Favell & Anor v Queensland Newspapers Pty Ltd & Anor

[2005] HCATrans 439

[2005] HCATrans 439

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B19 of 2005

B e t w e e n -

PAUL JOSEPH FAVELL

First Appellant

DIANA GRACE FAVELL

Second Appellant

and

QUEENSLAND NEWSPAPERS PTY LTD

First Respondent

JESSICA LAWRENCE

Second Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON TUESDAY, 21 JUNE 2005, AT 10.18 AM

(Continued from 20/6/05)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Mulholland.

MR MULHOLLAND:   Your Honours, I would like to come directly to the capability question this morning.  In doing so, can I just say something in relation to the absence of the article in view of a reference to it yesterday.  At the Court of Appeal, before the hearing started, we were asked if we were prepared to agree to an A3 copy of the article, which we agreed to.

HEYDON J:   This is a communication between counsel, is it?

MR MULHOLLAND:   Your Honour, that was a communication between counsel.

HEYDON J:   It is not usual to reveal it unless both sides agree.

MR MULHOLLAND:   We were asked to agree, your Honour, and we did agree.  We were asked by the other side to agree.

HEYDON J:   No, agree to its revelation now.

GUMMOW J:   Maybe we are in another country.

MR MULHOLLAND:   Your Honours were interested, I understood from what was said yesterday, as to why the article was not before the Court.

KIRBY J:   It was said to be a dark plot on your part to keep it away from us.

MR MULHOLLAND:   That is exactly the point, your Honour, and therefore, it is important for me to set the record straight.  That is what happened in the Court of Appeal.  If the prominence of the article at any stage so far as the capability of the article to bear the meetings alleged was in question, then we would submit the article would have been before the Court.

GLEESON CJ:   Do you accept what Justice Jerrard said on page 62, line 40?

MR MULHOLLAND:   No, your Honour.

GLEESON CJ:   The article, to use an expression that you sometimes read in the newspapers, linked two facts:  the fact of the fire and the fact of the dispute about the development application.  What is the connection?

MR MULHOLLAND:   The connection, so far as the reporter is concerned, is that the house that was burned down was the subject of a development application.

GLEESON CJ:   So what?

MR MULHOLLAND:   Presumably regarded as news, your Honour.

GLEESON CJ:   No, presumably regarded as being connected in some way, would you not say?

MR MULHOLLAND:   We submit that there is no connection made that would lead one to conclude that the connection between the two of them was a burning down of the house in order to get rid of opposition to the development application, which is really the point that your Honour is leading to.

GLEESON CJ:   Well, either the fact that the house that was burned down was built on land the subject of the disputed development application was a coincidence or the two facts were connected.  If they were connected, the connection could only be sinister, could it not?

MR MULHOLLAND:   We submit not, your Honour, and that is ‑ ‑ ‑

GLEESON CJ:   What would be an innocent but not coincidental relationship between the two facts?

MR MULHOLLAND:   Your Honour, we submit that the development application seems to have been introduced by reason of the comments made by neighbours, so the reporter has information from neighbours in relation to this house which has burned down, but the sinister connection does not necessarily follow, in our submission.

GLEESON CJ:   No, of course, it could be a mere coincidence.  But if it went to a jury, would the jury not have to decide in essence whether the two facts were simply coincidental and unrelated or whether there was some connection between the two facts?

MR MULHOLLAND:   That is the argument put against us.

KIRBY J:   What is the answer to that?  That is the essence of it.  It is not what we think, as such, or what you think; it is whether it was open to a jury to think that the connection between the two was sinister.

MR MULHOLLAND:   Yes.

KIRBY J:   Why did judges have the right to deprive the jury of that possibility?

MR MULHOLLAND:   Your Honour, because we submit that that connection, the sinister aspect of it, does not arise from the article.

KIRBY J:   It may not, but do you say it cannot?

MR MULHOLLAND:   We do say.

KIRBY J:   It is a big step to say it cannot when you have the headline, you have the content and then you ask yourself, “Why have they put in these other things except to hint that there is a sinister connection?”  A jury might well be persuaded that there is not, it is simply part of the background news, but a jury might be persuaded.  The order of the courts below has been to deprive the plaintiff of the opportunity of having the jury pass on it.

MR MULHOLLAND:   Can we respond to that by submitting what we say the article says.  We do so from the point of view that we understand the test to involve a broad impression of an ordinary reasonable reader who on the one hand is not unduly suspicious and on the other hand can and does read between the lines.  We submit that the article does not speculate on the cause of the fire; that no ordinary reader could take a meaning that the appellants were responsible for it; that it would be contrary to the standard of the ordinary reasonable reader to rest such imputation upon a suggested motive associated with the unit development when, in our submission, there was no reason to think that burning a house down would make any difference to the development application. 

