Griffith v Australian Broadcasting Corporation & Anor [2011] HCATrans 98

[2011] HCATrans 98

[2011] HCATrans 098

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S255 of 2010

B e t w e e n -

JEREMY NORMAN GRIFFITH

Applicant

and

AUSTRALIAN BROADCASTING CORPORATION

First Respondent

DAVID MILLIKAN

Second Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 APRIL 2011, AT 11.56 AM

Copyright in the High Court of Australia

MR K.P. SMARK, SC:   May it please the Court, I appear with MS S. CHRYSANTHOU, for the applicant.  (instructed by Hazan Hollander)

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MS E. RAPER, for the respondents.  (instructed by ABC Legal Services)

FRENCH CJ:   Yes, Mr Smark.

MR SMARK:   May it please the Court, so far as the application is made in relation to comment, the primary error in the judgment of the Court of Appeal is to be found at application book 453, and it appears in particular, the section from paragraphs 135 to 138.  Paragraph 135 raises the issue in this form:

whether an imputation which consists partly of comment and partly of assertion of fact can be defended as comment –

The erroneous answer is given at paragraph 138 at the bottom of the page, namely:

the defence of comment applies to so much of an imputation as is comment –

so the Court of Appeal held - and the balance of the imputation may be defended otherwise, including “as truth”.  That erroneous answer is then applied at paragraph 142 on the next page of the application book, where ‑ ‑ ‑

GUMMOW J:   What about 140, “whichever of these views is adopted.”

MR SMARK:   Yes, but what his Honour was doing, and the Court of Appeal was doing, was in the first instance engaging in the required exercise of characterisation, and in that exercise, it emerged that a material part of the imputation – the defamatory imputation, of course – and therefore the cause of action was an assertion of fact, that is to say, the question of the standard of the work.  That primary characterisation having occurred, what his Honour Justice Hodgson then does at paragraph 139, leading to paragraph 140, is in a sense to take a second attempt at the characterisation question.  We say first, his reasons disclose that in fact the characterisation is one that it is partly fact and partly comment and a moment’s reflection on the imputation, we would say, would show that to be well‑founded.  Really, we would say in a sense, what is set out in 139 can be at most a matter of, in a sense, contention.

It is not the reasoning of the court, although it is expressed in that way, because having engaged in the characterisation – and correctly, we say – it was not open for his Honour to then re‑characterise the imputation, and indeed one can see from paragraph 142 that his Honour ultimately did clarify by saying:

Accordingly, in my opinion the imputation is comment, except to the extent that it asserts lack of support –

That was the final characterisation.  Paragraph 140, in that context, should be seen really as almost in the nature of an excursus.  It is not what Justice Hodgson was doing, and the nature of the imputation, we say with respect, did not permit him to engage in that alternative exercise.  That was the error the trial judge fell into, as Justice Hodgson found, so that is why we say that is the error.

That error is one which, at paragraph 143, was found to apply equally to each jurisdiction, including to the common law, and I might interpose – for it bears on special leave matters – that under the Uniform Act, now in force throughout the Commonwealth, the common law defence of comment is expressly preserved, as are all the common law defences.  So, a court following the judgment of the Court of Appeal in this case, as would be any court in New South Wales, and any court by comity elsewhere, would be following a ruling that an imputation, still part of the common law, still required to be pleaded in each jurisdiction, may be defended partly by reference to a defence of fact and partly by reference to a defence of comment – a hybrid defence, in short – and that is hitherto unknown in the common law or on the interpretation of this provision, and it applies uniformly.

We say that is the primary error, and if it were even the only error which arose, that would have very significant consequences for the disposition of the matter and that is because if the comment defence fell away, the matter would be relevantly undefended except in those jurisdictions which had in one form or another a defence of statutory qualified privilege, that is to say, in every State except for New South Wales, Queensland and Tasmania – and this was of course a mass broadcast, I mean, hundreds of thousands of people – and therefore, it is a matter of utility in and of itself.

The aspect that seems to have led the court to the error is a reflection upon what is called “the rolled‑up plea”, and it is not necessary for this application to trace that through in detail, but the short point is that there is nothing in the history of the rolled‑up plea which was a part of the law of comment.  It was not ever a hybrid defence.  Nor, is there anything to be found in the statutory language, to which I will now turn, which would warrant a finding of a hybrid defence.

