Greek Herald Pty Ltd & Anor v Nikolopuolos & Ors

[2002] HCATrans 532

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S117 of 2002

B e t w e e n -

GREEK HERALD PTY LIMITED

First Applicant

THEODORE SKALKOS

Second Applicant

and

GEORGE NIKOLOPOULOS

First Respondent

JOHN GEORGOPOULOS

Second Respondent

ALEX PETTAS

Third Respondent

TOM HARALAMBIDIS

Fourth Respondent

PETER MITROTHANASIS

Fifth Respondent

BILL KATEGIANNIS

Sixth Respondent

GEORGE TSOKOS

Seventh Respondent

JIM PANAGAKIS

Eighth Respondent

CHRIS GIORGAKOPOULOS

Ninth Respondent

JOHN GOUNAROPOULOS

Tenth Respondent

BILL VENETOULIS

Eleventh Respondent

Application for special leave to appeal

GAUDRON J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2002, AT 10.37 AM

Copyright in the High Court of Australia

MR T. MOLOMBY, SC:   May it please the Court, I appear for the applicant and MS J.M. BAXTER appears with me.  (instructed by Tony Lazaropoulos)

MR C.A. EVATT:   I appear for the respondents with MR J.C. HENNESS, your Honours.  (instructed by Brock Partners)

GAUDRON J:   Yes, Mr Molomby.

MR MOLOMBY:   Your Honours, the point at issue in this appeal is a single simple but, in our submission, important point.  It arises only in relation to the law in New South Wales, because of the peculiarity in that law that the cause of action is the imputation not the matter.  The question is, therefore, fundamental to almost every case of defamation in New South Wales.  The Court would know there are quite a number of such cases.

The existence of the imputation as the cause of action has been the source of much judicial consideration of the necessity for precision in pleading, and there are many well‑known judgments on that question.  Plaintiffs are required to be as precise as they can, given the material provided by the defendant, in specifying within the imputation exactly what it is that is complained of.  In our submission, Justice Young in the Court of Appeal was correct on the point of principle and his reasons for not allowing the appeal despite that were incorrect.  He incorrectly took this to be a pleading point.  It is not a pleading point.

GAUDRON J:   But is it not a little upside down?  Would one not normally think that it was defamatory to call someone a liar and that you would need the context to establish otherwise?  It just seems to me to be a little odd that you can say you cannot look at the context to determine whether to call somebody a liar is defamatory.

MR MOLOMBY:   Well, the context such as it is relevant, your Honour, should be included within the imputation.  It often is – or the distillation of its effects.

GAUDRON J:   That makes it a pleading point.  I think it does, does it not?

MR MOLOMBY:   With respect, your Honour, it is obviously a question that arises because of the way the matter is pleaded.  It is not a pleading point in the sense that it is a dispute about the propriety of the way the matter is pleaded or something which the defendant needs to resolve because of embarrassment caused by inadequacy of pleading.  It is simply a matter that arises more particularly with greater importance, whether as a degree of incompleteness in the way the plaintiff has chosen to plead, but it is a matter of principle that applies to every case. 

It would be an extraordinary consequence, for example, if in a comment case the imputation said one thing and was agitated in the case as the opinion held by the person saying it to defend it, and then it had a whole lot of other things added into it from the context in relation to its defamatory sting.  What is absolutely central to that very common defence is whether the imputation is what the person believes.  It is quite inconsistent with the whole scheme of the Act for it to be allowed to be added to or qualified in some way because all of the to and fro that goes on with those defences particularly, which go directly to the imputation – and comment and truth certainly do – all of that particularity is diffused, muddied and, indeed, one wonders why such concern has been taken to arrive at the particularity if other factors can be added into, looking at the defamatory effect impact of the imputation and, indeed, whether it is defamatory in the first place.

The commonsense reaction, if I call it that, which your Honour has remarked on, of is not lying ordinarily defamatory, comes from the fact that in common experience an accusation of lying comes out of a context which makes sense of it.  When someone says to someone else, “You’re a liar”, it is in the context in which ‑ ‑ ‑

GAUDRON J:   You are telling – you are saying something which you know to be false.

MR MOLOMBY:   Quite so, your Honour, but it is almost invariably made in a context in which every one of the participants knows what the person is being accused of stating incorrectly and there is often a lot about the context which provides a motive and, indeed, which suggests a likely result of the lie.  If someone shouts to a politician at a public meeting, who is making an election promise, “You are a liar”, it is suggesting the person has no honest intention of trying to fulfil the promise or that some factual foundational thing that is being said is false to the knowledge of the person.  The mere statement that someone is lying is capable of being regarded as morally neutral ‑ ‑ ‑

GAUDRON J:   I should not have thought so.

MR MOLOMBY:   Well, the submissions make a passing reference to the fact that Erasmus was of that opinion, your Honour.

GAUDRON J:   Well, so be it.

MR MOLOMBY:   He has now been overruled.  It took a long time.

GUMMOW J:   He has got into a lot of trouble, Erasmus.

CALLINAN J:   Truth is beauty, and that is all you need to know.

MR MOLOMBY:   That was a poet, not a lawyer, your Honour ‑ ‑ ‑

CALLINAN J:   There is a lot of philosophy in good poetry, Mr Molomby.

MR MOLOMBY:   I do not dissent from that, your Honour.

GAUDRON J:   There is no doubt in your submission that the jury can look at the context to see whether there is a particular innuendo, or imputation.

MR MOLOMBY:   Absolutely.  It is important that everything you take into account ‑ ‑ ‑

GAUDRON J:   But then, on your submission, it has to close its mind off to what it has read for that purpose to determine whether it is defamatory.

MR MOLOMBY:   Quite so.  That is not an impractical exercise, although it presents difficulties.  Juries in criminal trials are told that they should disregard certain matter, commonly, and quite complicated matter, that they should put it aside for one purpose and use it only for another.

GAUDRON J:   Yes.  It seems to be good reason why one should not introduce that complication into the law of defamation when the jury will have the newspapers in front of them, where in the case of something like, “You’re a liar”, the ordinary person would take that to be defamatory in any event unless there was something in the context which made it otherwise.

MR MOLOMBY:   That is going on ordinary experience, your Honour.

GAUDRON J:   It is often not a bad basis in defamation, is it not?

MR MOLOMBY:   But that is because in ordinary experience the context is usually there.  The other point is that because of the way the legislature has chosen to approach this, that is not the correct way of doing it.  The Court has my submissions.

GAUDRON J:   Thank you, Mr Molomby.  Yes, we need not trouble you in this matter, Mr Evatt.

We are of the view that the proposed appeal in this matter does not enjoy sufficient prospects of success to justify the grant of special leave and, accordingly, special leave is refused with costs.

AT 10.46 AM THE MATTER WAS CONCLUDED