:
Ronald Cross (Appellant)
Queensland Newspapers Pty Ltd (Respondent)

JUDGMENT OF:
Mason P Beazley JA Basten JA

LOWER COURT JURISDICTION:
Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):
SC 20191/03

LOWER COURT JUDICIAL OFFICER:
Cooper AJ

LOWER COURT DATE OF DECISION:
6 December 2006

LOWER COURT MEDIUM NEUTRAL CITATION:
Cross v Qld Newspapers Pty Limited [2006] NSWSC 1340

COUNSEL:
GO Reynolds SC; CA Evatt; JE Rawlings (Appellant)
S Wheelhouse SC; M Richardson (Respondent)

SOLICITORS:
Licardy Harris & Co (Appellant)
Thynne & Macartney (Brisbane) (Respondent)
Kemp Strang (Sydney) (Respondent's agent)

CATCHWORDS:
DEFAMATION – defence of truth – substantial truth – truth of every material part of the imputation
DEFAMATION – defence of contextual truth – no findings made by trial judge – should Court of Appeal determine defence where matters of fact and evaluation involved
JUDGMENTS – adequacy of reasons - expert evidence

LEGISLATION CITED:
Defamation Act 1974, ss 7A, 15(2), 16
Defamation Act 1889 (Qld), s15
Property Agents and Motor Dealers Act 2000 (Qld)

CATEGORY:
Principal judgment

CASES CITED:
Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 CSR Ltd v Della Maddalena [2006] HCA 1; (2006] 224 ALR 1
Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1
Howden v Truth and Sportsman Ltd [1937] HCA 74; (1937) 58 CLR 416
Howden v Truth and Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287
John Fairfax Publications Pty Limited v Blake; David Syme & Co v Blake [2001] NSWCA 434; (2001) 53 NSWLR 541
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Maisel v Financial Times Ltd (1915) 84 LJKB 2145; (1915) 112 LT 953; (1915) 31 TLR 192
Moylan v Nutrasweet Company [2000] NSWCA 337
Pateman v Higgin [1957] HCA 62; (1957) 97 CLR 521
Spencer v The Commonwealth [1907] HCA 82; (1907) 5 CLR 418
The Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402
Whelan v John Fairfax [2002] NSWCA 1028; (2002) 56 NSWLR 89
Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174

TEXTS CITED:

DECISION:
1. Grant an extension of time within which to file a notice of appeal with appointment up to and including 9 March 2007
2. Allow the appeal and set aside the judgment and orders in favour of the defendant delivered on 6 December 2006
3. Remit the matter to the Common Law Division for consideration of the defences other than that of truth
4. If an order as to costs was made in the Common…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWCA 80
Decision Date: 7 May 2008

CaseChat Overview and Summary

The appeal concerned a defamation action brought by Cross (the appellant) against Queensland Newspapers Pty Ltd (the respondent). The dispute arose from a newspaper article published by the respondent which conveyed imputations that the appellant cheated ordinary middle-class, middle-aged customers by selling them investment properties at exorbitant prices. The primary judge had found that the defence of truth was made out. The appeal was heard in the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal included whether the primary judge erred in his assessment of the defence of truth, specifically concerning the substantial truth of the defamatory imputations. The court also considered the adequacy of the primary judge's reasons, particularly in relation to his findings on various property transactions and the evidence of expert valuers. Furthermore, the court had to determine the appropriate course of action should the appeal regarding the defence of truth be successful, including whether to determine other defences and damages itself or remit the matter for retrial.

The Court of Appeal allowed the appeal, setting aside the judgment and orders in favour of the respondent. The court found that the primary judge's treatment of the defence of truth was flawed, particularly in his evaluation of the evidence and his application of the substantial truth test. The court noted that the primary judge had made criticisms of expert evidence but had not made definitive findings that would clearly establish the truth of the imputations. Consequently, the matter was remitted to the Common Law Division for consideration of the defences other than that of truth, and for a redetermination of costs.

