Harbour Radio Pty Limited v Trad

[2012] HCATrans 51

[2012] HCATrans 051

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S318 of 2011

B e t w e e n -

HARBOUR RADIO PTY LIMITED

Appellant

and

KEYSAR TRAD

Respondent

GUMMOW J
HAYNE J
HEYDON J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON MONDAY, 5 MARCH 2012, AT 2.15 PM

(Continued from 3/2/12)

Copyright in the High Court of Australia

MR R.G. McHUGH, SC:   May it please the Court, I appear with my learned friend, MS G.R. RUBAGOTTI, for the appellant.  (instructed by Banki Haddock Fiora)

MR G.O’L. REYNOLDS, SC:   If the Court pleases, I appear for the respondent with my learned friend, MR R.K.M. RASMUSSEN.  (instructed by Turner Freeman Lawyers)

GUMMOW J:   Before we hear from you, Mr McHugh, it seems to us, Mr Reynolds, that you do have a reply to the last word, I suppose one might describe it, on malice and truth. 

MR REYNOLDS:   Thank you, your Honour.

GUMMOW J:   Yes, Mr McHugh.

MR McHUGH:   Your Honours, in that connection, has the Court received copies of my friend’s outline of submissions?

GUMMOW J:   No, no permission has been given to file it, so I do not receive it.

MR McHUGH:   The communication that came back from the Registry was that it would be handed up on the morning, I think, or the day or the afternoon.

GUMMOW J:   No, leave would be sought to hand it up.

MR McHUGH:   May it please the Court, I misunderstood that.

GUMMOW J:   Let us get on, Mr McHugh.

MR McHUGH:   Yes.  Your Honours, there are broadly two areas that I need to deal with, coming out of my friend’s oral submissions.  The first concerns what I will call the self‑defence theory of qualified privilege and Norton v Hoare and whether that is good in light of the later authorities, and a number of consequential matters coming out of that which all have to do with what my friend put forward as the elements of the defence, which in my submission are not elements if you reject Norton v Hoare and then separately the other large issue is malice that I need to deal with. 

Your Honours will recall on the last occasion, I was just getting going on malice and my friend stood up and said no, no, it is a completely different case from the one which you understood.  It is to that issue that I will need to come a bit later.  Might I take your Honours into the written submissions that were filed two weeks ago, and the very first proposition is one that was touched upon in argument on the last occasion ‑ ‑ ‑

GUMMOW J:   Now, where are we going on this malice argument?

MR McHUGH:   I am not dealing with malice yet.

GUMMOW J:   What are you dealing with?

MR McHUGH:   I am dealing with Norton v Hoare, and paragraph 2 of the written submissions and the basic proposition that there is a fundamental conceptual problem with the analogy and that is that self‑defence in what was described on the last occasion in relation to the physical torts has no analogous concept to malice.  In my submission, the whole analogy just fails at the threshold because it cannot fit with the structure that one is dealing with in qualified privilege.  To show that Norton v Hoare does not represent the law I need to take your Honours through a number of cases, including in this Court, to show ‑ ‑ ‑

GUMMOW J:   Now, what will these cases show?

MR McHUGH:   They will show that in relation to response to attack it is the duty and interest theory which has prevailed.  That is the point of the cases that are referred to in paragraph 4 of the submission.

GUMMOW J   Yes, Mr McHugh.

MR McHUGH:   Your Honours, the first of them is Adam v Ward [1917] AC ‑ ‑ ‑

GUMMOW J:   Yes, we have read Adam v Ward many times in our lives.  Now, what do you want to get out of Adam v Ward?

MR McHUGH:   I want to get out of it the proposition that it is clearly the duty and interest theory which underpins that case and no theory of self‑defence in the way in which my friend advanced the case on the last occasion.  Perhaps if I do it in this fashion.  Without taking your Honours to every one of them I will go off the references in paragraph 4 and tell your Honours ‑ ‑ ‑

GUMMOW J:   We have them set out in your paragraph 4 ‑ ‑ ‑

MR McHUGH:   ‑ ‑ ‑ the way in which it is structured.

GUMMOW J:   ‑ ‑ ‑ of your document filed on 21 February.

MR McHUGH:   That is so, your Honour.  It is very clear, for example, from what was said by Justice Starke in Loveday, in express terms, that it is the duty and interest theory.  That obtains to underpin this area, even where what one is dealing with is the very large area of a publication made to the public at large, rather than the ordinary situation with qualified privilege where it does not normally obtain in relation to a mass media publication and one made to the public generally.

When your Honours come into Penton v Calwell, and I will not take your Honours to the reference if it is unnecessary, but at page 243 in the decision of the Chief Justice and Justice Williams, their Honours very clearly refer both to Norton v Hoare and to Adam v Ward and, indeed, to Loveday as supporting the rationale for the privilege.  Your Honours will find that at page 243 of the judgment.

GUMMOW J:   Is not a critical passage in Sir Owen Dixon’s reasons in Mowlds v Fergusson?

MR McHUGH:   I am sorry, your Honour?

GUMMOW J:   Is not the critical passage in the judgment of Sir Owen Dixon in Mowlds v Fergusson?

MR McHUGH:   It is a significant passage, yes.  It is one I was going to come to.

GUMMOW J:   Well, at the moment, unless someone persuades me to the contrary, I would have thought that is good enough.

MR McHUGH:   In my favour?

GUMMOW J:   Well, yes.

MR McHUGH:   Well, then, your Honour, I will not delay on it, but what I might do then, in light of ‑ ‑ ‑

GUMMOW J:   I am speaking for myself.

MR McHUGH:   Yes.  Perhaps if I can do it in this way because I have seen ‑ ‑ ‑

GUMMOW J:   Sir Owen Dixon says the theory fits but it has to be stretched a bit.

MR McHUGH:   Yes, and that is the position taken in this Court, including by your Honour, and including by Justice Hayne in decisions that I am going to come to.

GUMMOW J: The relevant passage is in 64 CLR 214 to 215, and he refers to Adam v Ward.

MR McHUGH:   Yes.  In light of what your Honour has put to me, I do not need to go to that later then.  The point about Penton v Calwell is that it is the last hurrah, it seems, of Norton v Hoare.  The decision that I have been referring to at page 243 clearly describes this whole area of defence as one which is supported by Adam v Ward as well as Norton v Hoare, and it becomes a significant point because I apprehend that one of the things my friend is going to want to say at some point is that I need ‑ ‑ ‑

HEYDON J:   He cannot say anything, can he, in reply to an address in reply and you are delivering an address in reply under qualified privilege?

MR McHUGH:   Your Honour is right.  What your Honour the presiding judge indicated was that my friend would be heard on truth and malice only.

GUMMOW J:   Yes, unless he wants to make an application to extend it, in which event we will deal with it.

MR McHUGH:   May it please the Court.

GUMMOW J:   At the moment we want to get on with it.

MR McHUGH:   Your Honour, I will not say anything further then.  The point is simply that Norton v Hoare seems to be absorbed into the duty and interest reasoning from this point forward.  When one stops to think about it, Norton v Hoare is a case that my friend advances on the basis that it is an attack on a media defendant and he says that is the law dealing with an attack on a media defendant.  Penton v Calwell is, for all intents and purposes, exactly the same kind of case.  There is an attack upon the media defendant, the editor of the newspaper writes an article published in the newspaper defending that newspaper and ultimately the law is as set out here and, I submit, on an Adam v Ward basis.

Now, if I can take your Honours to what was said in Roberts v Bass 212 CLR 1 in the decision of Justice Gaudron, Justice McHugh and your Honour Justice Gummow at page 27 of the report. At paragraph 67 in that joint judgment, about halfway down the paragraph:

Under the common law as previously understood, the law of qualified privilege did not generally recognise an interest or duty to publish defamatory matter to the general public.

Then the footnote at (87):

It might do so in exceptional circumstances:  Adam v Ward . . . Loveday –

Then further on, in your Honour Justice Hayne’s decision on page 74, at the foot of page 74 at paragraph 215:

Before Lange, apart from a few exceptional cases –

again we see Adam v Ward and Loveday –

the common law categories –

were limited.  Then across the page or over the page at 75 at the very end of paragraph 216:

The breadth of the audience to whom such speeches were made was seen as denying the existence of that community of interest and reciprocity of duty and interest which lay at the heart of the then understanding of qualified privilege.

Again your Honour has given the reference to Loveday, and including that passage of Justice Starke at 515.  In my submission, it is very clear from this that the appropriate way to conceptualise this area is duty and interest rather than the self‑defence theory.  I will give only the reference in Bashford that your Honours have at the end of paragraph 4.  I do not need to take your Honours to it, but there is a very extensive discussion – in fact, I should have drawn your Honours’ attention to Stephens, which is in the middle of that series.  There is a very extensive discussion in Justice McHugh’s judgment at 261 to 262 of this issue and again comes back in Bashford. 

