John Fairfax Publications Pty Limited v Rivkin

[2002] HCATrans 353

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 2002

B e t w e e n -

JOHN FAIRFAX PUBLICATIONS PTY LIMITED

Applicant

and

RENE RIVKIN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 2002, AT 9.29 AM

Copyright in the High Court of Australia

MR W.H. NICHOLAS, QC:   If your Honours please, I appear with my learned friend, MR T.D. BLACKBURN, for the applicant.  (instructed by Freehills)

MR T.E.F. HUGHES, QC:   May it please your Honours, I appear with my learned friend, MR T.D.F. HUGHES, for the respondent.  (instructed by Gilbert & Tobin)

McHUGH J:   Mr Nicholas, we do not want to hear you at this stage on grounds 4 through to 8, but speaking for myself I think grounds 1 to 3 are hopeless.  That would set 200 years of practice and tradition on its face.

MR NICHOLAS:   Sorry, where your Honour is saying grounds 1 to 3, is your Honour ‑ ‑ ‑

McHUGH J:   In your draft notice of appeal, page 76.  Sorry, I should not – no, it is grounds 2 and 3, Mr Nicholas.

CALLINAN J:   Justice McHugh does not speak for himself; he also speaks for me in relation to that.

McHUGH J:   Grounds 2 and 3.  Ever since Fox’s Libel Act in 1792 which declared, perhaps wrongly, that the common law was that libel or no libel was for the jury – that seems an impossible contention.  It is true that a judge is entitled to express an opinion, but he is not to direct the jury that they are bound to find in terms of imputation.

MR NICHOLAS:   Your Honour, in light of what has fallen from the Bench, I will be very brief on this.  Our submission is this, that when you are dealing with a question of meaning, one is not dealing – except if it is answered favourably for a defendant – with a verdict question.  In the situations that have usually been the case before juries in libel matters, where both “meaning” and “defamatory” has been wrapped up in one and often it is part of a general question as to whether or not there will be a finding for a plaintiff, ie, a verdict question, that is to be distinguished from what is happening in cases such as this where what is being sought is the jury’s answer to the factual question as to whether or not a claimed meaning is conveyed, and it is either answered yes or no.

McHUGH J:   But that is a question for the jury.  How can the judge direct the jury that they are bound to find in terms of the imputation?  How could any counsel ask for that direction?

MR NICHOLAS:   Your Honour, our submission is – and we have indicated it in the papers – that where there is a situation that on the evidence the inevitable result must be – now, that is what is being put against us – that the jury must or are bound to find that on the text of the publication there is only one answer – that is the way ‑ ‑ ‑

McHUGH J:   No, it is unreasonable and the fact is it is a reasonably well‑established practice – I think the authority in this Court is Wilson v Peisley on damages – that notwithstanding that the verdict is set aside twice the court will not order a third trial.  The court will give way to the jury’s view as to what is reasonable.  Take Hocking v Bell.  There were four trials in Hocking v Bell.  No one ever suggested that the judge was bound to direct the jury that they had to find no negligence.  It was a question for the jury.  It is the same here.

MR NICHOLAS:   Your Honour, can I just put this, with respect.  It arises out of a submission in reply that was put by my friend, that when one is dealing with the second trial – so what happened is that the respondent in this case has taken his chance with the jury.  It went to the jury on the basis that it was properly open to them to answer the question yes or no, and the judge similarly directed them that it was properly open to them to answer yes or no, and so they did.  So the jury’s opinion have not been taken.  In this case all of the answers were adverse to my friend.  He then goes to the Court of Appeal.  They say that some of those answers were unreasonable and perverse; sends back for a second trial. 

Now, the question then is posed, what happens at the second trial?  Is the judge then going to be asked – and in the submissions in this application it is suggested that it might be appropriate, and I think “commonsense” was one of the phrases used by my friend.  As a matter of commonsense you would ask the trial judge in the second trial to give a direction to that effect.

McHUGH J:   Speaking for myself, I regard that as an utterly hopeless proposition.  A judge cannot direct the jury that they are bound to find the meaning.  The most that can be done is he can express his opinion.  I thought that was said by the Privy Council in Truth & Sportsman 34 SR (NSW), and if the jury return a verdict for your client, then Mr Hughes can go back to the Court of Appeal.  That is the constitutional tradition.  But judges cannot be telling juries that they must find a verdict for the plaintiff in a defamation action.  The most they can do is set aside the verdict on the ground that it was unreasonable.  If it happens enough times, then the Court of Appeal will give way.

MR NICHOLAS:   Your Honour, we have put what we want to put on the matter in our written submissions and I do not want to add any more to that.

