David & Anor v Abdishou & Ors

[2012] HCATrans 253

[2012] HCATrans 253

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S137 of 2012

B e t w e e n -

FRED DAVID

First Applicant

SUZY DAVID

Second Applicant

and

YOUEIL ABDISHOU

First Respondent

EDDY SIMON DAVID AKA EDDY DAVID

Second Respondent

JOSEPH SALIBA DADISHO AKA JOSEPH ORAM

Third Respondent

CHARLES KOCHOU

Fourth Respondent

FUDOR MANSO AKA FUDOR MANSOUR AKA FRED MANSO AKA FRED MANSOUR

Fifth Respondent

HENRICK ISAAC

Sixth Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 OCTOBER 2012, AT 10.54 AM

Copyright in the High Court of Australia

____________________

MR G. O’L. REYNOLDS, SC:   May it please the Court, in this matter I appear for the applicants with my learned friends, MR M.F. RICHARDSON and MS G.R. RUBAGOTTI.  (instructed by Banki Haddock Fiora)

MR D.A. ALLEN:  If it please the Court, I appear for the first, second, third and fifth respondents.  (instructed by Proctor & Associates)

MR T.D. BLACKBURN, SC:   May it please the Court, I appear with my learned friend, MR A.T.S. DAWSON, for the sixth respondent.  (instructed by Yeldham Price O’Brien Lusk)

GUMMOW J:   There is a submitting appearance for the fourth respondent.  Yes, Mr Reynolds.

MR REYNOLDS:   Thank you, your Honour.  Your Honours, in our submission, this case raises a most important question of law, and the issue is the legal definition of “publication” in the law of defamation.

GUMMOW J:   Well, is it not a question of how one proves the publication, which may be a matter of evidentiary inference?

MR REYNOLDS:   We submit it comes back ultimately to the question of what the correct test is.  The Court of Appeal said that the plaintiff needed to prove, in relation to each recipient, that that person read through the document from beginning to end and comprehended it.  Now, one only has to imagine the normal libel case, say, with a newspaper, to see the difficulties involved in that.  The way things have proceeded for generations is that a plaintiff has to prove in a newspaper case the number of sales.  It is no part of the plaintiff’s case on publication to prove apropos each recipient that that recipient read the relevant article.

It is trite law that once publication is proved, and that includes, your Honours will have seen at the bottom of page 299, the quotations from Faulks Committee, Lord Keith and Mr Hirst, QC, that is proved when there is delivery or sale or when something is issued or distributed.  One does not need to prove, as part of the plaintiff’s case on publication, any more than that. 

Now, once distribution or sale is proved in the usual sort of case involving either a book or a newspaper, then damage is presumed  That also is trite law and it is referred to, inter alia, in Coyne’s Case.  This is referred to at page 306, line 15, where Justices Mason and Deane said that once publication is proved some injury to reputation is presumed to flow.  Now, on a section 7A trial ‑ ‑ ‑

GUMMOW J:   Just a minute, Mr Reynolds.  What do you say about paragraph 286 on page 252, particularly the second sentence, the reference to “inferred”…..of evidence?  In your newspaper example it can clearly be inferred.

MR REYNOLDS:   I am sorry, I did not hear you.

GUMMOW J:   In the newspaper example it could clearly be inferred so people do not become obsessed with the point.

MR REYNOLDS:   As your Honours appreciate, we put a fall-back submission here, but just taking that example, I submit one could not and would not reasonably infer that every person that received a copy of the newspaper would have read, for example, the article on page 45 from beginning to end and comprehended it.  That would be a nonsensical submission and yet thousands of cases have proceeded on the basis that once sale of the newspaper is proved that an article, even on page 45, has been the subject of publication to each of those recipients. 

The formulation of the test in Gutnick please at paragraph 26, which we have quoted at page 299 at line 40, is completely compatible, indeed we submit deals in terms with the test as we would say this Court should readopt. That is in paragraph 30 of our submissions, line 40 on page 299. That is:

that publication “is a bilateral act – in which the publisher makes [the matter] available and a third party has it available for his or her comprehension.”.