Now, I do not need to take your Honours to it now your Honours have the references, but my proposition arising out of all that is that the theory that has absolutely held sway in this area, at least since Adam v Ward, is one of duty and interest.  That brings me back then to the fifth paragraph in these submissions which is, my friend relies very heavily on the theory in Norton v Hoare, and I should probably take your Honours to that, which is 17 CLR 318. In the Acting Chief Justice’s decision at about point 4 on the page – this is the passage that my friend relied on so heavily:

But neither is the protection which the law allows to the honest repulse by defamatory matter, believed to be true, of a public attack on a defendant’s character.  That, I think, stands on the same ground as the reasonably necessary return of physical blows in self‑defence against aggression, and the degree of protection given is limited in a closely analogous way.  But property also may be reasonably defended against forcible attack, nor is the response in either case confined within the narrowest limits of necessity.

But the next sentence is the key one –

In this view the matter rests upon as sound a ground as the right of a defendant to repel by counter‑publication a libellous attack upon his own character.  In such cases there is no question of community of interest, or of corresponding interest, as in other cases of privilege.

GUMMOW J:   But the last sentence in that paragraph it is important, is it not?

MR McHUGH:   It is wrong.  It is important that it is wrong. 

GUMMOW J:   No.

MR McHUGH:   In the paragraph:

But in such cases the defendant must see to it that his retort, if vigorous, is fair; that is, that it does not go beyond the occasion.

Well, yes, it is important and there is always going to be –

GUMMOW J:   There seems to me to be a battleground between the two of you.

MR McHUGH:   Yes, but as to the underpinning theory, it is that sentence in the middle that causes the problem because my friend then says everything that he submitted about all of the elements that I had to make out he said followed from this self‑defence analogy, therefore, I had the onus of proving honesty, I had the onus of proving reasonableness and so on.  As I said on the last occasion, the big issue in this case is about onus and, really, if my friend cannot hold onto the self‑defence theory in Norton v Hoare, then all those propositions of his fall away.

That takes me to the propositions in paragraph 7 of the response about onus of proof.  Your Honours have all the references in paragraph 7 which show very, very clearly and emphatically that honesty, including by the use of the language of bona fides, is an issue not for me but for my friend.  In cases like Jenoure v Delmege, picking up what was said by Lord Justice Cotton in Clark v Molyneaux – I do not need to take your Honours to it, but very clearly used the language of bona fides and make clear that that is an issue for the plaintiff to establish, not the defendant.

Of course, that is then picked up in later decisions – not only Adam v Ward but Loveday and Penton as well.  Once that falls away from my friend’s argument then, as we will see in a minute, he has the problem that he has in malice.  Now, I should point out something about Koenig v Ritchie in paragraph 8.  That is the decision that is referred to by Justice Dixon at first instance in Penton.  My friend seized on that because it has reference to the language of bona fides. 

The only point I wanted to make about that is that Koenig v Ritchie ‑ when your Honours go to it you will find is a case about the jury direction on malice.  It was not a case about the issue that the defendant bore the onus on.  It was a case about malice and the language of bona fides only came up in that context.  The other authorities my friend referred to that your Honours see in paragraph 8 just do not support him at all on the question of onus. 

GUMMOW J:   What is your Suttor v Gundowda point in paragraph 9?

MR McHUGH:   It is this, that my friend is really asking for a change of the law and if that were the case and I carry the onus on this issue of honesty, well then I would have had to approach the question very differently about whom I chose to call as a witness.  But what happened in this case was that I did not call Mr Morrison, I did not call Mr Glasscock, because I did not need to because my friend carried the onus on the issue of malice.  I won below at first instance.  I won in the Court of Appeal on that basis. 

Now, if the law were different and I had the onus of affirmatively establishing an honest belief in what was said, that would put me in a very different position about what I would have to do about calling witnesses.  That is why I said on the last occasion that this case is ultimately one where we are fighting over onus.  That issue comes up again and again through all the elements that my friend puts forward that he says I had to establish of reasonableness and so on.  If I am right about the underpinning theory and I did not carry the onus on that, well then I was fully justified in not calling the witnesses whom I did not call.

Now, I do not need to say more than what is in the written submissions about what your Honours see at paragraphs 10, 11 and 12.  None of those are matters that I had to establish separately.  When I come to relevance, which was an issue that your Honour Justice Gummow raised on the last occasion, the decision of Lord Justice Hirst in Watts v Times Newspapers, that is very helpful to me on the test of relevance ‑ ‑ ‑

GUMMOW J:   Rather loosely expressed, is it not?

MR McHUGH:   It is but it is very consistent with objective connection.  It is entirely consistent with objective connection.  If I take your Honours to that, it is page ‑ ‑ ‑

GUMMOW J:   Page 671?

MR McHUGH:   Yes, it is 671, [1997] QB at page 671.  The Mr Watts who is referred to at the paragraph just after the B on the page was someone who was innocently published.  It was a photograph of him mistakenly published.  It was supposed to be of a different Mr Watts and the whole case arose out of an apology that was made to this wrong Mr Watts and the reference your Honours see there to “therefore S. & L.”, they were the solicitors who had acted to draft the apology on behalf of Mr Watts. 

The point here was a simple one, that he was the victim of the attack and he fell squarely within Adam v Ward, and your Honours see the language used:

so long as he did not overstep the bounds and include entirely irrelevant and extraneous material . . . clearly fell within these bounds since they were not unconnected with the theme.

At the end of that paragraph, your Honours see the reference to Toogood v Spyring:

I am satisfied that so far as they were concerned the insertion of those words were fairly warranted by the exigency of the occasion.

My submission is that what Lord Justice Hirst is saying effectively is that so long as one meets this test of objective connection, one satisfies the overall concept that stands behind Toogood v Spyring.  The point in paragraph 14 is not a particularly subtle one, but it can be a significant one ‑ ‑ ‑

GUMMOW J:   Paragraph?

MR McHUGH:   Paragraph 14 of the submissions, which is that what one has a privilege to publish is words rather than imputations, and it is important for the purposes of determining the question of relevance to have regard to the actual words that were spoken rather than taking the imputation out of its context.  My friend relied on what your Honour Justice Gummow said in Bashford in that regard, and this is directed to your Honour’s judgment and to what your Honour must be understood as having laid down.  There is a point in paragraph 15 that assumes some significance in my friend’s argument.  If your Honours are at Bashford, the point at paragraph 132 – it is the portion at the end of the paragraph dealing with Bellino:

Where a potentially privileged communication consists partly of matters relevant to the privilege and partly of matters that are not relevant, qualified privilege only attaches to that part which is relevant to the occasion.

The submission is simply that when one sees the word “matters” there, it must be a reference to the words that are spoken rather than an imputation that the plaintiff has been able to draw out of it.  That was going to bring me to paragraph 15.

GUMMOW J:   Just before you leave that, what is the significance of the Court of Appeal’s view about imputation (a), that:

The Plaintiff stirred up hatred against a 2GB reporter which caused him to have concerns about his own personal safety –

the outcome of the Court of Appeal in dealing with (a).  The reason I ask is, does not a lot of what follows hang off (a), to some degree?

MR McHUGH:   In the broadcast?

GUMMOW J:   Yes.

MR McHUGH:   Well, in my submission, no.  In my submission, there are a number of things that are said afterwards – we are dealing with this question of relevance – a number of things that are said by Mr Morrison after that that deal with Mr Trad, with the credibility of his attack, with the motive for his attack, which are quite separate from that.  Of course, in putting that submission your Honours understand that I take a very different view from the Court of Appeal and put a different submission as to the relevance of imputation (a).  One way or the other, it is that one has to view the passage in its context rather than take the imputation out of context.

The point in paragraph 15 of the submissions is directed to an argument that my friend made that the jury may be asked questions other than the question about malice because I had made a submission that essentially that whenever these cases are talking about an issue for the jury they are concerned with the question of malice, and my friend pointed out, I should say quite fairly, that the jury may also be asked to answer a primary question of fact, for example, what was published or who was the publisher and so on, and that those then become integers in the decision made by the judge about qualified privilege. 

It is very clear that the question of relevance and the question of occasion are questions for the judge, and I have given your Honours the reference in Adam v Ward to that, and so that part of my friend’s argument, I submit, falls away.  Now, I do not need to take your Honours back through what is in 16 to 20, I have addressed all of that.

KIEFEL J:   Can I just clarify something about imputation (a)?  I did not think that you sought to justify it during ‑ ‑ ‑

MR McHUGH:   No, I did not.

KIEFEL J:   I am just misreading 17 then.  What is the purpose of paragraph 17?

MR McHUGH:   This was in connection with the question of relevance.

KIEFEL J:   I see.

MR McHUGH:   My friend’s submission – your Honours see at paragraph 16, what my friend tried to do was characterise all of my arguments about the imputations as being about hypocrisy, and the proposition is simply, no, they were not just about hypocrisy.  It was a broader argument that all of these ultimately went to undermine either the attack made by Trad in the particular case saying this was his motive for the attack, or more generally to undermine his credibility to say that he is disgraceful or whatever it may have been, and this was simply to give an example of the different ways in which the arguments were advanced to say that it is not just hypocrisy. 

Your Honour is quite right.  I did not endeavour to justify imputation (a), the difficulty, of course, being if I did not call the journalist, well, I had to accept I could not prove his state of mind, which comes back to the issue we were discussing earlier.