The way the article reads, in our submission, is that it was simply good luck that the cousins who were house‑sitting were not in the house at the time.  As we understand the argument against us, that is said to be something that is sinister.  The article says:

Speaking from Rome, a distressed Ms Favell told The Sunday Mail:  “We are devastated and we’re just trying to get home as soon as possible . . . and we’re just –

“so” is the word that is used –

so glad [the house-sitters] weren’t in the house at the time”.

Even the reference to the relatives arriving at the house is couched in a similar way.  The way it was put at paragraph 7:

Relatives arrived to see the multi-storey house – which has security gates and a private river pontoon and boat – gutted. 

This is in the circumstances where the matters which I have just referred to had been mentioned in the article. 

The imputations, in our submission, are not assisted by saying in effect that the appellants lived in an expensive house on the river and the reference by one neighbour to ambience, in our submission, does not take the matter any further.

KIRBY J:   I accept immediately that you have a lot of feathers to fly with this article before the jury and what I did, for my part, was to go through the matter complained of and I put a triangle over the passages which are favourable to your interpretation – they include, for example, the fact that the person was distressed, that they were in Rome, they were devastated and so on – but then I put a circle around the things that, as it were, speak to the other tune – the development site, the controversial nature of it, the five‑storey building blocks, did not want to be identified, and so on – and it just seems to me impossible to say that there was nothing that a jury could make of that. 

They may not because of the triangles, but this is not the sort of case which, as I understand it, the strike‑out is for, that it is just wasting the court’s time, it is a burden and it cannot succeed, it is doomed to fail.  This is a case where there is another interpretation, and that is what the jury is there for.  What I have to ask myself is, Justice Helman came to the contrary view, and the Court of Appeal unanimously came to the contrary view, and what is the error that authorises this Court to give effect to its different view.

MR MULHOLLAND:   Yes.  Your Honour, can I just complete the reference to what we say the article says.  One of the matters which no doubt your Honour has put a mark against is the reference to the house‑sitters, but the reference to the house-sitters cannot, in our submission, lead to a conclusion adverse to us so far as the alleged defamatory imputations are concerned because the ordinary reader would ask the question, if at all:  why would the appellants have house-sitters if they were going to have the house burned down?  It does not.  Why, if considering the question of what the article means, would the ordinary reasonable reader not simply approach it – and, we submit, would – from the point of view that people do not ordinarily burn their house down.

McHUGH J:   That is so, but you rely on the presence of the house guests being there, but on one view it is against you, Mr Mulholland.  A jury might say that it was just an unfortunate coincidence that this house, the subject of a hostile development application, should burn down while the owners were overseas, but it does not look like a coincidence when not only are they overseas but, for some unexplained reason, the people who are minding the house suddenly disappear that night.  Add to that the fact that it looks almost certain that it has been an inside job unless the fire has started accidentally.  The security alone has hindered the fire brigades from getting in.  Then you have the lines that finish with saying the police are investigating it.

MR MULHOLLAND:   Your Honour, none of those things, in our submission, takes one to these words “being capable” in the sense required.  The reference to the house-sitters cannot just be considered on its own.  The reference to that must be considered by the ordinary reasonable reader in the context of the appellants being so glad that they were not there at the time.  So we ask, rhetorically, how would the ordinary reasonable reader in those circumstances say this can be something sinister?  Obviously, the appellants are just glad and distressed at the same time, but glad that the house‑sitters were not there. 

The reference to security gates – security gates are not at all an uncommon feature of houses, your Honour, these days, in fact it is relatively common, particularly in relation to houses on the Brisbane River.  People of course may have prejudices against lawyers and/or those who live in river‑side mansions, but that would not be the way in which the ordinary reasonable reader would regard the article, we would submit.

McHUGH J:   The best way to find out is to let it go to a jury.

MR MULHOLLAND:   Your Honour, we would prefer not to have to go to that point. 

McHUGH J:   Yes, I know. 

MR MULHOLLAND:   One would, in our submission, have to have a very cynical view of the world to conclude that the article was accusing the appellants of burning their house down and we submit that the approach of the primary judge is worth considering in this respect.  I am referring to page 42 of the record, paragraph [8], where his Honour said:

The article reports the fact of, and the circumstances surrounding, the fire without comment, and records that an investigating police officer had said that investigations were proceeding and that all fires were treated as ‘suspicious’ until it could be demonstrated otherwise.  There is nothing in the article suggesting that the policy enquiry was focussed on Mr and Mrs Favell.  The word ‘suspicious’ in this context may properly be understood to refer to the result of a deliberate human act.  The overall effect of the article is to present the cause of the fire as a matter under investigation but at the same time an open question.  A fair reading of it shows that it does not go beyond that.  In Mirror Newspapers Ltd v Harrison it was held that a newspaper report that does no more than state that a person has been arrested and charged with a criminal offence is not capable of bearing the imputation that he is guilty, or probably guilty, of that offence.