Now, it is no part of that equation for the plaintiff to prove any more than the publisher making it available and the recipient has it available to them.  That is the way, for example, if your Honours go to the following page, the two cases that were relied upon in the Gutnick Case at that paragraph are themselves interpretive the law, the Duke of Brunswick Case – this is paragraph 32 at line 20 – involved a sale.  McLean’s Case involved delivery.  That is sufficient, on the well‑established law, we submit, in order to prove publication.  One does not need to go on and prove any more than that, and indeed once that is proved the damage will be presumed as I have mentioned to your Honours.

Now, the way that this case has been interpreted by other Judges – this this is paragraph 34 of our submissions – and by text writers, has simply been on the basis that the publisher makes it available and the recipient has it available for their comprehension and that fits in very well with the established position, say, in a book case where Dymocks may sell 100 copies of a book that is of 500 pages and then there is a recall order and the issue becomes whether or not somebody ready a passage at, say, 280. 

The position is that the plaintiff proves publication by showing the sales, some damage is presumed, and it is then open to the defendant to prove on the issue of damage that particular individuals did not in fact read it.  Now, the way these trials work, as your Honours appreciate, is ‑ ‑ ‑

HAYNE J:   Well, it is a question of how this trial worked, is it not?  I have in mind particularly paragraph 287 at 253.  Do you challenge that?

MR REYNOLDS:   Your Honour, there is no issue that the correct test was not put the jury.  The proposition which we advanced below is that on an application in the Court of Appeal for a verdict by direction, it does not matter that the point was not taken below.  That is a proposition that we take at paragraph 45 of our submissions on page 302.

HAYNE J:   Sorry, are we at cross‑purposes?  I was referring to para 287 ‑ ‑ ‑

GUMMOW J:   On page 253.

HAYNE J:    ‑ ‑ ‑ 253.  I wonder whether we are at cross‑purposes, Mr Reynolds.

GUMMOW J:   It follows on from 286, to which I referred you.

MR REYNOLDS:   Your Honour, that is certainly part of the way the case was run below.  What I am saying is that the wrong test was put to the jury and if the correct test had been ‑ ‑ ‑

GUMMOW J:   What do you mean by “test”?

MR REYNOLDS:   The test of publication, which we say is the test in the Gutnick Case.  If the test in the Gutnick Case ‑ ‑ ‑

GUMMOW J:   When you say “the test of publication”, do you mean the evidentiary foundation for inferring publication?

MR REYNOLDS:   No, I mean the test as a matter of law of what amounts in law to publication, which we have set out at paragraph 30 of our submissions.  This is page 299, line 40.  We say that is the direction that should have been given.  If that direction is given by a Court of Appeal on the facts of this case it must follow, and this has never been contested, that we are entitled to a verdict, given that at the 7A trial we only needed to prove that there was publication to one person. 

Now, your Honours, we have fall back arguments which we have put as to why in fact there can be no doubt that even on a test of reading through and comprehending this material this was an entirely perverse verdict, given that there were more than 100 people there to sign this petition, that the evidence was that people were looking at it, it was being passed around and discussed, multiple copies were available, the meeting had been called for the purpose of getting these signatures on this document.  The proposition that even on the test of someone reading it through and comprehending it that not one person had been shown on the evidence to ‑ ‑ ‑

GUMMOW J:   Well, that was a question for the jury was it not?

MR REYNOLDS:   Well, except, your Honour, I am putting it two ways, that although that is a factual matter for the jury, if the evidence is very strong I am entitled to seek a directed verdict, and alternatively submit that the jury’s verdict was perverse.  I mean, the whole idea that if you had a situation in this room, for example, where there is a petition on this table and the evidence is that more 100 people signed it, that the whole idea that a jury could find reasonably that not one person that signed that petition, not one person in fact read it, would be obviously perverse, so perverse that we say there should either be a retrial or that the Court is in a position to enter a verdict by direction.