KIEFEL J:   The notion of relevance upon which you rely goes beyond mere defence of one’s position, or a refutation of what has been said or a denial.  It allows effectively – you should not use inflammatory words like “counterattack”, but it challenges the credibility and the motives of the original attacker.

MR McHUGH:   That is so, and Justice Hayne on the last occasion endeavoured to confine me to three possible ways in which something could be relevant, and I have thought about it since then and I cannot add to what I said, and those things were it has to be something that is connected to the subject matter in some way, that goes to the credibility of the attacker in a general sense or that goes to the credibility of the attack in a particular sense.

KIEFEL J:   Yes.

MR McHUGH:   So, for example, if one said this man was convicted of some offence of dishonesty that would be a general attack on credibility and would be fully within the scope of what one is entitled to say by way of a response, although it may ‑ ‑ ‑

KIEFEL J:   Not necessarily if it was a long way away from the subject matter.

MR McHUGH:   Well, no, if he was convicted of an offence of dishonesty and the point was – and he is not someone you can believe, he is dishonest and it is an attack on his general credibility.

KIEFEL J:   I see, but it would not be the same if you said he was a paedophile?

MR McHUGH:   No, exactly, and that was my example last time, it would not be the same if you said that, it would not have anything to do with his credibility and there are many other things that one could say.  Paedophile is just a particularly acute example where it is often in a box of its own.  But I cannot improve on what your Honour put to me on the last occasion, summarising my argument.  So those are the three strands, but as I said to your Honour on the last occasion, understood generally and giving due weight to what the authorities say about the latitude that is to be given in a response, those are the three ways in which something has to be relevant. 

An example is imputation (a).  That is an example of Mr Morrison explaining what the attack is.  He perceived it to have been an attack upon Mr Glasscock and so at some length he tells his audience what it is that he is about to respond to, and that, I submit, is squarely relevant because it is dealing with the subject matter of the attack.  Now, it may be he got it wrong in some particulars, but that is not a problem unless it arrives at the malice stage of the inquiry. 

Now, before I get on to malice I did just want to come back to something that your Honour Justice Gummow asked me on the last occasion which I promised to check, which was in Gatley.  Your Honour asked whether Penton v Calwell was discussed in Gatley and the answer is it is discussed in – if your Honours have the reference to it I can take your Honours to it now – in the 11th edition, which is the one we were referring to, at page 486 in paragraph 14.48.  Your Honours will see “Reply to attack”.  The sentence after the quotation:

Mere retaliation, which cannot be described as an answer or explanation, is not protected –

That is the first of the sentences that the Court of Appeal takes up in paragraph 111 of the judgment and your Honours see, though, if your Honours come down to footnote 310, there is a reference to Penton v Calwell.  Footnote 310 is the footnote immediately before the quotation:

provided they are published bona fide and are fairly relevant to the accusations made.

So the authors of Gatley were aware of Penton, but they do not seem to have taken it into account in making the statement that led to the footnote 314.  When your Honours then turn through to page 503 and to paragraph 14.64 “Answers to attacks”, the second sentence of that paragraph reads:

The privilege “extends only so far as to enable him to repel the charges brought against him-not to bring fresh accusations against his adversary.”

Which was the thing I complained about, the suggestion that one cannot make a counter‑attack.  Your Honours, in that section we have not been able to find a reference to Penton.  Of course, your Honours see at the very next page 504 deals with this question of “Counter‑attack on credibility” and again says:

Mere retaliation, which cannot be described as an answer or explanation, is not protected –

But it then contemplates that one can attack on credibility.  That was the question that your Honour Justice Gummow asked me.  Might I now turn to the question about malice?  I will need to take your Honours first of all into volume 1 of the appeal book.  At page 28, your Honours will find the reply that was filed, and at the foot of the page on page 28 just after line 40, there is a paragraph numbered 2:

Further in reply to the defence of qualified privilege the Plaintiff says the Defendant was actuated by express malice –

and the particulars are –

(a)Wrongful failure to make proper enquiries before publication . . . 

(b)False and/or misleading particulars of truth and contextual truth –

and paragraph 3 is then concerned with comment.  There is nothing particularised about Mr Morrison’s state of mind and there is nothing particularised there about Mr Glasscock’s state of mind.  Your Honours should have though a letter which was attached to the submissions filed two weeks ago, dated 15 May 2009, addressed from Turner Freeman.

GUMMOW J:   Yes.

MR McHUGH:   15 May was three days before the trial commenced on 18 May.

GUMMOW J:   Yes, we see the letter.  What then happened?

MR McHUGH:   I am coming to what happened.  Your Honours see the particulars are put in terms of:

“The Defendant by itself, its servant and agent Jason Morrison spoke and published of and concerning the Plaintiff the words . . . which said words the Defendant, its servant and agent Jason Morrison either knew to be false or were spoken with reckless indifference to their truth or falsity.”

So the cases particularised as the case began was one entirely about Mr Morrison’s state of mind.  What I need to do next is take your Honours to way in which the statement of claim had been pleaded.  That brings me back to page 3, and numbered paragraph 2 in the statement of claim is that:

the Defendant published on the Jason Morrison programme . . . certain words –

If your Honours turn over to page 4 in the appeal book, there are some particulars of publication that are given, and again, it is that:

The Defendant published and broadcast the material complained of –

Now, the consequence of that is that in order to defeat a defence pleaded on behalf of the defendant of qualified privilege, it was necessary to show that the relevant person in the defendant who did the act which gave rise to the liability was actuated by malice.  The relevant person here was Mr Morrison.  He was the one who spoke the words.  Mr Glasscock was not on air.  He had had some communication the day before with Mr Morrison, but the relevant servant or agent was Mr Morrison, and so it is hardly surprising that the particulars that I have just shown your Honours in the letter came in the form in which they did. 

That meant that although Mr Glasscock’s state of mind might well be relevant factually as a step along the path to get to Mr Morrison’s state of mind, Mr Glasscock’s state of mind was not independently relevant as to malice.  The reason I said that the first thing I just said then was if it could be shown – and there was a strong effort to try to do this at the trial – that Mr Glasscock had lied, it was possible that one could infer something about Mr Morrison.

Indeed, there was a lengthy debate between the trial judge and me on this question about whether it had to be either Mr Glasscock was wrong or Mr Morrison was wrong and which one of them knew that it was false.  That was absolutely an available debate on the particulars that were given, all directed to Mr Morrison’s state of mind.  There almost had to be a debate about Mr Glasscock’s state of mind, and my friend no doubt will say something about this in reply.  He wants to take advantage of this to say it was always an issue, but it was not an issue ‑ ‑ ‑

GUMMOW J:   The issue on the pleading appears from the reply, does it not, at page 28?

MR McHUGH:   Yes.

GUMMOW J:   Your opponent responded to the defence of qualified privilege by saying there was an actuation by express malice.

MR McHUGH:   That was then limited by the particulars.

GUMMOW J:   Well, I am not worried about the particulars at the moment, I am only worried about the pleading.

MR McHUGH:   Yes, there had to be, and your Honour is quite right, so on the pleading there had to be malice by the person whose act gave rise to the liability, and the only person that that could be was Mr Morrison.  There was no suggestion that this was a case where Mr Glasscock was somehow involved in the publication in a way that would have made him personally liable and that 2GB was vicariously liable for him; that was not the case that was put at all, the case was simply 2GB published something.  When one looks at every aspect of the case, and indeed all of the evidence, the person who publishes it is Mr Morrison, so it has to be a debate about Mr Morrison’s state of mind.

Now, what my friend has tried to do in his notice of contention and in his cross‑appeal is somehow to make Mr Glasscock’s state of mind relevant directly to the question of malice.  That is, he attempts to say if Mr Glasscock knew that what was published was false then therefore 2GB was actuated by malice, and my submission is legally that just does not work on the statement of claim and the reply, and indeed on the defence that was pleaded by the defendant, 2GB.

What I contemplate in paragraph 23 of the submissions though is even if one imagines for a moment that Mr Glasscock might have been personally liable he would then still be a different defendant from 2GB, which is the pleaded defendant, and at that point it is necessary to analyse the malice of each defendant separately, and for this purpose might I take your Honours to what was said by Justice Brennan in Stephens v West Australian Newspapers 182 CLR? 

Now, I may need to come back a little bit later to explain his Honour’s reasoning, but at the foot of page 254, the very last couple of lines referring to what was said in England in Egger v Viscount Chelmsford Justice Brennan said:

They treated the liability of each defendant as depending on that defendant’s own state of mind, unaffected by the malice of any other defendant.  I respectfully agree with the decision in that case.

If, as between a plaintiff and a defendant, a publication is made –

and so on, that is, to give rise to the defence –

unless malice be proved against him and it is immaterial that another defendant who was party to the publication and who was under a similar duty is found to have acted out of malice.  In other words, each defendant is entitled to his own defence and the malice of one does not defeat the defence of another.