KIRBY J:   I take the force of that, but is it not open to the jury to say, “Well, perhaps we would not think that is suspicious, but when we read it with development site, controversial site, a dispute about the home unit blocks, the neighbours saying, ‘We did object’, contrary to the statement of the wife, that it does become suspicious, that from the whole content it takes on the colour of suspicion”.  You and I might not think that because we might not be suspicious types, but how can one say that that is not open to a jury in the content of the article and especially the headline and the way you lead in. 

You see this does not appear in isolation; it appears in an article where there is a hint, hint, nudge, nudge of a development site and a real motivation on the part of the appellant to destroy his house.  Who else would destroy a multi‑million dollar house?

MR MULHOLLAND:   The ordinary reasonable reader would certainly think it unlikely that the owners would do so.

KIRBY J:   But that gave them a motivation, it gave them arguable motivation, did it not?

MR MULHOLLAND:   We would submit that motive can only be considered in the context of whether it would induce them to burn the house down.  The motive here is suggested as a unit development on the one hand and judging by the imputations on the other hand something to do with insurance.  So far as the unit development is concerned, we submit that there is nothing to suggest that by burning the house down, that would put an end to the unit development or make it easier for the appellants to receive approval for the unit development. 

So far as the insurance suggestion in the latter imputations in each of the three paragraphs, we submit there is just nothing at all to suggest that.  One, I suppose, might assume that the house is well insured, which would be a reason, one would suggest, why the ordinary reasonable reader would not draw an imputation of arson from it unless there is something to suggest that the appellants had financial difficulties, and there is nothing in the article to suggest any financial difficulties.

If the police, your Honours, did not have any suspicion focused upon the appellants – and we submit that the reference to the police in the last part of the article does not suggest that there was any investigation focused on the appellants – then why would the ordinary reasonable reader conclude that there was some suspicion to be attaching to the appellants in relation to arson?  One of the imputations suggests the crime of arson.  At least in Queensland, the crime of arson is not committed by someone who burns their own house down unless it is in association with something in the nature of an insurance fraud.

KIRBY J:   But that is a very fine point.  We are talking about what ordinary lay people would think reading this article.  Obviously the appellants could not burn it down because they were in Rome and therefore the suggestion is that this is procuring an act of arson and that that is how an ordinary lay person might read it.  I think at least it is arguable that that is how a lay person would read it.  Do you deny that?

MR MULHOLLAND:   That you could read it in the other way?

KIRBY J:   Yes.

MR MULHOLLAND:   We would submit not, your Honour.

KIRBY J:   You are not in the conceding mood today, are you, Mr Mulholland?

McHUGH J:   He probably does not want to concede his case.

KIRBY J:   It just seems impossible to say that a lay person might not read it in a non-technical sense.  Most lay people would not have any idea of the ingredients of arson in the law of Queensland, but they would think arson means having something to do with burning down a place, a dwelling. 

MR MULHOLLAND:   Could I be so bold as to submit, your Honour, in response to that that there is another course?  Some would say that only a lawyer, drawing a lawyer’s approach to this article, would construct out of it an accusation of arson from what the article says.  Could we respectfully ask the Court to consider the result of a finding in this case that this article is capable of arson in circumstances where, on the authority of Mirror Newspapers Ltd v Harrison, a person arrested and charged does not give rise to an imputation of guilt. 

McHUGH J:   But that is because of the presumption of innocence and that they were basically the basically the bare facts, but this is a different article.  You have a lot more material here.  Would you concede that some reasonable readers might draw the imputation for which the appellants contend?

MR MULHOLLAND:   No, your Honour.

McHUGH J:   I did not think you would.

KIRBY J:   But it is you who introduced the word “arson” into the article and it is only introduced as an investigation description from the Arson Investigation Unit.  What is actually said is “All fires are treated as suspicious”, so the imputation is probably more that this is a suspicious fire.

MR MULHOLLAND:   Intractably neutral, we would submit, is that line.  Nothing in what the police officer says, in our submission, could possibly lead to a conclusion that the appellants were suspected by the police of having committed arson here.  All we are told in relation to it – and we submit that this is important because if the submissions of our learned friends receive some encouragement from this particular passage, of course it assists those submissions, but we submit that the reference to what the police are saying is that they are just treating this fire like any other fire.  In those circumstances, one could not come to the imputations suggested.