McHUGH J:   Thank you, Mr Nicholas.  Yes, Mr Hughes.  We do not want to hear you on grounds 2 and 3, Mr Hughes, but what about the other grounds?

MR HUGHES:   We rely on what we have said in our summary but, in our submission, the issue determined by the Court of Appeal, namely that certain findings were unreasonable to the point of perversity, is not an issue that should attract a grant of special leave.  It is not shown that the court below, the Court of Appeal, applied any wrong test.  The court below applied the traditional test and in particular had regard to the text of the articles and to the fact that they regarded it as significant that a cardinal proposition put to the jury on behalf of the plaintiff, namely, “Why was he ever dragged into these articles?”, was not answered; not answered at all in my learned friend’s address to the jury.

McHUGH J:   Mr Hughes, no doubt it is not the sort of case that ordinarily a grant of special leave would be given, but when I read the notice of appeal my first impression was that this is unlikely to be a case in which leave would be granted.  But having read the articles, I have to tell you that I think that there is at least an arguable case that the Court of Appeal got some of these matters wrong, and there is enough of them – particularly if the matter is to go back for a new trial.  I mean, there is no doubt, I thought, in respect of the imputation in 3(d), “that the Plaintiff is a close associate of criminals” – it is very difficult to see how, given the terms of the article, the jury could find for the defendant on that matter.

MR HUGHES:   Yes.

McHUGH J:   The other ones seem to me arguable anyway that there was a case that the jury could find in favour of the defendant, which it did.

MR HUGHES:   In relation to some of the imputations, the Court of Appeal has said that there was a case as to which the jury could find in favour of the defendant.

McHUGH J:   I know.  If I was the trial judge, I do not think I would have much trouble in finding a verdict for you, on these counts, but the question is whether or not it was open to the jury to take that view.

MR HUGHES:   Your Honour, the question that we would pose for this Court’s consideration is whether any wrong test was applied by the Court of Appeal in determining what is in essence a factual legal question – a mixed question of fact and law.  Unless a wrong test is demonstrated as having been applied, it is, in our respectful submission, inappropriate for this Court to intervene.  Weight is lent to that argument by your Honour Justice McHugh’s tentative suggestion that if your Honour was a trial judge your Honour would find little difficulty in finding for the plaintiff on some of the imputations.  That is a factor not to be left out of account.  What error of principle, one asks – if I may be permitted to ask it rhetorically – is demonstrated on the part of the Court of Appeal?

McHUGH J:   Maybe it is a case for what I call our visitorial jurisdiction.  Sir Garfield Barwick used to say that every now and again one had to take up some cases where you would not ordinarily grant leave to see, although the intermediate court had stated the law, whether they had applied it correctly.

MR HUGHES:   One asks what evidence is there emerging from the Court of Appeal’s reasons to suggest persuasively that they applied the test inappropriately?  They propounded the test ‑ ‑ ‑

CALLINAN J:   Mr Hughes, from my own part I do not necessarily accept that that is the test.  What the Court of Appeal should do depends upon the meaning of section 75A of the New South Wales Supreme Court Act, which imposes a duty upon the court, I would have thought, indiscriminately with respect to both facts and law.  I am not too sure that all of this business about our being entitled to interfere, or indeed the Court of Appeal’s entitlement to interfere, is conditioned solely upon error of principle or error of law.

MR HUGHES:   I do not have 75A in my mind ‑ ‑ ‑

CALLINAN J:   Mr Hughes, it merely speaks about the duties and powers of the Court of Appeal.  It makes no distinction between fact and law.  I am not too sure that all of this business about judicial restraint may not have been carried much too far by courts of appeal, speaking for myself, in relation to factual matters.

MR HUGHES:   If that line of thought is followed to a conclusion, it will overturn ‑ ‑ ‑

CALLINAN J:   It would overturn perhaps Devries in which section 75A is not even mentioned, and it was an appeal from this court, from the Court of Appeal in New South Wales.  But I am merely stating a tentative view that I have.

MR HUGHES:   Yes.

McHUGH J:   The question of special leave cannot be divorced from this rather extraordinary procedure that you have in New South Wales now in which counsel have another address – or that is the direction that some of the judges think should be given, that counsel for the plaintiff should not only have first address but, although the defendant calls no evidence, the plaintiff should have last address as well.

MR HUGHES:   In our submission, the Court of Appeal decided, and correctly, that the trial judge’s discretion had miscarried in denying the plaintiff the opportunity of replying to the submissions.  Your Honours will recall that in the judgment of Justice Grove at page 55 his Honour regarded that error as having contributed to a miscarriage of justice.