The point is even if my friend was able to advance a case that Mr Glasscock might have been liable as a defendant as a publisher on some basis that he was involved in this, that would not defeat a defence by 2GB because the relevant person so far as 2GB is concerned is Mr Morrison; he is the person who did the act that gives rise to the liability.  Now, my friend relied on Webb v Bloch, a decision of Justice Isaacs and Justice Knox, on this question, and I can take your Honours to it to show how the issue arose; in fact, I probably should.

GUMMOW J: That is in 41 CLR 331.

MR McHUGH:   Yes, I am grateful to your Honour.  If your Honours turn through – Justice Starke was the first instance judge, but his Honour’s findings were adopted in the Full Court.  At page 339 your Honours will see Justice Starke’s recitation of the facts and at about point 4 on the page there is a paragraph that refers in the second sentence to the Melbourne Committee which:

resolved to continue proceedings . . . and for that purpose to appeal to the holders of scrip – both growers and purchasers – for support and further funds.  This led to the issue of the circular containing the following statements –

which were said to be defamatory.  When your Honours come over the page in about the ninth or tenth line at page 340:

This circular was, I gather, prepared by Mr W.A. Norman, who had acted as solicitor both for the South Australian and the Victorian Committees –

So he was the actual author of the circular.  Now, if your Honours then turn through to page 363 in Justice Isaacs’ decision, at about point 2 or 3 on the page:

Norman’s part in the matter is seen by reference to the evidence.  He was employed in general terms to compose “a form of circular . . . He was, therefore, employed to compose the circular “for the purpose of publication” –

So he seems to have been an agent.  Then further down at the very end of that page just before the new paragraph:

On the facts of this case, Norman in law “published” the libel on Webb, even if not he but another had undertaken the actual distribution –

which is what seems to have happened.  The other defendants made the distribution.  So Norman was an agent to write it.  Then when your Honours come over to 364, Justice Isaacs at a number of points on the page makes the point that this therefore made Mr Norman a “principal[s] in the act of publication”.  Your Honours see that at about point 4 on the page and then again further down at about point 8.  Then over the page at 365 at about point 2 on the page there is a sentence that begins:

In relation to Webb, it is Norman who was the “real author,” the master mind, and the defendants, for their own independent objects, no doubt, were the real “intermediate agents” to disseminate the libel.  They cannot employ the master mind for the very purpose, accept its suggestions, approve and disseminate its production, and then disclaim its malice.

Then a little bit further down, about halfway down the page after the reference to Spencer Bower:

an authority for the position that principal and agent inter se are principals in relation to the person defamed . . . “The principal and the agent are one ‑ ‑ ‑

GUMMOW J:   What did Justice Starke say about this?

MR McHUGH:   Justice Starke?

GUMMOW J:   Yes.  A fairly formidable person.

MR McHUGH:   Your Honour, the answer to that, I think ‑ ‑ ‑

GUMMOW J:   I say that because Justice Gavin Duffy seemed to have agreed with him so it is two/two.

MR McHUGH:   Yes.  I was going to say, Justice Gavin Duffy does not seem to have given any reasons at all other than to say he was dissenting and to have agreed with Justice Starke.  Your Honour, at about page 342 halfway down the page:

A somewhat interesting question of law would arise if Norman had been actuated by malice in the preparation and issue of the circular.  No doubt a person is liable for defamatory matter published by his agents . . . In this case Norman’s only authority was to issue the particular circular approved by the defendants:  he had no general or discretionary authority.  Again, it has been held that if malice be proved against the defendant who is the author of the defamatory statement, the defence of privilege is not available for any co‑defendant concerned in the publication –

So there is a question whether it is only on the agency theory or on some broader basis consistently with Smith v Streatfeild, as your Honours see –

In this case I do not regard Norman as the author of the circular but rather as the amanuensis of the defendants.

So his Honour took a different view about Norman’s malice ‑ ‑ ‑

GUMMOW J:   The facts.

MR McHUGH:   On the facts.  Your Honours will see that what Justice Isaacs said about the facts at the very beginning of his Honour’s decision at the foot of 359 was that:

Nothing turns on credibility, on demeanour of witnesses, or any other advantage possessed by the learned trial Judge. 

So that they treated it as a case in which they were as good a judge of the facts as Justice Starke had been.  His Honour, to answer your Honour Justice Gummow’s question, had taken a different view on the facts.  I should just round out the discussion of Justice Isaacs at 366 where, in the paragraph that finishes at about point 4 of the page, two sentences from the end there is a reference again to Smith v Streatfeild, which was a decision that is later very much challenged, as I will come to.  Then if I could bring your Honours back to the Chief Justice at page 359, his Honour dealt with it in a similar but more abbreviated way at about point 2 or 3 on the page:

Accepting this explanation, the evidence in this case shows, in my opinion, malice in the defendant Bloch.  With regard to the defendant Pratt, he is in no better position . . . The other defendants seem to have had no knowledge, and to have made no attempt to ascertain, what statements were contained in the circular, or whether such statements were true or false.  It is unnecessary to consider whether the evidence establishes that they were personally guilty of malice, for they are jointly responsible with the defendants Bloch and Pratt –

So Chief Justice Knox does not seem to have reasoned on the basis of Norman, the author, being malicious.  It is only Justice Isaacs who seems to reason in that fashion.  But your Honours sees at the end of Justice Knox’s judgment again a reference to Smith v Streatfeild.  Now, this case upon which my friend relies, I submit, is authority only in the situation where one is dealing with principal and agent or a vicarious liability theory and that is what Chief Justice Jordan said about it in Dougherty v Chandler which your Honours should find in our list. That is reported in (1946) 46 SR(NSW) 370. If I can take your Honours to page 375 about probably seven or eight lines from the end of 375:

Where several defendants are charged with joint defamation, and express malice is established against one only, it has been said that the express malice of the one is fatal to the success of a plea of privileged occasion or fair comment by all or any: Smith v. Streatfield; Webb v. Bloch . . . This may be true enough where the others are, on general principles, vicariously liable for the acts of the one . . . But, except in this class of case, I think, with all respect, that, as a matter of principle, where, to defeat a plea of several defendants sued jointly, it is necessary for the plaintiff to prove express malice, he must fail as against any defendant to whom he is unable to sheet home express malice.  The statement that express malice of one must, in relation to liability, be regarded as express malice of all appears to depend upon Smith v Streatfield –

and his Honour disagrees with that and his Honour comes down further and refers to the situation where someone is for some reason –

vicariously liable for the conduct of those who did –

The difficulty for my friend that comes out of all of this is that in order for him to be able to rely on any malice of Mr Glasscock, my friend would have to show – and he would have had to plead, and he would have had to put me on notice – that his theory was that 2GB was liable for Mr Glasscock on a vicarious liability theory.  But that was not the case that was pleaded.  The case that was pleaded was 2GB made a publication, and the relevant servant or agent for that purpose was Mr Morrison. 

That is why my submission is that on the pleadings there was just no way that Mr Glasscock’s malice could be relevant, and I should say that the analysis that I have just taken your Honours through with Dougherty v Chandler is also taken up by Justice Brennan in the passage that I took your Honours to before, but I do not need to return to it.

Of course, the case, as I said, was not pleaded on a vicarious liability, but just stopping for a moment and asking what if it had been, there is no evidence of what the relationship was between Glasscock and 2GB, whether he was an independent contractor, whether he was an employee, what the position was.  There is no evidence that Mr Glasscock published the broadcast. 

The furthest extent that the evidence went is that Mr Morrison in the broadcast says he had had some conversation of the day with Mr Glasscock.  He does not say, “Mr Glasscock told me to publish this”, or anything of the kind, and although Mr Glasscock is a reporter, undoubtedly it is not at all clear that he understood that he was going to be saying something to Mr Morrison, which Mr Morrison would then be publishing in this respect.  The whole chain of events that my friend would need, if it were available on the pleadings, just is not satisfied as a matter of evidence.

BELL J:   Accepting it is not available on the pleadings, Mr Reynolds contends that it was sufficiently clearly articulated in submissions at appeal book 303, I think it is, lines 35 and following ‑ ‑ ‑

MR McHUGH:   That is exactly what I am coming to now, because the proposition is that this is not a case that was run off the pleadings, or that was in any sense a Leotta.  If I can take your Honours to page 303, your Honours see at about line 28 at 303, my learned friend, Mr Evatt, said:

It is all nonsense and Mr Glasscock knew it was untrue.

That, of course, was still relevant on the case about Morrison knowing it untrue, because it was a step on the way, and then a little bit further down at about line 35, Mr Evatt said –

No, because 2GB, sorry, Mr Morrison is given these deliberately false statements, knowingly false statements by Mr Glasscock presumably knowing they would be repeated on air, which they were.  So one way or the other the defendant 2GB is liable not only for what is said by Mr Morrison but liable for the proposition that what was said was deliberately false either to the knowledge of Mr Glasscock or Mr Morrison or probably both –

That is what I say is the glancing reference to this because the whole discussion about Mr Morrison’s state of mind – I will come to this in a minute – was bound up with the discussion about Mr Glasscock on the pleadings necessarily, but this is a quite separate point about whether or not the knowledge of Mr Glasscock independently constituted malice.  The way in which I dealt with that your Honours will see from page 334.  There had been quite a lengthy debate about – in fact, I should take your Honours to – 334 is not a bad place to start.  If your Honours go to line 38 on 334:

McHUGH:   In my submission, for your Honour to hold that Mr Glassock is the responsible state of mind, or a part of the responsible state of mind –

This is at line 38.  I am challenging his Honour’s entitlement to do that.  His Honour cut me off:

HIS HONOUR:   He informed the mind of your client relevant to the broadcast.  It must be so.