GLEESON CJ:   Mr Mulholland, we did have some discussion yesterday – and I am not attempting to revive it by asking you this question, but I just want to be clear.  You are inviting us to hold, as a matter of law, that the matter is not capable of conveying any of the three imputations relied upon by your opponent yesterday?

MR MULHOLLAND:   Yes, your Honour.

GLEESON CJ:   And he is inviting us to hold, as a matter of law, that the matter complained of is capable of conveying one or more or all of those imputations?  That is the issue.

MR MULHOLLAND:   Yes.  Well, we have understood that once the appellants have been granted leave to appeal that is the question.

GLEESON CJ:   That is the issue of law we are being invited to determine.

MR MULHOLLAND:   Yes, your Honour.

GLEESON CJ:   Thank you.

KIRBY J:   Is there a step in between our, as it were, reaching the merits in our own opinion, that we have to be sure or satisfied that there is error on the part of the court below, given that these are evaluative and judgmental questions?

MR MULHOLLAND:   Of course.

GUMMOW J:   They are questions of law.

McHUGH J:   It is a question of law.  There cannot be any question of discretion, can there?  It is a pure question of law. 

GUMMOW J:   That seems to be how Justice Jerrard approached it on page 55, paragraph [12].

KIRBY J:   But as Justice McHugh said in the special leave, it is classified as a question of law but, in truth, it gets down to an impression of the facts in every case.

GUMMOW J:   He says:

It is apparent from the judge’s reasons that the learned judge considered the relevant question to be whether the published words were capable of bearing the pleaded imputations and that if not, the application to strike out should succeed.

MR MULHOLLAND:   Yes, both courts really put the question in the same way, your Honour.

GUMMOW J:   There is a debate about whether they were right in looking at it through that focus, but that is what they did.

MR MULHOLLAND:   Yes, your Honour.  Just in response to what Justice Kirby has recently said, of course a holding by this Court that these imputations are capable of arising, or some of these imputations are capable of arising, would necessarily result in a conclusion that the Court of Appeal and the primary judge holding to the contrary effect was incorrect.

GLEESON CJ:   Yes.

MR MULHOLLAND:   Coming to the reasonable suspicion, that is dealt with in paragraphs 37 to 42 of our outline.  There does not seem to be any need for me to say anything further apart from what appears in those paragraphs.  So far as the lying imputation is concerned, this is dealt with at paragraphs 43 to 51 of our written outline.  It is only necessary to add that we rely on the treatment of this imputation by Justice Jerrard in the Court of Appeal at page 63, line 52 to page 64, line 10, that the article on this aspect is only capable of conveying to an ordinary reasonable reader that:

the Favells restricted dissemination of the plans to the immediate neighbours, who did not convey any objection about those plans to them.

Your Honours, can I just come back briefly to one of the aspects of the matter concerning deciding capacity in advance of the trial and refer your Honours in relation to that question to what – these are arguments in favour of having it determined in advance of the trial.  In Drummond‑Jackson, Lord Denning at pages 692 to 694, that is 692F ‑ ‑ ‑

GLEESON CJ:   Could you give us the full reference, please.

MR MULHOLLAND:   Yes, of course.  It is Drummond-Jackson v British Medical Association [1970] 1 WLR 688. The particular passage that I am referring your Honours to is at 692F to 694B.

GLEESON CJ:   Thank you.

MR MULHOLLAND:   Also what Justice Hunt said in Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663. The particular passage is at 673B. One of the matters that his Honour there refers to was the question as to whether or not there is any appeal from the decision. Of course, just in relation to that, so far as Queensland is concerned, there is an appeal in relation to a question like this from an interlocutory application as of right –sections 253 and 254 of the Supreme Court Act 1995 (Qld).

GLEESON CJ:   Would it be necessary in order to lay the proper basis for such an appeal for the primary judge to make a formal order identifying the separate question of law?

MR MULHOLLAND:   From a point of law?

GLEESON CJ:   Would it be necessary in order to lay the foundation for such a vital appeal ‑ ‑ ‑

MR MULHOLLAND:   No, your Honour, and in fact this is what happened in the present case.  There was an appeal as of right.

KIRBY J:   What is the discrimen that makes it an appeal as of right?  That it has effective consequences that are final, is that the point? 

MR MULHOLLAND:   No, your Honour, it is simply there are exceptions created in the first mentioned section that I referred to ‑ ‑ ‑

KIRBY J:   That is 253?