If your Honours have the relevant extract – we sent up an extract with the 1974 Act, or the whole Act, it matters not – a provision upon which the Court of Appeal placed considerable reliance in reaching this surprising conclusion was section 35.  Your Honours have that.  Looking at the language of section 35, one can see immediately that it functions to reduce the scope of the defence in question, not to enlarge it.  Just functionally, the words in the second line:

a defence under this Division as to the comment is not a defence –

Further expansion, to comprehend the whole matter, shows that the effect of the provision is simply to make sure that there is not inadvertently a defence of justification brought in as a side wind.  If anything, section 35 confirms the unavailability under the Act, a fortiori at common law, of this hybrid defence.  We say the matter is a matter of considerable public importance because ‑ ‑ ‑

FRENCH CJ:   This all happened 16 years ago.

MR SMARK:   Yes, it did.

FRENCH CJ:   It is amazing anybody cares.

MR SMARK:   Yes, and yet that may be referable to the extent of the publication and to the status of the publisher.  The Four Corners program was, and is, a flagship program.  In any event, the matters that remain to be considered have led to this particular finding, and but for the intervention of this Court, there may be said to be now a new defence that may henceforth be pleaded in the sense as the Griffith defence, lying somewhere in the hinterland between truth and comment, but not truly one or the other.  That is what we say about the first error, and we say it alone warrants a grant of leave.

The second error also arising in relation to comment appears at application book 456, and this is the conclusion, in paragraph 147 at the top of the page.  The Court of Appeal was dealing with the conclusion of the proposition that a defence of opinion was made out by reference to what various people had said.  The structure of the conclusion is striking.  It is that, relevantly, there was “a comment by Ms Jackson”, that is to say a comment in the program, and that:

represented her opinion that the comments actually made by Dr Millikan represented his opinion, and that the comment expressed by the imputation –

a different thing -

represented the opinion of Dr Millikan.

This is clearly in the context of defeasance because the opinion is the question of the belief, the internal processes of, relevantly, Dr Millikan.  To see how that error was derived, one turns to paragraph 141, two pages before, application book 454, and here one sees that one of what are called, here and below, elements, but aspects, integers of the imputations was an aspect to which Justice Hodgson had referred as, in short, the causation aspect, and one sees that from the words in parentheses in the second and third lines of the paragraph.  He found that that causation element, which of course he had found was a matter of fact, was an element that is not explicitly asserted in the passages relied on by the appellant but rather is implied from a combination of the passages.  To understand that, one then turns back to the passages referred to at appeal book 450 from line 52 on, paragraph 130, if your Honours have that, and the Court of Appeal noted that:

Before the primary judge, the appellant [here the applicant] identified the following passages from the broadcast as giving rise to the imputation –

Your Honours will be struck by the fact that a number of commentators, if one can use that term, are identified – Ms Jackson, who was the compare, Dr Millikan, the second defendant, Mr Macartney‑Snape, the second plaintiff, Dr Millikan again, Professor Flannery, a stranger – and Mr Macartney‑Snape was a stranger in the relevant sense – and Mr Macartney-Snape again, and that runs over to page 452.

The Court of Appeal, neither in paragraph 147 where we identified the error, nor elsewhere ever makes a finding as to who the relevant commentator is, either for the statutory defences or for the common law.  When one reflects that the significant element of the imputation – that is to say, causation, such a poor standard as to cause lack of support, in short – is said to be implied, that is immediately apparent why that would be so because it did not emerge from the comments of any commentator.  The matter is clearest in relation to the statutory defence, but it applies also at common law, we say.

Could I seek to make that good by reference to the terms of the statutory defences?  Your Honours find those in the 1974 Act at sections 32, 33 and 34 as part of Division 7 of the Act.  The structure, which is substantially replicated in the new Act within one section, is to provide for a separate defence for first, the “Comment of defendant”, second, “Comment of servant or agent of defendant”, and third, “Comment of stranger”.  The form of the statute, if one can take for example section 33 – and I am here referring to section 33(1) –

it is a defence as to comment that the comment is the comment of a servant or agent –

What is required is comment – that is to say, expressed and so understood in the matter complained of – “of a servant or agent”, and the same point made for each of the other matters.  The matter is particularly stark in relation to the second defendant, we say.  He is entitled, if he is entitled, to a defence under section 32.  He is a defendant.  It is not suggested that anyone else was his servant or agent, yet there is no finding that he made a comment, put to one side his opinion, defeasance, that he made a comment – that is to say, statements that would be understood by ordinary reasonable viewers as comment – in the matter complained of in terms of the imputation as a whole, that is to say, comprising all its material parts.