McHUGH:   Well, he says something, apparently.  He conveys some information to Mr Morrison.  But the relevant state of mind, your Honour, is that of the person who does the act –

that is the act for which they are liable –

because – and this is the crucial point. 

His Honour accepts that that is true and says:

HIS HONOUR:   That is true, but that mind is informed by Mr Glasscock.

McHUGH:   The question is one of motive and purpose.  That’s my – that’s the fundamental proposition.  It’s the motive or purpose of the person who does the publication.

That was the appropriate submission for me to make on the pleadings and it clearly showed that that was the way in which I understood the case.  Now, my friend says, and he is right, I never said Mr Glasscock’s state of mind is outside the pleading in any literal sense, but that is a very different thing from saying that the case was simply allowed to run off the pleadings or that we proceeded on the basis of some common understanding that Mr Glasscock’s state of mind was the relevant state of mind for the purposes of malice, because I very clearly put to his Honour that it was not and that it was Mr Morrison’s.  Then what happens, when your Honours go to 335 and your Honours see the way the issue of Mr Glasscock’s state of mind unfolds.  His Honour says:

HIS HONOUR:   I’m entitled to assume, aren’t I, that Mr Glasscock told Mr Morrison the truth?  Why wouldn’t I assume that?  You have called no evidence otherwise. 

There then follows a debate about Mr Glasscock’s state of mind which is all relevant to the issue of Mr Morrison’s state of mind because his Honour is saying it has to be one or the other.  Then I give his Honour a series of reasons, starting at 335 at about line 22, that have to do with the case directed to Mr Morrison.  When your Honours come over to 337 at the top at about line 15, his Honour says:

HIS HONOUR:   The only inference I can make is that Mr Morrison faithfully put to air what he was told.

So it is all focused on Mr Morrison.  And I responded:

McHUGH:   What he understood he had been told –

Then when your Honours come down to line 42 on that page:

McHUGH:   There is no controversy as to the principle, it is a question of who is the mind responsible for the publication.

So I am saying it is Mr Morrison.  Then when your Honours come through to 339, towards the foot of the page, about line 43, his Honour put to me:

I don’t think I could be persuaded otherwise than that must mean that Mr Glasscock has given Mr Morrison incorrect information.

Of course, that is fine on the pleadings.  Then over the page, again we are dealing with Mr Morrison’s state of mind, following from what his Honour had put to me, and I put at line 20:

So, the proposition is Morrison is the actuating relevant mind and there is no suggestion in this that he was acting on anything other than the information that he had such as he understood it.

So the whole case is run on the basis of the pleading that Morrison is the relevant state of mind.  It is true that Glasscock’s state of mind may be relevant to Morrison’s, but for the purpose of malice it has to be Morrison’s state of mind upon which liability turns.  It cannot be submitted, I submit now, that I permitted the case to run off the pleading in any fashion because I was continually going back to the idea that it was the person whose act gave rise to the liability that was the crucial one.

Now, that in my submission forecloses the idea that this is somehow something that happened that changed the pleaded case.  What my friend is really submitting is that when Mr Evatt made a comment or two in addresses after all the evidence was closed I should somehow have stopped him and said, “Are you trying to amend?  If you are trying to amend or you need to make an application, and if you are making an application I may need to reopen and I may need to call witnesses”.  My submission is that that is not a Leotta situation.

It is quite different from those cases where evidence is admitted that is outside the pleadings and at the end of the case one has to accommodate the pleadings to the way the case was run because all of the evidence about Mr Morrison’s state of mind and Mr Glasscock’s state of mind was tied up together.  So I could not have objected, for example, to the submissions about the videotape and as to what one would infer about Mr Glasscock’s state of mind, but I did not need to call Glasscock because his state of mind was not the ultimate one upon which the liability turned.

Now, that is largely what I wanted to say about that.  I should emphasise this point on the Suttor v Gundowda aspect of it here with my friend wanting to run a case that is off the pleadings.  It would have been very different if either on the question of Norton v Hoare or, indeed, on the question of malice if it was Mr Glasscock’s state of mind upon which liability turned. 

As the case was understood and the way in which the trial judge dealt with it and the way in which the Court of Appeal dealt with it, it was Mr Morrison’s state of mind and I did not need to call Glasscock because the evidence just did not get there for my friend to establish the quite heavy onus on malice in relation to Morrison’s state of mind.  If it had been Glasscock’s state of mind it would have been a different story.

Now, I say all of that on whether or not the case was permitted to run off the pleadings, but I go back to what I was saying earlier that conceptually because it has to be the person whose act was the one that gave rise to the liability, it is very difficult to see how my friend can make – or how his junior, Mr Evatt, could have made a case that it was Mr Glasscock’s state of mind in any event because the publication is one made by Morrison.

Now, that brings me finally to paragraph 27 in the outline and to the argument that my friend makes that the language was sufficient to make out malice.  Now, certainly, your Honours will recall that at many stages in my argument I have said all these questions of excessive language and proportionality come up in the malice stage, and that is undoubtedly so, but what my friend has to establish is a dominant actuating improper purpose for these purposes.  He has to show that rather than being actuated by the purpose for which the privilege is conferred, which is to defend its own interest, the radio station was acting for some other improper motive.  Given the nature of the interest that gives rise to the occasion of qualified privilege one would have to go a very long way to say it was an improper motive or one that was not actuated by a desire to defend the radio station.

The short point is, this is a question upon which the plaintiff always bore the onus of proof and that means that my friend’s submissions about Jones v Dunkel do not get him very far because my client did not carry a legal or evidentiary onus at any point in relation to this and the language is simply not excessive.  If your Honours are concerned about proportionality, I draw your Honours’ attention back to Mr Trad’s attack at the rally upon the radio station which is in very, very strong language indeed.  He called my clients racist criminals.  He blamed them for the Cronulla riots.  It was an international incident that got coverage all around the world and that is laid at the foot of my client and the submission is that there is nothing disproportionate in Mr Morrison’s response.  I do not say in relation to this that this is ‑ ‑ ‑

GUMMOW J:   What do you need on this that goes beyond what the Court of Appeal said at paragraphs 114 to 118 in finding for you on this issue?  We have had too many submissions from both sides as if we were an intermediate Court of Appeal in this case.

MR McHUGH:   Your Honours, I do not think I need much more than that.  I think my friend’s complaint is that there is not a great deal of separate consideration given to the idea of excessive language.  I think that is my friend’s complaint.  My submission really is that, given that those submissions were made below, their Honours should be understood as having taken that into account.  That is all I wanted to say about excessive language, and as to the truth defence ‑ ‑ ‑

GUMMOW J:   On the question of the truth defence and what you say in paragraph 28, could you compare that with what you say in ground 6 of the notice of appeal at 1377?  I am not sure that what is said in ground 6 meshes well with what is said in paragraph 28 at the moment.

MR McHUGH:   This is the issue that was taken up in the other submissions in reply, the primary submissions in reply in this Court.  Ground 6(a), and I am putting aside ground 6(b) which is the not dealing with the evidence at all, ground 6(a) has everything wrapped up together in saying that they erred in holding that, notwithstanding – let me go back a step.

GUMMOW J:   It treats (b), (c), (d) and (g) as ejusdem generis, does it not?

MR McHUGH:   Because that is what the Court of Appeal did and that is why this is not so well worded ‑ ‑ ‑

GUMMOW J:   Have you not departed from that in paragraph 28?

MR McHUGH:   No, I am saying that the Court of Appeal did treat them as ejusdem generis when it should not have.  That is the complaint.  Perhaps if I go back to – the way it was put, your Honour, in the rule 44.08 outline on the last occasion showed the way in which it was divided up.  It is paragraphs 7, 8 and following.  Your Honours see in paragraph 8:

The Court of Appeal held that the trial judge had failed to apply the community values test to the truth of any of the imputations –

even though he had identified it as the correct test.  That was the way in which the Court of Appeal put it and the submissions that your Honours see thereafter at paragraph 9 and paragraph 10 show the different way in which it should have been divided up.  Now, it is true ground 6a does not draw that out, it wraps it all up together, and it is not well worded from that point of view.  But the point has been clear for a long time. 

The volte face of which my friend accused me, your Honours will recall he referred to a Mack truck bearing down on me, he said I tried to jump out of the way of it, that was all clarified or it was intended to be clarified by the submissions in reply.  It was meant to be and, indeed, by the rule 44.08 outline.  But the point is a pretty clear one. 

When your Honours go to the actual reasoning of the primary judge it is very clear – and I took your Honours through this at length and I do not wish to do it again - that his Honour dealt with a number of primary findings of fact on the way through, often in that context referring to the test of community values.  Then at the very end, when his Honour came to make specific findings about the imputations as to their substantial truth, the only one where he really seizes onto this idea of community values was imputation (g) where:

The Plaintiff is a disgraceful individual –

So the reasoning in the Court of Appeal ‑ ‑ ‑

GUMMOW J:   Just assist us by going through (a) to (k) on truth and telling us what your case now is.

