Deren v State of New South Wales
[1999] HCATrans 397
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S39 of 1999
B e t w e e n -
ANTHONY DEREN
Applicant
and
STATE OF NEW SOUTH WALES
Respondent
Application for special leave to appeal
GAUDRON J
McHUGH J
HAYNE J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 19 NOVEMBER 1999, AT 10.22 AM
Copyright in the High Court of Australia
MR D.F. JACKSON, QC: If the Court pleases, I appear with my learned friend, MS K.T. NOMCHONG, for the applicant. (instructed by McGlynn & Partners)
MR B.R. McCLINTOCK, SC: May it please the Court, I appear with my learned friend, MS L. McCALLUM, for the respondent. (instructed by I.V. Knight, Crown Solicitor for New South Wales)
MR JACKSON: Your Honours, this case raises what we would submit is an important issue concerning the defence provided for by section 16 of the Defamation Act 1974 of New South Wales. That provision appears at page 154. The question is whether the requirement of section 16(1) for the existence of another imputation is satisfied, as we would say the case involves, by simply taking the imputations actually made to a higher level of generality. The issues, your Honours, is one of importance and, if the view of the Court of Appeal is correct, this course will be likely to give a broad new defence which one might expect to be frequently used and one which is capable of working a considerable injustice to plaintiffs. Your Honours, may I seek to make out those points.
McHUGH J: Well, before you do, can I just raise this question with you. Your client joined issue on this pleading of the defendants and it went to trial on that issue. Would not the appropriate procedure, if your argument was right, have been to either move to strike it out or to have objected to it in point of law, but having joined issue, is not that the end of the matter?
MR JACKSON: Well, with respect, your Honour, no. The situation which obtained was that the issue was, as one sees from the reasons of the trial judge, one which was clearly raised and fully argued at a point where admissibility of evidence was involved and at that point it was treated as an argument upon that substantive issue. So that, your Honour, maybe there was some deficiency in the pleading of the matter, but the issue was one clearly raised at the trial and one which was decided in our favour at that point.
McHUGH J: But is not the problem that the trial judge decided the point of evidence in an abstract way instead of saying, “Is this evidence relevant to what is pleaded?”, and on that view the evidence must have been admissible while that defence stayed on the record?
MR JACKSON: Well, your Honour, if it was capable of giving rise to such a defence.
McHUGH J: No, but it is really a pleading point. I do not want to take up your time, Mr Jackson. It does seem to me that it is a problem that your client joined issue on the particular pleading, but if you want ‑ ‑ ‑
MR JACKSON: Your Honour, what I was going to say was this. Your Honour, I take it your Honour is speaking about the matter as a question of pleading.
McHUGH J: Yes.
MR JACKSON: Yes, but, your Honour, when the ‑ ‑ ‑
McHUGH J: The pleading may have been bad in point of law, but it went to trial on that issue.
MR JACKSON: Yes. Well, your Honour, could I just say in relation to that though - no doubt your Honour is right in saying it went to trial on that issue, but it was apparent at the trial, in our submission, that this was a matter which was – and I am speaking about the legal substance of it – in issue and was dealt with by the primary judge in a way that raised the issue as a substantive issue and was so dealt with by him and by the Court of Appeal.
Your Honours, could I then go to the point that we seek to make out and your Honours will see at pages 154 and 155 the two related provisions of sections 15 and 16 of the Defamation Act. If I could go, first, for a moment to section 15, your Honours will see that it allows a defence of “substantial truth” of the imputation combined with its relationship “to a matter of public interest or” publication “under qualified privilege.” Then, your Honours, one goes to section 16 which allows a further degree of, as it were, liberality. It says in section 16(2), if I could first go there, that it is a defence if four things exist, first, and I am referring to 16(2)(a), if:
the imputation relates a matter of public interest or is published under qualified privilege.
That mirrors, of course, section 15(2). Secondly, and I am referring now to section 16(2)(b)(i), a requirement is that one of the contextual implications, a term to the meaning of which I will come in a moment, if I may, possesses those same qualities, that is, it relates:
to a matter of public interest or are published under qualified privilege.
The third thing, your Honours, is section 16(2)(b)(ii) and that is that the contextual implication is itself a matter “of substantial truth”. The fourth thing is, section 16(2)(c), because the contextual implication is a matter “of substantial truth, the imputation” actually sued on “does not further injure the reputation of the plaintiff.” And the reference to “further injure”, of course, is a reference to injury beyond that caused by the publication of the substantially true contextual implication. That takes one back, of course, to the definition of “contextual implication” which is seen in section 16(1). Your Honours, if one looks at the terms of section 16(1), it is apparent, it is submitted, that it requires one to look at the publication itself and to ask, “Does it make two distinct imputations, namely, (a) that sued on and (b) another?”, because your Honours will see the word “another” used to describe the second imputation.