Of course they do not have to be laid out in one statement, but it is quite clear from the reasoning of the Court of Appeal that that was not the case, and it really proceeds as though the defence of comment is somehow to be loosely assembled from anything that is in the broadcast by reference to one particular commentator and in some sense, if one judges it from paragraph 147 of the judgment, to be somehow patched up by reference to the internal mental processes of particular commentators.  What is required, we say – and the second error of the Court of Appeal was, in failing to do – to identify with precision and to make a finding constant with the statutory requirement that the comment be a comment of a defendant or a servant or agent.

It is quite clear, we say, that in circumstances where the relevant imputation, the sting at common law, is to be implied from the program as a whole from a range of persons, including strangers, that that task simply cannot be made out.  We say the same applies at common law, because the common law requirement, as reflected in decisions of this Court like Manock, but has always been that what is necessary is that the expression, the comment, in the matter complained of be so understood by the ordinary reasonable reader, and in Manock, this Court pointed out how especially difficult that would be with a television program, in particular where there was an intermingling of fact and comment, and here we have an intermingling of commentators.

I should candidly say that in the way that the application papers are drawn, there is a reference to the question of comment of a stranger.  In fact, Justice Kirby rejected the defence of comment of a stranger, and the defence that seems to have been relevantly upheld is, one would think, a defence of comment of the defendant so far as the second defendant is concerned, Dr Millikan, and it would seem comment of a servant or agent of a defendant, so far as the first defendant is concerned, although that may not matter terribly much.  The vice is the addition of the multiple commentators, both as between the agents of the defendant and to include strangers, and that means there was no relevant finding.

Moving to the matters related to statutory qualified privilege, the primary matter we point to comes second in our appeal papers, and it is the question of the reasonableness of the publication of matter.  If your Honours have access to section 22 of the 1974 Act, now section 30, your Honours will see that the statutory language provides in subsection (1) that the conduct of the publisher in publishing ‑ ‑ ‑

GUMMOW J:   Section 22 has gone, has it not?

MR SMARK:   Yes, it is now section 30 in the new Act, but it is in exactly the same terms, your Honour, with one exception that is not presently material, about malice, and it is now of course in every jurisdiction in Australia.  We could quote from either Act.  When one looks at section 22, one just needs to be aware that subsection (2A) was not present in 1995.  One sees it is in respect of publication of a matter, and it is –

the conduct of the publisher in publishing matter concerning a person is reasonable in the circumstances –

The error in the Court of Appeal’s judgment appears at page 447 in paragraph 120, about point 60 on the page.  It concludes at the bottom of the page:

Accordingly, in my opinion, unreasonableness of the respondents’ conduct in publishing matter in its character of making imputations against Mr Macartney Snape –

the other plaintiff, which was found –

does not constitute relevant unreasonableness so as to defeat a defence under s 22 to the appellant’s claim.

What the Court of Appeal was doing, as had the trial judge, was to quarantine the relevant matters as between the plaintiffs, and that we say was simply to misapply the section.  Those are the reasons in relation to the

primary point, and the second point about the difference between actual and apparent interest is fully set out in the application which your Honours have read.

FRENCH CJ:   Thank you, Mr Smark.  Yes, we will not need to call on you, Mr Walker.

The applicant for special leave brought an action in the Supreme Court of New South Wales claiming damages for defamation arising out of the broadcast by the first respondent of a television program in April in May 1995.  The program was produced by the second respondent.  The applicant’s appeal to the Court of Appeal in New South Wales was dismissed with costs.  The applicant seeks special leave to appeal to this Court on grounds related to the construction and application of statutory defences of qualified privilege and comment, and the common law defence of comment. 

In our opinion, the prospects of success on an appeal are not sufficient to warrant the grant of special leave.  Special leave will be refused with costs.

AT 12.18 PM THE MATTER WAS CONCLUDED