MR MULHOLLAND:   ‑ ‑ ‑ yes, your Honour – and this is not one of them, so there is an appeal as of right to the Court of Appeal.  In paragraph 18 of our outline ‑ ‑ ‑

GUMMOW J:   What section was that?

MR MULHOLLAND:   Sections 253 and 254, your Honour.

GUMMOW J:   Of?

MR MULHOLLAND:   Of the Supreme Court Act 1995 (Qld). We did include it in this batch of materials, your Honour. Apparently, your Honours – I am sorry, I apologise for this – these had not been passed up to the Court.

KIRBY J:   So it is 254 rather than 253 that is the critical one?

MR MULHOLLAND:   Yes, your Honour.

GLEESON CJ:   Yes.

MR MULHOLLAND:   Your Honours, the contrary view to the views expressed by Lord Denning and Justice Hunt appear in what Lord Pearson  had to say in Drummond-Jackson at page 697C to H. That was a page to which our learned friend referred to yesterday.

In paragraph 18 of our written outline we then summarise why we say that the courts acted in conformity with the UCPR.  To that could we add a reference to rule 5 of the Uniform Civil Procedure Rules – this is in the materials handed to the Court – which addresses the overriding obligations of a party in court, in effect the philosophy of the rules.  That philosophy was referred to by Chief Justice de Jersey in Robinson v Laws [2003] 1 Qd R 81, where his Honour said at page 94, paragraph [53]:

The Uniform Civil Procedure Rules are premised on the need for that early, comprehensive definition of the case being mounted, and that equally early responsive definition of the position of the defence.  R5(1) states that the purpose of the rules is to facilitate “the just and expeditious resolution of the real issues in civil proceedings at the minimum of expense”.  R157 obliges a party to include in that party’s pleading “particulars necessary to . . . define the issues for, and prevent surprise at, the trial.”  The objective is early definition of the points at issue, and where possible their limitation.

And rule 5(2):

Accordingly, these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules.

All of that, we submit, is important in considering whether or not in the circumstances here the primary judge was correct in going ahead and determining the question of law which was before him with the consent of the parties. 

Your Honour Justice Heydon asked a question yesterday which perhaps I should make brief reference to in relation to it being important that the parties and the Court understand the rule under which the application is made.  Can I just say in relation to that, that under the Uniform Civil Procedure Rules there are two rules, rule 444 and 445, which essentially require the applicant in an application such as was brought before the primary judge to inform the other party as to what is complained about.  The 445 letter is then the response of the person to whom that letter goes. 

Now, that always happens before the application is heard.  If it does not, the parties are required to define the issue before the matter goes to court.  This case is a good instance of it because I mentioned yesterday to your Honours that there had been an earlier interlocutory application.  At that interlocutory application we had sought to argue the capacity point but because it was not in the interlocutory judge’s view sufficiently clear as to precisely what the basis was, the matter was adjourned to allow that to be done.  That was then clarified in a further letter and the application occurred subsequent to that.  So it is not simply the case that an application can be brought in Queensland without those preliminaries having gone through.  They are essential and if they are not complied with then the courts send the parties away until it is complied with.

GUMMOW J:   Yes, but rule 444 does not require that this letter specify the particular provision relied upon.  It just requires an indication of the relief sought.

MR MULHOLLAND:   Yes.  In our experience, your Honours, they uniformly do refer to the rules under which the application is brought.

GUMMOW J:   We are to assume that was so in this case, are we?

MR MULHOLLAND:   I have indicated to your Honours that that is what occurs but, as I say, in every case in my experience, your Honour, that is what happens.  The rule is set out.

GLEESON CJ:   Well, that all supports Justice Jerrard’s account of what the primary judge was doing in this case.

MR MULHOLLAND:   Yes, your Honour.  Those are our submissions, your Honour.

GLEESON CJ:   Thank you, Mr Mulholland.  Yes, Mr Reynolds.

KIRBY J:   Just before you start, Mr Reynolds.  When we were in the Court of Appeal, the Chief Justice and I were in a case – and I think the ABC was the defendant – in which the issue of imputations was discussed.  Do you remember that case?

MR REYNOLDS:   Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135.

KIRBY J:   Yes, thank you.

MR REYNOLDS:   That was an imputation that someone was corrupt, I think.

KIRBY J:   Somehow you have to address the issue Mr Mulholland raised that if you are going to plead with such prolixity the imputations – and I am not being particularly critical of you or your predecessors because it is not uncommon – you really have for the proper conduct of defamation trials to have a gateway and there has to be a judge who says, “That is not on; that cannot win; that is useless; that is out; that is repetitious; and we will narrow the issues to this.”  When one looks at your pleading, if ever a pleading called out for that, it was it.