McHUGH J: But that seems to assume that the plaintiff can control the nature of the pleadings. Let me give you an illustration from a well‑known Irish case, MacGrath v Black. Supposing the plaintiff had pleaded a book meant that he had murdered Lord X. Now, surely that book gives rise to the imputation he is a murderer. Why cannot, in those circumstances, the defendant prove he is a murderer, as in MacGrath v Black, by supplying particulars of a great many other murders that the plaintiff was involved in?
MR JACKSON: Well, your Honour, if one is looking at ‑ ‑ ‑
McHUGH J: Your argument would suggest that you could not do that.
MR JACKSON: Yes, it would, I think, your Honour, yes.
McHUGH J: Yes.
MR JACKSON: What we would seek to say is that one has to look at the article, of course, and the article – I am sorry, look at the article at a time when one is seeing the first imputation, as it were. It is not as if one looks at the article in time in the publication. One looks at the publication and says, “Does the publication make the imputation?” And if it makes the first imputation that he murdered Lord X, well, then, your Honour, one looks to see is the second imputation something contained within the first imputation, so that ‑ ‑ ‑
McHUGH J: That is why I put to you that it allows the plaintiff to control the action because there is no reason why in that illustration the plaintiff could have simply pleaded that the book meant he was a murderer.
MR JACKSON: It could have, your Honour, yes, and then one would see, if one looked at the second imputation, that he had murdered Lord X. In those circumstances, one would say that is not a different imputation, different words.
GAUDRON J: But is not the question whether it is open to a jury to conclude that there was another imputation?
MR JACKSON: Yes, your Honour. Yes, I accept that, yes. Yes, of course.
GAUDRON J: Yes. So it is not strictly a matter of law, this question, is it?
MR JACKSON: No, your Honour, but the capacity, of course, to do that is a question to be decided by the judge.
GAUDRON J: Yes.
McHUGH J: But your argument is that the section is only intended to apply to the case where you might allege six murders against somebody and you prove four of them or it is a question of larceny and embezzlement and you prove larceny but no embezzlement and so on.
MR JACKSON: Well, your Honour, those fall within it, to put it shortly.
McHUGH J: Yes.
MR JACKSON: Your Honour, one does not need perhaps to go to the outer limits of it, but what we are seeking to say is that this case is one where, if you look at what the publication said and you look at the imputation that we drew from it. They purely in a sense repeat the words of it. What is then said is that carries with it another imputation and the other imputation is that the applicant was a child molester ‑ ‑ ‑
HAYNE J: And why is that a question of principle rather than a question of the construction of the particular article and what it might bear as its meaning?
MR JACKSON: Well, your Honour, it is a question of principle – well, may I just go back and answer that in this way, your Honour. First of all, defamation cases always start with a particular publication, your Honour. I do not mean that in any offensive way. They always start with a particular publication. Your Honours, having said that, one then sees this being really a case which gives rise to the issue very clearly in the sense that the matters published make particular allegations, as defamatory publications very frequently do.
Now, the publication is one which, no doubt, one can say one can then lift up – and this will be true in very many cases – that conduct from the precise allegation to something at a broader level and that is exactly what has happened in this case. The approach taken by the Court of Appeal suggests, in our submission, that that can happen really in a large number of cases and in those circumstances the meaning of section 16(1) is important and ‑ ‑ ‑
GAUDRON J: But is it a question of the meaning of section 16(1) so much as what the ordinary reader might take from the article?
McHUGH J: What imputations the reader might take from the article.
MR JACKSON: Yes, your Honour. I am sorry, I am not meaning to suggest otherwise. All I am seeking to say though is that if one is looking to see what the ‑ ‑ ‑
GAUDRON J: But your argument must be that the ordinary reader could not take that imputation.
MR JACKSON: Well, no, your Honours, it is not quite that, with respect. What we would say about that is that the relevance of the position of the ordinary reader arises first when one sees what is the ambit of the defence permitted by the section and, in order to identify that, that is where one has to go to the terms of section 16 to see what the ambit of it is. Then having done that, your Honours, one then goes to the reader.
HAYNE J: Is the proposition then “this article could not” or is the proposition “the Act says that this allegation is not permissible”?
MR JACKSON: Well, your Honour, the latter. The latter because, your Honour, for the purpose ‑ ‑ ‑
HAYNE J: Without pausing at the first in any way or without addressing the first?
MR JACKSON: Well, your Honour, it would be difficult to say that the article was not capable, if one looked at it in isolation, of saying that in relation to the events that were referred to the applicant was alleged to be a child molester. That is one way of putting it, but ‑ ‑ ‑
McHUGH J: Well, that seems to fall within the literal words of section 16(1), does it not, “another imputation is made by the same publication”?