MR McHUGH:   Yes.  Would your Honour give me a moment to ‑ ‑ ‑

GUMMOW J:   What do you say about truth and imputation (a)?

MR McHUGH:   Imputation (a) was defended, not on the basis that it was substantially true, but on the basis that I had the defence of contextual truth.  Imputation (b) was in the same category.  If your Honours go down the list – no, I am sorry, I will withdraw that.  Imputation (b) was defended on the basis that it was substantially true, as was (c), as was (d), as was (g).  So (b), (c), (d) and (g) were all defended on the basis that they were substantially true in the sense that the trial judge found that in relation to all of them and the defence of truth is his Honour was right to do so and the Court of Appeal was wrong to interfere with the finding. 

For the reasons that we have given in‑chief that is why the matter would have to go back to them, that they were wrong for interfering with the findings of substantial truth in relation to (b), (c), (d) and (g).  As to (a), (h), (j) and (k), they were all then defended on the basis of contextual truth only.  So (a), (h), (j) and (k) and your Honours will recall that ‑ ‑ ‑

BELL J:   I think it was sought to justify (h) and (j) as well as substantially true, was it not?  It was (a) and (k) that were not.

MR McHUGH:   Well, your Honour, that may be right, but I am not pressing that at this stage.  I am saying that the trial judge was right.  To the extent that that failed at trial I am not trying to revisit it.  The proposition is only that his Honour Justice McClellan was correct in finding (b), (c), (d) and (g) true and that his Honour was also correct in finding that (a), (h), (j) and (k) were defended on the basis of the contextual truth defence. 

GUMMOW J:   The context being what?

MR McHUGH:   The context being that by reason of the fact ‑ ‑ ‑

GUMMOW J:   I mean contextual truth is a slogan derived from some cases, but what is the context here?

MR McHUGH:   The way in which section 16 operates – in fact I have a copy of it here I can read to your Honours‑ ‑ ‑ 

GUMMOW J:   This is in the 1974 Act?

MR McHUGH:   It is, your Honour.  A similar defence now exists nationwide, but in the 1974 Act, what subsection (1) says is that where an imputation is made by a particular publication, then other imputations are said to be contextual to it.  So all of the imputations conveyed are contextual to each other.  Then the defence in subsection (2) is:

(a)the imputation relates to a matter of public interest or is published under qualified privilege -

I got over that public interest hurdle -

(b)one or more imputations contextual to the imputation complained of:

(i)relate to a matter of public interest –

and, again, I got over that hurdle and -

(ii)are matters of substantial truth –

So, the one or more imputations are (b), (c), (d) and (g) and then the substance of the defence is in paragraph (c) ‑ ‑ ‑

GUMMOW J:   Yes, I know.  Go on.

MR McHUGH:

(c)by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff.

Now, it is curiously worded and in a decision of the Court of Appeal called Blake, the view taken ‑ ‑ ‑

GUMMOW J:   What is the citation of Blake?

MR McHUGH:   My friend led me in that case.  Your Honours, I will send through the decision reference this afternoon.  In Blake v John Fairfax, the approach that was taken in the Court of Appeal is that one determines this by reference, in a sense, to the strength of the imputations – the particulars of truth.  So one determines whether or not the imputation complained of does not further injure the reputation of the plaintiff by reference to how strong the particulars of truth are.  Now, that is not easy to marry with the language, but that is the approach that has been taken.

GUMMOW J:   No, it is not.

MR McHUGH:   No, it is not.

GUMMOW J:   I am not sure if your colleague accepts that formulation. 

MR McHUGH:  My friend is agreeing with me that what they did was wrong in Blake, but that may be because we lost.  In any event, that is the approach that is taken.  So, the approach to contextual truth – and this is what his Honour the primary judge did – was to say (b), (c), (d) and (g) are true.  The particulars that supported that truth defence are so strong that when one comes back ‑ ‑ ‑

GUMMOW J:   But (g) is bound up with the notion of community values, is it not?

MR McHUGH:   That is so.

GUMMOW J:   But, not the others.

MR McHUGH:   Correct, correct.

GUMMOW J:   You say the Court of Appeal erred in pushing them together. 

MR McHUGH:   Yes.  What the Court of Appeal did wrong was to say ‑ ‑ ‑

GUMMOW J:   Well, treating them as having been pushed together.

MR McHUGH:   The Court of Appeal said, first of all, that community values was relevant to (b), (c), (d) and (g) – or at least that the trial judge set out to make it relevant to all of them and then his Honour failed by not taking into account in relation to any of them.  The submission is, well, it was only relevant to (g).  His Honour took it into account in relation to (g) and his Honour was correct to do so.  So, that is where that ends.  That was ‑ ‑ ‑

HEYDON J:   When you say Blake, do you mean John Fairfax v Blake (2001) 53 NSWLR 541?

MR McHUGH:   Yes, your Honour, I do.  I am grateful to your Honour.  That was all I wish to say about truth.  That brings me only to this last point – the one in paragraph 31.  My friend made a general submission that seems to be pitched at the level of policy about what one should permit the defendant – the media defendant – to do in this area.  He seemed to be suggesting that the defence has either been propounding it is novel or different or a change in the law and that the defendant ‑ ‑ ‑

GUMMOW J:   I am sorry, just before you leave truth, what do you then say about paragraphs 86 and 87 of the Court of Appeal:

findings of substantial truth proceeded on a false basis and cannot be sustained.

MR McHUGH:   That was what I debated on the last occasion.

GUMMOW J:   Yes.  It is then said well, they did not go ahead and apply what should have been done.

MR McHUGH:   Yes.

GUMMOW J:   How does that leave this Court?

MR McHUGH:   This Court should remit the matter on any version of it.  If your Honours are with me that the Court of Appeal erred in the approach taken to truth, then the matter would have to be remitted to the Court of Appeal to determine the truth defences, including the contextual truth defence, by reference to the evidence in light of whatever your Honours say is the correct approach to take.  Your Honours will recall that my friend’s submission in this Court ‑ ‑ ‑

GUMMOW J:   Just before you leave that, was there any – you can come back to that in a minute – was there any treatment of section 16 in the Court of Appeal’s reasoning?

MR McHUGH:   I do not think there is any substantial discussion of it at all because the whole point was that once I had lost the primary findings of truth I was gone for contextual truth.

GUMMOW J:   That will be another reason why it had to go back ‑ ‑ ‑

MR McHUGH:   Yes.

GUMMOW J:   I am sorry, I interrupted you.  You were going to attribute something to your opponent.

MR McHUGH:   My friend says in this Court as to the test to be applied that there is no values test at all.  Where I say it is community values, he says you do not get into values at all.  We just look at all the evidence and say is he disgraceful.  So that is really in relation to imputation (g) that is the matter upon which this Court would have to give some guidance to the Court of Appeal.  Then if the matter went back to the Court of Appeal they would then have to decide it in accordance with the evidence.  That is the submission. 

Now, I was coming to the point towards the end – the last paragraph in the submissions, paragraph 31.  My friend’s submission on this point really proceeds on the basis that I am trying to change the law whereas, of course, it is my friend who is trying to wind back the clock all the way to Norton v Hoare.

GUMMOW J:   You are both probably up to mischief actually.  We will not solve it by epithets like that. 

MR McHUGH:   No.  The only point I am making in this regard is that the law in Penton v Calwell stood there for 50, 60 years and it has not led to the mischief that my friend suggests at all as a matter of policy.  One of the reasons why is the decision in Kennett v Farmer that is referred to at the end.  I am not going to take your Honours into it but I remember one of your Honours – it may have been your Honour Justice Gummow on the last occasion took up with me the idea of a tit for tat exchange and Kennett v Farmer makes clear that when you are in that situation it is not response to attack at all.  The defence just does not apply because one cannot be said to be responding to an attack.

GUMMOW J:   What is the citation again?

MR McHUGH:   Kennett v Farmer [1988] VR 991. That is a basic proposition which is well accepted, so that there has to have been an attack and then a response and nothing more to it for the defence to work. Your Honours see the reference in the middle of my paragraph 31 to

Chesterton.  After that case came to this Court it went back to the Supreme Court for the hearing on defences and the defence that was run was response to attack and I appeared in the case and again at first instance before Justice McCallum and the response to attack defence failed, as happens very often for the mass media simply because, as her Honour found, there was no relevant attack.  So it is not as though the floodgates are going to open.  There is no change to policy and this case, Trad, is probably one of the few in which the media has actually succeeded in making out the defence. 

Now, if your Honours would just pardon me one moment, I just want to check something.  Unless there is anything further with which I can assist your Honours, those are the submissions for the appellant.

GUMMOW J:   Yes, Mr Reynolds.

MR REYNOLDS:   Your Honours, we did prepare some written submissions which my friend got last Friday.  The letter from the Senior Registrar said we did not have leave to file it but that counsel for the respondent should instead hand the submissions to the Court at the hearing.