MR REYNOLDS:   Your Honour, I said yesterday that we conceded that the other arguments not dealt with by Justice Helman relating to prolixity and the like can be, we concede, dealt with when the matter, if necessary, goes back to him.  We foreshadow that we would want to amend the pleadings before that occurs.  I said yesterday that it would not be an abuse of process, we concede, for my learned friends to mount that argument which is an argument which has not yet been dealt with and which is an argument which has not been pressed upon your Honours by way of notice of contention.  Of course they are entitled to run arguments of that kind and of course that facility will be made available to them in due course if they wish to take advantage of it.

KIRBY J:   So you say that the error below was not in doing some winnowing but in coming to a conclusion that after the winnowing there was nothing left to put to the jury and in fact hidden away amongst all the dross were three pearls.

MR REYNOLDS:   Well, they are in there and the reasoning of the primary judge was that, leaving aside the liar imputation, each of the other imputations was premised on guilt or reasonable suspicion of guilt and that is how he felt able to strike out all of the imputations.  Now, the argument both in the Court of Appeal and so far before your Honours has dealt exclusively with those three imputations and I propose to press on and deal still with those three without dealing with any further arguments which I submit are not before your Honours. 

The first point that I would like to raise by way of reply is to remind your Honours of certain phrases which my learned friend, Mr Mulholland, used in various forms in his submissions.

GUMMOW J:   Just before you do that, Mr Reynolds.  Do you accept that on this question of capacity you are at issue in the manner the Chief Justice took up with Mr Mulholland?

MR REYNOLDS:   In a word, not quite.  I hope your Honour the Chief Justice does not think me impertinent for raising another, what may seem pedantic, matter of phraseology, but the way ‑ ‑ ‑

GLEESON CJ:   If I do, I am certain to conceal it.

MR REYNOLDS:   I am grateful for that at least.  Your Honour put to my learned friend that the precise question of law was a question of capacity to convey the imputations.  That is almost it.  We say capacity but with whatever overlay arises from the fact that this is a strike‑out, if I can put it that way, or as the House of Lords put it in Morgan v Odhams Press, the issue will be, grasping a test, whether the pleaded words are arguably capable of conveying the imputations.  So there is another overlay of difficulty arising, we submit, from the fact that this is a strike‑out application.

GLEESON CJ:   So Justice Helman had to decide whether it was arguable before him?

MR REYNOLDS:   Arguably capable of conveying ‑ ‑ ‑

GLEESON CJ:   Yes, he was the one who was going to decide the question of law if and when it ever arose.  So what he had to decide was whether he thought that it was arguable that he might decide that this was capable of carrying the meaning.

MR REYNOLDS:   Well, not necessarily him but some judge at the trial – and I underline this point – with the article before him.

GLEESON CJ:   Yes.  He was to be the trial judge we can assume, can we not?

MR REYNOLDS:   I do not think so, your Honour.

GLEESON CJ:   I see.

MR REYNOLDS:   But I submit it is not a matter of mere pedantry, just as it is not a matter of mere pedantry to talk about whether an imputation arises as opposed to whether it is capable of arising.  Further still, whether it is arguably capable of arising rather than capable of arising.  That is a distinction which is drawn in the House of Lords decision referred to in our submissions of Morgan v Odhams Press.

GUMMOW J:   Now, if rule 483 had been observed, how would the question have been formulated?

MR REYNOLDS:   It would have been straight capacity exactly as your Honour the Chief Justice put it to my friend, and that is the Farquhar v Bottom test which is ‑ ‑ ‑

GUMMOW J:   Just do not worry about cases for a minute.  If it had been in terms of 483, how would the question have been framed?

MR REYNOLDS:   The article would have been put in evidence and the question would have been whether the article was capable of conveying the imputations, that is, whether there was evidence to go to the jury on that issue of whether the ‑ ‑ ‑

GUMMOW J:   Yes.  It is put to us that is the basis on which we should now approach the matter because that in substance is what was done, and you do not accept that?

MR REYNOLDS:   We do not accept that at all.  We submit that the record shows very clearly that this was a strike‑out all the way through ‑ ‑ ‑

GUMMOW J:   Do you not accept that formulation because you could not succeed in meeting it?

MR REYNOLDS:   We rely upon that ‑ ‑ ‑

GUMMOW J:   We have to know.  I have been sitting here for some time now and we have been going round and round this procedural maelstrom.

MR REYNOLDS:   We can, I submit, satisfy a straight capacity test, even without any overlay of arguability ‑ ‑ ‑

GUMMOW J:   Well, that is what we need to know.