MR JACKSON: But it is a question of what is meant by the expression “another imputation”.
McHUGH J: Yes, I appreciate that, but that is why I said ‑ ‑ ‑
HAYNE J: And that relevantly is another imputation other than the imputation complained of.
MR JACKSON: Yes, your Honour, other than the imputation complained of, assuming that, of course, to be an imputation capable of arising from the material and, your Honours, what we would seek to say about it is that if one looks in the present case - if I could just take your Honours for just a moment to the particular facts of it - if one goes to pages 76 and 77, where one of the publications is set out, you will see it commencing at line 25 and going through to line 17 on page 77. If your Honours were to hold that and then look at the imputations pleaded, which are at the bottom of page 153 and the top of page 154, the imputations pleaded are exactly the imputations one would expect to be derived from those publications and they relate to the specific sting, as it were, of the material.
McHUGH J: Does your submission come to this, that the contextual imputation cannot arise unless its sting is different in substance from the sting pleaded by the plaintiff?
MR JACKSON: Your Honour, that would be so.
McHUGH J: Yes.
MR JACKSON: Yes. Your Honours, the ‑ ‑ ‑
GAUDRON J: But that does not seem to sit comfortably with the notion, the third requirement I think it is in the section, that it does not additionally harm the plaintiff.
MR JACKSON: Well, no, your Honour. It is that the imputation complained of does not further harm.
GAUDRON J: Yes, but you would not seem to be able to bring that qualification in if you were always talking about totally different harms, as it were.
MR JACKSON: Well, your Honour, sometimes that would be true, I would accept that, because one has to bear in mind that the way in which the provision operates is that there is a defence, in effect, to what is relied on by saying that something else is substantially true and qualified privilege and so on and that because it is, in effect, so bad, what you actually complain of does not further injure you. Now, that is the approach of it. Now, that can apply to a number of different circumstances and, no doubt, your Honours, that in cases they were overlapping, but one is not speaking in the present case about overlapping, but simply identity of allegations at different levels of abstraction and, your Honours, that, in our submission, is what is not permitted by the provision. Your Honours, I ‑ ‑ ‑
McHUGH J: Is that because you say that to say that a person is a child molester cannot add or come within (2)(c) because it does not add anything to the fact that the plaintiffs participated in sexual assaults on young ‑ ‑ ‑
MR JACKSON: Yes. Now, your Honours, the reasoning in the Court of Appeal can be seen in three paragraphs in Justice Priestley’s reasons. Could I go to page 107, paragraphs 83 to 85. Essentially what his Honour said appears on page 107 about line 42. He said:
It seems to me that the words of the publication are quite capable of bringing to the mind of the reasonable reader two ideas, one being that the first plaintiff had committed five indecent assaults on very young children from a Sydney kindergarten in the last ten months and the other that such a man must be a habitual molester of children. Of course, the two ideas have much in common but they nevertheless seem to me to be distinct ideas generated by the same matter.
Your Honours, I will not labour the point. We would seek to say that what the two imputations referred to by his Honour are, are no more than one taking the more precise one, the publication, to the higher level of generality and, your Honours, could I just say ‑ ‑ ‑
McHUGH J: Your argument really depends more on (2)(c) than any other aspect of the case, does it not? Your case really is that as a matter of law the defendant could not satisfy 16(2)(c).
MR JACKSON: Yes, your Honour. Your Honour, that is one result of it, if I could put it that way.
McHUGH J: Yes.
MR JACKSON: Yes. Your Honours, could I say just these things finally. If this is correct, this could add a whole ‑ ‑ ‑
McHUGH J: Perhaps I should that there is an assumption about (c), that the imputation has to have a different, an additional sting.
MR JACKSON: Yes, your Honour, that is right.
McHUGH J: Yes.
MR JACKSON: Yes. Your Honours, if correct, this could add a significant new dimension, in our submission, to defamation actions and I also say this is the issue on which we lost the case in the Court of Appeal. We had a jury verdict for $350,000 in our favour and it was the only basis on which the appeal to that court succeeded and the only basis on which a new trial was granted.
GAUDRON J: Yes, Mr McClintock.
MR McCLINTOCK: Thank you, your Honours. Your Honours, there are five reasons why this application for special leave should be refused. The first is that the supposed issue of principle - and this is something that your Honour Justice Hayne raised – is on its face one of fact and it is ‑ ‑ ‑
GAUDRON J: Well, not quite fact, is it?
McHUGH J: It is a question of capacity, is it not?
MR McCLINTOCK: Well, your Honour, a question of capacity is, in fact, one of fact, as Lord Reid said in Morgan v Odhams Press. It is sometimes described as a question of law, but the true characterisation is a question ‑ ‑ ‑
McHUGH J: Well, rightly or wrongly, that is the view, is it not? Capacity is a question of law for the judge.