GUMMOW J:   Yes, to see if the Court will accept them.  I mean, really, Mr Reynolds.

MR REYNOLDS:   Can I say this, your Honour, my friend has had them and ‑ ‑ ‑

GUMMOW J:   Yes, what do you want to say?

MR REYNOLDS:   ‑ ‑ ‑ put, whether rightly or wrongly ‑ ‑ ‑

GUMMOW J:   You get much further in this Court at this stage by some sharp oral submissions.  You know as well as any of us.

MR REYNOLDS:   I am going to come to that, but I need to know whether your Honours have got this document in front of you because ‑ ‑ ‑

GUMMOW J:   No, I do not have it in front of me.

MR REYNOLDS:   Well, may I have leave to file it in Court and rely upon it?  Can I say ‑ ‑ ‑

GUMMOW J:   Just a moment.  Yes, we will receive it insofar as it deals with malice and truth but not otherwise.

MR REYNOLDS:   Can I say this, apropos the issues your Honours are purporting to excise, that too is an issue which arises wholly on my cross‑appeal, namely, what might be called the Norton v Hoare point.  It is in my notice of cross‑appeal at page 1384 at line 33, nor did my learned ‑ ‑ ‑

GUMMOW J:   We have given our ruling, Mr Reynolds.

MR REYNOLDS:   ‑ ‑ ‑say anything about it.

GUMMOW J:   You are wasting more time.  I am sure you will manage to work Norton’s Case into it at some stage in these oral submissions which we want to receive.

MR REYNOLDS:   Can I just clarify one thing, your Honour, and that is, am I permitted to touch on the area of qualified privilege in my submissions to your Honours?

GUMMOW J:   We will see what they are first.

MR REYNOLDS:   Your Honour has raised the question of Mowlds v Fergusson and gave some perhaps encouragement to my learned friend in relation to what Justice Dixon said in that case.  Can I take your Honours to that.  This is Mowlds v Fergusson in (1940) 64 CLR 206.

GUMMOW J:   Now, what are we going to get out of this?  What do you seek to get out of reading us Mowlds v Fergusson again?

MR REYNOLDS:   The passage from Justice Dixon ‑ ‑ ‑

GUMMOW J:   Yes, we know the passage.  What do you want to say about it?

MR REYNOLDS:   It says, first of all, that notions of duty and interest here are a bit of Procrustes, that is the first thing.  The second thing, when one looks at Toogood v Spyring, what it is actually talking about are publications where the publisher’s interest is concerned and that one does not need to worry about the recipient’s interest nor about the notion of duty and it says when you actually go back and look at Toogood v Spyring, that is what it is saying.  Thirdly and importantly, he then emphasises the fact that in Toogood v Spyring it talked about the publication being fairly made and he emphasised that.  Fourthly, he then goes on ‑ ‑ ‑

GUMMOW J:   He used the phrase “commensurate”, did he not?

MR REYNOLDS:   He also said that as well and ‑ ‑ ‑

GUMMOW J:   Well, does that not help you?

MR REYNOLDS:   I am sorry, your Honour?

GUMMOW J:   Does that not help you?

MR REYNOLDS:   It does, so does fairly made, and so he then goes on ‑ ‑ ‑

GUMMOW J:   Well, why are we dealing with it now?

MR REYNOLDS:   Because it helps me.  He then goes on to talk about the restatement which then has a number of features about reasonable belief and reasonable expectation.

GUMMOW J:   We know all that, that is why I put what I put to Mr McHugh an hour and a half ago.

MR REYNOLDS:   Well, I am perhaps mistaken where I thought that your Honour was encouraging my learned friend and saying that this was a passage which probably assisted him rather than the reverse.  What I am saying is when one looks at this, one is here dealing not with duty and interest, which just does not fit, it is a complete bed of Procrustes in this area and most situations, but Justice Dixon is here headed towards the notion of mere protection of interest and then overlaid on that extra requirements of fairly made and then reasonable expectation and requirements of reasonableness.  So far from assisting my learned friend on the notion of duty and interest, it does not help him at all, I submit.

GUMMOW J:   I think we understand that.

MR REYNOLDS:   Thank you, your Honour.  I am sorry to ‑ ‑ ‑

GUMMOW J:   We often refer, to counsel on the other side, to a passage to give them warning of what we are thinking.  You have been here often enough to know that.

MR REYNOLDS:   Well, your Honour, I feel a lot better about Mowlds v Fergusson in the light of what your Honour has just said to my learned friend.  If I can give your Honours this reference, there is also the latest restatement, not the one Justice Dixon was quoting from, it says – this is paragraph K of the comment on section 594B – it talks, apart from the analogy of self‑defence, to publication in an appropriate manner of what the publisher reasonably believes to be necessary ‑ ‑ ‑

GUMMOW J:   That is now infused with constitutional doctrines in the United States, is it not, for common law?

MR REYNOLDS:   To some extent, your Honour, that is true.  If your Honours go to the actual passage from the restatement that Justice Dixon was quoting from in 1940 at pages ‑ ‑ ‑

GUMMOW J:   That is the first restatement before all the constitutional breakout.

MR REYNOLDS:   Quite.  At pages 246 to 247, that talks about whether the publication was reasonably necessary to defend itself.  So we would submit Justice Dixon is really saying there is a problem here and this notion of response to attack does not fit within duty and interest.  Toogood v Spyring is being misread.  Actually, it is talking about protection of interest with overlay of various factors of fairness and reasonableness.  That is a point – can I give your Honours just a reference.  I did not expect to be allowed to address your Honours, but Professor Cornish in the latest Oxford History refers repeatedly to a book by Paul Mitchell called The Making of the Modern Law of Defamation.

GUMMOW J:   Yes.

MR McHUGH:   Your Honour, I object to this.  It is outside the leave.  My friend has not said anything in his and we have had no notice ‑ ‑ ‑

GUMMOW J:   Yes, Mr McHugh.  Just sit down for a minute.  Just give us the reference to Paul Mitchell.

MR REYNOLDS:   There is a chapter on qualified privilege at page 145 and I direct your Honours in particular to what is said at page 153, particularly at about point 3 where it talks about where a party acts fairly and bona fide in the prosecution or of his own interest. 

GUMMOW J:   All right, now let us get on to something else like truth and malice.

MR REYNOLDS:   Your Honours, that is, I think, all I wanted to say about that issue.  As far as malice is concerned we have dealt with that in our written submissions.  First of all dealing with the malice, the knowledge of paucity by Mr Glasscock, this is at paragraphs 11 and 12 where we make a number of points there, particularly in paragraph 12, about the case being run not off the pleadings, because the matter was pleaded, but we are talking here about an absence of particularisation.  We point there to the passages from Water Board v Moustakas, which say that in deciding whether or not a point was raised at trial no narrow or technical view should be taken. 

We point out that if this matter had been raised by Mr McHugh at the trial the trial judge had a discretion.  We refer to Douglas (1983)] 3 NSWLR 126. The trial judge would have had a discretion to allow the amendment and given the relevance of this issue to issues currently on the pleading, including the issue of reasonableness, which my learned friend had pleaded, then inevitably the matter would have been that the amendment would have been omitted.

As to implied malice we deal with that at paragraphs 13 through to 15 and I perhaps need not do more than refer your Honours to that.  We submit that the Court of Appeal did not, with all due respect, fully or properly analyse the relevant issues.  The final matter before I get to truth very briefly, my learned friend talked about whether there was any evidence that Mr Glasscock had been employed. 

Now, that is a matter which, for all his talk about matters not being taken in submissions, which I have not seen before, if your Honours are concerned about that then I would need to be able to check the evidence to see whether that is the case.  I would not have thought it was bona fide in dispute, with respect, but if your Honours are concerned about that I would like to be able to put in a note about the evidence on that issue.

BELL J:   I think Mr McHugh might have been making a rather more pointed observation in drawing attention to that, which is the entire landscape of the case might have been different had malice been particularised in the way that it is now suggested, would have been clear by the three lines at page 303 of the appeal book.

MR REYNOLDS:   Would your Honour pardon me for a moment.  We have given a series of references – this is in my document at paragraph 12 at about line 5 on page 4 – to where this issue has arisen on the transcript.  We submit the way it fell out at the trial, the debate between Mr Evatt and the trial judge became this, and your Honours can trace this through if you are interested in these references. 

That Mr Evatt says “Well look, either Mr Glasscock or Mr Morrison knew this was false, it has got to be one or the other”.  The trial judge then picks this up and says, in effect, “Well, yes, I can see that.  It is either Mr Glasscock misled Mr Morrison or Mr Morrison knew for other reasons that it was false and I follow what you are saying and that is the terms of the debate”.  Now, my learned friend instead of putting his hand up and saying “Now, hang on a moment.  If there is going to be a case about Mr Glasscock’s malice, even though malice is pleaded, it has not been particularised vis-a-vis Mr Glasscock”.  My learned friend did not do that.