MR REYNOLDS:   ‑ ‑ ‑ and I have put submissions to your Honours ‑ ‑ ‑

GUMMOW J:   Once you get in this Court, by whatever means, things tend to boil down to substance.  What I want to know is, do you say you can cope with that substance and, if so, how?

MR REYNOLDS:   I submit we can.  I submitted ‑ ‑ ‑

GUMMOW J:   Mr Mulholland has been trying to persuade us you cannot and you seem to be wanting to glide away from it.

MR REYNOLDS:   I submitted, I think, in answer to a question your Honour Justice Heydon put to me yesterday, your Honour said something ‑ ‑ ‑

HEYDON J:   What you say is this:  if it is capacity with a strike‑out overlay, it does not matter what the formula for the overlay is, you still win. 

MR REYNOLDS:   Quite.

HEYDON J:   You say in the alternative, if it is capacity to convey, which in truth was not an issue before the courts below but assuming this Court is against you on that, you still win on that because of the arguments you advanced in the early part of your submissions yesterday afternoon.

MR REYNOLDS:   Quite.  With respect, I cannot improve upon the way your Honour has summarised it. 

GUMMOW J:   Well, that was the answer to the Chief Justice without worrying what the House of Lords said in some case or other.

MR REYNOLDS:   I shall move on, your Honours.  My learned friend used a number of phrases in his submissions which I submit were very revealing.  He used the expressions first, “does not arise”; secondly “does not speculate on the cause of the fire”; next “the way the article reads”; next “that the article does not take a certain matter any further”.  Now, all of those formulations have absent from them the word “capacity” or some other similar formulation. 

Now, that difficulty of analysis is also found in the passages my learned friend took your Honours to on pages 42 and 43 of the appeal book in Justice Helman’s judgment, paragraphs [8], [9] and [10].  If we start perhaps with paragraph [10] which deals with the liar imputation, his Honour says:

As I read the article it goes no further than recording . . . and the reference to other neighbours appears to be –

I interpolate “to me”.  If we go to paragraph [9] in the second line:

A fair reading of the article –

I interpolate “in my opinion”.  On the next line:

the article goes no further –

I interpolate “in my opinion”.  Further down towards the bottom:

There is in the article nothing that suggests –

I interpolate “in my opinion”.  At the bottom of the page:

rather suggesting –

I interpolate “in my opinion”.  Paragraph [8], line 4:

There is noting in the article suggesting . . . The overall effect of the article is . . . A fair reading of it shows that it does not go –

These are all the sorts of things that one juror might say to another but they have no test of capacity within them and that is at the root of the difficulty which the defendant has, I submit, in this case. 

Can I say something very briefly about some passages my learned friend took your Honours to in the decision in Monte, Justice Hunt’s decision, and secondly the Drummond‑Jackson Case.  He referred your Honours to those decisions to extract this proposition, that it is a good idea to have strike‑outs in relation to meanings or imputations because there is no other form of procedure available to a defendant to cull bad meanings, if you like, before the trial. 

There is a problem with that so far as the observations of Justice Hunt in Monte in 1979 are concerned and that is that there are hundreds of cases, both in the Court of Appeal and by single judges, stemming from a decision, the name of which presently eludes me but if it is necessary I can find it for your Honours, where the Court of Appeal said that the separate trial procedure, that is the rule for a free procedure, was the appropriate way of dealing with these questions.  What happened in the list in New South Wales is that since 1980 all of these issues have pretty well always been dealt with by way of a separate trial. 

Now, the solution so far as the United Kingdom is concerned is to be found – I will have to refer your Honours to a page of Gatley which your Honours do not have.  This is Gatley on Libel and Slander, 10^th edition, page 892, paragraph 30.3.  The point that is made there in that book is that in the United Kingdom, under the rules:

Until 1991, the court could only be asked to rule whether words were capable of bearing a particular pleaded meaning . . . at the trial of the action. 

So Lord Denning was right at that time, there was not any other way of raising this sort of issue before the trial, but since 1991 there has been.  That brings the procedure in the United Kingdom in line with the rule 483 procedure that applies here in Queensland.

GLEESON CJ:   What do you say about Mr Mulholland’s reliance on Mirror Newspapers v Harrison?

MR REYNOLDS:   Simply this, that if your Honours go to that decision, (1982) 149 CLR 293, the key proposition is to be found at page 300 at about point 8 where Mr Justice Mason said:

that a report which does no more –

they are the important words –

than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence.

GUMMOW J:   It is very unlikely that that is all a newspaper is going to say.

MR REYNOLDS:   Quite, and that is where they get themselves into trouble as the newspaper did in this case ‑ ‑ ‑

McHUGH J:   That is what they did in Harrison really.  There was just a photograph, was there not, and the name, was it not?