GAUDRON J: Well, it is a question for the judge anyway. It is not for the jury.
MR McCLINTOCK: Even if it were, as sometimes described, a question of law, it is a question that involves paying attention to individual documents and construing those individual documents and as such it is an issue that will never arise in any other case other than this one. It is unique to this case.
McHUGH J: Well, I am not sure that that is right. There does seem to me a point of principle at the back of the case. I mean, supposing an article said that the plaintiff had stolen $1,000 and he pleaded that and then you wanted to say the article meant that he was a thief and you wanted then to prove all sorts of other things. Now, could you possibly do that? Does it really add anything to the sting to say he is a thief instead of saying he stole $1,000?
MR McCLINTOCK: Yes, your Honour, it does, and this is the reason why the two imputations are, in fact, different. One is an allegation of a specific act. The other is an allegation of a characteristic, a tendency, a personality trait, something like that, and that is the answer which is, in fact, given by Mr Justice Priestley at the passage in the judgment to which Mr Jackson took your Honours where his Honour said there, and I will quote it again - his Honour, of course, was dealing with capacity questions, page 107 paragraph 84:
It seems to me that the words of the publication are quite capable of bringing to the mind of the reasonable reader –
and I emphasise, of course, the word “capable” because we are dealing with capacity questions, not with what the jury would ultimately decide -
bringing to the mind of the reasonable reader two ideas, one being that the first plaintiff had committed five indecent assaults on very young children from a Sydney kindergarten in the last ten months and the other that such a man must be a habitual molester of children.
And then his Honour goes on to say that while the two ideas have much in common, they are distinct, as, indeed, they are. As I said, one of them is an allegation of a specific act and the other is an allegation of a characteristic or tendency. The best example, your Honour, is the example that your Honour gave from MacGrath v Black. Your Honour will recall that that case proceeded on the basis that Mr MacGrath had been falsely accused of two murders in the article in question and the defendant came back and particularised 72 murders that, in fact, they said he had committed. It is easy to see in circumstances such as that that there is a difference between saying that Mr MacGrath murdered one person or two persons and that he is a murderer, in my submission, and that was the point that your Honour was making.
Your Honours, the remainder of the five reasons why this application for leave should be rejected or refused are these. The second is that the argument is demonstrably wrong, the point of principle sought to be advanced by Mr Jackson.
The third is that this point has never been taken below. There has never been a submission put to the Court of Appeal or, for that matter, to Mr Justice Abadee, the trial judge, that this question of construction now advanced of section 16 mandated that my client’s section 16 defence be taken away from the jury. It has never been put and the Court of Appeal has never considered the issue which is now advanced that a specific allegation cannot ever convey an allegation of general misconduct of a general nature. There is, in fact, nothing in the judgments that gives any consideration to that matter at all and the reason why is that the point was, in fact, never taken.
The fourth point is that the Court of Appeal itself is clearly right and, finally and, fifthly, if there were any merit in the points sought to be advanced and if it were to be accepted, given the way the case was structured and the arguments put in the Court of Appeal, success on the point now urged by Mr Jackson must, as a matter of inexorable logic, mean that my client’s alternative grounds of appeal in the Court of Appeal should have succeeded and the section 15 defence, that is, simple truth, should have gone to the jury. As I have said to your Honours, the question of capacity to convey any imputation – if I may turn to expand the first reasons ‑ ‑ ‑
GAUDRON J: Well, I do not think we need trouble you on that further, Mr McClintock.
MR McCLINTOCK: Thank you.
GAUDRON J: Yes, Mr Jackson.
MR JACKSON: Your Honour, could I just say this. This point was taken and you will see it at pages 38 and 39 before the primary judge, before the trial judge, page 38 line 10 and then page 39 line 17 to 46 and it seems to have been the issue in ‑ ‑ ‑
GAUDRON J: Was it taken as a point of the ability of the article to convey it as distinct from construction of section 16?
MR JACKSON: Well, your Honour, you will see the reference, for example, at page 39 about line 18 to a discussion of an earlier case and what is being spoken about, in our submission, is the position in relation to the way in which section 16 worked and your Honours will see – I will not labour the point, but your Honours will see that dealt with. Could I also say one other thing, your Honours, and that is this. Our learned friend says it is possible to draw a distinction between characteristics and particular conduct, but, of course, leaving aside aberrant behaviour, one does normally need to have a characteristic in order to engage in particular conduct. That is why the issue is one which will continue to arise.
GAUDRON J: Yes, thank you, Mr Jackson.
In our view, the decision of the Court of Appeal in this matter is not attended with sufficient doubt to justify the grant of special leave.
Submissions having been put in writing with respect to costs, the application will be refused with costs.
The Court will now adjourn to reconstitute.
AT 10.52 AM THE MATTER WAS CONCLUDED