But, antecedent to that is that we say that on the correct test, the test adopted in the Gutnick Case, there can be no contest and there has been no contest.  That if that is the correct test, namely, making the material available in comprehensible form and to someone who has it available to them, then it must be the case that there was publication to at least one person and my opponent has not submitted otherwise at any stage.

We submit that is an important issue of law as to what the correct test of publication is, particularly if one moves away from examples about newspapers and books to a situation involving the internet or Facebook or texting, Twitter, that kind of thing, it is going to be practically impossible, in relation to any given alleged publication, for a plaintiff to be able to prove apropos, every person that received a test or what have you, that that person read the matter through and comprehended it. 

We say that on the established test, which, as I say, is reflected in the Faulks Committee report, and the earlier cases and in this decision in Gutnick, a plaintiff does not need to do more on publication than show that the material has been made available and has become available.  It is obviously, we submit, a most important question of law and if there is, contrary to our submission, any ambiguity in this test, then that suggests that that is a matter which your Honours also might appropriately look at. 

There were, and we have referred to this on page 301 of the application book, at paragraph 39, to some earlier tests which were circulating prior to Gutnick.  They were interpreted in much the same way as the Gutnick test, but if there is any uncertainty about this issue then those alternative tests could be considered by this Court.  The issue of what the correct test is is, we submit, not only an important one but also a fairly short one.

Now, your Honours, in addition to submitting that the jury’s decision was perverse on reading through the material, we also had a submission that on the undisputed facts this material was read through at least once by a Mr Kochou, and that also is part of our application.  Another subsidiary issue of law is the question raised by the Court of Appeal of whether publication by one joint tortfeasor to another amounts to publication in law.  So, your Honours, on the issue of publication, we come at it about four ways.  First of all on this issue of law, and secondly by reference to Mr Kochou and the uncontested evidence that he read it.

Thirdly, we say that the verdict was perverse and we also raise the issue of whether publication by one joint tortfeasor to another is actionable in law.  In relation to the subsidiary issue that arose at the trial, your Honours will have seen that for some reason the jury were asked at the trial to go on and consider the question of the imputations after they had rejected publication.  We have put four arguments which, we submit, independently suggest that that was a means that those imputations should be ignored in the Court of Appeal and we have not really received any substantive response from my learned friends on that at all.  So those answers on the imputations can we submit be disregarded.

So, just stepping back if I may for a moment, there are a number of ways in which my client would be entitled to succeed in this Court.  One raises, we submit, a most significant issue of law and one where one simply had to take the relevant test as posited by this Court in Gutnick and apply it.  On no view is it possible to take that test in paragraph 26 of the Gutnick Case, place it alongside a test of read through and comprehended, and say that the jury have been correctly directed here. 

They clearly have not been and there is no contest that if the test is simply that the material was made available in comprehensible form, and someone had it available to them in comprehensible form, that at least one person must have been the subject of a publication of this petition, and that is in a situation where there were more than 100 people available at this meeting.

So, we can put it a number of ways and both evidentially, my reference to the bulk of the material showing that somebody must have read it.  We know that Mr Kochou read it, there is no issue about that, and we also submit that there can be no issue that on the test articulated in Gutnick that there can be, and is no argument that publication has been established.  We submit, as I say, that it is a most important issue of law and it is likely to lead to grave problems in the running of these trials on all issues.  The way the section 7A process works, there is no doubt under the section that damages are not part of the inquiry.  All my client needed to prove was publication.  If the Court pleases, those are my submissions.

GUMMOW J:   We do not need to call on you.

Having regard to what was said in paragraphs 286 and 287 of the leading judgment of the New South Wales Court of Appeal under the heading “Inferring Publication”, the issues of law the applicant seeks to agitate in this Court do not arise.  We add that nothing said in Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 requires reconsideration. Accordingly, the application is refused with costs.

We will adjourn to reconstitute.

AT 11.12 AM THE MATTER WAS CONCLUDED