MR REYNOLDS:   This was one of your Honour’s great victories, I do not want to be seeking to undermine it, but ‑ ‑ ‑

GLEESON CJ:   You will find the facts at 149 CLR 293 at 294.

MR REYNOLDS:   Part of the problem with this case – and this is the other thing that I want to say about it – is that that selection of facts that your Honour points to there is a most inadequate recitation of the facts of the article in this particular case. 

Now, what happened subsequent to this case is there was a case that your Honour Justice Kirby dealt with in the Court of Appeal called Rigby v John Fairfax Group which is an unreported case which your Honours have up there.  That case involved a similar publication where there was additional material in addition to a statement that someone had been arrested and charged and the Court of Appeal in New South Wales found an imputation of guilt was capable of arising.  I am being a little longwinded about this but the point I am trying to make is that there would be some doubt these days on the facts of the decision in Mirror Newspapers v Harrison because when looks at the detail of the article, which is not fully set out there on page 294 but does appear in earlier reports of this case in the New South Wales Law Reports, it is at least arguable, I would submit, that the particular article did in fact go on and say more than that there was a statement of arrest and charge.

HEYDON J:   It is on 296.

GUMMOW J:   It is on 295 and 296, is it not?

MR REYNOLDS:   Just to explain, your Honours, I appeared in Rigby and I know from extracting the article which was put before this Court on a special leave application in Rigby that the article contains a lot more even than is featured there, including a very dramatic photograph of Mr Baldwin’s face after his bashing and the like, so ‑ ‑ ‑

KIRBY J:   Harrison may have been one of Justice McHugh’s triumphs but the fact of the matter is that it really stands on its own, I think, as a policy statement that just reporting that a person has been arrested will not be taken as giving rise to the imputation of suspicion whereas, of course, there are many people out there in the community who take the view police would not arrest anybody if they did not have a good reason for it and they are likely to be convicted and conviction statistics show that 90 per cent of people will get convicted and it is just a policy decision really. 

MR REYNOLDS:   It is also a decision which inevitably must be tied precisely to its own facts.  Justice Glass is quoted on page 6 of the Rigby decision as saying that:

a ruling upon the sufficiency or insufficiency of one publication to raise an imputation can almost never dictate what ruling should be given on another publication as there will always be some textual differences.

So your Honour the Chief Justice in effect raises that as an authority that might be against us.  We point to the words “without more” but, secondly, to the proposition that these cases which fundamentally are decisions on whether there is evidence to go to a jury must necessarily be decisions precisely on their own facts ‑ ‑ ‑

GLEESON CJ:   Yes, Mr Mulholland’s argument, whether it is right or wrong, is that if his client had published an article saying that your clients had been arrested and charged with arson, that would not have been capable of conveying the second of the imputations you rely on. 

MR REYNOLDS:   Without more, again without getting into the precise status of Harrison as an authority, that would probably be right because of this case but ‑ ‑ ‑

McHUGH J:   But if they added a statement, “Police say privately that the accused confessed to the crime”, it is all over red rover, there is a case.

MR REYNOLDS:   Quite, so we get back to a precise analysis of what the additional material is ‑ ‑ ‑

GLEESON CJ:   And what if they added a statement saying, “The police say that they have an open mind on the subject”?   

MR REYNOLDS:   Your Honour, the only reasonable answer to give to that question would be it will all depend on the precise terms of the article and I cannot define exhaustively the phrase “without more”.  It will all depend what else is said.  It all comes back to a question of sufficiency of evidence, about whether the material is capable of suggesting the further imputations.

Your Honours, the only other two matters I propose to raise are the question of rule 293 and its status on the original application.  If your Honours go to the appeal book at page 33, your Honours will see order 3 at about line 26 – that the order that is sought there is predicated upon there having been a strike out, it finishes “ordered to be struck out by the Court”.  So the anterior question which is made clear in paragraphs 1 and 2 is whether a strike‑out should occur.  So the only application before Justice Helman for judgment to entered under rule 293 was one which arose after his Honour had determined the issue of whether or not there should be a strike‑out.  As your Honours have seen from page 44, his Honour at page 44, line 25 dismissed the application for judgment under rule 293. 

Now, your Honours, that dismissal has not been the subject of any notice of contention before the Court of Appeal.  The Court of Appeal did not determine the matter under rule 293 and we say in short that this was a strike‑out from beginning to end and rule 293 has nothing to do with the matter.  If your Honours please, those are my submissions.

GLEESON CJ:   Thank you, Mr Reynolds.  We will reserve our decision in this matter and we will adjourn for a couple of minutes to reconstitute.

AT 11.21 AM THE MATTER WAS ADJOURNED