McHUGH J:   I know.  That is why I said it is not merely a matter of looking at the article itself but it is also – the Court of Appeal’s verdict is associated with that particular point.  They ordered a new trial in respect of one imputation on which they thought the jury was open.  It might have even been two, but they certainly ‑ ‑ ‑

MR HUGHES:   More than that, but on the basis, I suggest, that is discernible from paragraph 110 of Justice Grove’s reasons.  The last sentence, your Honours, of paragraph 110.

McHUGH J:   Yes.

MR HUGHES:   Now, the question whether, in a case of this kind, involving this strange hybrid procedure, a plaintiff in the particular circumstances that have prevailed here should have a right of reply to the jury is a question essentially of practice and procedure for the Court of Appeal and it is not a question, in my respectful submission, that should engage the attention of this Court.

McHUGH J:   Again, I am inclined to agree with you, Mr Hughes, that if that was the only point, that it would not be a case for us to look at it.  It would be a matter for the State courts.  But they are all intermixed, these questions.

MR HUGHES:   Your Honour, with respect ‑ ‑ ‑

McHUGH J:   You say nought and nought does not make one.

MR HUGHES:   No, and, your Honour, if the question of whether I should have had a right of reply is not one that attracts special leave, your Honours have a decision of the court, in effect, because everything hinges, as between Justice Meagher and Justice Grove on Justice Grove’s reasons – your Honours have a decision of the court that the denial of a right of reply contributed to or constituted a miscarriage of justice.  If your Honours can momentarily recapture – I will try to help your Honours – the atmosphere of this trial.  A cardinal point upon which I went to the jury on the murder imputation was why has the plaintiff been dragged into this story at all if not to suggest ‑ ‑ ‑

McHUGH J:   The jury may have thought that he is a well‑known figure and it gave the article some interest and he was related in the sense of Wood was his employee.

MR HUGHES:   But, your Honour, the point that I would seek to make is that if I had had the right of reply, I would have been able to tell the jury that which Justice Grove discerned in his judgment, namely that my learned friend had made no attempt to answer that point.

McHUGH J:   Mr Hughes, you know better than anybody, for ever and ever plaintiffs have been addressing first in defamation actions, the defendant has not called any evidence and has the last address.

MR HUGHES:   That is a particular prescription in the rules with which I cannot quarrel.

McHUGH J:   Yes.

MR HUGHES:   My point is that there was no possibility or no occasion for the defendant to make an election under rule 34 and, therefore, the matter was at large for the exercise of a judicial discretion consistent with the requirements of justice.  The Court of Appeal has held ‑ ‑ ‑

McHUGH J:   How wide is this reply to be?

MR HUGHES:   A strict reply.

McHUGH J:   How is a judge going to control that?

MR HUGHES:   Presumably he can trust counsel to keep to the rules.  The whole system depends on that.  You cannot start by assuming that counsel will do what one famous counsel of the past did:  treat the rules as something to be cheerfully ignored.  The system depends upon adherence by counsel to the rules.

McHUGH J:   Yes, but they are rules under which issues are determined by pleadings and particulars.  Now you seem to want a reply to counsel’s arguments.

MR HUGHES:   Yes.

McHUGH J:   I am not sure that is easily done.

MR HUGHES:   The Court of Appeal – and your Honour has expressed a tentative view that this is not a special leave point – has ordained that in this case we were denied justice by being deprived of a right of reply.  Now, that is either a special leave point or it is not.  In my submission, it clearly is not.  It is a matter of practice and procedure which engaged the attention of the Supreme Court and not of this Court.  In fact, since this ruling 7A trials have proceeded on the basis that counsel for the plaintiff, in a case of this special kind when there is no evidence apart from the tender of the articles, should have a right of reply.  What is there in that, I ask rhetorically – by permission I hope – to affront a sense of justice?  It is plain justice that the onus‑carrying party, when the subsequent provisions of rule 34 are inapplicable, should have a right of reply in this unusual situation of a hybrid type of statutory trial which is not a real trial in the accepted sense.

So I come back to this.  The factors against the grant of special leave are that it is not demonstrated that a wrong test was applied in determining the issue of perversity.  It is not shown that their Honours, particularly Justice Grove, with whom Justice Meagher agreed, went wrong in reaching the conclusion that there had been a denial of justice because of the discretionary decision of the trial judge to deny me the right of reply.  In those circumstances, given that this case is now coming on for five years out from the publication of the articles complained of and given the further substantial delay that would be occasioned by an appeal to this Court, we submit that in all the circumstances there is no case for the grant of special leave.

I point out to your Honours that the cardinal propositions upon which this application was based – I disentitled my client to a new trial because I did not ask the judge for, in effect, a direction to the jury that they should ‑ ‑ ‑

McHUGH J:   As I have made it plain, there is no substance in that as far as I am concerned.  We did not want to hear you on that, Mr Hughes.