Orders

Orders of the court

1. Grant an extension of time within which to file a notice of appeal with appointment up to and including 9 March 2007 2. Allow the appeal and set aside the judgment and orders in favour of the defendant delivered on 6 December 2006 3. Remit the matter to the Common Law Division for consideration of the defences other than that of truth 4. If an order as to costs was made in the Common Law Division with respect to the judgment delivered on 6 December 2006, set aside the order and direct that those costs be dealt with by the Court on remittal 5. Order that the respondent pay the appellant's costs of the appeal and, if otherwise eligible, have a certificate under the Suitors' Fund Act 1951 (NSW). (Per Beazley JA with Mason P agreeing and Basten JA agreeing with additional reasons)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It is relevant at this stage to foreshadow that should the appellant be successful in establishing that the trial judge erred in the manner in which he dealt with the defence of truth, there is a question as to what this Court should do. In particular, there is a question as to whether this Court should determine the defence of truth, as well as the defences of contextual truth, fair comment and the question of damages or whether all issues should be remitted for trial. The parties agree that this Court should not deal with the defence of qualified privilege. Structure of the primary judgment Before dealing with the issues raised on the appeal, an understanding of the structure of the primary judgment is required. Having introduced the proceedings, including setting out the defamatory imputations and the defences (the “Introduction”); the relevant entities connected with the appellant (“Dramatis Personae”); and the background of the appellant’s marketing techniques (“Background”), his Honour, in a section entitled, “What happened in South East Queensland”, then dealt, property by property, with the evidence in respect of the 17 properties contained in Ex F. Evidence had been given in the proceedings by the purchasers in five of these transactions (his Honour, at [148], wrongly records that there were four witnesses). Otherwise, the respondent’s case was based on documentary evidence. His Honour found that two transactions, that is, the Weir and Wilson transactions, were sales at exorbitant prices. In considering the Weir and Wilson transactions in this section of the judgment, his Honour, for the most part, dealt with the evidence in an adjectival way, save for the evidence of Mr Hamilton, the respondent’s valuer. He was critical of Mr Hamilton’s evidence, as I explain below. His Honour also dealt with the Barry transaction in this section of the judgment finding, at [581], that the property had been offered for sale at an exorbitant price. His Honour then dealt with the Red Alerts and Ex 91, again in an adjectival way. The next major section of the judgment was entitled “IS THE FIRST IMPUTATION SUBSTANTIALLY TRUE?” In this section, his Honour first dealt with the meaning of the defamatory imputation. He considered, at [600], that the phrase “Mum and Dad Investors” fitted the description of the witnesses who had attended “a Park Trent seminar”, namely:“… middle-class, middle-aged couples who are interested in buying real estate as an investment in order to increase the capital value of their assets.” His Honour, at [601], defined the term “ripped off” to mean “cheated” or “swindled” or “taken advantage of”. His Honour then, at [602], interpreted the imputation to mean that“… ‘the [appellant] cheated ordinary middle-class, middle-aged customers who wanted to invest in real estate as a means of increasing their capital assets by selling them investment properties at exorbitant prices’.”

Ratio Decidendi

Legal Principle Established

The next transaction was that of Mr and Mrs Stark. In the course of dealing with this particular property earlier in his judgment, his Honour was critical of Mr Hamilton’s valuation, concluding at [311], “I shall have more to say about his erroneous assumptions in reaching his valuations later”. In the section entitled “Considerations”, his Honour, at [621], was again critical of Mr Hamilton’s evidence, stating that Mr Hamilton“… does not give any evidence that those other properties would have increased in value to any greater extent than the subject property did.”The reference to “other properties” was a reference to Mr Hamilton’s evidence that the Starks could have invested in other properties at lower prices. Importantly, at [622], his Honour stated that “the problem” with the valuations of both Mr Duncan and Mr Hamilton was that they were “valuing retrospectively with the benefit of hindsight”. His Honour did not otherwise make any finding about this property. The next two transactions were the Weir and Wilson transactions, which are dealt with below. His Honour then examined two further transactions, being those entered into by Mr and Mrs Harriden and Mr and Mrs Hughes respectively. In dealing with the Harriden transaction, his Honour made the same criticism of Mr Hamilton’s evidence as he had made in respect of the Stark transaction, and concluded at [652], that the evidence did not satisfy him that the Harridens had been “ripped off” by being charged an exorbitant price. So far as the Hughes transaction was concerned, his Honour noted at [657] that they had been able to negotiate a lower purchase price and concluded that they had not been charged an exorbitant price. His Honour made a general comment, at [658], that he could draw no conclusions adverse to the plaintiff in respect of the other transactions, particularly in Ex F, that he had analysed earlier in his judgment. His Honour then moved to a section, at [650]-[660], headed “Findings”. In that portion of the judgment, his Honour reiterated the findings he had made earlier at [605]-[606], to the effect that the appellant was the person in effective control of all companies involved in marketing the properties and that prospective purchasers believed that Park Trent was looking after their interests. His Honour then made his ultimate findings, which led him to the conclusion at [672] that the defence of truth had been made out.Issues raised on the appeal Although the Barry transaction did not involve a sale, it is convenient to deal with that property first, as it was the genesis of the newspaper article in which the defamatory imputation was conveyed.The Barry transactionBackground facts to the Barry transaction Mr and Mrs Barry (the Barrys) responded to an invitation to view an investment in the River Springs development and arrangements were made via Park Trent for them to travel to Queensland to do so. They were requested to bring documentation, which would be required by the finance company, Easy Plan, should they decide to proceed with a purchase.