The debate then continued and the trial judge then debating it with counsel again and again saying, in effect, well it has to be one or the other.  That is the summary that I would put to your Honour as to what happened on the transcript.  We would submit that that comes clearly within the statement in Water Board v Moustakas that this is a point raised at the trial.  It is within the pleading and no narrow view or technical view should be taken that the debate came down really only to two possibilities.  That is either Mr Glasscock is guilty of malice or Mr Morrison is.  There is not much more really that I can say about that, your Honours.

GUMMOW J:   What do you say about Dougherty v Chandler (1946) 46 SR(NSW) 375 to 376, as a statement of principle? I would not have thought you disputed it.

MR REYNOLDS:   This is at page 375?

GUMMOW J:   Yes, about 10 lines from the bottom of the page.

MR REYNOLDS:   Can I say this about that.  This is talking about a situation of multiple defendants and there was an argument years ago and it may or may not have been resolved that if you have – and it is probably connected with a notion of joint tortfeasors ‑ ‑ ‑

GUMMOW J:   Yes.

MR REYNOLDS:   ‑ ‑ ‑ but if you have multiple defendants there are cases that say well, if you prove malice against one of the publishers then you prove malice against the lot.  Now, my recollection, which may or may not be correct, is that cases have tended now to cast doubt on that proposition and that if you want to prove malice against any one defendant then you have to prove that that particular defendant, per medium of his servants and agents, was guilty of malice.  But we would submit that it is a red herring here.  What is being asserted here by my client is that Mr Glasscock is a servant or agent of Harbour Radio and he is guilty of malice and we are not talking about multiple defendants at all. 

KIEFEL J:   But you are somehow implanting his knowledge into the publisher, into Morrison’s mind.  I just do not know quite how you get there.

MR REYNOLDS:   Not into Mr Morrison’s mind at all.  I am saying that he is Harbour Radio’s servant or agent and therefore his malice is the malice of the company and the company can only act by its servants or agents.

KIEFEL J:   But he is not the publisher.  He might have knowledge about whether or not something is accurate, but he is not the publisher.  You have someone with knowledge and on the other hand someone who is publishing, and there does not seem to be the connection that you need.

MR REYNOLDS:   Well, I put submissions on the last occasion in relation to Webb v Bloch that he was responsible in law as a publisher within Webb v Bloch and I would merely be repeating that submission, but if one goes back to Webb v Bloch per Justice Isaacs the statement of principle there, we submit, would cover this situation, namely if someone passes information, and I use the analogy from Sims v Wran also, passes information to someone who you know is then going to broadcast the material then you are yourself a publisher in passing that information to them.

BELL J:   That is the significance of appeal book 303 at line 35 or 36 where there is the one reference, as I understand it, to Mr Glasscock presumably knowing that they would be repeated on air.  So it is that line in the appeal book.  You have given us a very large number of references in paragraph 12, but does it get any higher than that?

MR REYNOLDS:   That is the best passage, yes.  But it is more than that, I do not just say that as an escape route, your Honour, because that then becomes the debate here at trial.  It must be either Glasscock or Morrison and we would submit that it must have been clear to my learned friend at the trial that that is the case that was being put, they were the terms of the debate for the trial judge.  But that is probably the best passage, I agree.

BELL J:   The only passage that identifies that the basis is to have Glasscock as publisher on the basis that Glasscock was aware that his statement in a conversation with Mr Morrison was likely to be repeated on air.

MR REYNOLDS:   I would need to check, but I think that is right, your Honour.

BELL J:   Yes.

MR REYNOLDS:   I think that is right.

GUMMOW J:   Now, on the matter of truth, neither of you seems content with the Court of Appeal but for quite different reasons.

MR REYNOLDS:   That is so, your Honour, but what we have put including in our last document at paragraph 16 is a cri de coeur, but we hope a little more, and that is in relation to these imputations (b), (c), (d) and (g), and they are the relevant ones in the Court of Appeal’s judgment, we submit that before your Honours would remit the matter to the Court of Appeal your Honours would want to be satisfied that there really is, on the facts, a case here against this man that needs to be redetermined and if your Honours look through the reasoning, with respect, of the trial judge it is impossible to sort of grasp hold of an actual act that this man did which was, if I can put it generally, an evil act.  I mean, what did he do?  Did he hit a man over the head in the street with a hammer?  That I could grasp and I could say, “Well, I guess that is a disgraceful act,” and then say, “Well, yes, that will have to be remitted.”

GUMMOW J:   Is that an attack in a way upon the finding of these imputations in such loose terms?

MR REYNOLDS:   It is.  It is connected with that.

GUMMOW J:   As to the stamping of a person with a character description.

MR REYNOLDS:   It is.  When one traces this through and I ‑ ‑ ‑

GUMMOW J:   But we are stuck with it, are we not?

MR REYNOLDS:   Well, I submit not because your Honours have a discretion about this, I submit.  If your Honours reviewed the matter and, particularly, in the face of repeated challenges by my client to say, just tell us what are these base facts which you want the Court of Appeal to revisit, if there was a real case there – and we have asked for it again and again – all we get in the submissions is, we refer you to the half telephone book of material that was provided in the earlier submissions to the Court of Appeal. 

Now, if that was the case that there was a real issue to be tried in that regard, then maybe it should go back to the Court of Appeal – again, assuming we lose our other arguments.  But, we submit, that this case on truth comes apart in your hands like wet tissue paper.

HAYNE J:   But if that is so, that is because the imputation is framed as “The plaintiff is a disgraceful individual” rather than saying, “The plaintiff is a disgraceful individual because A to treble Z”  Who is responsible for that, Mr Reynolds?

MR REYNOLDS:   Your Honour, there is some truth in what your Honour puts to me, that the stage was set fairly broadly.  I concede that at first instance.  If you plead an imputation like that, then you are going, to some extent, to get what you asked for.  Assuming that - and I, with respect, I do not think I can put anything to your Honour which is in the slightest bit contrary to what your Honour has just put to me - assuming all that, that does not mean that the trial judge or the Court of Appeal is relieved from the obligation of making actual base findings of fact which will – or are capable of – justifying the proposition that a man is a disgraceful person.  That is the problem here.  We submit there are none of these base facts – the sort of thing that you get in this judgment at first instance ‑ ‑ ‑

GUMMOW J:   Well, (a) would be a base fact, would it not?

MR REYNOLDS:   But (a) was not pressed.

GUMMOW J:   I realise that.

MR REYNOLDS:   But that is what I am getting at.  It is this sort of flavour that Sheikh Hilali – who your Honours will have seen mentioned in the judgment makes a speech – and then it is raised by a journalist with my client and we then have a finding that he failed to condemn it and then the judge builds on that and says, well, having failed to condemn it, he must approve it and then having approved it, therefore, anything that Sheikh Hilali said in the speech, he approves of.  Therefore, he is on a par with Sheikh Hilali.  Therefore, if Sheikh Hilali did anything wrong, then he, too, is guilty.  It is this sort of reasoning.

KIEFEL J:   But, the “because” then becomes something like because he supports extreme views which are unacceptable in Australian society.

MR REYNOLDS:   Well, your Honour, again one needs to ‑ ‑ ‑

KIEFEL J:   I have not framed it as a pleader, but that is the kind of thing that you would be looking for that would take you straight to his actions and statements upon which there could be some kind of objective assessment.

MR REYNOLDS:   Perhaps, but even then you would need to say, well, this is what this man said about what Sheikh Hilali said and proceed from there, specifically, to identify an act which amounted to a specific act of approval of what he said.  You would then need to identify exactly what Sheikh Hilali said.  Even then, we would submit, you would not get anything hard that you could grasp hold of that could be used to justify these imputations.

But your Honours have got the sense of what I am attempting to convey is that – I mean, put another way, this is a bit of an advocate’s flourish, but sitting there now, I would suggest that your Honours could not

sit down, despite all the hours you have spent on this case, and write down three charges, in other words, of evil things that my client is said to have done.  Why is that, I ask?  The answer is because, despite all the time your Honours have spent reading these judgments, it is not apparent and it is not apparent because it is not there. 

That is the problem, is that I would submit this is, as I put to your Honour Justice Bell on the last occasion, it is very unfair on a man to wear – the damages in these defamation cases are, in terms of the sort of cases your Honours normally deal with, are very small beer.....with every hearing or rehearing that one gets in the Court of Appeal.  They go down from being small to very small down to absolute nothingness.  At any rate, your Honours have got a discretion.  My point is, we have repeatedly asked my learned friend to say what these acts are and he has not done it.  If the Court pleases, those are my submissions.  Could I just clarify whether your Honours want references to the evidence of Mr Glasscock being employed or being an agent of Harbour Radio or not, or to it not being in dispute?

GUMMOW J:   Yes.  What are we talking about?  How many references are we talking about?

MR REYNOLDS:   I do not know, your Honour, because it is the first time I have heard it today.  That is why I am asking.

GUMMOW J:   We will ask Mr McHugh if he is firm on this point.

MR McHUGH:   Your Honours, I have taken instructions, and I can put that it is not in dispute, that he was an employee.

MR REYNOLDS:   I am grateful for that.

GUMMOW J:   Thank you.  I do not think you need to put anything else in.  We will consider our decision in this matter.  The Court will adjourn until 10.15 am tomorrow.

AT 3.59 PM THE MATTER WAS ADJOURNED