MR HUGHES:   In my submission, the circumstances to which I have alluded in the time that was available militate against the grant of special leave in this case.

McHUGH J:   Thank you, Mr Hughes.  Yes, Mr Nicholas.

MR NICHOLAS:   Your Honour, in relation to the rule point, my friend says he was denied justice in relation to his application.  The situation was of course that his application for a right of reply was made at the very outset of the trial and that was refused.  Then the trial proceeded, and the argument put against us is that there were matters that he would wish to respond to arising out of the submissions on behalf of the publisher.  There was no restriction upon him making that application again under Part 34 rule 6(1).  There is quite plainly a discretion vested in the court to grant that if the circumstances warranted it.  But there was no application at the end of the trial for that.

Your Honour, with respect, is correct in recognising that the various matters, which we have referred to in our application, are intermingled in the way in which the Court of Appeal has come to their conclusion.  That is very plainly illustrated by the concluding paragraphs of Justice Grove’s judgment.  If I can take your Honours to it.  They appear particularly at paragraph 109 on page 54.  It says:

The persistently negative answers by the jury to all questions whether an imputation had been conveyed were therefore in my opinion perverse in respect of those above identified emerging from the AFR article and the first Herald article and on the true innuendo case but not perverse in respect of others above identified and alleged to emerge from the same publications.  None of the negative answers in respect of the second Herald article was in my opinion so perverse.

Pausing there, your Honours, at page 86 is the table which will illustrate that I think it is about 60 per cent of the imputations that were under challenge the jury’s answers were upheld by the Court of Appeal.  Of course in the third article, the Sydney Morning Herald article, the jury’s answers were upheld in toto.  His Honour then, as he, with respect to him, needed to do, was to find where did the jury go wrong.  This seems to indicate his approach in 110:

The question then arises as to whether a new trial should be ordered in respect of only those imputations in respect of which perversity of answer has been found.  Even where the negative answer has not been found perverse in relation to a pleaded imputation, there were nevertheless arguments capable of supporting the appellant’s contentions (including contentions supporting the pleaded imputations alleged to arise out of the second Herald article) and the refusal of the application for an address in reply (or the alternative of change in the order of address) must contribute to a determination whether there has been miscarriage attracting an order for new trial on some or all of the answers.

That comes at the end of his Honour’s judgment, where his Honour had undertaken an exercise of evaluating the competing submissions of counsel as put before the jury, and in a number of his paragraphs he dealt with it in the terms of a contest.  The contest was this, and the plaintiff’s counsel put that, and the defendant either did or did not reply to it, and then an

expression by his Honour as to the view that he preferred.  Then he led on, in 111, your Honours:

The appellant (expressly in ground 2) sought to attach significance to the aggregation of negative answers.  In the case of a number of these I have concluded that they were unacceptable in any of the terms of the tests as they have been expressed from time to time.

And importantly, with respect:

It is not open to speculate upon why the jury may have persistently returned these negative answers.  The issue of whether a meaning is conveyed by a matter complained of and whether it is defamatory does not involve assessment by the tribunal of fact of any matter touching upon the persona or reputation of a plaintiff, the truth of the imputation, privilege or other matters previously dealt with in a “complete” libel trial but in the circumstances, that is to say constant rejection of the cause of a litigant in many cases in defiance of reasonableness, it is apt to conclude that the jury has misapplied itself to its task.

It is difficult to understand how his Honour, in that context, is referring to “constant rejection”, et cetera, where well over half of the imputations asserted to be perverse on appeal were upheld by the Court of Appeal.  But that seems to be a theme going through, as giving some indication of perversity, the explanation for which is left completely unstated.  Finally, your Honours, it was suggested that no wrong test has been demonstrated.  We would say in response to that ‑ ‑ ‑

McHUGH J:   Quickly.  Your time is up.

MR NICHOLAS:   Your Honour, what is perfectly plain is that the Court of Appeal proceeded without regard to the manner in which the jury were directed by the trial judge, that is to say that they were directed to the effect that it was properly open for them to answer either yes or no.

McHUGH J:   There will be a grant of leave in this matter on grounds 1, 4, 5, 6, 7 and 8 of the draft notice of appeal set out at pages 76 to 77 of the application.

MR NICHOLAS:   We ask for costs, your Honour.

CALLINAN J:   You are a bit premature.

McHUGH J:   You are a bit premature.  Applicants never get costs.  They are costs in the appeal.  Respondents get costs on special leave applications, not applicants.

AT 10.00 AM THE MATTER WAS CONCLUDED